Justice & politics in the Melhis Report

David Khairallah, Professor of International Law at Georgetown University, lectured at the GU's CCAS, back in January 2006'.This piece goes to the heart of the judicial politicking plaguing Lebanon today, and threatening a ...conflagration.

"Syrian hegemonic control in the post Taef period has generated deep popular resentment among Lebanese of practically all sects and segments of society. The fact that they entered the country to put an end to the blood shed and the civil war which plagued Lebanon for over fifteen years; that they have helped reunite and rebuild the army, and that for many years they were perceived as elements of stability by American and Lebanese officials, all that has given way in the collective Lebanese memory to the transgressions committed by the symbols of the Syrian hegemony in Lebanon. . 

The Hariri assassination has caused an angry uproar and created opportunities for many parties, inside and outside Lebanon, to seek concessions from, or settle scores with the Syrian regime.

In Lebanon, the majority within the Christian communities, especially among the popular leadership, already held a strong resentment to the Syrian presence. The death of Mr. Hariri, and the assassination attempt on Druze member of parliament Marwan Hamadeh before him, have alienated Sunna and Druze and turned their leadership, former partners and apologists for the Syrian presence, into the most vociferous enemies of the Syrian regime. 

 

Certain leaders and a powerful media have effectively translated resentment of the Syrian hegemony into Syrian responsibility for Mr. Hariri’s murder.  Mr. Jumblat, the Druze leader, accuses the Syrian leadership of being behind the murder of Mr. Hariri and all political assassinations that followed, and calls for the overthrow of the Syrian regime even if it takes direct American intervention. 

The leadership of Al-Mustaqbal, Mr. Hariri’s group, which controls the largest representation of the Sunna and some Christian representatives in parliament, are allies of Mr. Jumblat and have joined forces with the US in flagging the Hariri’s assassination to increase pressure on the Syrian regime. The magic expression that connotes Syrian guilt is a call to “unconditional compliance with the international investigation committee”.

 The Shia, represented overwhelmingly by Hizbullah and the Amal Movement, along with some secular nationalist parties and traditional leadership such as Suleiman Franjieh and Omar Karami in the north of Lebanon and others, make a clear distinction between the need to diligently and professionally pursue an investigation to find and punish the guilty party, and the acting against the Syrian regime based on unsubstantiated accusations. 

General Aoun, the most popular Christian leader, as has been demonstrated by the last parliamentary elections (and next, in 2009'), and who has the most consistent stand against the Syrian presence in Lebanon, has withheld accusation of the Syrians pending the conclusion of the investigation. 

Responsibility for Mr. Hariri’s murder, the wave of assassinations that followed, and the collapse of the security system are all pinned, at least by some very vocal leaders and a dominant media, on the Syrians notwithstanding their withdrawal from Lebanon. 

Justification for most pronouncements or advocated actions against the Syrians is increasingly linked to declarations, verbal or written, emanating from the Investigation Commission established by the UN Security Council. 

One can easily observe that all political interests and objectives, internal and external, have been cloaked with an irresistible desire to see justice prevail and that the guilty party pay for his crime; hence the importance of the role of the international investigation Commission. 

It is objectionable that leaders achieve political objectives through deceitful means, though history is replete with such occurrences; but it is infinitely more offensive when justice, through deviant legal processes, is used as a vehicle to achieve such objectives. 

Seeking true justice is the only probable justification for the intervention of the UN Security Counsel in the investigation of a political murder totally within the internal jurisdiction of a member country. This is a precedent in the operations of the institution established for the sole purpose of maintaining international peace and security. 

The question I propose to focus on for the remainder of my talk is: To what extent has the international Commission tried to immunize its work against political contamination by adhering to professional legal processes and safeguards that would guarantee the integrity of the investigation?  

Let us consider the legal framework that should guide the Commission’s work. S C Res. 1595 established  “an international independent Commission based in Lebanon to help the Lebanese authorities in their investigation of all aspects of this terrorist act..”.  Section 6 of this Resolution “Directs the Commission to determine procedures for carrying out its investigation, taking into account the Lebanese law and judicial procedures”. 

A memorandum of understanding, in implementation of Res. 1595 was subsequently concluded on June 13, 2005 between the UN and the Lebanese Government. It provides for the full cooperation of the Government with the Commission “within the framework of the Lebanese sovereignty and its legal system”. 

And, that as part of this cooperation the criminal division of the Lebanese Supreme Court will, inter alia, “advise the Commission on the appropriate procedures for the collection of evidence in accordance with the Lebanese law.” 

Several points made in the memorandum deserve particular attention. In general the “Commission will make request for all witnesses and or persons of relevance to the investigation to be summoned …through the competent Lebanese authorities”. However the Commission has the discretion of “interviewing witnesses without the intervention of the Lebanese authorities”. 

