Undersecretary General for Legal Affairs and United Nations Legal Counsel Nicholas Michel who is in charge of the international tribunal to prosecute the defendants in Lebanon's political assassination, especially the assassination of former Prime Minister Rafic Hariri, considered that the "The process of the establishment of the tribunal is irreversible. And the more we observe the situation the more we are convinced that the mandate we have received from the Security Council is adequate. Justice must be part of a sustainable peace in the country."

Michel also asserted in his interview with Al-Hayat that those who can think that they can turn this tribunal into part of their political deals such as getting rid of the tribunal in a political deal are making "a mistake." He added that those who think that changing the Lebanese government will lead to killing the tribunal are "certainly" mistaken.

The official called upon those who have lost hope in the tribunal and in the ability of the United Nations to end the era of impunity to read between the lines and to conclude "from our answers they understand that the tribunal is very close to being a reality and that they can trust the progress that was made in recent months." He further added, "We are confident that we have made a lot of progress. So it's probably to some extent a lack of understanding and probably a wrong perception of our determination to implement the mandate that we have received." He warned those committing political assassinations in Lebanon when he said, "It is definitely time for those who commit these crimes to understand that this will lead them nowhere except before a judge….a tribunal is meant for the prosecution and, if found guilty, the people who do these horrible acts." 

When asked about the impact of disintegration in Lebanon on the tribunal, he responded, "If part of the reasons behind the current difficulties relate to the establishment of the tribunal, those who are of these views are obviously mistaken. They will see that the tribunal will be up and running and will function and it will at the end bring what is expected from it." He also pointed that any state refusing to surrender suspects to the tribunal must realize that those will be prosecuted in absentia anyway, pointing out that Syria is the only state that has announced its rejection to surrender any of its citizens to the tribunal.

Michel clarified that the Commissioner of the International Independent Investigation Commission, Canadian judge Daniel Belmar, also assigned as the prosecutor, is currently preoccupied with the preparations for the transition from the investigation to the prosecution. He emphasized the importance of this transition since it is the prosecutor who presents the evidence needed for indictments and the initiation of arrests to the pre-trial judge.

The international officer asserted that the UN Secretariat and is in the process of securing the necessary funds for the tribunal after it has become clear to all sides that the tribunal is ready. He said that renewing the mandate of the investigating Commission by mid-June is not necessary or automatic, pointing out that by that time there may be agreement over the transition from the investigation to the prosecution. He added that the Secretariat is drafting a report to the Security Council because it sees that "the time has come" since "so much was achieved" and "we have overcome all the major obstacles."

Michel did not think that there was a problem with funding the tribunal since "as soon as everybody will have understood all the progress that has been made, that the time has come for them to provide money, that they will understand and they will do it." He also asserted that the international community is committed to a new culture that sees the end of impunity, and that Lebanon's international tribunal is a fundamental aspect of this culture. Finally, he expressed his faith that "justice will be part of peace" in Lebanon.

Raghida Dergham: The American ambassador to the United Nations, Zalmay Khalilzad, has said that he had learned from you that the tribunal will be operational in February, he had said that a few weeks ago. Is the tribunal operational now? We are in February.

Nicolas Michel: The quote is incorrect.

Raghida Dergham: His quote is incorrect? Did he not understand you?

Nicholas Michel: I don't know if that is what he said. I said the quote is incorrect.

Raghida Dergham: Is the tribunal operational now? When will it be operational from your point of view?

Nicolas Michel: Every time you ask me this question I answered the tribunal will be ready when the Secretary General will want it to start functioning. So there is no need for the tribunal to be ready before the Secretary General wants it to start functioning. So I repeat it will be ready when the Secretary General will want it to start functioning.

Raghida Dergham: So then where is it at now?

Nicolas Michel: The main elements are in place. We have a host country, we have a building, we have a host country agreement with the Netherlands, we have a prosecutor who for now is commissioner and will start in the capacity as a prosecutor at a later stage. We have judges, we will have in the course of February a registrar, we have funds coming in, and as soon as the prospect of the establishment of the tribunal will come nearer, I feel confident that we will have sufficient funds. So the main elements are in place.

Raghida Dergham: So if the Secretary General says, I am ready now, will it be ready?

