Wednesday, August 18, 2010

Why All The STL Critics Are Wrong.




Let us be clear, from the outset, that there is no institution, official or person anywhere in the world that is to be held immune from criticism especially when the subject has betrayed and/or violated the principles with which they have been charged. But to be accused of having committed an act that the subject has not done is the epitome of injustice and demagoguery.

It seems to have become fashionable among Lebanese individuals, politicians, the media and political parties to never let an opportunity go by without making a statement about how biased, politicized and Israeli the Special Tribunal for Lebanon,STL, has become. Usually the only supporting documents for such accusations are often limited to a rehash of the undocumented charges that the STL has leveled accusations that are based on false witnesses.

Any investigation of the record would reveal that there is no justification whatsoever for the above position. There is no basis in fact for any of these accusations. After the horrid planned explosion that killed Rafic Hariri, the former Prime Minister of Lebanon and 22 other individuals a one month (Feb. 25 – March 24, 2005) fact finding mission was set up by the United Nation and headed by Peter Fitzgerald. This was later followed by the creation of the United Nations Independent International Investigation Commission, UNIIIC, whose function was to help the Lebanese authorities investigate the deadly explosion of February 14, 2005. The UNIIIC was established on Apr. 7, 2005 through Security Council resolution 1595. Mr. Detlev Mehlis was put in charge of this Commission that proceeded to issue two reports under his tenure ship that ended at the end of 2005. The first report by the UNIIIC, released on October 20, 2005, summarized the progress on the investigation by stating the belief that such a sophisticated operation was a few months in the planning and that it could not have conceivably been carried out without the knowledge of both the Syrian and the Lebanese security services who were known for their almost total and complete control on Lebanon at the time. Yet it is crucial to note that the report ended by stressing that all parties are entitled to the presumption of innocence until proven guilty. The UNIIIC did not indict anyone but merely reported what its investigations have uncovered. A second progress report was issued by the UNIIC ,still under the leadership of Mr. Mehlis on Dec. 20 2005 in which the commission stressed that it is continuing its line of inquiry and that it is also reassessing in order to ”close out any lines of inquiry which no longer have a direct bearing on the case”. This was the last report by Mr. Mehlis who resigned and was replaced by Serge Brammertz who issued the third progress report of the UNIIIC on March 16, 2006 in which he made it clear that the commission was investigating those who have deliberately misled the investigation.
The UNIIIC continued to issue its periodic reports under the leadership of Mr. Brammertz until he resigned effective January 1, 2008 when Daniel Bellemare was appointed as a replacement until the expiration of the UNIIIC mandate at the end of 2007.

Meanwhile the United Nations Security Council had established the Special Tribunal for Lebanon upon the request of the Lebanese state. The Security Council did so under chapter 7 of the United Nations Charter. The negotiations between Lebanon and the United Nations determined the structure that would become the STL: a Registry, Chamber with a pretrial judge, and a Prosecutor. The selection committee had recommended that Mr. Bellemare be appointed as the prosecutor for his familiarity with the details of the investigations that had been carried so far both by the Lebanese authorities and by the now defunct UNIIIC. But it is important to note that when the STL was established the UNIIIC had ceased to exist.

The STL became operational on March 2009 and that was when the Pretrial judge, an independent international jurist who is not a member of the Chamber, exercised his authority to review the evidence upon which the Lebanese authorities had held individuals in this case in custody. The Pre trial judge determined, at the earliest period possible, that the 4 generals held in custody should be released for the lack of evidence against them. Up until this moment the STL has not issued any indictments of anyone and has not made any accusations or issued any other rulings on this matter.

Based on the above, admittedly condensed and brief reading of the developments it is clear that:

1. There is a clear and distinct separation between the UNIIIC and the STL.
2. The Lebanese public and the media have failed to make that distinction.
3. UNIIIC was established to help investigate. It could not and did not issue indictments.
4. The Prosecutor of the STL happens to be the same individual who led the UNIIIC as its mandate expired. This, however, does not make the UNIIIC an organ of the STL.
5. The STL has developed a sophisticated set of rules under which to operate including a detailed account of the rights of the accused, and an independent Pretrial judge to review and approve indictments.

