Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (32 page)

35
 M. Assad Shaftari, “Letter from a militia leader in Lebanon’s civil war,” at <
www.caritas.org/activities/peace_reconciliation/Peacebuilding_Slideshow.html?cnt=337
> (accessed 10 December 2009).

36
 United Nations Development Programme Lebanon,
Peace Building Project Newsletter
(1st Quarter 2009) on file with author; Stephen Dockery, “Journalists of all political colors attend media workshop,”
The Daily Star
(Beirut, 8 July 2009).

37
 Wierda, Nassar, and Maalouf, “Early reflections,” op. cit., pp. 1067–68.

38
 Jaquemet, “Fighting amnesia,” op. cit., pp. 5–6; Amnesty International, “Never forgotten: Lebanon’s missing people” (April 2011), at <
www.amnesty.org/en/library/asset/MDE18/001/2011/en/4c0716c2–8825–41d6-b816-c678ef4eeb44/mde180012011en.pdf
>.

39
 Jaquemet, “Fighting Amnesia,” op. cit., pp. 6–8. These are the Committee of the Families of the Kidnapped and Disappeared and SOLIDE (Support of Lebanese in Detention and Exile).

40
 An article in a German magazine spurred particular controversy in 2009 for alleging that the Special Tribunal had evidence regarding Hezbollah’s role in the assassination and was keeping it secret. Erich Follath, “New evidence points to Hezbollah in Hariri murder,”
Der Spiegel
(23 May 2009), at <
www.spiegel.de/international/world/0,1518,626412–2,00.html
>.

41
 This view was confirmed by the international inquiry initiated by the UN:
Report of the International Independent Investigation Commission Established Pursuant to Security Council Resolution 1595
, UN Doc. S/2005/662 (20 October 2005).

42
 One author, a Lebanese judge involved in the negotiations for the tribunal, says that the extension of the tribunal’s jurisdiction to attacks related to, but other than, that of Hariri was to deter the “serial political assassinations” that followed Hariri’s. Choucri Sader, “A Lebanese perspective on the Special Tribunal for Lebanon,”
Journal of International Criminal Justice
, vol. 5 (2007), pp. 1083–89.

43
 Chandra Lekha Sriram, Olga Martin-Ortega, and Johanna Herman, “Justice delayed? Internationalized criminal tribunals and peacebuilding in Lebanon, Bosnia, and Cambodia,”
Conflict, Security, and Development
, vol. 11, no. 3 (July 2011).

44
 United Nations Security Council Resolution 1595, UN Doc. S/RES/1595 (7 April 2005).

45
 
Report of the International Independent Investigation Commission Established Pursuant to Security Council Resolution 1595
, UN Doc. S/2005/662 (20 October 2005).

46
 Follath, “New evidence,” op. cit.

47
 United Nations Security Council Resolution 1664, UN Doc. S/RES/1664 (29 March 2006); United Nations Security Council Resolution 1757, UN Doc. S/RES/1757 (30 May 2007), which includes the statute; for an overview, see International Center for Transitional Justice,
Handbook on the Special Tribunal for Lebanon
(10 April 2008), at <
www.ictj.org
>.

48
 Author’s interviews with anonymous sources in Beirut, August–September 2009.

49
 Wierda, Nassar, and Maalouf, “Early reflections,” op. cit., pp. 1071–72; author’s interview with Courson; author’s interview with el-Hélou.

50
 Author’s interview with Darwish.

51
 Pamela Badine, Université Saint-Joseph de Beyrouth (Beirut, September 2009), describes their view as it being a matter of “leaders vs people.”

52
 Author’s phone interview with human rights official on condition of anonymity.

53
 Wierda, Nassar, and Maalouf, “Early reflections,” op. cit., pp. 1072–73.

54
 Author’s phone interview with human rights official in Lebanon on condition of anonymity. See also Jan Erik Wetzel and Yvonne Mitri, “The Special Tribunal for Lebanon: A court ‘off the shelf’ for a divided country,”
The Law and Practice of International Courts and Tribunals
(2008), pp. 81–114, 111; author’s interview with Fadel.

55
 Author’s interview with Hamieh.

56
 Beth Dougherty, “Right-sizing international criminal justice: The hybrid experiment at the Special Court for Sierra Leone,”
International Affairs
, vol. 80, no. 1 (March 2004), pp. 311–28; compare Chandra Lekha Sriram, “Wrong-sizing international justice? The hybrid tribunal in Sierra Leone,”
Fordham International Law Journal
, vol. 29, no. 3 (February 2006), pp. 472–506; Cesare P. R. Romano, André Nollkaemper, and Jann
K. Kleffner, eds,
Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia
(Oxford: Oxford University Press, 2004).

