March 14 members stand at Martyrs' Square in downtown Beirut on March 1, 2009 during a ceremony marking the launching of the Special Tribunal for Lebanon in Leidschendam. (AFP photo/Anwar Amro)
Leidschendam – The Special Tribunal for Lebanon’s pre-trial judge, Daniel Fransen, might need another month to decide on the indictment, said Professor Mischa Wladimiroff, one of Holland’s most prominent defense attorneys. Wladimirroff – who follows the case for the Hariri family – said that “It is possible that he will decide on the matter in the coming week, but I would not be surprised if he needs much more time.”
According to Wladimiroff– who was the amicus curiae of the court that tried Slobodan Milosevic and the defense counsel of Duško Tadic, a Bosnian Serb who was sentenced to 25 years in prison by the Yugoslavia Tribunal – the time path of the STL so far is “fair.” “The thing is; you cannot compare it to other courts. Normally we do not know when a prosecutor hands over his indictment to the pre-trial judge. We only know once it has been confirmed and is made public. In this case we are dealing with the rare exception that we knew when the indictment was sent to the pre-trial judge and that he was not able to decide on the application of the prosecutor without addressing some legal issues first.”
So you are saying that it might take him a few more weeks?
Wladimirroff: I cannot predict the exact time frame. There is also no fixed term in the legal system of the STL that makes it utterly clear when he will decide on it. Do not forget that the decision on the questions of law raised by the pre-trial judge consists of 153 pages. I suppose it will take Fransen some time to study it. It is a highly technical decision…
It is taking more time than I thought would be necessary, but it is of course for them to decide that. You can better do it in a slow, correct and fair way than running and rushing to the end and making some mistakes.
How likely is the possibility that Fransen will reject STL Prosecutor Bellemare’s indictment?
Wladimirroff: Well, if the pre-trial judge is going to tell Bellemare to go ahead, he has to be satisfied that this is a prima facie, meaning that on the face of it there is enough substantial evidence that makes it not unlikely that the Trial Chamber may be satisfied that the burden of proof has been met. The material presented to the pre-trial judge is not the ultimate test. It is only a pre-trial test to see if a trial is possible or not.
Over the past weeks we have read in the media that Bellemare asked the Lebanese authorities for more information. When you hand down an indictment are you not supposed to be ready with your investigation?
Wladimirroff: Look, he is awaiting the decision of the pre-trial judge, and he is doing everything he can to convince him to confirm it. He is free to file everything he can to convince the pre-trial judge. Once he has decided he can’t file anything more. Then it is up to the Trial Chamber to accept it or not.
If we take a look at the secrecy of the indictment, is that fair given the situation on the ground in Lebanon? The government collapse in Lebanon had to do with controversy over the STL.
Wladimirroff: It makes sense in this situation. On the one hand it is always a problem to collect the correct facts and prepare a case for prosecution. You should not start a case unless you are convinced you have met the burden of proof. This always takes a lot of time on the side of the prosecutor. Once you collect that, you have to see if the evidence meets the legal standard.
In this case the prosecutor has found out that the legal standard is a little bit unclear. So he believes the standard should be “A.” He has built his case around that. He told the pre-trial judge, “If you apply it like that, I have met my burden, so please confirm my indictment.”
The Defense Office, on the other hand, says, “Look here, we do not believe it should be standard ‘A,’ we think it should be standard ‘B.’” Instead of dealing with the issue himself, the pre-trial judge asked the Appeals Chamber for advice. Now that he has the advice, it is up to him to address the issue. Completely normal procedure.
In Lebanon, a government is on the verge of being formed, and they are less enthusiastic about the STL. Does that change anything?
Wladimirroff: A true judge is an independent and impartial judge. If he takes that seriously, he does not give a damn about what is written in the media or what is happening on the political level. He is totally independent of that. He does what he has to do solely on a legal basis and not driven by any motivation of a political nature.
If you were the counselor of the Lebanese state, and you saw that a new government was considering torpedoing the tribunal before it started, would you say that was a smart way to behave?
Wladimirroff: You should ask yourself the question: What can the state of Lebanon do? They signed an initial agreement with the United Nations that was not really completed. Nothing happened in Lebanon after it was signed. It was not ratified by the parliament, etc. The UN waited and waited until they said, “We will not wait any longer. We are going to proceed with the establishment of the tribunal on our own initiative, but on the basis of that agreement.”
Will the Office of the Defense have a strong point if they raise that at the beginning of any trial?
Wladimirroff: In the first trial of the Yugoslavia Tribunal, the defense tried that option. They argued that the tribunal was not established in a legitimate way. The arguments were quite different, but the idea is the same. You could argue as [the defense] that the establishment was not legitimate, and therefore the STL has no jurisdiction and therefore they can’t decide on the case. I would not be surprised if, once the indictment is confirmed and we know who the defendants are, if they raise exactly that issue.
What will happen if Fransen confirms the indictment in the coming days? How long before we can see what is inside?
