Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (31 page)

Others have suggested that the funds spent on the tribunal would be better spent on domestic judicial reform.
⁷⁴
The legitimacy of the tribunal is also affected
by the perceived lack of transparency—there was no public discussion of the selection process for judges.
⁷⁵
All of this adds up to an institution that looks like a hybrid tribunal, and might be taken to be part of a transitional justice process, but which may be simply a mechanism without a wider process.

Unique Features

The tribunal has a number of unique features, beyond the deviations from the common characteristics of hybrid tribunals noted above. It is noteworthy that it will be an internationalized court trying the crime of terrorism, given that there is no comprehensive agreed definition of the crime of terrorism in international law.
⁷⁶
It is also unique in that trials
in absentia
are permitted, which critics have argued is inconsistent with international human rights law.
⁷⁷
The final feature, if utilized effectively, might have the potential for wider impact of the tribunal: the provision for victim participation.
⁷⁸
Article 17 of the statute, copying the language of article 168 of the statute of the International Criminal Court, permits victims to present their views during the proceedings. The purpose of inclusion of victims in such proceedings, according to one jurist, is not merely judicial, but also serves reparative and symbolic functions for the victims themselves.
⁷⁹
In theory, such participation might serve symbolic functions for the wider society as well. However, given the relatively limited scope of persons likely to be considered victims for the purposes of the STL, the impact is likely to be limited.
⁸⁰
In particular, the large number of victims and families of victims, including the disappeared, would not be able to make statements at the STL as the crimes to which they could refer do not fall within the remit of the court. At this stage, in the absence of any criminal proceedings, it is too early to assess the impact of victim participation at the STL.

Legitimacy, Politics, and Stability: Controversy Over the Four Generals

Given the political context and the politicized nature of its creation, the Special Tribunal is viewed by many as politicized and potentially biased itself. This perception may undermine the impact of its operation on Lebanese politics and society, and discussions about accountability, even if it operates in an impartial and independent fashion. Thus, for example, even the tribunal’s decision in April 2009 to free four accused pro-Syrian generals who had been detained by the Lebanese government for future prosecution did not prove its independence to some. The four men, former head of the presidential guard Mustafa Hamdan, security services director Jamil al-Sayed, domestic security chief Ali Hajj, and military intelligence chief Raymond Azar, were released after the prosecutor of the tribunal, Daniel Bellemare, requested that they be, on the grounds that there was not sufficiently credible evidence to make it possible for him to bring indictments in the legally mandated time frame of 90 days.
⁸¹
A key witness, Mohammed Zuhair Siddiq, a Syrian army deserter, had recanted his original statements incriminating the four, and arrest warrants were issued for him in both Syria and
Lebanon.
⁸²
Following his release, al-Sayed repeatedly made statements calling into question the impartiality of the Lebanese judicial system and high-level politicians. Members of the 8 March faction say that the Lebanese judges at the tribunal itself are corrupt and can be bought off, although they provide no specific evidence for such allegations, and indeed the order by the STL would seem to indicate that this is not the case.
⁸³
One of the detained, al-Sayed, subsequently submitted a claim before the tribunal that he was the victim of arbitrary detention on the basis of libel. The matter has been assigned to a pre-trial judge and al-Sayed has been provided with defense counsel.
⁸⁴

The tribunal could, according to some, have a destabilizing effect on Lebanese politics, depending upon whom it chooses to indict.
⁸⁵
Thus Walid Jumblatt, the leader of the Progressive Socialist Party, originally a supporter of the tribunal, later predicted that there would be chaos when indictments were issued.
⁸⁶
Some observers are more circumspect, suggesting that the tribunal may have exacerbated existing political divisions, but that it did not create them.
⁸⁷
Further, while the tribunal was extremely politicized at its creation, given perceptions that it was a tool for the USA, France, and others to demonize Syria, Syria has begun to rebuild relations with regional and international powers. Thus the “shadow of the tribunal” may be lessened.
⁸⁸
Conversely, indictments could help calm the political situation, ending rumor and speculation, according to one observer.
⁸⁹
The expectation, and subsequent decision, on indictments of persons connected to Hezbollah generated new speculation about possible political compromise by Saad Hariri and his successor Najib Azmi Mikati, including the possibility of requesting the closure of the tribunal.
⁹⁰
While this might alleviate immediate domestic political debates and the legitimacy issues that hamper the tribunal, it would also contribute to the already significant trend towards impunity in the country and indeed make future efforts at accountability significantly more difficult.
⁹¹
In late 2010, Saudi Arabia and Syria sought to broker a deal that would allow Hariri to distance the government from the tribunal without closing it; this initiative failed. In January 2011, Hezbollah withdrew from the coalition government, prompting its collapse and a continuing parliamentary crisis.
⁹²

