Victims of Terrorism Acts: The Voices to Be Heard

Written by Lina Laurinaviciute

victimsAlthough terrorism has already been on the agenda of the international community for many years, absence of attention to the concerns of victims of terrorism acts has been significant until fairly recently. The change in at least thirty years[1] taking theoretical debate about victim role in criminal justice was caused by the growing attention to terrorism in general due to the spreading worldwide large-scale terrorist acts. Indeed, terrorism continues to pose a high threat to the security and, more importantly, has become more diverse in its methods and impact. Therefore, much of the public and political concerns are particularly directed towards terrorist acts which lead to many casualties and fatalities.

Figures of terrorist attacks speak for themselves: on 9/11, 2001, more than 3000 people were directly affected by loss of life or injuries; the Bali bombings of 2002 killed 202 people, 164 of whom were foreign nationals (resulting in so-called cross-border victims). A further 209 people were injured.[2] Looking even at regional level, recent Europol’s report[3] on situation of terrorism records a total of 249 terrorist attacks in the European Union (hereinafter – EU) in 2010. It is self-evident that specific support oriented to the needs of victims of acts of terrorism is sufficiently and unquestionably justified on national, regional and international levels.

Notwithstanding the enduring attempts of the international community to fight against terrorism, regrettably, victims of acts of terrorism were mostly “forgotten” and regarded only as collateral damage. Yet because the consequences caused by terrorism will continue to affect international community, which itself is notably showing an increased sensitivity to victims of such calamity, the discussion on the effective response not only to the perpetrators of such criminal acts but also to the victims, indicates the global significance of the the efficient support to victims of terrorism acts.

Regarding the specific characteristics of the victim of terrorism acts, paragraph 1 of the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, defines victims as: “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.” This definition comprises all situations where people are victimized as a result of criminal offences committed by terrorist organizations and individuals.[4]

Additionally, according to the Council of Europe Recommendation 2006(8) on assistance to crime victims “the term ‘victim’ also includes, where appropriate, the immediate family or dependents of the direct victim”[5] and the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power includes “persons who have suffered harm in intervening to assist victims in distress or to prevent victimization (also often referred to as ‘first responders’).”[6]

Thus, it is clear that victims of the terrorism acts would fall under the general definition of victim within the criminal justice system. However, it is important to note that terrorism acts as such have unique characteristics which, consequently, lead to the differentiation of the victims of terrorism acts from the victims of other violent crimes.

Regarding the definition of terrorism itself it is important to note that the definition is not generally yet agreed upon. However there were some efforts made to define International terrorism. Some authors, for instance, distinguished International terrorism as a “threat or use of violence for political purposes when such action is intended to influence the attitude and behavior of a target group other than its immediate victim and its ramifications transcend national boundaries”.[7]

Continuing, Rianne Letschert and Antony Pemberton pointed out, that: ”Typologies of terrorism distinguish between religious-motivated terrorism, left and right-wing terrorism, ethno-nationalist or separatist terrorism, vigilante terrorism and single issue terrorism. Terrorism can be both single-phased (bombing and shooting), that is characterized by punctuated short-duration attacks and dual-phased incidents, involving protracted kidnappings, hijackings, and other acts of hostage-taking.”[8] Consequently, the different types and forms of terrorism make it challenging for reaching the consensus on a definition that would cover all existing terrorism forms and could be used as a basis for the joint action under international criminal justice system.

Cyrille Begorre-Bret emphasized that:”the consequence of the ‘definitional abstention’ is of a political and practical nature. If everyone is allowed to define terrorism the way they want, violence will continue indefinitely. Everyone will delimit terrorism in such a way that his own violence cannot be described as illegitimate. If one wants to break the vicious circle that leads from violence to retaliation and from the latter to the former, one needs an objective point of view and therefore a definition. The definition of terrorism is thus far from being just a theoretical issue.”[9]

Currently existing definitions of terrorism, usually incorporate three main elements:

“1.  The intention to cause death or serious bodily harm and/or damage to public or private property;

2. The targets are often randomly selected persons, in particular civilians and non-combatants;

3. The purpose of such an act is to intimidate a population (or a specific segment within the population), or to compel a government or an international organization to do or to abstain from doing any act or to attempt to destabilize governments or societies.”[10]

Most acts considered as terrorism inflict large scale human and material devastation. These acts make impact not only to the direct victims, who may be physically injured or killed, but may also have lasting effects on indirect victims, such as their dependents or relatives, as well as vicarious victims, which may include members of the broader society.