Wladimirroff: In that case it will be sent to Lebanon, and the indictment will be served on a number of persons, because I believe more than one person will be named in it. After this happens it will become public immediately.
So you assume there will be more than one person indicted. Any clues about what will be inside the indictment?
Wladimirroff: Well, we have got the usual suspects, and that’s it. We do not know who is going to be selected to be the first ones. I expect two or three individuals will be indicted. But that is an assumption; I simply do not know.
If the Lebanese authorities decide not to make any arrests, is the whole STL a farce?
Wladimirroff: No. There is the possibility of trying people in absentia.
That is much less spectacular and at the same time less satisfying for the families affected, don’t you think?
Wladimirroff: Whether a tribunal is spectacular or not is a matter for the media. With a trial in absentia, everybody will know who the defendant is and what is held against him. The only difference is that he is not there.
On the website of the STL there’s a section called Relevant Lebanese Case Law. In this section one can find cases like the assassination of Rashid Karami, the murder of Dany Chamoun and his family, etc. Is it fair to post these cases on the website? They were stamped as unfair trials by many human rights groups.
Wladimirroff: The answer to that question is quite simple. If as a tribunal you apply Lebanese law, and if you have no guidance on how the law should be understood, your only starting point is the Lebanese law. So what you do is give examples of applications of Lebanese law on assassinations in the past. That is all you do.
What about those accusations that the STL is an American-Israeli tool to change the face of the country?
Wladimirroff: Look, if someone makes a controversial public statement on this issue, it very much depends on who this person is, whether the people believe it and agree that this is truly an American-Israeli conspiracy or an Iranian plot, or whatever. It is a very sensitive area where people are very easily inclined to say this is a conspiracy.
What happens in Egypt, Tunisia or in Libya nowadays is also seen by some as a Western conspiracy. It pops up every time. So I say forget about it. We are dealing with a tribunal that the Security Council approved without any objection. Let them do their work, and then judge them.
Last year you described the STL as an ugly duckling that would grow to be a beautiful swan. Do you still have this opinion?
Wladimirroff: Yes. It is so typical for the start of a tribunal. People are waiting and waiting, and nothing happens. People get impatient, so they see it as an ugly duck. In the eyes of the public they are doing stupid things, but that is mainly because the public does not really understand what they are talking about. Once it actually works, they start to understand that this was all necessary in the process. Same thing happened with the Yugoslavia Tribunal. Now everybody says [it was] first class.
What about the speculations on the consequences? Some people speculate that if Hezbollah’s men are indicted it could ruin the relationship between Sunni and Shia Muslims.
Wladimirroff: We are all waiting – so am I. When the Yugoslavia Tribunal started, people were also speculating about the consequences. They said it would only increase the hatred between the Croats and Serbs and trouble the future relationship between the two states. In the end it did not happen. I think this will also be the case here.
According to Wladimiroff– who was the amicus curiae of the court that tried Slobodan Milosevic and the defense counsel of Duško Tadic, a Bosnian Serb who was sentenced to 25 years in prison by the Yugoslavia Tribunal – the time path of the STL so far is “fair.” “The thing is; you cannot compare it to other courts. Normally we do not know when a prosecutor hands over his indictment to the pre-trial judge. We only know once it has been confirmed and is made public. In this case we are dealing with the rare exception that we knew when the indictment was sent to the pre-trial judge and that he was not able to decide on the application of the prosecutor without addressing some legal issues first.”
So you are saying that it might take him a few more weeks? Wladimirroff: I cannot predict the exact time frame. There is also no fixed term in the legal system of the STL that makes it utterly clear when he will decide on it. Do not forget that the decision on the questions of law raised by the pre-trial judge consists of 153 pages. I suppose it will take Fransen some time to study it. It is a highly technical decision…
It is taking more time than I thought would be necessary, but it is of course for them to decide that. You can better do it in a slow, correct and fair way than running and rushing to the end and making some mistakes.
How likely is the possibility that Fransen will reject STL Prosecutor Bellemare’s indictment?Wladimirroff: Well, if the pre-trial judge is going to tell Bellemare to go ahead, he has to be satisfied that this is a prima facie, meaning that on the face of it there is enough substantial evidence that makes it not unlikely that the Trial Chamber may be satisfied that the burden of proof has been met. The material presented to the pre-trial judge is not the ultimate test. It is only a pre-trial test to see if a trial is possible or not.
Over the past weeks we have read in the media that Bellemare asked the Lebanese authorities for more information. When you hand down an indictment are you not supposed to be ready with your investigation?Wladimirroff: Look, he is awaiting the decision of the pre-trial judge, and he is doing everything he can to convince him to confirm it. He is free to file everything he can to convince the pre-trial judge. Once he has decided he can’t file anything more. Then it is up to the Trial Chamber to accept it or not.