Nicolas Michel: I repeat what I said, when the Secretary General will want the tribunal to start functioning, the tribunal will be ready. I need to explain to you exactly how the tribunal will start functioning, because the idea that on one day there is no tribunal and the day after you have a full tribunal is certainly a misconception of how the tribunal will start functioning. Because we will first have a registrar, who will establish the administration of the tribunal, we will have then the prosecutor. And when the prosecutor will be ready with an indictment we will have a pre-trial judge and then appeals judges. So it will be a phased beginning of the functioning of the tribunal.

Raghida Dergham: So do you have all your judges picked out already? Because the Secretary General said he had received the recommendation for the judges and that he accepted it.

Nicolas Michel: Yes.

Raghida Dergham: That means you have the pre trail judge, you have all the judges and everybody ready?

Nicholas Michel: Yes, they have been selected in the sense that the Secretary General has approved the recommendations that he has received from the selection panel. However he will proceed to the formal appointment of the judges at a later stage when he thinks the time has come.

Raghida Dergham: What will determine that, what does that mean, the formal appointment?

Nicolas Michel: There is no need now, immediately, to have judges who can start working as judges. So there is no necessity to have a formal appointment for now. There is no need from a functional point of view and from a security point of view there is no need either to identify these judges publicly. However, the judges will certainly start working informally before the formal start of the functioning of the tribunal in order to do two things. First, identify the judges who will become the presidents, the president of the trial chamber and the president of the appeals chamber, it being understood that the president of the appeals chamber will be the president of the whole tribunal. And second, they will have to draft the rules of the procedure and evidence.

Raghida Dergham: You said you have the pre-trial judge ready to go?

Nicolas Michel: Yes.

Raghida Dergham: So theoretically then, since you do have the designated prosecutor, Mr. Daniel Belmar and as you just said to me you do have pre-trail judge, that means they are in a position to issue indictments should they choose to?

Nicolas Michel: The commissioner has not yet started in his capacity as prosecutor. So that means that now he has no authority to issue an indictment. And as you know it's not for the prosecutor to really formally adopt the indictment, it's for the pre-trail judge. So the proper role of the prosecutor is to submit an indictment to the pre-trial judge.

Raghida Dergham: Then why would you not have Mr. Belmar (current Commissioner of the International Independent Investigation Commission) assume his job as a prosecutor, because that would still allow him to remain the investigator actually. Why would whoever is in charge not let that happen?

Nicolas Michel: It might be possible that at some point in the future, Mr. Belmar will start functioning as prosecutor and at least for a limited period of time continue working as a commissioner. So we do not exclude that.

Raghida Dergham: How soon might that happen?

Nicolas Michel: We, for now, do not have all the elements in place for that decision to be taken. You will remember that this decision, which the Secretary General has to take, has to be based on the consideration of three elements. One is the funding, and I repeat that the Secretary General has to have sufficient financial means for a first year of operations plus the establishment of a tribunal and then pledges for the second and the third year. This is the first element. Second, consultations with the Lebanese government. But consultations mean consultations. It's not agreement. It's consultations. And third, the Secretary General must base his decision on the progress of the work of the investigation commission.

Raghida Dergham: Some are arguing Mr. Michel, that it is about time to move on to the prosecution stage of matters. Because as you are well aware a lot of people are saying what on earth are you doing dragging your feet? Is there any stumbling block in moving to the prosecution?

Nicolas Michel: The difference between the people who make these allegations and ourselves is that we are professionals who are setting up a purely judicial body. We consider that it is an essential element for the credibility of the tribunal, and that everybody has to understand that we make our judgments based on standards of international criminal justice. Because we think that the cause will be served by a real tribunal, independent and impartial, and not by an instrument that is used for political reasons.

Raghida Dergham: Why would moving to a prosecution become a political instrument? The question was, is there a stumbling block?

Nicolas Michel: I didn't say that. I said the difference between those who base their judgment on what they think is the reality and us, is that we have the elements and we want to work as professionals without being influenced by other considerations. Now, stumbling blocks? I wouldn't use the expression stumbling blocks. For now we are really making good progress on all fronts. I think that all the observers were stunned that the UN achieved was capable of achieving what was achieved in only six months. What I told you before was done astonishingly quickly and we are continuing on the same pace. And simply that we continue, that's work in progress. So, I don't see any major stumbling block.

