Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (30 page)

Accountability and Impunity

The absence of transitional justice mechanisms

In many countries emerging from violent conflict or repression, domestic trials are debated, if not held, and other measures such as commissions of inquiry, reparations, and commemorations may be utilized. However, the Amnesty Law of 1991 (law 94/91) provides for amnesty for all crimes except political assassination, thus making it impossible to try war crimes, crimes against humanity, and forced disappearances domestically. In general, there have been very few prosecutions for clear abuses of human rights or violations of humanitarian law, although there has been selective prosecution.
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Thus Elias Hobeika, former leader of the LF security agency and implicated in the 1982 Sabra and Shatila massacres, escaped prosecution and was elected to Parliament twice, only to be disgraced (and assassinated) following revelations of his involvement in the massacres in the context of attempts to prosecute Ariel Sharon. However, Samir Geagea, the leader of the Lebanese Forces, was imprisoned for life, accused of responsibility for a church bombing near Beirut in 1994. The LF was outlawed. He was given amnesty by the legislature in 2005.

There has been no plan for broader war crimes or human rights trials, and there are no policies in place for transitional justice mechanisms or a national reconciliation process. Proposals for a national commemorative day for the civil war have been rejected.
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However, commemorative events in 2005, not long after the assassination of former Prime Minister Hariri, may have marked the
beginning of a change in the so-called culture of amnesia. In the absence of official government efforts, civil society organizations in particular have developed memorials and recollection of the events of the civil war through films and documentaries.
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One former Christian militia leader, M. Assad Shaftari, has also offered an apology.
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Nonetheless, there is relatively little public discussion of the past and certainly no shared narrative regarding the conflict, although the latter is often difficult if not impossible. Following the Ta’if accord, a committee was created to develop a history textbook which would be acceptable to all confessional groups. The committee worked for a decade to develop such a textbook, but the end result was not endorsed, which means that different groups continue to learn from different textbooks. Furthermore, different groups receive news from different sources which each have their own particular biases.
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There has, similarly, been little done to address the fate of the disappeared or the needs of their relatives.
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While the government has issued official statistics on those disappeared alongside estimates of the dead and wounded, those are alleged to be inflated. And while there have been two commissions of inquiry into the disappeared, one in 2000 and one in 2001, the first published only a two-page report, and the other none at all, in relation to thousands of potential victims. Two NGOs have brought suit, seeking release of a detailed report; proceedings were pending in 2011.
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Pursuit of detailed information about, or justice for, the disappeared was impossible during Syrian occupation and remains difficult in light of the 1991 amnesty, political divides, and security concerns. Further, there has historically been a political divide between the two main organizations of families of the disappeared and detained, although that has been bridged to some degree,
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and more vocal advocacy for information about the disappeared and opening of mass graves has been possible in recent years.

The Hariri Tribunal

There was widespread speculation in Lebanon and abroad about who might be responsible, with allegations that Hezbollah members, with Iran’s backing, might be responsible, or that Syria might have arranged for Hariri to be killed in order to maintain its influence in the country, or that both were responsible.
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Many in the international community felt that accountability was important and that Lebanese courts were unlikely to be able to hear cases related to the assassination.
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Thus the only significant, and the only externally supported, attempt at accountability is the Lebanon Special Tribunal, which was created to prosecute just a few crimes—the 14 February 2005 assassination of former Prime Minister Hariri and several related assassinations.
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It may be a mistake to treat the tribunal as a mechanism of transitional justice in anything other than form, given that it was created long after the Ta’if agreement, although of course there is no time limitation on accountability mechanisms.
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Furthermore, the withdrawal of Syria certainly constituted an important transition for the country. The question remains whether it could nonetheless catalyze efforts at broader accountability in the country.

The Tribunal’s Creation

Following the assassination, the United Nations Security Council established the mandate of a commission of inquiry in April 2005.
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That commission concluded that the assassination was carried out by a group with “extensive organization,” and indicated that some evidence pointed to Lebanese and Syrian involvement. It transmitted evidence collected in its investigations to Lebanese judicial authorities and expressed the view that further investigations should be undertaken by domestic judicial and security forces.
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Whether members of Hezbollah or of the Syrian government are responsible, obtaining custody of them could be difficult.
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Following a resolution by the UN Security Council calling for a criminal tribunal in 2006, the UN and the government of Lebanon entered into agreement for the creation of the Special Tribunal for Lebanon to prosecute individuals responsible for the organization of the Hariri assassination and related killings. The creation of the tribunal was endorsed by the Council in 2007.
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There are 11 judges, of which four are Lebanese. Some scholars have questioned even the presence of four Lebanese judges, arguing that the judiciary is simply too corrupt and politicized to guarantee that their decisions at the tribunal would be impartial.
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Controversy Over the Tribunal: Selectivity and Politics

