Little surprise in Hariri assassination probe

A powerful car bomb killed former Lebanese prime minister Rafik Hariri and 21 others in 2005 [EPA]

The Special Tribunal for Lebanon (STL) recently released the text of the indictment against the four accused of participating in the Rafik Hariri assassination, outlining the evidence gathered by the prosecutor’s office to make their case.
 
Mustafa Amine Badreddine, the alleged “overall controller” of the attack; Salim Jamil Ayyash, the alleged “coordinator” of the assassination team; Hussein Hassan Oneissi, and Assad Hassan Sabra, who together allegedly “prepared and delivered the false claim of responsibility video”; are all said to be affiliated with Hezbollah, and worked within a network of overlapping teams to coordinate and execute the assassination, which killed the former prime minister of Lebanon, along with 21 others, in an explosion in Beirut on February 14, 2005.
 
Relevance of circumstantial evidence
 
Daniel Bellemare, the prosecutor in the case, began the report by highlighting in paragraph 3 of the preamble that “the case against the Accused is built in large part on circumstantial evidence”.
 
Yet, as Dr Nadim Shehadi, associate fellow on the Middle East Programme at Chatham House, explained to Al Jazeera, this does not weaken the case, especially as Bellemare immediately went on to say, “circumstantial evidence, which works logically by inference and deduction, is often more reliable than direct evidence, which can suffer from first-hand memory loss or eye-witness distortion”.
 
Dr Shehadi added: “Circumstantial evidence does not weaken the case, and as long as the process continues, the object of the tribunal is to create a process in accordance with international law and justice.” 

“If the result is negative, it does not mean the tribunal has failed. Even if the tribunal says these people have been arrested and tried, and the charges have not been proved, then it still has not failed.”
 
But according to Dr Omar Nashabe, an expert in criminal justice and head of the research unit at Al Akhbar newspaper, while circumstantial evidence can be reliable in court, the source of the information used to deduce the circumstantial evidence – in this case – is controversial; that of “co-location”, where cell phones constantly used in close proximity are assumed to be used by the same person, and “attribution”, where an individual is identified as the carrier of a specific phone. He told Al Jazeera:

“It is mainly based on telecommunications, and this is a controversial source of evidence because in the past there have been official reports by both the Lebanese governments and international telecommunications networks that show infiltration and tampering of the cellular networks in Lebanon by suspects who are Israeli agents, or who work for the interests of the Israeli intelligence. Therefore the so-called evidence of the telecoms network is controversial, and will be heavily scrutinised by the defence when court procedures start.”

Since mid-2009, the Lebanese authorities have arrested approximately 70 people on suspicion of working with the Israeli intelligence services. By July 2010, they had arrested two Lebanese nationals working specifically within the telecoms sector on charges of spying for Israel. According to security officials at the time, one of those arrested, Tarek Rabaa, a telecoms engineer with Alfa, is said to have been in contact with Israeli intelligence since 2001.

Charbel Nahhas, former Lebanese minister of telecoms, said in a press conference at the time that this was the “most dangerous espionage act in Lebanese history”. A few months later, following an international conference on telecoms held in Mexico, Nahhas pointed out that a further investigation had demonstrated that Israel has had access to telecommunications-related data in Lebanon “for quite some time” and has had the capabilities of altering and manipulating it.

“Therefore, the problem is not with the nature of the evidence, but rather with the source,” said Dr Nashabe. Furthermore, the uses of “co-location” and “attribution” as methods are not necessarily enough to stand on their own. “There needs to be additional cross-referencing with other information, such as witnesses, but this is not mentioned in the indictment.”

“In my opinion, this won’t stand in court. It is weak, especially for the high standards of an international court of law.”

However, there are some who consider the evidence to be convincing. Dr Paul Salem, director of the Middle East Centre at the Carnegie Endowment for International Peace, has found the court to be credible in its findings from the start of its investigations.

“My impression from the beginning is that I generally trust the STL. I don’t feel it is fabricating evidence,” he told Al Jazeera. “I am impressed with the detail of the investigation,” he said, referring to the uncovering of the phone networks.

“It is definitely positive that the report has come out. One of the complaints beforehand was that the STL was producing nothing, so the fact that it has now become public proves they have done work,” he said.

Political stances lead to lack of objectivity

For quite some time now, the question of the court’s neutrality has been a point of contention within the Lebanese political sphere. Hezbollah has continually stated the court was merely a tool being wielded by the United States and Israel to bring down the party, and to serve the interests of Israel.

The court responded to these allegations, claiming them to be ridiculous. In an August 2011 statement released by Judge Antonio Cassese, president of the STL, he asserted: “All those working for the Tribunal are doing their job with full independence and impartiality. Any claim that the Tribunal is under the influence of some countries is simply preposterous.” The aim of the tribunal is to seek out who assassinated Hariri, “while upholding the highest international standards of criminal law”.

To some, however, the wording within the indictment can only be interpreted as political, and thus lacks any impartiality.

One such example can be found in Paragraph 59 of the indictment. Here, Bellemare stated: “All four accused are supporters of Hezbollah, which is a political and military organisation in Lebanon. In the past, the military wing of Hezbollah has been implicated in terrorist acts.”