From the victim approach, terrorism could be understood as a ‘blind’ violence because it is not targeted at victims intuit personae but it strikes at random, innocent people.[11] However, it could also be associated with symbolism which leads to the direct impact on victims. “Symbolic targets are chosen because their identity or location or activities symbolize something which the terrorists will like to attack. The symbolism attached to the terrorists’ victim may be personal or representative, or it may be ‘everyman’ symbolism.”[12] Thus, as noted by Cyrille Begorre-Bret: “if one defines terrorism through the status of its victims, one manages to avoid the discussion of the legitimacy of its cause.”[13]

Therefore, the category of victims of acts of terrorism is specific, especially addressing their needs regarding compensation arrangements. Furthermore, “victims of terrorism are different from victims of violent crime in that they may be seen as ‘instruments’ used by terrorists in order to modify or intervene in the political process. This public dimension requires a public response which may be seen as solidarity.”[14] Furthermore, the difference in treatment afforded to victims of acts of terrorism, as distinct from victims of other crimes, should be guided by their specific needs and vulnerability.

Regarding the recognition of victim status, generally, judicial authorities need to recognize that the person in question have suffered harm as a direct consequence of the criminal conduct for which the accused is charged so that they can appear as victims in criminal proceedings, including trial. As and example, for the purposes of participation in trial procedures, the Pre-Trial Chamber I in the Situation in the Democratic Republic of Congo considered that “the determination of a single instance of harm suffered is sufficient, at this stage, to establish the status of victim.”[15]

It is important to note, that officials leading investigations or prosecutions may interrogate surviving victims of terrorist acts and thus may prejudice their status as victims or lead to secondary victimization. Therefore, if an investigation is necessary to determine whether victims really suffered harm as a result of criminal acts, victims should be questioned in a careful manner.

Furthermore, the question of the status of the victim should not be directly or solely dependent on the determination of guilt of the accused. as it is stated in the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power “a person may be considered a victim, […] regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim”.[16]

The idea that victims should be allowed to participate in international criminal proceedings stems from a broader movement over the last several decades advocating for restorative as opposed to merely retributive justice. Proponents of this movement promote that criminal justice mechanisms should serve the interests of victims in addition to punishing wrongdoers, and that the participation of victims in criminal proceedings is an integral part of serving victims’ interests.[17]

However, the most common[18] approach to the role of the victims in the administration of criminal justice is the one of victim – as an evidence to prosecute crime – terrorism here is not an exception. In essence, “victims of crime were the forgotten persons of the criminal justice system, valued only for their capacity to report crimes and to appear in court as witnesses.”[19] It is important to note, that the International Criminal Tribunals for the former Yugoslavia[20] and for Rwanda[21] in their jurisdictions, did not envision the possibility of victims to intervene in the proceedings, except as witnesses. Such approach raises strong concerns for the ‘visibility’ of victims and more particularly, for the protection of their right to be heard in the criminal proceedings.

Pursuant to Article 14 of the International Covenant on Civil and Political Rights, access to justice is a fundamental right of all persons. Nevertheless, this, one of the most important international human rights instrument goes into detail only with regard to basic procedural rights that shall be afforded to accused persons.[22] However, victims of terrorist crimes, as much as victims of crime in general, should be entitled to access criminal proceedings. Although the concept of victim participation in criminal proceedings is not easily defined, it may be described as victims “being in control, having a say, being listened to, or being treated with dignity and respect.”[23] This also implies the additional right to put questions to the defendant, to call witnesses, and to provide additional evidence.[24]

Naturally, the extent of victims’ role remains a central question for international criminal justice.

Some scholars[25] are concerned that after victim infuse into the legal process, highly emotional accounts from victims risk violating the “procedural justice”. Some[26] observe that “far from giving the victims a hearing, they may leave them feeling silenced”[27]. While others advocate that “participation in criminal proceedings has a number of potential restorative benefits, including the promotion of victims’ ‘healing and rehabilitation’.”[28]

In light of this, the question is whether victim participation in recent developments of international criminal justice increased the “positive” role of the victims of terrorism acts within the criminal proceedings by actually allowing greater recognition of victims’ voices and experiences.

