Abstract
Using the case of Lebanon, this chapter highlights the importance of ameliorating the underlying context in the stage that precedes the launch of the transitional justice process so as to improve its chances of success. It is argued that an amnesty law could be an ameliorating factor to transitional justice, if it includes provisions to demilitarise and/or bring some sort of justice to the victims. The case of Lebanon also suggests that if subsequent prosecutions are undertaken without introducing various programs, reforms, and activities at an earlier stage to improve and safeguard the independence and impartiality of the national courts, the process will lead to more division without reinforcing deterrence and accountability.
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Notes
- 1.
The report gives Lebanon a 4.71/10 in 2017 on democratic governance. See The Economist Intelligence Unit, “The Economist Intelligence Unit’s Democracy Index,” The Economist, 2017, accessed 2018, https://infographics.economist.com/2018/DemocracyIndex/.
- 2.
See “Freedom in the World 2018: Democracy in Crisis,” Freedom House, accessed November 2018, https://freedomhouse.org/report/freedom-world/freedom-world-2018.
- 3.
Edward Azar, The Management of Protracted Conflicts (Brookfield, Vermont: Dartmouth Pub Co, 1990), 41.
- 4.
Imad Salamey and Rhys Payne, “Parliamentary Consociationalism in Lebanon: Equal Citizenry vs. Quoted Confessionalism,” The Journal of Legislative Studies 14, no. 4 (Dec 2008), 453.
- 5.
As the war progressed, other parties joined the coalitions. On the Christian side, there was Gemayel’s Phalange party, Geagea’s the Lebanese forces (LF), Chamoun’s Free Nationalists. On the other side, were Jumblat’s Progressive Socialist Party (PSP), the Shiite Amal party, the Syrian Social National Party, and so on. See Paul A. Jureidini and R.D. Mclaurin, “Lebanon after the War of 1982” in The Emergence of a New Lebanon, ed. Edward Azar (Connecticut: Praeger Publishers, 1984), 12.
- 6.
“Failing to Deal with the Past: What Cost to Lebanon,” International Center for Transitional Justice, January 2014, accessed January 2014; https://www.ictj.org/sites/default/files/ICTJ-Lebanon-Impunity-Report-2014.pdf.
- 7.
Although the official title of the agreement is spelled “Taif,” all references within the agreement are spelled “Ta’if” and I have opted to spell it this way throughout this chapter for consistency.
- 8.
The Taif Agreement (1989) (United Nations Permanent Missions), accessed April 2018, https://www.un.int/lebanon/sites/www.un.int/files/Lebanon/the_taif_agreement_english_version_.pdf; sec. G(b).
- 9.
Ibid., sec. F.
- 10.
Samar El-Masri, “Cases in Power Sharing and Social Transformation,” (Ph.D. diss.) (London, Canada: The University of Western Ontario, 2004), 43.
- 11.
The coalitions were named after the dates of their biggest public rallies in Beirut.
- 12.
Samar El-Masri, “The Hariri Tribunal: Politics and International Law,” Middle East Policy 15, no. 3 (2008), 80–92.
- 13.
United Nations Security Council, “Resolution 1644,” S/RES/1664(2006) (New York: United Nations Security Council, 2006).
- 14.
Kenneth A. Rodman, “Peace Versus Justice,” Encyclopedia of Global Justice (Dordrecht: Springer, 2011), 824–827.
- 15.
Nir Eisikovits, “Peace Versus Justice in Transitional Settings,” Quinnipiac Law Review 32 no. 3 (2014), 221–236; see also Bronwyn Anne Leebaw, “The Irreconcilable Goals of Transitional Justice,” Human Rights Quarterly 30, no. 1 (Feb 2008), 97.
- 16.
For more clarification on this trend, see Charles P. Thrumbull IV, “Giving Amnesties a Second Chance,” Berkeley Journal of International Law 25 no. 2 (2007), 284–345.
- 17.
This was seen, for example, when the ICC issued an arrest warrant against Omar Al Bashir of Sudan. The African Union feared that this may intensify the conflict and that efforts by the international community should focus on peace and resolving the Darfur conflict before justice. See Mary Kimani, “Pursuit of Justice of Western Plot,” Africa Renewal, accessed May 2019, https://www.un.org/africarenewal/magazine/october-2009/pursuit-justice-or-western-plot.
- 18.
Thrumbull, “Giving Amnesties a Second Chance,” 306–314.
- 19.
Rodman, “Peace Versus Justice,” 824–827.
- 20.
Leebaw, “The Irreconcilable Goals of Transitional Justice,” 110–114.
- 21.
Ruti G. Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16, no. 1 (Jan 2003), 83.
- 22.
Bringing those leaders to justice would require a military solution that the UN was not keen to provide. Rodman, “Peace Versus Justice,” 826–827.