“This should say ‘allegedly’ implicated in terrorist acts,” said Dr Nashabe. “There is no international court that gave a verdict stating Hezbollah was involved in terrorism. In fact, there is no international consensus that categorises Hezbollah as a terrorist organisation.”

Until today, there is no UN position on the resistance movement as a terrorist organisation. Several countries, including the United States, Israel, and Canada have officially labelled the group as a terrorist organisation – though the European Union, notably, has not.

“Is this considered professional, and does this meet the highest standards of international criminal law?” asked Dr Nashabe.

Furthermore, the STL is the first international tribunal set to indict someone for a terrorist crime. “One would think after everything that has happened, any tribunal of this sort, they would target al-Qaeda, for 9/11,” observed Dr Nashabe. “But instead, the first indictment in terrorism targets Hezbollah, instead of al-Qaeda.”

“This is because Hezbollah is a threat to the security of Israel. There is a fact, a reality, that for the US and Western powers, it is absolutely unacceptable to threaten the security of Israel.”

Political games and transparency

Starting as early as 2006, leaks to the Western media started appearing. First in Le Figaro, then in Der Speigel in 2009, and then in a programme aired by the Canadian Broadcasting Corporation in 2010, details of the investigation and the published indictment were made public. Specific information on the telephone networks were revealed, as well as seeming connections to members of Hezbollah. The CBC report went so far as to claim that Hezbollah politicians were also involved.

These leaks brought into question the court’s credibility, which was further diminished by US diplomatic cables from Wikileaks, which described Bellemare asking for US assistance and a list of suspects, and New TV’s “hakika-leaks”, which aired recordings of the investigation team meeting with Saad Hariri and one of the key witnesses at the time, Mohammed Zuhair Siddiq, discussing elements of the investigation.

A recent poll conducted by the Beirut Center For Research on the public’s impression of the STL revealed that a large majority in Lebanon believed it to be “biased and non-transparent”. The poll found that 63.5 per cent of respondents doubted the credibility of the tribunal following the media leaks, two years ago, of the indictment’s contents.

“Politically speaking, this investigation has been moving very smoothly in parallel with political developments, mainly US foreign policy,” Dr Amal Saad-Ghorayeb, a political analyst in Lebanon, told Al Jazeera. “In 2008 we saw a rapprochement towards Syria, so Syria was dropped as the main suspect. Hezbollah’s name wasn’t really conspicuous until Syria’s name was dropped, and then it was used to drive a wedge between Hezbollah, Syria, and Iran.”

“Now that things got heated again with Syria, you’re seeing in the media, like in the recent Der Speigel article, that they’re bringing Syria and Iran back into the game,” she said.

According to Dr Saad-Ghorayeb, even the composition of the court is biased. “When you have the involvement of former CIA agents, such as Robert Baer, involved in the investigation, how can you claim it to be neutral?”

Robert Baer spent a considerable number of years at the CIA trying to capture members of Hezbollah.

Dr Shehadi, however, considers the US-Israel accusation to be an un-innovative campaign. “The Yugoslav tribunal was considered to be an American conspiracy by the Serbs, and that all the evidence was fabricated, but these arguments don’t fly,” he said.

For Dr Shehadi, the surprise following the release of the indictment was the lack of any type of physical repercussions. “There was such a build up of expectations that the release of the indictment would create a crisis, unrest, a civil war, but nothing happened.”

“These expectations were artificially built because they were part of a communication strategy to raise anxieties about the STL, where by a certain point the expectation of violence was used as a means to reinforce the argument that there is a trade-off between justice and stability,” he said. “This campaign failed, because the STL continued and the indictment was issued.”

March 14 versus March 8

The big bang anticipated from the release of the indictment resulted in a mediocre pop – which fizzled out soon after its publication, primarily because minds were made up long ago about whether or not to believe information coming from the STL.

“It’s not really going to have a dramatic impact, partly because the information was leaked previously, and also because the camps took their positions long ago,” said Dr Salem. “However, keep in mind, everyone is watching Syria. Those who wanted to use the tribunal as a main political weapon are now going to wait and see what happens with Syria.”

He went on to say that Saudi Arabia has been pressuring the Hariri-led Future Movement to cool down, while they wait to see what happens with Syria. “Saudi Arabia does not want trouble in Lebanon; they need it to be calm. There is so much for the Saudis to manage right now, so they’re leaning on Future to not do too much.”

Dr Saad-Ghorayeb disagreed with this analysis, claiming that Saudi Arabia and the US were working with a number of tactics in parallel. “The Saudis and the Americans have been heavily intervening in Syria, as well as pressuring Hezbollah through the tribunal. They are hitting out at this axis using different tools,” she said. “The tribunal is an extremely blunt instrument that has the power to unleash the Sunni street.”

According to Dr Shehadi, the March 14 forces have always maintained the same response to the tribunal. “March 14 are using the STL as an instrument for stability. They are saying that, even though we know who is guilty politically, we are dropping that and putting all our faith in the tribunal to come out with the results.”

“The other side is using the argument of instability and sectarianism. One side is saying justice ensures stability, whereas the other is saying this creates instability and will lead to civil war.”

Follow Nour Samaha on Twitter: @SamahaNour