Conclusion

As one analyst asked me, “How can we establish peace with half a justice done?”
⁹³
Despite the passage of 20 years since the Ta’if agreement, it is difficult to say that peace is truly consolidated in Lebanon. This has hampered efforts to pursue accountability, or even establish a shared narrative of the events of the civil war or under occupation, even five years after Syrian withdrawal. The Special Tribunal for Lebanon is ill-suited to engage the larger legacy of the past, given its limited mandate and its curious status as a transitional justice-type mechanism in the absence of an obvious transitional process. And it is unlikely, on the evidence to date, to have the hoped-for effect of promoting efforts at accountability or even truth-telling domestically, engendering frustration and
disappointment among victims and families of victims and the missing. Whether the tribunal will undermine stability, should it have any defendants before it, remains to be seen.

Notes

1
 
Guidance Note of the Secretary-General. United Nations Approach to Transitional Justice
(March 2010), at <
www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf
>.

2
 I thank Lars Waldorf for raising provocative questions on this point during the authors’ meeting for this project in May 2011, and Jemima García-Godos for providing a helpful set of concepts to which to respond.

3
 See, e.g., Maria Paula Saffon and Rodrigo Uprimny, “Uses and abuses of transitional justice in Colombia,” in Morten Bergsmo and Pablo Kalmanovitz, eds,
Law in Peace Negotiations
(Oslo: Torkel Opsahl Academic Publisher, 2010), pp. 354–94.

4
 These killings are a subset of so-called honor killings, in which the victim is punished for having supposedly brought dishonor to the family; in Lebanon many women who have been raped are subsequently killed by their brothers. United Nations Trust Fund to End Violence Against Women, “Facts and figures on violence against women” (16 February 2007), at <
www.unifem.org/campaigns/trust_fund_10th_anniversary/facts_figures.php?page=4
>.

5
 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
, vol. 5 (2007), pp. 1065–81, at 1068; Iolanda Jaquemet, “Fighting amnesia: Ways to uncover the truth about Lebanon’s missing,”
International Journal of Transitional Justice
, vol. 3, issue 1 (2008), pp. 1–18, at 1.

6
 Author’s interview with observer who requested anonymity (Beirut, September 2009).

7
 Lebanonization was meant to imply a positive return to control of Lebanese over their own country and the incorporation of various factions in a pluralist political system, but is also often used internationally in a derogatory fashion, to refer to disintegration of a state or foreign control over it.

8
 Wierda, Nassar, and Maalouf, “Early reflections,” op. cit.

9
 Are Knudsen, “Precarious peacebuilding: Post-war Lebanon, 1990–2005,” CMI Working Paper (Bergen: Chr. Michelsen Institute, 2005); Christine Sylva Hamieh and Roger MacGinty, “A very political reconstruction: Governance and reconstruction in Lebanon after the 2006 war,”
Disasters
, vol. 34 (2010), pp. S103–S123.

10
 Martin Kraft, Muzna Al-Mazri, Heiko Wimmen, and Natascha Zupan, “Walking the line: Strategic approaches to peacebuilding in Lebanon” (Bonn: Working Group on Development and Peace, German Development Service, and Heinrich Böll-Stiftung, December 2008), pp. 15–24.

11
 See Arab Reform Initiative and Palestinian Center for Policy and Survey Research, “The state of reform in the Arab world 2009–10” (Arab Reform Initiative, March 2010), <
www.arab-reform.net
>.

12
 The Constitution of Lebanon (1926, as amended 1990), at <
www.servat.unibe.ch/icl/le00000_html#A095
> (accessed 12 December 2009). See generally Robert Fisk,
Pity the Nation: Lebanon at War
(Oxford: Oxford Paperbacks, 2001); Fawwaz Traboulsi,
A History of Modern Lebanon
(London: Pluto Press, 2007). Sandra Mackey,
Lebanon: A House Divided
(New York: W.W. Norton, 2006). Author’s interview with Gaëlle Kibranian, Lebanese Transparency Association (Beirut, September 2009).

