London, Asharq Al-Awsat – In an exclusive interview, Asharq Al-Awsat spoke with Judge Antonio Cassese, the President of the Special Tribunal for Lebanon [STL] more commonly known as the Hariri Tribunal in Room 306 of the international court in Leidschenveen on the outskirts of The Hague. The Tribunal, which is investigating the assassination of former Lebanese Prime Minister Rafik Al Hariri, is expected to begin proceedings sometime next year.
Antonio Cassese was born in 1937, and prior to being appointed President of the Hariri tribunal served as President of the International Criminal Tribunal for the Former Yugoslavia [ICTY] and was Chairman of the International Commission of Inquiry on Darfur which recommended that the UN refer the Darfur case to the International Criminal Court [ICC]. He is a professor of International Law at the University of Florence, and has published extensively on issues of international human rights and criminal law. In 2007 Cassese was awarded the Wolfgang Friedmann Memorial Award for outstanding contributions to the field of international law.
Cassese informed Asharq Al-Awsat of the progress made by the tribunal, saying that the tribunal intended to make a third party agreement with Syria, and was putting forward a judicial cooperation agreement with a number of countries. He denied that the tribunal was subject to any political interference, and expressed his hope that the tribunal might help with regards to reconciliation in Lebanon.
[Asharq Al-Awsat] Let us begin with the latest developments on the arrest of Mohamed Zuhair Al-Siddiq, the witness who has become a suspect, in the United Arab Emirates [UAE] last week. Will he be handed over to the tribunal?
[Cassese] I heard that he was arrested. I have no idea. To the best of my knowledge the [STL] General Prosecutor [Daniel Bellemare] has not taken any steps with regards to this person. He [Al-Siddiq] is a witness that fled to the UAE and was arrested there. As I said, neither the pre-trial judge, nor the prosecutor has told me anything about this gentleman.
[Asharq Al-Awsat] The Syrian government has already issued a warrant against him, and asked the UAE authorities to hand him over. If this does occur do you think that this will complicate the court’s work as there is no agreement between the tribunal and Syria?
[Cassese] As I said, the prosecutor – to the best of my knowledge – has not taken any steps, and so I imagine that he’s not interested in this gentleman, and so the arrest warrant issued by the Syrian authorities should not interfere with our job.
[Asharq Al-Awsat] The deadline set by the pre-trial judge for the prosecutor to decide the fate of the four Generals is on 27 April. What are the possible scenarios with regards to this?
[Cassese] I do not know if the prosecutor has taken a decision or not, but I understand that there are a lot of boxes [that contain] hundreds and thousands of documents in Arabic. He has a whole team of legal officers who are familiar with Arabic who are going through and checking all these documents. I heard that many documents are different from, or in addition to, the documents that the commission had in its hands, so they have to scrutinize all these documents. They may be ready [to make a decision] by Monday [27 April] or probably by Wednesday, because here in the Netherlands Thursday is a holiday so that means he either delivers by Wednesday or we will probably [then] go to the 4th of May, if he puts in some sort of application for more time to the pre-trial judge.
[Asharq Al-Awsat] Some people are saying that due to the number of files in Arabic the General Prosecutor is unable to look at the details of the investigation properly since he does not speak Arabic and is therefore forced to rely on his team in this regard. In your opinion will this affect the accuracy of the investigation?
[Cassese] No, his staff is extremely competent. I gather that he has very good lawyers and investigators who are fluent in Arabic. I am confident that he is able to get a fair idea of what is in those documents, because they are being translated or reported to him, so he is in control of the whole staff.
[Asharq Al-Awsat] Some criticisms have been leveled against the tribunal with regards to its professionalism in its dealings with the four Generals after the case was transferred to the tribunal by the Lebanese authorities. For example, the tribunal did not verify that the conditions of the four men’s detention adhered to international standards.
[Cassese] We did not send anybody [to check on the conditions of their imprisonment] but on his own initiative the head of the Defense Office, a very competent French lawyer François Roux traveled to Beirut, and then to Tripoli, to talk to the president of the local bar association. Last Wednesday he asked to talk to the four Generals lawyers, and on Thursday he visited the prison itself and spoke to 3 out of 4 of the Generals. One of the Generals, I don’t remember which, refused to talk to him, we don’t know why. He spoke at great length with the Generals and on his return to The Hague Mr. Roux filed an application to me on the condition of their detention. This is a public document. In particular he requested two things on behalf of the Generals; firstly that their segregation from one another be terminated, and secondly that they should be allowed to talk freely and confidentially with their lawyers. This was submitted on the 20th, and yesterday [21st] I issued an order granting this request. So from today these conditions must be changed, therefore the Generals – for at least two hours a day – must be allowed to talk to one another, so they can go out of their cells and get together and talk and exchange views and whatever, and also they can speak confidentially to their lawyers. To talk freely and confidentially with their own lawyer is a basic human right for any detainee.