It should be obvious, based on the above that the barrage of daily accusations notwithstanding, there are no legal, rational or logical grounds to besmirch the integrity of an organization by constantly making allegations to which it is not even peripherally connected. The common complaint that the STL anchored its case to the testimony of false witnesses is patently false as the STL did not exist when the issue of false witnesses surfaced and since it must be also emphasized that the UNIIIC was aware of the false witnesses and said so in its reports. The UNIIIC, just like any credible investigator had a duty to weigh the evidence as it appeared and consequently to decide whether to use the evidence or not.

In an effort to get as much clarity as possible on this case a question was submitted to the STL spokesperson, Ms. Issawi, whose response is very informative and revealing:

“With regard to the relationship between the United Nations Independent Investigation Commission (UNIIIC) and the Special Tribunal for Lebanon (Tribunal), you are right to treat them as two distinct institutions. UNIIIC is separate from the Tribunal, which only began operating on 1 March 2009. UNIIIC’s mandate, according to United Nations Security Council Resolution 1595 of 7 April, 2005, was to assist the Lebanese authorities in their investigations in collecting information and evidence, but not to conduct prosecutions. Conversely, pursuant to Article 10 of the Tribunal’s Statute, the Prosecutor is responsible for the investigation and prosecution of persons responsible for the crimes falling within the jurisdiction of the Tribunal. Following the Pre-Trial Judge's deferral order of 27 March 2009, the Tribunal now has primacy over the case and thus the legal framework is completely different, since the Prosecutor now has lead over the investigation. As such, the Prosecutor can use information and evidence collected by UNIIIC, in accordance with the Rules of Procedure and Evidence of the Tribunal."

21 comments:

Anonymous said...
This comment has been removed by a blog administrator.
Tim said...

Ghassan,

Great job. Keep up the wonderful job.

Cathy said...

Ghassan good article, but when you say that the UNIIC didnt indicte anyone, they did allure that Syria was mainly behind it and it was no other than BUSH jr who asserted their innocence afterwards.

who knows, maybe the syrians were behind it but concluded some pact with the US behind Lebanon’s back.

honestly, I dont trust anyone, including the newly formed STL.

ghassan karam said...

The above two comments plus 10's of other comments appeared originally on yalibnan.com

George said...

This is a wonderfulargument that should be usedby many especially the Maech 14 people. Excellent job.

Robert said...

But Ghassan, why do you fail to mention when you say Mehlis “decide to remove himself” that he is being sued and was accused by european independant investigators of misleading the investigation?

why do you fail to mention the connection between Mehlis, Brammertz and Mr. John Bolton, the former U.S. ambassador to the U.N. who everyone knows about his strong zionist/pro-israel stand and AIPAC relation? so you shouldn’t count the israel connection to the UN as laughable.

I understand you say that they are 2 separate entities but they are not entirely separate.

you mentionned the prosecutor of the STL was leading the UNIIC before its mandate expired.

How can you say, with total certainty, that they are completley separate and independant then?

Also, didn’t the UNIIC hand over any of the evidence to the STL for it to continue its inquiry and indictment?

I am afraid to say, that even if your article is well written and sheds light on the differences, you are missing major points that completley change perspective.

Joe M. said...

Ghassan,
I hate to continue this argument on your blog too, but your article above is extremely disingenuous (if not utterly false). There are many levels of inaccuracy involved in your argument, but let me focus on just the most obvious:

1)"There is a clear and distinct separation between the UNIIIC and the STL."

While you have convinced me that the documents that established the tribunal v. the commission give the two bodies different powers, you fail to understand the devastating relationship between the two mandates.