Raghida Dergham: The funding, I know you didn't speak of the funding as if it is going to be problematic. But I understand that you really don't have the money in the bank as far as the pledges needed for the first year, the second year, the third year, etc. Do you plan to get more aggressive about that since I know you have pledges but you don't have money in the bank?

Nicolas Michel: One of the reasons why we could make such good progress on the substance is precisely that we have not been aggressive but we have been simply efficient in a discreet way. And the results demonstrate that this is the better approach than being publicly aggressive. So I cannot say exactly when we will have the necessary financial means at our disposal, but I have reasons to believe that as soon as everybody will have understood all the progress that has been made, that the time has come for them to provide money, that they will understand and they will do it.

But let me here insist on two things, I think that the reason why some have not yet made their contribution is partly because they do not know exactly how far we are. This is why I appreciate very much the opportunity to answer your questions, just make sure that everybody knows exactly where we are. So now time has come for those interested to make their contribution. Second element, some have not understood yet, because we have not commented upon it a lot publicly, that the tribunal will be funded directly by the donors and not through a UN trust fund, and this needs to be understood because -and that is new and that probably you didn't know-here you have a main difference for instance between the two international criminal tribunals for Yugoslavia and Rwanda on one hand, or the special court for Sierra Leone on the other hand. The two tribunals established by the Security Council are run under UN regulations and rules and under the control of the whole UN institutional machinery. However, the special court for Sierra Leone is run by a management committee composed of main donors. And for the special tribunal for Lebanon, the main donors have selected the Sierra Leone model. This means that they will be in direct control of the use of the funds that they are ready to contribute. They will have no say whatsoever on the judicial process. However, on how rational the use of the means will be, how sober, how effective it will be, they will be in charge. And we need to say that, because several contributors will appreciate the fact that if they are ready to make an important contribution they will have the right to be members of the management committee.

Raghida Dergham: So basically, for those who have not understood the picture, how are they going to learn about this? Do you have in mind to send envoys? Do you have in mind to somehow bring it to them that yes, it is now time for you to come in with the funding because you're ready?

Nicolas Michel: We have already been in contact at various levels informally. And right now we are ready and available to do whatever they think necessary in order for them to receive the necessary information on when the tribunal will be ready and how the money will be managed. And we are ready to be available depending on what they think is more suitable.

Raghida Dergham: On the details of the judges, can you speak of nationalities?

Nicholas Michel: Unfortunately not.

Raghida Dergham: So then listening to you right now, one understands that the process of establishing the tribunal is up and running. It's not to be reversed.

Nicholas Michel: The process of the establishment of the tribunal is irreversible. And the more we observe the situation the more we are convinced that the mandate we have received from the Security Council is adequate. Justice must be part of a sustainable peace in the country.

Raghida Dergham: The tribunal is really the property of the Security Council at this point, because the Security Council's decision or resolution is what established it, right?

Nicholas Michel: This tribunal is of a particular type because it is, to a large extent, the result of a cooperative relationship between the UN and Lebanon. Now, as we know, the agreement could not be approved by parliament for obvious reasons, so the intervention of the Security Council was only meant to put the applicable provisions into effect. But that does not fundamentally change the nature of the tribunal; that does not become a subsidiary of the Security Council like ICTY or ICTR. But the fact that the Security Council has clearly indicated its will is definitely very important because we benefit from the backing of the Security Council.

Raghida Dergham: So for those, Mr. Michel, who feel they can have this tribunal as part of a political deal in the sense that for those who feel that they can rid themselves of this tribunal as part of a political deal they really don't know what they are talking about because it is already a done deal that there would be a tribunal. Am I right?

Nicholas Michel: You are right. They make a mistake.

Raghida Dergham: So for those others who feel that a change of a government in Lebanon would bring about a killing of the tribunal are also mistaken, am I correct?

Nicholas Michel: Certainly. Because all the elements that need to be put in place with the cooperation of Lebanon are in place.

Raghida Dergham: Now then, what do you say to people who are losing faith in the tribunal? Because there are those who want to kill it and those who are hanging on the idea that the United Nations is going to end the era of impunity. What do you say to those who have been hanging their hopes on the United Nations establishing a precedent in the region altogether of ending impunity? They feel frustrated because they say: we have no clue what's going on. In the last couple of years we have no idea. They are losing faith, what do you say to them?