- 23.
Thrumbull, “Giving Amnesties a Second Chance,” 285. See also Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter, “The Justice Balance: When Transitional Justice Improves Human Rights and Democracy,” Human Rights Quarterly 32, no. 4 (Nov 2010), 991–996.
- 24.
Thrumbull, “Giving Amnesties a Second Chance,” 285.
- 25.
Jose Zalaquett, “Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints,” in Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vol. 1, ed. Neil J. Kritz (Washington DC: United States Institute of Peace, 1995), 14–15.
- 26.
Since the 1990s, the jurisprudence of the international courts confirmed that trend in the Prosecutor V. Furundžija (ICTY Trial Chamber) and in invalidating an amnesty law granted by the Lomé Agreement of the Special Court for Sierra Leone. See Juan Carlos Portilla, “Amnesty: Evolving 21st Century Constraints under International law,” The Fletcher Forum of World Affairs 38, no. 1 (Winter 2014), 178.
- 27.
“Lebanon: Human Rights Developments and Violations,” Amnesty International, 1997, accessed February 2019; https://www.amnesty.org/download/Documents/164000/mde180191997en.pdf.
- 28.
Marieke Wierda, Habib Nassar, and Lynn Maalouf, “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon,” Journal of International Criminal Justice 5 (2007), accessed 2019, https://academic.oup.com/jicj/article/5/5/1065/2188968#33833736.
- 29.
Harmen Van der Wilt, “The Legacy of the Special Tribunal for Lebanon,” in The Special Tribunal for Lebanon: Law and Practice, eds. Amal Alamuddin, Nidal Nabil Jurdi, and David Tolbert (Oxford: Oxford University Press, 2014), 279.
- 30.
Geoff Dancy, “Deals with the Devil? Conflict Amnesties, Civil War and Sustainable Peace,” International Organization 72, no. 2 (Spring 2018), 387–421.
- 31.
See Samar El-Masri, “Inter-ethnic Reconciliation in Lebanon after the Civil War,” in Reconciliation(s), Transitional Justice in Postconflict Societies, ed. Joanna R. Quinn (Montreal: McGill-Queen’s University Press, 2009), 274. See also Dima de Clerck, “Ex-militia Fighters in Post-war Lebanon,” Accord Series no. 24 (2012); accessed June 2019; https://www.c-r.org/downloads/Accord24_ExMilitiaFighters.pdf.
- 32.
Ibid.
- 33.
Louise Mallinder, “Can Amnesties and International Justice be Reconciled?” The International Journal of Transitional Justice 1, no. 2 (Aug 2007), 208–230.
- 34.
“Failing to Deal with the past: What Cost to Lebanon,” International Center for Transitional Justice, accessed January 2014; https://www.ictj.org/sites/default/files/ICTJ-Lebanon-Impunity-Report-2014.pdf.
- 35.
“Human Rights Development and Violations,” Amnesty International, 1 Oct 1997, http://www.refworld.org/docid/3ae6a9bb0.html.
- 36.
Uruguay and Argentina, for example, both overturned their amnesty laws as a result of social pressure and civil society activism. See Olsen et al., “The Justice Balance,” 991–996.
- 37.
The criticism of this law and its selective implementation was also voiced by another group of Lebanese, namely the families of former members of the South Lebanon Army (SLA)—a militia that was in charge of the Khiyam Detention Centre and the “security zone” established following the Israeli 1978 invasion of Lebanon, and that continued until the Israeli withdrawal in 2000. A November 2011 parliamentary law recognised the right of these families living in Israel and abroad to return home, but insisted that SLA members who collaborated with Israel would still have to face trial. This decision angered the group, as they felt that they were not granted the same concessions as other factions in the war, especially when the stigma of “collaborators” still hangs over their heads. See “Lebanon: Human Rights Development and Violation,” Amnesty International, 1997, https://www.amnesty.org/download/Documents/164000/mde180191997en.pdf.
- 38.
It is true that after Gemayel’s assassination, Habib Shartouni, a member of the Syrian Social Nationalist party was apprehended by LF, confessed, handed over to the Lebanese authorities, and served few years in prison until his escape in 1990, but Nabil Alam, the mastermind of the operation, vanished. Both were reportedly living in Syria—at least for a period of time—and should have been handed over to the Lebanese authorities after the war, if amnesty laws are to be applied fairly. This did not happen. It was only in 2017 that the Justice Council sentenced them both to death in absentia. See Bassem Mroue, “Lebanon issues Death Sentences in 1982 killing of president,” Fox News, accessed 20 October 2017, https://www.foxnews.com/world/lebanon-issues-death-sentences-in-1982-killing-of-president.
- 39.