At least, that the person of the investigator has now become the formal prosecutor in an impending legal trial is corrupt, do you not see that? In most countries of the world, an independent branch of government conducts the investigation and then the information is given to both the prosecution and defense, whereby they argue their cases in front of an impartial judge and jury. In this tribunal, the investigator is also the prosecutor, giving the investigator an opportunity to (a) better know the evidence, (2) manipulate which evidence is included in the trial, (c) essentially decide who to prosecute by the nature of the investigation...

By analogy, in the USA, the police investigate, and the district attorney prosecutes. They often work together, but very strong appeal laws and powerful rights to have trials thrown out work to balance out this lack of independence (and many still do not think it is independent enough). I would expect one or the other in the tribunal/commission, but I see neither.

Also, what about the relationship between investigator and judge? Take the tribunal’s response to Hizbullah’s latest evidence. In an independent system, you would expect the investigatory phase to have finished by the time the tribunal was established (in order to insure they don’t corrupt each other). But the tribunal asked for Hizbullah’s evidence to factor it into the possible indictments. Is that how you would expect an independent organization to act?

It now appears that the tribunal is responsible for investigating, issuing and judging the coming indictments! That implies that the tribunal itself is reviewing the evidence in order to issue indictments that it will then judge! Do you seriously consider that independent? And since I don’t know how they pick judges, who the judges are, the nature of the relationship between judges and investigators, or what the institutional relationship between the judging and the investigating are (you say there is a “a Registry, Chamber with a pretrial judge, and a Prosecutor,” but that’s not enough information). I feel that this expanded mandate may doom the entire enterprise.

Also, if there was such a "clear and distinct separation," and if you want me to believe that the tribunal should be trusted, please tell me how many commission employees were held over and currently work on the tribunal? How are the judges for the tribunal chosen and who are they? How much (and how) of the commission’s investigation is being used/manipulated by the tribunal to make the indictments v. outside information?

These are the questions that would help prove independence, not just that the documents say they have different mandates. In fact, as I said above, changing the mandate is likely to actually corrupt the independence of the tribunal (not the other way around). And while I will admit that freeing the generals was a sign of some difference between the tribunal and the commission, it may simply a difference in mandate, rather than a show of independence. At least, it’s an open question.

My point being, I think you are significantly overreaching when you say things like, “there is no justification whatsoever” or that “There is a clear and distinct separation” or “It should be obvious ... that there are no legal, rational or logical grounds to besmirch the integrity of an organization” or other such statements.

Joe M. said...

Ghassan,
I hate to continue this argument on your blog too, but your article above is extremely disingenuous (if not utterly false). There are many levels of inaccuracy involved in your argument, but let me focus on just the most obvious:

1)"There is a clear and distinct separation between the UNIIIC and the STL."

While you have convinced me that the documents that established the tribunal v. the commission give the two bodies different powers, you fail to understand the devastating relationship between the two mandates.

At least, that the person of the investigator has now become the formal prosecutor in an impending legal trial is corrupt, do you not see that? In most countries of the world, an independent branch of government conducts the investigation and then the information is given to both the prosecution and defense, whereby they argue their cases in front of an impartial judge and jury. In this tribunal, the investigator is also the prosecutor, giving the investigator an opportunity to (a) better know the evidence, (2) manipulate which evidence is included in the trial, (c) essentially decide who to prosecute by the nature of the investigation...

By analogy, in the USA, the police investigate, and the district attorney prosecutes. They often work together, but very strong appeal laws and powerful rights to have trials thrown out work to balance out this lack of independence (and many still do not think it is independent enough). I would expect one or the other in the tribunal/commission, but I see neither.

Also, what about the relationship between investigator and judge? Take the tribunal’s response to Hizbullah’s latest evidence. In an independent system, you would expect the investigatory phase to have finished by the time the tribunal was established (in order to insure they don’t corrupt each other). But the tribunal asked for Hizbullah’s evidence to factor it into the possible indictments. Is that how you would expect an independent organization to act?