Nicholas Michel: I would like to suggest that they appreciate the role of journalists who try as best as possible to inform their readers, and that from our answers they understand that the tribunal is very close to being a reality and that they can trust the progress that was made in recent months.

Raghida Dergham: So, talk about a diluted process in establishing the tribunal because of pressures, because of fear, this talk you think is being generated to impact negatively the establishment of the tribunal or do you attribute it to a lack of understanding?

Nicholas Michel: The Secretary General has been mandated by the Security Council to establish the tribunal in a timely fashion, and that is what the Secretariat is doing. We are confident that we have made a lot of progress. So it's probably to some extent a lack of understanding and probably a wrong perception of our determination to implement the mandate that we have received.

Raghida Dergham: So all this talk of oh it's going to take three years, ten years, never mind, you're not going to see the light of this tribunal, you're not going to see the results, all this talk of forget about it--there was a misconception and misreporting actually associated with the headquarters agreement even then. So straighten the record on this, is this a logical thing for people to say? Three years minimum, ten years most likely?

Nicholas Michel: If you look at similar investigations in country where you have a relatively peaceful situation you will see that it takes a long time because these cases are really complicated. So the fact that in Lebanon it takes a long time is not surprising because even the conditions are difficult. I wouldn't infer from the time the investigation is taking that no progress is being made and that it will take forever. All of us would want the tribunal to achieve what is expected from it, but precisely it is because we expect that that we don't want to see a tribunal seized by a prosecutor and ultimately a pre-trial judge who does not have sufficiently convincing evidentiary material for the judges to issue a solid judgment. And yes, I would certainly welcome clear results from the investigation but I would not like to see an investigation completed in a hurried fashion with a consequence that the whole process will be flawed.

Raghida Dergham: So you are not under pressure, as some people think, to slow things down and dilute the process?

Nicholas Michel: Certainly not,

Raghida Dergham: No pressures from any countries to hasten the process?

Nicholas Michel: Well, the Security Council as I said gave the mandate to set it up in a timely fashion. And so it's not pressure from anybody, it's just simply the mandate that we received.

Raghida Dergham: Mr. Nicholas Michel, do you think that so far, you-and I don't mean you as Nicholas Michel, I mean the investigation-the process of establishing the tribunal, that you have failed as a deterrence because there has been several additional assassinations? So is it your failure that you couldn't serve as a deterrence, or was there no way you could be a deterrence?

Nicholas Michel: It is definitely time for those who commit these crimes to understand that this will lead them nowhere except before a judge. Apparently they have not understood it now but it is better for everybody including for them that they understand as soon as possible that a tribunal is meant for the prosecution and, if found guilty, the people who do these horrible acts.

Raghida Dergham: What is the importance that you would possibly attach to the linkage, if established by an investigation obviously between the assassination of Rafik Hariri and some of the other political assassinations that took place? Is that important at all?

Nicholas Michel: I think it is very sad to note that political assassinations have been part of the history of the country and that it'll be hard to eradicate this culture. But looking at the great majority of Lebanese, no matter which community they belong to, looking at the women, looking at the young generation, I can tell you that we at the UN at the Secretariat are proud of being part of an effort aiming at eradicating that culture which is so detrimental to everybody in Lebanon.

Raghida Dergham: God forbid if Lebanon slips into a civil war, into disintegration, into whatever terrible thing that some are planning for this country, if that happens the tribunal will still go on? These are two separate matters, right?

Nicholas Michel: Absolutely, absolutely. If part of the reasons behind the current difficulties relate to the establishment of the tribunal, those who are of these views are obviously mistaken. They will see that the tribunal will be up and running and will function and it will at the end bring what is expected from it.

Raghida Dergham: How do you plan to resolve the extradition issues? President Bashir al Asad has said he will not release any Syrian suspects to the tribunal. How do you plan to deal with that?