So I think we took some initiative. And I would like to stress one point, this initiative was not taken by lawyers of the Generals, who I understand are very good and competent, rather this application was made by our [own] man, namely the head of the defense office, and this means that in our tribunal we have somebody who looks after the rights of the defense, and even the conditions of detention. I think this is a very clear message that we take this whole matter very seriously, and even in the absence of any complaint from the lawyers of the detainees, Mr. Roux still felt that he should ask the tribunal to take some action in favor of them. This is what we did in one day, the order was issued one day after the request was received, [and so it was done] very speedily, because this is a matter of human rights.
[Asharq Al-Awsat] Do you think the Lebanese authorities have the right to imprison these four Generals for such a long period of time – 3 years 8 months- without trial?
[Cassese] I do not know the reasons why they kept them in jail, but I do know that under Lebanese law this is permissible. Lebanese law provides for this opportunity. Under Lebanese law somebody can be put in jail even if only suspected of a crime, without being charged, for as long as the enquiry is necessary.
[Asharq Al-Awsat] What are the possible scenarios with regards to the fate of the four Generals?
[Cassese] I see two possible scenarios. One scenario is that the prosecutor comes to the conclusion that there is no compelling evidence against the four Generals, and then I assume he would ask the pre-trial judge to order their release. The second scenario is that after looking through all these documents, the prosecutor finds that he may consider that there is compelling evidence against one or more of the Generals with regards to involvement in the Hariri assassination. In this case he would request that the pre-trial judge order the release of some of the Generals, whilst those Generals who he has sufficient evidence against would be transferred to our jail in The Hague. At that stage the lawyer of the General or Generals transferred to The Hague would request that they be provisionally released, or released on bail, there are many possibilities, but only after they have been transferred to The Hague.
[Asharq Al-Awsat] What will happen if the judge decides to release them on bail or under special circumstances, will they be forced to remain in The Hague under supervision? And how can you ensure that they will not escape or go into hiding?
[Cassese] [If they are conditionally released] I imagine they will return to Beirut. The practice of the International Criminal Tribunal for the Former Yugoslavia [ICTFY] would very often be to release those waiting for, and eve standing trial, subject to a set of conditions. Firstly that the nation of the person in question gives assurances that he will not escape or go into hiding, and so a lot of conditions and duties are imposed upon the state in question. For example if somebody in the ICTFY were provisionally released and returned to Belgrade, Belgrade would undertake a clear commitment to send this individual back to The Hague when he is needed in court.
Normally when one is released they want to return to their family, and so I would guess, if released, they would return to their family in Beirut. The Lebanese authorities – to the best of my knowledge- know that now the four Generals are under our jurisdiction, they must do whatever we ask them to do with regards to the 4 generals. So the Lebanese authorities are simply waiting to see what we are doing. Following the prosecutor’s decision on the fate of the four Generals, the Lebanese authorities will have to comply with whatever the pre-trial judge decides.
[Asharq Al-Awsat] The resignation of the tribunals’ registrar Robin Vincent was unexpected, especially since he was one of the first members of the [STL] tribunal, and worked for it for around two years. Some are saying that he did not get along well with the general prosecutor [Bellemare], was his resignation an objection to something that occurred within the tribunal?
[Cassese] First of all, I don’t know why Mr. Vincent resigned. I think probably on personal grounds. To the best of my knowledge there is no problem or clashes. This [resignation] is quite normal, he was registrar for the special court on Sierra Leona and he resigned after one year and a half, and he has been working for this tribunal for more than two years. He had to set everything up. He was in New York, and then he moved here [to The Hague]. Psychologically, I can understand. When you see that the baby is able to walk and survive, then you can say, alright, my job is done. It is a blow, because I think he is a wonderful man, and an excellent manger. This is a great loss, and we will have to find somebody of the same caliber which is not easy, but I am sure we will find somebody who is very good to replace him.
[Asharq Al-Awsat] One of the four Lebanese judges [for the tribunal] has officially been announced, Lebanese Vice President Ralph Riachi, however three other names have been kept secret, although they are known. Why is that the case?
[Cassese] Security reasons. I spoke to UN Secretary-General [Ban Ki-Moon] and insisted that the presence of Judge Riashi is crucial, since I cannot do anything without the good advice of this very competent Lebanese judge. And so the Secretary-General accepted my proposal that Judge Riashi should come here and work on a permanent basis, and his name as a consequence of this was disclosed.
[Asharq Al-Awsat] The Lebanese government has to approve 49% of the budget of this tribunal, are you worried that the disputes between the Lebanese parties might prove to be an obstacle to this, especially since there is a forthcoming election and the opposition may win and take power?
[Cassese] The opposition in Lebanon will realize that we are doing a serious job, we are not playing political games, and we are not accepting any political interference, therefore I think the opposition should be interested in our doing justice and finding out who committed these horrible crimes. As soon as we are through with all of this and we find out who is guilty I think this sets a very good stage to take a step forward and move towards reconciliation [for the Lebanese parties], otherwise there will always be tension and animosity between the various groups [in Lebanon] who accuse each other.