13
 Kraft, Al-Mazri, Wimmen, and Zupan, “Walking the line,” op. cit., pp. 5–6, 20–21; author’s interview with Bassel Salloukh, Lebanese American University (Beirut, September 2009); author’s interview with Father Fady Fadel, Antonine University (Beirut, September 2009).

14
 Author’s interview with Sylva Hamieh (speaking in personal capacity) (Beirut, September 2009).

15
 Author’s interview with Julien Courson, Alef (Beirut, September 2009); author’s interview with Kamel Mohanna, Director, Amel Association (Beirut, September 2009).

16
 Knudsen, “Precarious peacebuilding,” op. cit., pp. 12–13; author’s interview with Paul Salem, Director, Carnegie Middle East Center (Beirut, September 2009).

17
 Robert Rabil, “Hezbollah: Lebanon’s power broker,”
The Journal of International Security Affairs
, no. 15 (Fall 2008), at <
www.securityaffairs.org/issues/2008/15/rabil.php
>.

18
 Author’s interview with Siad Darwish, Peace Permanent Movement (Beirut, September 2009); Ghaith Abdul Ahad, “Ghaith Abdul Ahad reports on the street battle in Lebanon,”
The Guardian
(10 May 2008), at <
www.guardian.co.uk/world/2008/may/10/lebanon.syria
>.

19
 Kraft, Al-Mazri, Wimmen, and Zupan, “Walking the line,” op. cit., pp. 10, 33–35; Yezid Sayigh, ‘“Fixing broken windows’: Security sector reform in Palestine, Lebanon, and Yemen,”
Carnegie Papers
no. 17 (Beirut: Carnegie Middle East Center, October 2009); author’s interview with Salloukh.

20
 Author’s interview with Salloukh.

21
 Aram Nerguizian and Anthony Cordesman, “The Lebanese armed forces: Challenges and opportunities in Post-Syria Lebanon” (Washington, DC: Center for Strategic and International Studies, 10 February 2009); author’s interview with Salloukh; author’s interview with Hamieh; author’s interview with Salem.

22
 Author’s interview with Darwish.

23
 Author’s interview with Jeremy Cornforth, Political and Economic Counsellor, Embassy of the United States of America (Beirut, September 2009).

24
 Kraft, Al-Mazri, Wimmen, and Zupan, “Walking the line,” op. cit., pp. 31–33.

25
 Author’s interview with Julien Courson, Alef (Beirut, September 2009); expert speaking on condition of anonymity (Beirut, September 2009).

26
 Author’s interview with Salem.

27
 Author’s interview with Fateh Azzam, Regional Representative, Office of the High Commissioner for Human Rights (Beirut, September 2009).

28
 Author’s phone interview with Nadim Houry, Human Rights Watch (Beirut, September 2009).

29
 Author’s interview with Salloukh author’s interview with Darwish; author’s interview with Hamieh; author’s interview with Salem.

30
 “Lebanon: Justice ministry campaigns to abolish death penalty” (29 August 2009), at <
www.handsoffcain.info/archivio_news/200908.php?iddocumento=12311666&mover=0
> (accessed 12 December 2009); author’s interview with Azzam.

31
 Expert speaking on condition of anonymity (Beirut, September 2009).

32
 Wierda, Nassar, and Maalouf, “Early reflections,” op. cit., pp. 1066–69.

33
 Knudsen, “Precarious peacebuilding,” op. cit., p. 15.

34
 Laurie King-Irani, “Commemorating Lebanon’s war amid continued crisis,”
Middle East Report Online
(14 April 2005), at <
http://merip.org/mero/mero041405.html
>; author’s interview with Siad Darwish, who suggested there was increased openness to transitional justice at the public and political level, referring to television programs with politicians discussing the war, and commemorative events. One observer suggests that the Hariri assassination itself created new political space, by generating international condemnation, some directed at Syria and Iran, lessening Syria’s influence in Lebanon; author’s interview with Fadel; author’s interview with Zeina el-Hélou, Lebanese Centre for Policy Studies (Beirut, September 2009).