In this regard, the Special Tribunal for Lebanon (hereinafter – STL)[29], established in 2006, deals precisely with the crime of terrorism and therefore addresses the victims of terrorism acts. The establishment of this tribunal showes that terrorist crimes that are relatively small in terms of number of casualties can have large political intimidation effects. Michael P. Scharf noted on this concern: “with regard to the notion of fear, terror or panic, that those who are victim of such state of mind need not necessarily make up the whole population.” [30] Therefore, the assassination of the Lebanese Prime Minister Rafik Hariri has been held sufficiently important to result in the establishment of the STL.[31]

Regarding the role of victims of terrorism act, the Statute of the STL grants rather broad access to the participation in the criminal proceedings, respecting also the rights of the accused. The Statute of the Tribunal established within the Registry a section for victims and witnesses, which „provides measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses“[32] Subsequently, Rules of Procedure and Evidence[33] govern, inter alia, the participation of victims and their protection in detail.

Indeed, the participating in the proceedings notion distinguishes victim as „victim of an attack within the Tribunal‘s jurisdiction who has been granted leave by the Pre-Trial Judge to present his views and concerns at one or more stages of the proceedings after an indictment has been confirmed.“[34]

In addition, Article 17 of the STL Statue on rights of the victims recognized: „Where the personal interests of the victims are affected, the Special Tribunal shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Pre-Trial Judge or the Chamber and in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Pre-Trial Judge or the Chamber considers it appropriate.“[35]

However, the normative framework of the STL also features a number of restrictions. Significantly, the victim‘s participation in the proceedings is limited to a participation through the legal representative unless the Pre-Trial Judge authorizes otherwise.[36]

Nevertheless, participating in the proceedings are entitled to receive documents filed by the Parties (however, with the restriction on the interests of justice).[37] In addition, two more rights are provided for the victims participating at the trial stage. Firstly, a victim „may request the Trial Chamber, after hearing the Parties, to call witnesses and to authorise him to tender other evidence“. It follows, that a victim may also exercise right to examine or cross-examine witnesses, however, „subject to the authorisation by, and under the control of, the Trial Chamber after hearing the Parties“[38]. Secondly, under the conditions of Rule 87 (B) a victim may also file motions and briefs.

Moreover, victims participating in the proceedings at the sentencing stage, has a right to be heard by the Trial Chamber or file written submissions relating to the personal impact of the crimes on them subject to the authorisation by the Trial Chamber.[39] While on victims’ participation at the appeal stage, also subject to the authorisation of the Appeals Chamber, Rules of Procedure and Evidence stipulates that „[…] after hearing the Parties, a victim participating in proceedings may participate in a manner deemed appropriate by the Appeals Chamber.“[40]

Therefore, it follows that, establishing the normative framework of the STL, introduces a changing role of a victim in criminal justice systems, moving from the perception of a victim as witness towards more victim-centred approach, which allows victims to participate in criminal proceedings independent of their role as witnesses and envisage to give victims a voice in the proceedings ensuring that justice is done in relation to their interests, however, in balance of a fair and expeditious trial.

However, to ensure effective access to justice for the victim of terrorism acts is possible only if the State puts in place legal aid mechanisms as the effective victim support, beyond criminal justice response, also requires, the necessary material, medical, psychological and social assistance, including information on available health and social services. In this regard, according to the findings of UNODC: “legal representation is a condition in most legal systems for the victims to participate in a trial.”[42] Therefore, it is clear, that there is a strong link between legal status, legal access and defense of victims’ rights.

Through the course of history it is evidenced, that terrorist violence is unpredictable, it can occur at anytime and anywhere. Anyone can use it and anyone can be its target. “Wars between states are confined to geographical areas and have a declared set of combatants, but terrorism can be conducted with relative ease across many national borders.”[43] It throws a complicated set of challenges varying in scope and scale to different state governments which often grope for appropriate means to respond.”[44]

Terrorism will continue to be a difficult and persistent feature of international violence. Therefore, international cooperation and coordinated international efforts are necessary to ensure effective transnational proceedings and the protection of terrorist acts victim’s rights, beyond the borders. UNODC observed that: “Cross-border issues may add a layer of complexity to the measures required to protect victims’ access to justice and/or compensation.”[45] As example here can be mentioned the location of the trial proceedings, which makes impact on the interests and involvement of the victim, and through this, also to the chances for a successful trial.