While the Commission may, during the investigation and “when it finds it suitable, provide the Lebanese investigating magistrate a copy of the “evidences that are collected” , it has the discretion of denying the Lebanese investigating magistrate access to judicial evidence that it has collected during the investigation until the end of its work. 

 

Let us keep in mind that only the Lebanese judicial authorities, particularly the investigating magistrate, have the right of incarcerating suspects. Under existing arrangements, however, they may have to order arrest and incarceration without being fully aware of the evidence justifying such incarceration. 

This seems to be the position taken by the Lebanese judiciary because SC Res. 1595 “calls upon the Lebanese Government to ensure that findings and conclusions of the commission’s investigation are taken into account fully”. 

This is at least part of the legal framework that should govern the Commission’s work. Let us review the work of the Commission thus far and see to what extent it reflects professionalism and adherence to applicable norms in criminal investigation. 

I will leave aside the leakage to foreign and Lebanese media attributed to members of the Commission and to the different versions of its first report that found their way to the public. 

Even if one could assume good faith on the part of the Commission in this regard, one can’t attribute to its members, especially Mr. Mehlis, a high degree of professional competence. 

 

Due to time limitation, I will focus only on the content of the first of its two reports presented to the UN Security Council. The report of the Commission is void from legal value except probably as evidence of an act of obstruction of justice on the part of the Commission.

First, the content of its report violates the fundamental principle of confidentiality that governs criminal investigations in all developed legal systems. It certainly violates Article 53 of the binding Lebanese code of criminal procedure which states:

“The investigation should remain confidential unless the case is referred to the trial court through an indictment verdict”.

Has anyone heard of a district attorney or a special prosecutor make public the testimony of witnesses he has heard, or evidence he has collected and other he is pursuing before the end of his investigation? This is the content of the Commission’s report. 

Some have said, in defense of the Commission, that its report fulfills a requirement of the resolution establishing it. SC Res. 1595 “requests the Commission to report to the Council on the conclusions of its investigation and requests the Secretary General to update orally the Security Council on the progress of the Commission every two months during the operations of the Commission or more frequently if needed.” 

In its report, however, the Commission stated that the investigation is far from being complete. It requested and was given additional time to complete its investigation. So one can hardly talk about the conclusions (and almost 6 years in counting!) of an investigation in progress. 

Nor can one reasonably conclude that the Security Council meant for the Commission to commit what is known as an obstruction of justice. For any participant in the crime under the ongoing investigation who is still at large would benefit from every detail revealed in the Commission’s report to take measures that would mislead the investigation and remain out of the Commission’s reach.

One wanders in what ways the details revealed in the Commission’s report could possibly be helpful to the investigation. How much less embarrassing it would have been to Mr. Mehlis and members of his Commission if the testimonies of two principal witnesses were not made public in his report and the leakage that preceded it, when later it became known that their testimony was false and could not be relied on. 

On substantive grounds, the Commission’s report has adopted serious conclusions not substantiated or justified by the findings revealed in the report. The report clearly states that the Commission’s findings do not enable it “to establish firm ground for a potential trial of any accused individual”.

In fact many of the witness testimonies it lays out in detail in the report would most likely be rejected in a trial as hearsay testimonies. And the two most important witnesses, according to the report, turned out to be unreliable as previously mentioned. 

Furthermore, any one who would look in the report for any evidence in the form of confessions, fingerprints, DNA, or any reliable evidence that could corroborate witness testimonies would find none. Nevertheless, the report reveals that the Commission has reached a conclusion implicating involvement of the Syrian and Lebanese security officials to a point of saying that “it would be difficult to envisage a scenario whereby such a complex assassination plot could have been carried out without their knowledge”.     

One would hope the Commission has in its possession evidence that would justify its conclusion. The content of its report, however, does not justify such assertion. Besides, what conclusion should we draw from this statement? Could we ignore the high likelihood that the investigator has already decided to exclude any scenario, proof or evidence that other parties may be behind such heinous crime and consequently stopped looking in any other direction? 

The Commission admits that its report does not amount to an indictment verdict that could be introduced before a trial court. Such court would not be able to determine guilt based on information and evidence revealed in the report. 

This does not mean, however, that the report could not be a very useful tool to achieve political objectives. Mr. Mehlis’ report, it seems, has brought to the attention of the controllers of the world legitimacy such a threat to world peace and security as to justify resolutions by the UN Security Council under chapter VII of the UN Charter. 

No wonder the International Investigation Commission’s reports have received such a lavish praise from certain politicians, Lebanese and non- Lebanese, but were so totally neglected by qualified jurists."