[Asharq Al-Awsat] This tribunal was set up during the era of the US republican administration that had a certain viewpoint with regards to dealing with Syria; however the present US administration is seeking to open dialogue with Damascus. Do you think that this will affect the tribunal?
[Cassese] No, not at all. My pocket philosophy on international tribunals is that before an international tribunal is established everything is political, because it is a political decision, and we [the judiciary] have no say. And so for political reasons the big powers decide to set up a tribunal on the former Yugoslavia, or Sierra Leona for example, or not set up tribunals on other parts of the world many crimes are being committed such as Gaza, Southern Lebanon, Pakistan, and also the assassination of Mrs. Bhutto and so on. This is political business, we lawyers have no say. But once they establish a tribunal and appoint judges, it is up to the judges to forget the [political] reasons as to why the tribunal was set up and simply do their job, namely to look for evidence, indict people, and we [the judiciary] will see whether this indictment is supported [or not], and so if the evidence is weak or flimsy we acquit, that’s all. And then at this stage [after the trial], maybe in two, three or four years time, reconciliation will occur as a result of the work of this tribunal. I very much think that an international tribunal may – if it’s well operated – contribute to reconciliation in an area where there is tension between factions.
[Asharq Al-Awsat] You have the right to make agreements with third party countries if this is necessary, are you planning to make an agreement with Syria on this basis?
[Cassese] Yes, I have already approached the Syrian ambassador to Brussels, he firstly responded that he was busy, and then that he was not competent in this area [i.e. did not have the power to authorize this]. Now I will approach the Syrian authorities in Damascus directly, we have already seen the Egyptian ambassador, and tomorrow I will see the ambassador of Jordan. We have already seen all the ambassadors of the countries on the management committee; Germany, US, UK, France, Italy, Japan and so on. I am drafting an agreement for judicial cooperation [in this regard] which I would [also] like to offer to the five countries of the region; Egypt, Jordan, Syria, Iran and Turkey, in addition to countries where a lot of Lebanese are living, such as French, Brazil, Argentina, Venezuela, and Australia. All of these countries will be offered the draft agreement on judicial cooperation.
[Asharq Al-Awsat] Does this agreement include the handing over of suspects?
[Cassese] Yes, and also with regards to taking testimony. We can ask a local judge to interview a witness, but we would also like our prosecutor and defense counsel to be present and to ask questions…so it’s very respectful of state sovereignty.
[Asharq Al-Awsat] What if Syria rejects this agreement?
[Cassese] So far there has been a lack of communication with the ambassador in Brussels, but I will now directly ask the authorities in Damascus [to agree to this] if I can go and see them.
[Asharq Al-Awsat] This tribunal has been set up to put an end to the impunity of political assassination in Lebanon, do you think it will achieve this?
[Cassese] Yes, I am confident, why not? It is not because I am stupidly optimistic, but because I realize – thanks to the work of Mr. Vincent and others – that we have very good judges. Judges who are really professional and not biased, we have a very good staff. We are a tiny tribunal but ready to take action in a very good and expeditious manner. We have adopted some legal documents which are innovative and which include a lot of novelties that can really give us hope that as soon as we have somebody to indict we can bring him to a trial quickly and decide whether he is innocent or guilty.
[Asharq Al-Awsat] What is the likelihood of seeing a President or former President in front of this tribunal?
[Cassese] My legal view, which is one that I set out with regards to [Sudanese President] Al Bashir, is that under international law a sitting president or head of state enjoys diplomatic immunity, immunity from everything.
[Asharq Al-Awsat] So the tribunal does not have the power to indict Syrian President Bashir Al Assad for example?
[Cassese] Not the physical power. We have only the moral power.
[Asharq Al-Awsat] Does this tribunal have the same power as the International Criminal Court [ICC] which recently issued an arrest warrant against a sitting President?
[Cassese] The ICC has no power, they issued a warrant against a sitting President and what happened? Nothing! He [Al Bashir] will never be arrested; they don’t have the coercive power.
[Asharq Al-Awsat] What about former Presidents?
[Cassese] Former President’s do not enjoy any personal immunity.
[Asharq Al-Awsat] To what degree do the judges in this case which has political dimensions – as it involves a political assassination – engage in politics?
[Cassese] There is zero politics, before for us it is not a question that a politician was assassinated. A man was killed, and there was a terrorist attack, other people were killed because of that attack. We will look into the evidence. Look at the Milosevic case…the only concern for the judges was whether he was guilty or innocent, whether the crimes attributed to him had indeed been committed or not.
[Asharq Al-Awsat] When are you expecting the trail to begin? And how long will it last?
[Cassese] I hope [it will begin] next year. How long it takes depends on the prosecutor. We are in the hands of the prosecutor, he could issue one or two indictments and say look, this is whatever I can produce and we will have a speedy trial.