57
 Janice Yun, “Special Tribunal for Lebanon: A tribunal of international character devoid of international law,”
Santa Clara Journal of International Law
, vol. 7 (2009–10), pp. 181–96; Marko Milanovich, “An odd couple: Domestic crimes and international responsibility in the Special Tribunal for Lebanon,”
Journal of International Criminal Justice
, vol. 5 (2007), pp. 1139–52; James Cockayne, “The Special Tribunal for Lebanon: A cripple from birth?”
Journal of International Criminal Justice
, vol. 5 (2007), pp. 1061–64.

58
 There is one international Pre-Trial Judge; a Trial Chamber with one Lebanese judge and two international judges, plus two alternate judges, one Lebanese and one international; and an Appeals Chamber with two Lebanese judges and three international judges.

59
 On possible criteria for treating a tribunal as a hybrid, see Neha Jain, “Conceptualizing internationalisation in hybrid criminal courts,”
Singapore Year Book of International Law
, vol. 12 (2008), pp. 81–95.

60
 Wierda, Nassar, and Maalouf, “Early evidence,” op. cit., p. 1078.

61
 Wetzel and Mitri, “The Special Tribunal for Lebanon,” p. 111.

62
 Wierda, Nassar, and Maalouf, “Early reflections,” op. cit., p. 1077; author’s interview with Fadel, who emphasized the possibility of the tribunal’s work encouraging reconciliation; author’s interview with Cornforth. Courson pointed out that the existence of the tribunal has prompted some Lebanese to speak more openly about the absence of trials for killings of ordinary civilians during the war; author’s interview with Iolanda Jaquemet, journalist (Beirut, September 2009).

63
 Author’s interview with Fadel, who thinks nonetheless that the tribunal is unlikely to influence wider legal reform; author’s interview with Nadim Houry, Human Rights Watch (Beirut, September 2009), who noted that, while this would be an advance if passed, it would not affect procedures of the Judicial Council, so its impact would be limited.

64
 Author’s interview with Cornforth.

65
 Author’s interview with Azzam.

66
 Author’s interview with Salloukh.

67
 Author’s interview with Lynn Maalouf (Beirut, September 2009).

68
 Email from Wajed Ramadan, Outreach Officer (23 August 2010), outlining press and other events, including visits by several judges to Lebanon; Tolbert, “Introductory note to the Special Tribunal for Lebanon: Orders regarding the detention of persons and memorandum of understanding,”
International Legal Materials
, vol. 48 (April– June 2009), p. 1151; Outreach page of STL website, at <
www.stl-tsl.org/sid/146
> (accessed 23 August 2010).

69
 Author’s interview with Fadel.

70
 Author’s interview with Azzam; author’s interview with Hassan Krayem, UNDP policy specialist and scholar at the American University in Beirut (Beirut, September 2009).

71
 Author’s phone interview with human rights official on condition of anonymity.

72
 Author’s interview with Houry.

73
 Special Tribunal for Lebanon, “STL Prosecutor submits an indictment to the Pre-Trial Judge” (17 January 2011), at <
www.stl-tsl.org/sid/239
>; UN News Centre, “Lebanon: UN-backed tribunal submits indictment over Hariri’s murder” (30 June 2011), at <
www.un.org/apps/news/story.asp?NewsID=38902&Cr=hariri&Cr1
>; Patrick Galey, “STL: Lebanon must still cooperate with Tribunal,”
The Daily Star
(Beirut) (11 August 2011), at <
www.dailystar.com.lb/News/Politics/2011/Aug-11/STL-Lebanon-still-must-cooperate-with-tribunal.ashx#axzz1Ui8tGjT3
>.

74
 Author’s interview with Houry, who suggested that many human rights organizations are of this view.

75
 Author’s interview with Houry.

76
 Jan Erik Wetzel and Yvonne Mitri, “The Special Tribunal for Lebanon: A court ‘off the shelf’ for a divided country,”
The Law and Practice of International Courts and Tribunals
(2008), pp. 81–114; Cockayne, “The Special Tribunal for Lebanon,” op. cit., p. 1062. Specific terrorist crimes are defined in a range of international and regional agreements, of course.

77
 Paola Gaeta, “To be (present) or not to be (present): Trials
in absentia
before the Special Tribunal for Lebanon,”
Journal of International Criminal Justice
, vol. 5 (2007), pp. 1165–74; Wayne Jordash and Tim Parker, “Trials
in absentia
at the Special Tribunal for Lebanon: Incompatibility with international human rights law,”
Journal of International Criminal Justice
, vol. 8 (2010), pp. 487–509.