If we take a look at the secrecy of the indictment, is that fair given the situation on the ground in Lebanon? The government collapse in Lebanon had to do with controversy over the STL. Wladimirroff: It makes sense in this situation. On the one hand it is always a problem to collect the correct facts and prepare a case for prosecution. You should not start a case unless you are convinced you have met the burden of proof. This always takes a lot of time on the side of the prosecutor. Once you collect that, you have to see if the evidence meets the legal standard.
In this case the prosecutor has found out that the legal standard is a little bit unclear. So he believes the standard should be “A.” He has built his case around that. He told the pre-trial judge, “If you apply it like that, I have met my burden, so please confirm my indictment.”
The Defense Office, on the other hand, says, “Look here, we do not believe it should be standard ‘A,’ we think it should be standard ‘B.’” Instead of dealing with the issue himself, the pre-trial judge asked the Appeals Chamber for advice. Now that he has the advice, it is up to him to address the issue. Completely normal procedure.
In Lebanon, a government is on the verge of being formed, and they are less enthusiastic about the STL. Does that change anything?Wladimirroff: A true judge is an independent and impartial judge. If he takes that seriously, he does not give a damn about what is written in the media or what is happening on the political level. He is totally independent of that. He does what he has to do solely on a legal basis and not driven by any motivation of a political nature.
If you were the counselor of the Lebanese state, and you saw that a new government was considering torpedoing the tribunal before it started, would you say that was a smart way to behave? Wladimirroff: You should ask yourself the question: What can the state of Lebanon do? They signed an initial agreement with the United Nations that was not really completed. Nothing happened in Lebanon after it was signed. It was not ratified by the parliament, etc. The UN waited and waited until they said, “We will not wait any longer. We are going to proceed with the establishment of the tribunal on our own initiative, but on the basis of that agreement.”
Will the Office of the Defense have a strong point if they raise that at the beginning of any trial? Wladimirroff: In the first trial of the Yugoslavia Tribunal, the defense tried that option. They argued that the tribunal was not established in a legitimate way. The arguments were quite different, but the idea is the same. You could argue as [the defense] that the establishment was not legitimate, and therefore the STL has no jurisdiction and therefore they can’t decide on the case. I would not be surprised if, once the indictment is confirmed and we know who the defendants are, if they raise exactly that issue.
What will happen if Fransen confirms the indictment in the coming days? How long before we can see what is inside?Wladimirroff: In that case it will be sent to Lebanon, and the indictment will be served on a number of persons, because I believe more than one person will be named in it. After this happens it will become public immediately.
So you assume there will be more than one person indicted. Any clues about what will be inside the indictment?Wladimirroff: Well, we have got the usual suspects, and that’s it. We do not know who is going to be selected to be the first ones. I expect two or three individuals will be indicted. But that is an assumption; I simply do not know.
If the Lebanese authorities decide not to make any arrests, is the whole STL a farce?Wladimirroff: No. There is the possibility of trying people in absentia.
That is much less spectacular and at the same time less satisfying for the families affected, don’t you think?Wladimirroff: Whether a tribunal is spectacular or not is a matter for the media. With a trial in absentia, everybody will know who the defendant is and what is held against him. The only difference is that he is not there.
On the website of the STL there’s a section called Relevant Lebanese Case Law. In this section one can find cases like the assassination of Rashid Karami, the murder of Dany Chamoun and his family, etc. Is it fair to post these cases on the website? They were stamped as unfair trials by many human rights groups. Wladimirroff: The answer to that question is quite simple. If as a tribunal you apply Lebanese law, and if you have no guidance on how the law should be understood, your only starting point is the Lebanese law. So what you do is give examples of applications of Lebanese law on assassinations in the past. That is all you do.
What about those accusations that the STL is an American-Israeli tool to change the face of the country? Wladimirroff: Look, if someone makes a controversial public statement on this issue, it very much depends on who this person is, whether the people believe it and agree that this is truly an American-Israeli conspiracy or an Iranian plot, or whatever. It is a very sensitive area where people are very easily inclined to say this is a conspiracy.
What happens in Egypt, Tunisia or in Libya nowadays is also seen by some as a Western conspiracy. It pops up every time. So I say forget about it. We are dealing with a tribunal that the Security Council approved without any objection. Let them do their work, and then judge them.
Last year you described the STL as an ugly duckling that would grow to be a beautiful swan. Do you still have this opinion?Wladimirroff: Yes. It is so typical for the start of a tribunal. People are waiting and waiting, and nothing happens. People get impatient, so they see it as an ugly duck. In the eyes of the public they are doing stupid things, but that is mainly because the public does not really understand what they are talking about. Once it actually works, they start to understand that this was all necessary in the process. Same thing happened with the Yugoslavia Tribunal. Now everybody says [it was] first class.
What about the speculations on the consequences? Some people speculate that if Hezbollah’s men are indicted it could ruin the relationship between Sunni and Shia Muslims.Wladimirroff: We are all waiting – so am I. When the Yugoslavia Tribunal started, people were also speculating about the consequences. They said it would only increase the hatred between the Croats and Serbs and trouble the future relationship between the two states. In the end it did not happen. I think this will also be the case here.
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