In such case, States would have to make additional efforts to extend the support which is usually available to “domestic” victims to victims residing abroad, or to victims residing in their territory who have been victims of offences abroad. In this regard, the experience of foreign victims of the bombings in Indonesia in 2004 illustrates some of the cross-border challenges faced. “While under the Indonesian framework regarding treatment of victims and witnesses, there was no obstacle for foreign victims to seek restitution, one difficulty encountered by a foreign victim that sought medical treatment in a third country was that the legislation of neither Indonesia nor the country of nationality of the victim provided for coverage in those circumstances.“[46]

Therefore, in enhancing the effectiveness of their criminal justice systems, in particular regarding their ability to cope with large-scale crimes, States should also pay specific attention to the support afforded to victims and to the particular challenges faced by victims of acts of terrorism. Particularly in the field of criminal law and jurisdiction, states should, as a consequence of their participation in treaty regime, amend their legislation in accordance with the requirements of the treaty. This may entail substantial changes in their systems of criminal law and procedure. This area is sensitive in the States and thus national authorities too often neglect to implement changes.[47]

Yet, it is also clear that only formal incorporation of relevant international law obligations into the domestic legal system does not guarantee, that anti-terror measures are effectively enforced.[48] Enforcement itself is a complex activity, which ranges from formal incorporation of international law instrument to the monitoring of its practical applications by courts and also law enforcement officials.

In this regard, the reports[49] under relevant Security Council resolutions shows inconsistencies in domestic legislation and enforcement practices, especially the lack of harmonization of criminal law provisions bearing on international terrorism. This is also applied to the regional context, such as the EU, in which the 2002 Framework Decision on combating terrorism “has been implemented by Member States in a manner which can hardly be deemed satisfactory in terms of consistency.”[50]

Thus it is self-evident that such discrepancies, despite all the efforts of international community to harmonize criminal law standards on terrorism, are detrimental to the efficiency of anti-terror measures and therefore also for the effectiveness of the support of the victims of terrorism acts, irrespectively of the nationality of the victim, perpetrator, or the place of commission of the crime. From the focus on victim support from a criminal justice point of view, there is a clear necessity to criminalize acts of terrorism in the domestic legal order, implying the smooth implementation of international normative standards.

In this regard, imposing a worldwide recognized definition of terrorism would reduce a lot of recent controversies and it would help to limit the potential for abuses, that states sometimes have in defining crimes related to international terrorism in their domestic legal systems. The message arising from the mentioned ‘danger’ of the lack of common definition on terrorism is clear: conflicting interests of nation states can make universal counter-terrorism measures impossible.

However, justice from the victim point of view, depends not only on the prosecution of the perpetrators, but also on their role in the criminal proceedings and the capacity to restore the situation for victims. In response to victimization, it is absolutely essential to identify the rights and needs of victims of terrorism acts, to protect those rights, to support victims and to provide reparation for the damage they have suffered.


[1] Harry Mika, Mary Achilles, Ellen Halber, Lorraine Stutzman Amstutz, Listening to Victims – A Critique of restorative Justice Policy and Practice in the United States, Federal Probation Vol. 68 (2004), p. 38.

[2] Rianne Letschert, Antony Pemberton, Addressing the Needs of Victims of Terrorism in the OSCE Region, Security and Human Rights no. 4 (2008), p. 298.

[3] EU terrorism Situation and Trend Report (TE-SAT), 19 April 2011. Available at: <https://www.europol.europa.eu/content/press/eu-terrorism-situation-and-trend-report-te-sat-2011-449>, (Last visited on 15 June 2012).

[4] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Adopted by General Assembly resolution 40/34 of 29 November 1985, para. 1. Available at: <http://www2.ohchr.org/english/law/victims.htm>, (Last visited on 8 June 2012).

[5] Council of Europe Recommendation 2006(8), adopted by the Committee of Ministers on 14 June 2006, para. 1.1

[6] See supra note 4, para. 2.

[7] SankarSen, Director General, Border Security Force, South Bengal, Features of Modern Terrorism, The Police Journal (1993), p. 37.