It now appears that the tribunal is responsible for investigating, issuing and judging the coming indictments! That implies that the tribunal itself is reviewing the evidence in order to issue indictments that it will then judge! Do you seriously consider that independent? And since I don’t know how they pick judges, who the judges are, the nature of the relationship between judges and investigators, or what the institutional relationship between the judging and the investigating are (you say there is a “a Registry, Chamber with a pretrial judge, and a Prosecutor,” but that’s not enough information). I feel that this expanded mandate may doom the entire enterprise.

Also, if there was such a "clear and distinct separation," and if you want me to believe that the tribunal should be trusted, please tell me how many commission employees were held over and currently work on the tribunal? How are the judges for the tribunal chosen and who are they? How much (and how) of the commission’s investigation is being used/manipulated by the tribunal to make the indictments v. outside information?

These are the questions that would help prove independence, not just that the documents say they have different mandates. In fact, as I said above, changing the mandate is likely to actually corrupt the independence of the tribunal (not the other way around). And while I will admit that freeing the generals was a sign of some difference between the tribunal and the commission, it may simply a difference in mandate, rather than a show of independence. At least, it’s an open question.

My point being, I think you are significantly overreaching when you say things like, “there is no justification whatsoever” or that “There is a clear and distinct separation” or “It should be obvious ... that there are no legal, rational or logical grounds to besmirch the integrity of an organization” or other such statements.

Joe M. said...

* And further, though I won’t go into it in detail (because it’s self-explainatory), it is extremely damming that the Lebanese state is a party to the tribunal while the son of the deceased is prime minister. Particularly, considering that the tribunal documents seem to provide the Lebanese state with significant leeway on things like picking judges and such. There is no doubt whatsoever that this greatly compromises the independence of the entire enterprise.

Joe M. said...

my part "(c)" above should say that it essentially makes the investigation part of the prosecution, which is very dangerous by definition. (for reasons i am sure you understand)

ghassan karam said...

JOE,
ISorry for the delay in responding to your post but I had to attend a function over the past five hours or so.
I am not is serious disagreement with two of the issues that you bring up. (1) I have stated that before more than once, I believe that the Secretary General of the UN should not have appointed Bellemare as the prosecutor. He did so because that was the recommendation of the seection committee and because it made sense to appoint the person who is the most familiar with the case. Yet I am of the opinion that thie mistake does not rise to the level of becoming a fatal error as to justify the belligerent attmpts to de legitimize the whole process.

920 As you might remember from other posts I am not a fan of Sa'ad Hariri. I happen to think that he is not qualified for the job but even if he was we have to move away from this vicious cycle of father to son in all parties, Gemayels, Arslan, Jumblatt , Salam, Karami etc...
As for the structure of the STL, I admit that I should have explained it in more detail but as you also well know there is a limit to how much one can say in 1000 words. I do not think that there are any major flows in the structure of the STL. The rights of the accused appear to be very well protected and the whole system of who is to do what is clearly spelled out.

Anyway Joe, I hope that all of this will be behind us without its causing serious tension between the parties, the country is already in an uneasy balance.

Joe M. said...

Ghassan,
There are few people who think that Sa'ad Hariri is qualified to be a garbage collector, let alone prime minister. but that wasn't my point in bring him up.

The point i was making is that the Lebanese state is party to tribunal. the tribunal uses lebanese law, works with and cooperates with the state... many members of the tribunal are employees of the state. And that would not necessarily be corrupting to the tribunal if there was a prime minister who was independent. But to have the son of the deceased also have a major role in the tribunal is the opposite of independence. And is enough reason to call the whole operation into question.

Also, while the appointment of Bellemare is a problem of independence, the bigger question is how many other employees of the commission now work for the tribunal. That Bellemare stayed on is reason to believe that there are others who did too. if you want to say that the tribunal is different than the commission, well, let's see the employee records. because, to simply change the mandate of an employee from "investigator" to "judge" does not make them independent.

ghassan karam said...

Joe,
I did not misunderstand your point about Sa'ad. I guess I was saying that he shouldn't be there under any circumstance including that of qualifications.

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