As early as May 5 2006, Serge Brammertz (the UN commissioner investigating the Hariri murder) had “expressed concern about the quality of the evidence that was used to recommend the arrest of four Lebanese senior security officials” and told American Embassy officials that Lebanese General Prosecutor Said Mirza was “growing increasingly uncomfortable with the extended incarceration of the officials.” In spite of the fact that Brammertz felt that there was not yet enough evidence to support “a strong case” against the generals, he assured the Americans that “he would not reverse the recommendation of his predecessor, Detlev Mehlis.”

Another cable dated June 20 2006 reveals that Brammertz was “deeply worried” about the “eroding basis for continued detentions” but was still not willing to order their release. Rather, he seemed more inclined to pass the hot potato to the Lebanese judiciary, arguing that such a decision fell under its jurisdiction. Meanwhile, the judiciary was clearly looking to the UN for guidance on the matter. No one wanted the job of turning the generals loose. Ambassador Feltman, for his part, was well aware of the “seismic effect” that Jamil al-Sayyid’s release would have on the political situation, and judged that releasing him could greatly impact America’s position in Lebanon.

A year later, a fascinating cable recounted an exchange between Ambassador Feltman and Minister of Justice Charles Rizk about the optics of how and when the generals should be released. I highly recommend you read the entire thing, but this is one of the most interesting bits:
The Ambassador noted that an international prosecutor could very well order the release of one or more of the [four generals] for lack of evidence. After all, all of us have heard from UNIIIC Commissioner Brammertz that the detention of some if not all is “awkward,” given the dearth of credible evidence. The four were arrested because of the testimony of witnesses who later recanted, their testimony now thoroughly discredited. Yes, Rizk said, but a release from the UN would be different than a release from the GOL [government of Lebanon]. If the GOL releases them now, “it will be a scandal.” People will say, “why did you hold them for two years?” If the UN releases them, however, the situation is different: The GOL picked them up at the request of the UNIIIC and then held them until they could be transferred to the Special Tribunal. So, in this case, the GOL merely acted on behalf of the UN. If [the Lebanese judiciary] releases them, by contrast, it appears as though the GOL had authority all along and chose to ignore it.
As it turned out, the generals would not be released for another two years after the date of this cable, and the reasons were entirely political. Ambassador Feltman says as much in the above cable, when he comments: “whatever the merits of their initial arrests and however awkward the continued detention of one or all is, we agree with Rizk that Syria’s Lebanese allies would score an enormous victory, should the four generals be released now.”

Comment

These cables represent yet another blow to the public image of the UN Tribunal. More seriously, they are a significant indictment of the integrity of the UNIIIC Commissioner and the various Lebanese officials involved in the Hariri investigation, to say nothing of the evidentiary standards in place and the UNIIIC’s judicial independence. Of course, many critics of the Tribunal have been making this case for years (and none so stridently as al-Akhbar‘s justice editor, Omar Nashabe), and the publication of these cables vindicates their position in certain ways.

March 14 partisans would counter that no investigation is perfect, and while some regrettable mistakes were made, these leaks are more of a public relations embarrassment than a reason to denounce the investigation as a whole. While this may be true, the problem is that the Tribunal’s public image has arguably become as important as its ability to indict suspects and prosecute them. When a UN Tribunal is seen as having no more independence and credibility than a judge appointed by an authoritarian regime, then is it safe to say that it has (to use an au courant phrase) “lost its legitimacy”?

Ambassador Feltman clearly understood the significance of a messenger’s credibility when he argued in 2007: “If [Judge Eid] would release any of the four generals, March 14 leaders would suspect Syria’s hand at play, further deepening the distrust and divisions in this country. But if an international prosecutor makes the same decision, it will be viewed as one based on the legal merits of the case.”

Perhaps this was still true when he wrote it. How true is it today?