[8] Rianne Letschert, Antony Pemberton, Addressing the Needs of Victims of Terrorism in the OSCE Region, Security and Human Rights no. 4 (2008), p. 301.

[9] CyrilleBegorre-Bret, The Definition of Terrorism and the Challenge of Relativism, Cardozo L. Rev. 1987 (2005-2006), p. 1994.

[11] CyrilleBegorre-Bret, The Definition of Terrorism and the Challenge of Relativism, Cardozo L. Rev. 1987 (2005-2006), p. 1996.

[12] See supra note 7, p. 37.

[13] See supra note 11, p. 1996.

[14] See supra note 8, p. 309.

[15]. Corrigendum, Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS1, VPRS3, VPRS4, VPRS5,  VPRS6, ICC-01/04-101-tEN-Corr, 17 January 2006. See also Redress Trust, Justice for Victims: The ICC’s Reparations Mandate (2011), page 54.

[16] See supra note 4, para. 2.

[17] Susana SaCouto, Victim Participation at the International Criminal Court and the Extraordinary Chamber in the Courts of Cambodia: a Feminist Project?, Mich. J. Gender & L. 297 (2011-2012) p. 314-315.

[18] According to the survey on the position of the victims in legal proceedings,all respondent states victims may participate in criminal proceedings as witnesses. See supra note 8, p. 304.

[19] Marc Clark, Victim-Centred Policing: The Shepherd’s Solution to Policing in the 21st Century, Police Journal 314 (2003), p. 316.

[20] The Statute of the International Criminal Tribunal for the former Yugoslavia, adopted 25 May 1993 by SC Resolution 827.

[21] The Statute of the International Criminal Tribunal for Rwanda, adopted 8 November1994 by SC Resolution 955.

[22] International Covenant on Civil and Political Rights (1966), Article 14.

[23] Susana SaCouto, Victim Participation at the International Criminal Court and the Extraordinary Chamber in the Courts of Cambodia: a Feminist Project?, Mich. J. Gender & L. 297 (2011-2012) p. 314.

[24] See supra note 8, p. 304.

[25] Wayne A. Logan, Confronting Evil: Victims’ Rights in an Age of Terror (2007-2008),The Georgetown Law Journal (Vol. 96:721) p. 768.

[26] Such as Wayne A. Logan, Susana SaCouto.

[27] See supra note 25, p. 770.

[28] See supra note 23, p. 315.

[29] United Nations Security Council’s Resolution 1757 (2007), (S/RES/1757 ) adopted by the Security Council at its 5685th meeting, on 30 May 2007.

[30] Michael P. Scharf, Introductory Note to the Decision of the Appeals Chamber of the Special Tribunal for Lebanon on Definition of Terrorism and Modes of Participation, Int’l Legal Materials Vol. 50 (2011), p. 542, para. 112.

[31] Erin Greegan, A Permanent Hybrid Court for Terrorism, 26 Am. U. Int’l L. Rev. 237 (2010-2011) p. 249.

[32] The Statute of the Special Tribunal for Lebanon (2007), Article 12.

[33] See The Rules of Procedure and Evidence adopted on 20 March 2009. Last amendment made on 8 February 2012.

[34] Ibid.,Rule 2.

[35] The Statute of the Special Tribunal for Lebanon (2007), Article 17.

[36] See supra note 158,Rule 86 (C) (ii).

[37] Ibid., Rule 87 (A).

[38] Ibid., Rule 87 (B).

[39] Ibid.,Rule 87 (C).

[40] Ibid., Rule 87 (D).

[41] Michael P. Scharf, Introductory Note to the Decision of the Appeals Chamber of the Special Tribunal for Lebanon on Definition of Terrorism and Modes of Participation, Int’l Legal Materials Vol. 50 (2011), p. 569, para. 226.

[42] United Nations Office on Drugs and Crime, The Criminal Justice Response to Support Victims of Acts of Terrorism (2011), p. 33, para. 133.

[43] See supra note 11, p. 39.

[44] See supra note 11, p. 42.

[45] See supra note 42, p. 4, para. 10.

[46] Ibid., p. 95, para. 383.

[47] Andrea Bianchi, Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for the Legitimacy and Cohesion, The European Journal of International Law Vol. 17 No. 5 (2007). p. 895.