The tribunal is controversial because it is only designed to address such a limited set of crimes, given the extensive history of assassinations both during and since the end of the civil war, as well as disappearances and violations of international human rights and international humanitarian law during the armed conflict.
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Many see the tribunal as politicized and unable to deliver accountability, and a range of civil society organizations that do promote the idea of some form of transitional justice or reckoning with the past do not support the tribunal itself.
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Families of the thousands of persons who disappeared during the war question the creation of a tribunal to investigate the killings of a few elite with no serious investigations into the fate of their relatives.
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Indeed, even the international nature of the tribunal, which in form appears similar to hybrid tribunals such as the Special Court for Sierra Leone, but which does not have jurisdiction over any international crimes, might be called into question. As the Regional Representative of the Office of the High Commissioner for Human Rights in Lebanon observed, the internationalization of this particular judicial process is justifiable only either with reference to the inability of Lebanese courts to hear such politically sensitive cases, or because one or more of the perpetrators may be outside of Lebanese territory.
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Furthermore, many view the tribunal’s creation as having been motivated more by politics than a desire to pursue justice or confront a broader culture of impunity.
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In particular, France and the USA are said to have used the creation of the tribunal to isolate and in some sense “criminalize” Syria, which is seen by many as
at least partially responsible for the assassination. However, the changes in administration in both countries have meant, according to one observer, that their interest in promoting the tribunal has waned, and their fears of destabilizing Syria have increased;
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given the uprisings in the country and the region, these fears possibly became more acute during 2011. Nonetheless, the faction most supportive of the tribunal is that led by Saad Hariri, the prime minister and former prime minister’s son, while the primary opposition faction alleges that the tribunal is politicized.
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Tribunal Legacy?

There are numerous models of hybrid tribunals, and there is some controversy over whether the Special Tribunal for Lebanon is indeed such a tribunal, although it shares some characteristics with existing hybrid models. Generally, hybrid tribunals share a number of features: they are sited in the country affected by the violence or conflict to be addressed, they utilize international and domestic judges, lawyers, and other court staff, and they prosecute international crimes and may also have some domestic crimes within their remit.
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The STL shares few of these characteristics: it applies domestic law pertaining to domestic crimes of terrorism and murder, rather than international law crimes such as crimes against humanity or war crimes.
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It is sited just outside The Hague, nearer to other international criminal tribunals such as the International Criminal Court and the
ad hoc
tribunals for the former Yugoslavia and Rwanda, rather than in Lebanon itself, for reasons of security. It does, however, include domestic and international staff, with Lebanese and international judges, and an international chief prosecutor, head of defense, and registrar.
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There is thus an argument for treating it as a hybrid.
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More importantly for our purposes, the primary arguments for the tribunal are quite similar to those made for hybrid tribunals. Advocates of hybrid tribunals often argue that they should be created to pursue accountability where the domestic judiciary is unable to address serious crimes of the past due to damage, incapacity, or bias. They also argue that they help to address the needs of affected victims and society, sited as they are ordinarily in the country affected. And they are often expected to have a capacity-building and demonstration effect for weak or corrupt national judiciaries, through the inclusion of national staff, presence on the territory affected, and legacy-building through engagement with the domestic judiciary. Similar arguments have been put forth in support of the STL, despite its presence in the Netherlands. Its mixed character is defended as necessary due to the bias and corruption of the judiciary, and advocates emphasize their hopes for a wider legacy for domestic rule of law. The fact that the tribunal will apply purely domestic law but apply international standards regarding the rights of the defendant and due process, among others, has the potential to enhance domestic rule of law in Lebanon by having a more directly analogous relevance, at least for specific crimes.
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Finally, advocates hope that the tribunal will contribute to, rather than undermine, peace.
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It might be hoped that the tribunal, notwithstanding its mandate to try a limited number and type of cases, could reopen broader domestic debates regarding accountability and impunity that might eventually lead to a real impetus for reform of rule of law and/or transitional justice processes, open political space for discussions about the civil war, or even enable reconciliation processes.
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There is some evidence that the procedures of the tribunal have influenced some domestic legal discussions. Following the release of four generals detained for the tribunal (see below), the minister of justice presented a proposal that would reform the Code of Criminal Procedure setting a limit to the period of detention without charge to a year, albeit much longer than the tribunal’s 90-day rule.
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Advocates argue that the Lebanese judges serving on the tribunal will return to the country with expertise that will be shared with colleagues.
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Some argue that the tribunal could serve as an example of impartial justice in operation and could result in justice for a political crime, both rarities in Lebanon.
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They suggest as well that the tribunal’s creation, justified in part with reference to the inability of the Lebanese judiciary to manage a case of this nature, or to act impartially, will draw attention to the need for judicial reform in the country.
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They note, too, that families of the disappeared have sought to use the creation of the tribunal as an opportunity to draw attention to their concerns.
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Any such impact, of course, will depend upon effective outreach and, as the outreach office was launched in December 2009, it is as yet too early to assess its effects.
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However, the prospect for criminal accountability for other crimes remains unlikely so long as the 1991 amnesty remains in force, and leaders and fighters from various fighting forces who may be responsible for abuses are in office.
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It is not clear that the tribunal will have any further impact on rule of law promotion in the country.
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While some discussions regarding the possibility of a truth commission were initiated with the support of the International Centre for Transitional Justice and the International Federation of Human Rights (FIDH), one observer suggests that the 2006 Israeli war with Hezbollah interrupted these discussions, which have not been seriously resumed.
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At the same time, the selectivity of the tribunal’s mandate may undermine its legitimacy and thus its ability to promote the concept of rule of law more generally, in the absence of any processes to address the legacy of the civil war, the assassinations and disappearances (in Syria as well as Lebanon) since the end of the war, the 2006 war, or the May 2008 violence. Some characterize the tribunal as simply demonstrating that there is a double standard—justice for wealthy elites and no justice for the rest of the populace.
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The rumors first that Syria, and later Hezbollah, were the primary subjects of investigation have generated concerns, too, about the legitimacy or expedience of any indictments. In January 2011, the prosecutor submitted a sealed indictment request to the pre-trial judge; on 30 June the indictments were confirmed, and eventually the names of four suspects, all with connections to Hezbollah, were released.
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