The case of Dany Chamoun was referred to the Justice Council in 1990 but was only investigated four years later. See “Lebanon: Samir Gea’gea’ and Jirjis al-Khoury: Torture and Unfair Trial,” Amnesty International, accessed November 2004, https://www.amnesty.org/download/Documents/100000/mde180032004en.pdf.
- 40.
Very similar treatment was also directed against the supporters of General Michael Aoun, who was living in exile in France since his military defeat by the Syrians in 1990. A Human Rights Watch reported that a 1992 distribution of leaflets in support of Aoun and critical of President Hirawi and Syria not only led to the arbitrary arrest and detention of scores of civilians but to the referral of the case to the military court, which sentenced most to years in prison. In Hikmat et al., the case before the military court all defendants were civilians. Women detainees have also reported ill treatment and rape while in detention but the court did not look into her allegations and passed a judgement based on her confession. See also “Lebanon,” Human Rights Watch 1994, https://www.hrw.org/reports/1994/WR94/Middle-08.htm#P460_235890.
- 41.
“Lebanon: Human Rights Development and Violation,” Amnesty International.
- 42.
Muna B. Ndulo and Roger Duthie, “The Role of Judicial Reform in Development and Transitional Justice,” International Centre for Transitional Justice, July 2009, accessed June 2019; https://www.ictj.org/sites/default/files/ICTJ-Development-JudicialReform-ResearchBrief-2009-English.pdf.
- 43.
Ibid.
- 44.
“International principles on the Independence and Accountability of Judges, Lawyers and Prosecutors,” International Commission of Jurists 2007, http://www.refworld.org/pdfid/4a7837af2.pdf.
- 45.
Vicki C. Jackson, “Judicial Independence: Structure, Context, Attitude,” in Judicial Independence in Transition, ed. Anja Seibert-Fohr (London: Springer, 2012), 20–21.
- 46.
Diane Marie Amann, “Impartiality Deficit and International Criminal Judging,” in Atrocities and International Accountability: Beyond Transitional Justice, eds. Edel Hughes, William A. Schabas and Ramesh Thukur (Japan: United Nations University Press, 2007), 220.
- 47.
“International principles on the Independence and Accountability of Judges, Lawyers and Prosecutors,” International Commission of Jurists 2007, http://www.refworld.org/pdfid/4a7837af2.pdf.
- 48.
Ryan Salzman and Adam Ramsey, “Judging the Judiciary: Understanding Public Confidence in Latin American Courts,” Latin America: Politics and Society 55, no. 1 (Feb 2013), 74.
- 49.
These range from the 2004 Arab Charter on Human rights to the International Covenant on Civil and Political Rights, and the International Covenant on Social, Economic and Cultural rights reaching the Convention on the Elimination of all Forms of Racial Discrimination and the Convention on the Elimination of all Forms of Discrimination Against Women, among others.
- 50.
Government of Lebanon, The Lebanese Constitution (1926), sec. E, Preamble.
- 51.
Ordinary courts have general jurisdiction over civil and criminal cases. Lebanon also has religious courts that decide on cases of personal status. Each religious confession has its own court.
- 52.
United Nations Human Rights Committee, “UN Human Rights Committee: Concluding Observations: Lebanon,” Refworld, 5 May 1997, http://www.refworld.org/docid/3ae6b03214.html.
- 53.
“Lebanon: Human Rights Development and Violation,” Amnesty International, 1997, https://www.amnesty.org/download/Documents/164000/mde180191997en.pdf.
- 54.
Maya W. Mansour and Carlos Y. Daoud, “Lebanon: the Independence and Impartiality of the Judiciary,” Euro-Mediterranean Human Rights Network, Feb 2010, https://euromedrights.org/wp-content/uploads/2018/03/LEBANON-The-Independence-and-Impartiality-of-the-Judiciary-EN.pdf.
- 55.
Nizar Saghieh, “The Reform of Judiciaries in the Wake of the Arab Spring-Lebanon,” The Reform of Judiciaries in the Wake of the Arab Spring (Copenhagen: Euro-Mediterranean Human Rights Network, 2011); 85.
- 56.
This is problematic because the President is a Maronite and the Prime Minister is a Sunni, and it is often the case that their interests are not aligned, stopping appointments until the person in question gets what he wants.
- 57.
Lebanon has more than 15 personal status laws.
- 58.
Mansour et al., “Lebanon: the Independence and Impartiality of the Judiciary.”
- 59.
In fact, disagreements over appointments often arise leading to the paralysis of the system. This was the case between 2006 and 2008, when 100 young graduate judges of the Institute of Judicial Studies were unable to get appointed to the judiciary that is already understaffed, underpaid, and overworked. “Judicial Appointments to Hariri, LF sidelined by FPM,” The Daily Star, accessed 6 October 2017, https://www.pressreader.com/lebanon/the-daily-star-lebanon/20171006/281526521264893.