Nicholas Michel: First, in the Secretariat, we have not prejudged in any way the nationality of the perpetrators. So my comments will relate to any alleged perpetrator and not to perpetrators from one specific nationality. First it might very well be that the countries where they will be arrested will spontaneously cooperate with the tribunal. Now should other countries hesitate to do it, I really do hope they will be invited to understand that it is in the interest of justice, in the interest of Lebanon, in the interest of the region, in their own interest, to find the truth. Should they hesitate to voluntarily surrender alleged perpetrators, I am sure that the international community or members of the international community will try to be more convincing in their arguments. And eventually there is always the possibility of trials in absentia. So the absence of an alleged perpetrator will in no way prevent the tribunal from functioning. Then I imagine, should we face a situation where a country does not surrender a national, and should it happen that the evidentiary material that is brought to the attention of the judges and the tribunal brings them to convict the person, I think that it will be extremely difficult for the country to continue not to cooperate. Because we have to understand that with a trial in absentia it still is possible for a convicted person to request to be retried. Except if he or she has selected a lawyer of his or her own choosing. But if the defense attorney was not selected by the alleged perpetrator, he or she has the right to be retried. So, I do hope at least at this stage, at the latest, everybody will recognize that it is better for this person to have a trial in his or her presence.

Raghida Dergham: So is Syria the only country on the record to have said they will not deliver any people you would determine are suspects to the tribunal? To my knowledge Syria is the only country with such a position. Is this correct?

Nicholas Michel: I haven't heard any statement of that sort from any other country, but let me tell you this because you addressed the issue of Syria. Syria has clearly stated that they are cooperating with the commission of the investigation. And I understand that the country wants to see whether the tribunal will be really an independent and impartial tribunal and not a political tool. And I feel confident that once everybody sees that this is not a political tool but a real tribunal, it will be extremely difficult in the face of the international community not to cooperate at this stage.

Raghida Dergham: So is that cooperation ongoing to your knowledge? Is the commission happy with the cooperation it is receiving from Syria? Particularly since Belmar has come into office? Has he asked to go there? Has he had any communication? Where is he?

Nicholas Michel: The only element I have is the last report of Mr. Brammertz (former Commissioner of the International Independent Investigation Commission) before the holidays. I think that that he said "generally satisfactory," so I think that is what I have to take.

Raghida Dergham: Where is Daniel Belmar? He got appointed and he disappeared. Where is he? Nobody knows who he is, what he's doing.

Nicholas Michel: He is based in Lebanon. However you know that the Secretariat is under an obligation to provide for a smooth transition between the commission and the tribunal. So under these circumstances it is not too surprising that Mr. Belmar, in addition to leading the investigation commission, he is also involved in the preparatory work for the transition.

Raghida Dergham: To be a prosecutor as well.

Nicholas Michel: Yes.

Raghida Dergham: So I guess his hands are full.

Nicholas Michel: Most of the time he is in Lebanon.

Raghida Dergham: It is not necessarily that come June there will be an additional renewal of the mandate of the commission? It's not automatic right?

Nicholas Michel: No, it is not automatic.

Raghida Dergham: So it is conceivable that things will change structurally by moving from the investigation only to prosecution plus investigation?

Nicholas Michel: Well certainly the Security Council will want to consider that once the commission is at the end of its mandate on the 15 of June that the latest at that time that the Security Council will want know how the commission relates to the process of the establishment of the tribunal.

Raghida Dergham: You have a report going to the council this month, right?

Nicholas Michel: I have to be cautious and I cannot answer your question fully now. The Secretariat was mandated to report to the Security Council ninety days after resolution 1757 and this was the report that was sent to the council in late September. After that we are mandated to report periodically, that is what the resolution says. And now we have made no secret of the fact that that we in the secretariat feel that the time has come to draft a report to the council. But we have not yet discussed it with the Secretary General so I do not want to bind his hands. But it is true that he and the Secretariat think the time has come.

Raghida Dergham: To make a progress report you mean.

Nicholas Michel: Precisely, because so much was achieved we think that people had to know.

Raghida Dergham: Detlev Mehlis (former Commissioner of the International Independent Investigation Commission) gave an interview to Michael Young, and I'm sure you read it, in which he said when I left we were ready to name suspects but it seems things have not progressed from that stage. He is saying that Brammertz is responsible for losing the momentum. What do you think?

Nicholas Michel: When Mr. Mehlis was appointed there was no talk yet of the establishment of a tribunal. In the first place he had a mandate for three months and he was told his mandate might possibly be extended for one or two additional months, but not more. However, when Mr. Brammertz was appointed, he was appointed for a much longer period of time and it was clear already at that time that there would be a tribunal. And for any professional it shouldn't be surprising at all that you adopt totally different methodologies if you have a mandate of the first type or the second one. Both of them were completely committed to finding the truth and to make justice be part of peace in Lebanon. For the reason that I gave, there were legitimate reasons for different approaches, but the objective was the same.