[48] An example of how enforcement must be carried out by means other than the formal incorporation of international legal standards is the complaint by the Chair of the CTC that states often limit themselves to ratifying anti-terror conventions and then fail to adopt the measures to properly enforce them.See Report by the Chair of the Counter-Terrorism Committee on the Problems Encountered in the Implementation of Security Council Resolution 1373 (2001) S/2004/70/, p. 6-7.

[49] See the Report from the Commission, based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism, COM(2004)409 final, 8 June 2004.

[50] Ibid.

* The picture by Caroline Glick, available at: http://www.carolineglick.com.

Why it may be time for Truth and Reconciliation for the STL and Lebanon

WRITTEN BY: SEVANE TADEVOSSIAN[1]

In this post I explore the question of whether the Special Tribunal for Lebanon (STL) could benefit from the establishment of a Lebanese Truth and Reconciliation Commission (TRC). The establishment of a TRC may be particular useful with regards to its (1) legitimacy, (2) outreach, and (3) rule of law.  To understand the very mixed and complex cultural background where a new tribunal is trying to settle in, it is crucial to have an understanding of the specificity of Lebanon. Indeed, the country has suffered a violent civil war which started in 1975 and lasted more than ten years. Lebanon was occupied by Syria starting in 1982, and Syrian troops were finally withdrawn in 2006, following UN Resolution 1559. However, Syria kept powerful influences in Lebanon through the Hezbollah, a Shia party.[2] There is a multitude of religious groups linked to political parties in Lebanon, the main ones being the Sunni Muslims, the Shia Muslims, the Maronite Christians, the Greek Orthodox, the Druze, and so forth.[3] It is in such a fragile and diverse context that the Special Tribunal for Lebanon (STL) is trying to bring justice and stability to the country.

On 14 February 2005, a suicide car bomb killed the former Lebanese Prime Minister Rafiq Hariri and 22 others persons. In response, the United Nations (UN) Security Council (SC) created on 7 April 2005 the International Independent Investigation Commission (UNIIIC) to investigate this terrorist attack. Following these investigations, the UN, in cooperation with the Lebanese government, decided to sign an agreement (the Agreement[4]) to create a Special Tribunal for Lebanon. The latter has a mandate to indict the perpetrators of the 14 February 2005 attack, as well as the perpetrators of eventual subsequent attacks as long as they would be linked to the first attack and would resemble it in terms of its methods and motives. Unfortunately, political killings are very common in Lebanon, thus increasing expectations that the STL finally will help with the peace restoration within the country.

The Special Tribunal for Lebanon is the last tribunal to have entered the world of international criminal justice. It differs from other similar instances due to its uniqueness, both because of its structure and its mode of functioning. However, the existence of the STL is hotly disputed because of its partial inactivity five years after its entry into force, and especially because of its very poor reception by the Lebanese population.

Legitimacy

One of the main issues of the STL is the debate on why it was established, i.e. questions regarding its legitimacy, as some critics have justifiably stated that the STL is the incarnation of selective justice in the sense that it is only created to find truth and justice for a Prime Minister. Where the STL’s legitimacy, and de facto credibility, is most exposed within the Lebanese population itself and this fact contributes to hindering national reconciliation. Undeniably, the STL divides the population into two camps: for and against the STL.[5] Sunnis and Christians, who form the “March 14 movement,” support the STL, placing high hopes in it to fight against impunity and finally see an end to political assassinations in Lebanon.[6] For both the Sunnis and the Christians, the STL has a symbolic value. On the contrary, the “March 8 coalition,” consisting of the Shia parties Amal and Hezbollah, vehemently oppose the existence of the STL because they suspect it of being an instrument of foreign political powers.[7] Thus, the STL is facing many challenges to its general acceptance by the Lebanese population, particularly owing to the local perceptions from a historical and political context tinged with a long recent civil war.[8] Its legitimacy is flawed, as notes Sheikh Mohamed Hussein Fadlallah:

“How can this tribunal achieve legal results and establish judicial rights when it is rejected by a large segment of the Lebanese population and by Syria? How can its resolution be implemented without creating tension? When we see that the states pushing most for this tribunal are the US, the UK and France, the big question is whether their aim is really to bring the truth or to introduce their interests in the region through it?”[9]