78
 Cécile Aptel, “Some innovations in the statute of the Special Tribunal for Lebanon,”
Journal of International Criminal Justice
, vol. 5 (2007), pp. 1107–24; Jerome de Hemptinne, “Challenges raised by victims’ participation in the proceedings at the Special Tribunal for Lebanon,”
Journal of International Criminal Justice
, vol. 8 (2010), pp. 165–79.

79
 de Hemptinne, “Challenges raised by victims’ participation,” op. cit., pp. 167–68.

80
 The impact of such provisions can be expected to be greater in trials involving large numbers of victims, such as in Cambodia, where the Extraordinary Chambers apply similar provisions.

81
 David Tolbert, “Introductory note to the Special Tribunal for Lebanon,” op. cit., pp. 1149–51; “Order regarding the detention of persons detained in Lebanon in connection with the case of the attack against Prime Minister Rafiq Hariri and Others,” Case No. CH/PTJ/2009/06 (29 April 2009), reproduced in
International Legal Materials
, vol. 48 (April–June 2009), pp. 1152–60; Antonios Tzanakopoulos, “Special Tribunal for Lebanon: The first orders by the Pre-Trial Judge,”
ASIL Insights
, vol. 13, issue 11 (7 August 2009), at
<
www.asil.org
>
. According to the rules of procedure of the tribunal, persons cannot be detained without charges being laid for more than 90 days.

82
 “Lebanon frees four generals held in Hariri case,”
Al-Arabiya.net
(29 April 2009), at <
www.alarabiya.net/articles/2009/04/29/71647.html#001
>; “Jamil Sayyad to Saad Hariri: You are your father’s killer until you punish forgers,”
Al-Manar TV
(30 August 2009), at <
www.almanar.com.lb/NewsSite/NewsDetails.aspx?id=101267&language=en
>.

83
 Author’s interview with Hamieh.

84
 “Order assigning matter to Pre-Trial Judge,” Case No. CH/PRES/2010/01 (15 April 2010); “Appointment of defence counsel. Rule 58 of the
Rules of Procedure and Evidence
,” Case No. CH/PTJ/2010/01 (26 April 2010).

85
 Comments from observer speaking on condition of anonymity (Beirut, September 2009).

86
 “Walid Jumblatt: ‘I wish we did not have the tribunal,’”
YaLibnan
(26 September 2010), at <
www.yalibnan.com/2010/09/26/jumblatti-wish-we-did-not-have-the-tribunal
>.

87
 Author’s interview with Lynn Maalouf.

88
 Paul Salem, “Lebanon’s multiple crises risk escalation” (Carnegie Endowment for International Peace, Carnegie Middle East Center, 12 July 2010), at <
http://carnegie-mec.org
>.

89
 Author’s interview with official of the European Commission.

90
 International Crisis Group, “Trial by fire: The politics of the Special Tribunal for Lebanon,”
Middle East Report No. 100
(2 December 2010), p. 37, at <
www.crisisgroup.org/~/media/Files/Middle%20East%20North%20Africa/Iraq%20Syria%20Lebanon/Lebanon/100%20Trial%20by%20Fire%20%20The%20Politics%20of%20the%20Special%20Tribunal%20for%20Lebanon.ashx
>. One observer discounts the likelihood of serious security risks as a result of any such indictments, but sees the
potential for political weakening of Hariri’s position, if not compromise over the tribunal. Author’s interview with British Ambassador Frances Guy (Beirut, 9 December 2010). Mikati heads a caretaker government following several unsuccessful attempts to form a government.

91
 Author’s interview with Ambassador Guy.

92
 Tony Karin, “Lebanon government collapse: Hizballah exits cabinet,”
Time
(12 January 2011), at <
www.time.com/time/world/article/0,8599,2042003,00.html
>.

93
 Author’s interview with el-Hélou.

  8
Building Peace and Delivering Justice in Bosnia and Herzegovina: The Limits of Externally Driven Processes

Olga Martin-Ortega
¹

Introduction

During the conflict in Bosnia and Herzegovina (1992–95) the civilian population was specifically targeted and suffered forced displacement, massacres, widespread rape, imprisonment in concentration camps, ethnic cleansing, and genocide. During the war 100,000 people were killed and 2.2 million were made refugees; 1.3 million people were internally displaced and up to 15,000 are still missing.
²
All sides of the conflict suffered horrific crimes, but the number of violations committed against the Bosniak
³
population was significantly higher. Ethnic cleansing was not just a consequence of the conflict, but a goal of the nationalist parties, particularly in Serb- and Croat-controlled areas, which implemented policies of forced expulsion of minorities to effectively create ethnically homogeneous areas, many of which remain in place today.
⁴