- 60.
Mansour et al., “Lebanon: the Independence and Impartiality of the Judiciary.”
- 61.
United Nations Human Rights Committee, “UN Human Rights Committee: Concluding Observations: Lebanon,” Refworld, 5 May 1997, http://www.refworld.org/docid/3ae6b03214.html.
- 62.
“Lebanon: Human Rights Development and Violation,” Amnesty International.
- 63.
Immigration and Refugee Board of Canada, “Lebanon and Israel: Treatment of Lebanese who cooperated with Israel during its occupation of Lebanon, including those who stayed in Lebanon after the withdrawal of Israeli troops and those who sought refuge in Israel and obtained Israeli citizenship (2000–2012),” Refworld, 20 April 2012, http://www.refworld.org/docid/505992c62.html.
- 64.
James P. Wenzel, Shaun Bowler, and David J. Lanoue, “The Sources of Public Confidence in State Courts,” American Politics Research 31, no. 2 (1 March 2003), 192.
- 65.
The victim was buried and the perpetrator remains at large. For more information about the incident see Asharq Al-Awsat, “Attempts to contain Druze Strike after Escape of Man Accused of Choueifat Crime,” accessed 11 May 2018, https://aawsat.com/english/home/article/1265181/attempts-contain-druze-strife-after-escape-man-accused-choueifat-crime.
- 66.
Are John Knudsen, “Death of a Statesman—Birth of a Martyr: Martyrdom and Memorials in Post-Civil War Lebanon,” Anthropology of the Middle East 11, no. 2 (2016), 2.
- 67.
Ibid.
- 68.
The Maronites witnessed the assassination of Bashir Gemayel of the Phalangist party and later his nephew, Pierre (twenty-four years apart), the Druze were horrified by the assassination of their prominent leader Kamal Jumblat of the PSP; and the Shi’a—specifically Amal—still wonder about the fate of Imam Mousa Al Sadr who disappeared in Libya since 1978. As for Hezbollah, every year the party holds a Martyr’s Day rally to commemorate their fallen soldiers and fighters.
- 69.
Muna Ndulo and Roger Duthie, “The Role of Judicial Reform in Development and transitional Justice,” International Center for Transitional Justice, July 2009, https://issat.dcaf.ch/download/2296/19964/The%20Role%20of%20Judicial%20Reform%20in%20Development%20and%20Transitional%20Justice%20ICTJ%20(2009).pdf.
- 70.
Nizar Saghieh, “The Reform of Judiciaries in the Wake of the Arab Spring-Lebanon,” The Reform of Judiciaries in the Wake of the Arab Spring (Copenhagen: Euro-Mediterranean Human Rights Network, 2011), https://www.refworld.org/pdfid/515009ac2.pdf: 84–89.
- 71.
See “Action Fiche for Lebanon,” European Commission, 2011, accessed 2019; https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/aap_liban_2011_ad1.pdf.
- 72.
Ibid.
- 73.
“The Lebanese State Council and Administrative Courts: A Briefing Paper,” International Commission of Jurists; October 2018, https://www.icj.org/wp-content/uploads/2018/10/Lebanon-Memo-re-Court-Reform-Advocacy-Analysis-Brief-2018-ENG.pdf.
- 74.
See Ndulo and Duthie, “The Role of Judicial Reform in Development and Transitional Justice;” as well as the reports from the International Commission of Jurists.
- 75.
Ndulo and Duthie, “The Role of Judicial Reform in Development and Transitional Justice.”
- 76.
Ibid. See also Nizar Saghieh, “The Reform of Judiciaries in the Wake of the Arab Spring-Lebanon.”
- 77.
Gamal Eid, “The Reform of Judiciaries in the Wake of Arab Spring-Egypt,” The Reform of Judiciaries in the Wake of the Arab Spring (Copenhagen: Euro-Mediterranean Human Rights Network, 2011); https://www.refworld.org/pdfid/515009ac2.pdf, 18–27.
- 78.
This programme promised 5 million Euros in donation to judicial reform. “Action Fiche for Lebanon,” European Commission, 2011, accessed 2019; https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/aap_liban_2011_ad1.pdf.
- 79.
This programme promised 5 million Euros in donation to judicial reform. See “Action Fiche for Lebanon.”
- 80.
Ndulo and Duthie, “The Role of Judicial Reform in Development and Transitional Justice.”
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El-Masri, S. (2020). The Importance of Modifying the Context Before Introducing Amnesty and Prosecutions: The Case of Lebanon. In: El-Masri, S., Lambert, T., Quinn, J. (eds) Transitional Justice in Comparative Perspective. Memory Politics and Transitional Justice. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-34917-2_4
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