Raghida Dergham: Another quote: If you have suspects you don't allow them to roam free for years to tamper with evidence. He is saying that about Mr. Brammertz having never named new suspects and he only identified the person of interest. What do you say to that?

Nicholas Michel: Mr. Brammertz is considered an exceptionally competent investigator. His work was praised by all the parties and myself. I have considered him always a very good professional.

Raghida Dergham: So Mr. Mehlis says he (Brammertz) re-investigated what Mr. Mehlis, and he only came up with the conclusions that are not different. I mean he never said Mehlis was totally wrong on this, or the conclusion such as whether it was underground over ground, political motivation. The important broad lines were not disputed, but the charge is that the momentum was lost. Mr. Mehlis says, about the necessity of the secrecy of the investigation he says: the Lebanese public has to be informed even if there are setbacks in the investigation. In a democracy people have the right to know, particularly when a Prime Minister was murdered and people don't trust the authorities. This was an opportunity to restore credibility to the justice system.

Nicholas Michel: The best evidence that we are doing a professional job is that I am not interfering in any way with the investigation and I am not going to do that in the future. So it's far better for me not to comment on the quotes you are making because it is definitely not my role.

Raghida Dergham: What would you wish Mr. Belmar to be, a Mr. Mehlis or a Mr. Brammertz.

Nicholas Michel: I would wish him to get to the truth, using whatever means he considers professionally efficient and in line with the highest standards of international criminal justice. I know that he is absolutely committed to doing that and to reaching results. And I wish him well in that endeavor.

Raghida Dergham: I have two last questions. That working group in Geneva that recommended the four generals be released… Has this found its way to the UN proper? Is this being echoed here at the UN? What are your thoughts on this?

Nicholas Michel: Let me make sure that everybody understands. This is about a communication made by the working group on arbitrary detention. So it's not the Human Rights Council it's not the High Commissioner for Human Rights, it's not the office of the High Commissioner, it's a working group, an important working group. Now its communication are meant for the Lebanese authorities. The Secretariat was not part of the process, was not consulted in the process and was not even the addressee of the communication. But what I can say is that the authority to take decisions in that respect rests exclusively with the Lebanese authorities. The commission of investigation, I've been told, gave the Lebanese authorities all the facts in their possession so that the Lebanese authorities have all the materials they need to make a well-informed decision.

Raghida Dergham: So there is nothing that the international investigation has produced or found out that would negate or would be in contradiction with the original material that Mehlis gave to the Lebanese authorities.

Nicholas Michel: If I knew the answer to your question this would indicate that I am interfering in the process. I am not so I don't know the answer to your question.

Raghida Dergham: Ending impunity has consumed a lot of your time and interest and conviction, and I know that for you this is an important precedent. What has the establishment of this tribunal and this whole process meant for you?

Nicholas Michel: We have overcome all the major obstacles. I am proud of the quality of the team that has worked in a superb way. We have benefited from the strong support of a large number of countries. Never would it have been possible to have resolution 1757 without this broad support and even before that we had a very broad support. So we have always tried in the Secretariat to work in the spirit of consensus, in the spirit of building trust, in the spirit of making sure that everybody understands that we are setting up a tribunal and not a political tool. And I am proud to say that I believe that this is the way the Secretariat is perceived. This is in my view a great achievement. I am somebody who believes that one of the main trends in the international community today is the end of impunity. This is a new culture, this is a fragile culture. We are sill at the beginning and we have a lot to learn. But I am sure that the establishment of the special tribunal for Lebanon is part of this broader culture, and definitely we have already learned a number of things here based on the experiences made with other tribunals. And since I do believe that in Lebanon like elsewhere justice will be part of peace, since I like Lebanon so much, I've so many good friends in the country and I've so much sympathy for the people of the country and even more than that for the young generation and I do hope for the young generation that they will have a hope in their country. So yes, I am very proud of being part of that process, hoping that it will not be abused as a divisive object but considered as the basis for future consensus for the new generation.

Raghida Dergham: And a lot of people owe you a lot to thanks for that.
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