Therefore, I believe it is fundamental for the STL to clearly face the fears and allegations of its critics, first, in order to be able to carry out its mandate thoroughly, and second (if not above all), to calm the tensions it has created within the Lebanese population. Indeed, I think that beyond its mandate, is it also the STL’s duty to bring peace to Lebanon as the mandate of the STL is basically an order to establish justice and peace, albeit limited to the Hariri case but implicitly to the rest of the country as well, knowing the implications of the Hariri case.[10] Besides, the Security Council (SC) established the STL at Lebanon’s request. Therefore, it means that the Lebanese government is searching for specific goals within the convention signed with the SC. Indeed, the SC granted the Lebanese government’s wishes by agreeing to a convention, but the true desire of the government was not only tied to the Hariri case: it was a national plan to find justice. And there is no need to look too deeply into the matter to come to the conclusion that it was made with a view to bring violence and impunity to a halt in order to finally achieve peace and security (the involvement of the SC under Chapter VII of the Charter makes it even more obvious).

At the end, the true issue comes down to ownership. Only the feeling of ownership of the STL by the Lebanese population will establish its much desired acceptance, legitimacy, and credibility. As one scholar stated, “the question of ownership of the tribunal is the decisive question. First and foremost, such a tribunal has value only to the degree in which societies see it as an essential component to clarify past crimes and to rebuild trust in the institutions and improve the rule of law. This being said, the work of a criminal tribunal – even when it is highly successful – is a long process. Nuremberg trials have been perceived from 1946 to the mid-sixties at being a tribunal of victors. It has taken a generation in order that the legacy of the Nuremberg trials became part of the German ethos. To believe that the Hariri Tribunal will be a quick fix to create a common narrative among Lebanese would be a major mistake.”[11]

It tastes bitter to admit that these comments made in 2007 turned out to be true and continues to be so to this day.

Outreach

Outreach is widely connected to legitimacy. Indeed, without a good outreach policy, no explanation can be given concerning legitimacy or further concerns, thus keeping the STL misunderstood. But from this misunderstanding also stems the lack of credibility, the possibility of political manipulations, and so forth. Therefore, it is completely in the STL’s interest to develop outreach towards the Lebanese population, and to be at service for any questions or concerns the Lebanese might have, as at the end of the day, the STL was established to bring justice, peace and stability to the country. And no peace and stability can be maintained in Lebanon if its own population has serious reservations and legitimate doubts about the most important symbol of justice in the country. Even if the STL has developed a strong social media network and its representatives have tried to integrate an international response to its issues, it seems like all these efforts are not enough to justify and convince the Lebanese population on its results, and most importantly on its future existence. Lebanon can get inspired by the process in Sierra Leone where their TRC launched a “sensitization phase” of its program and work in 2002. Again, there is plenty of room for improvement of the STL’s outreach.

Legal culture against impunity: gaining respect for the rule of law

The STL could benefit a great deal from a Lebanese TRC. If a tribunal, i.e. the STL in our case, is the place where the rule of law is to be respected and implemented, it may not have an impact outside of the tribunal. Indeed, resulting from the meager outreach work of the STL, the lessons learned and the principles and values defended in the tribunal may not always be available for the other legal practitioners, let alone the population. It would be very useful and helpful for the Lebanese to set up an institution that would aide them on the workings of the STL, in terms of both its strengths and weaknesses: learn from its mistakes, construct from its successes. In my opinion, the Lebanese rule of law as well as Lebanese themselves would have a lot to gain from such a mechanism: a place where information and updates would be shared, and legal strategies could be discussed; a place where the STL jurists could exchange views with Lebanese jurists, the nationals learning from the internationals, and vice-versa. Indeed, it is not only up to the international jurists to train the local jurists, but maybe to even greater benefit the domestic Lebanese jurists could explain to the internationalized branch of the STL (the STL being a “hybrid” tribunal, i.e. a mix of local and international staff) the local legal culture and norms.

But in case of such an institution never seeing the light of day… could it be possible that local jurists as well as the Lebanese population both simultaneously and mutually strengthen respect for the rule of law via a TRC? If so, this would be a revival of the Lebanese will to fight against injustice. A TRC could be the perfect place where the STL would extend its work outside the persons concerned by its mandate, hence my belief that a TRC could be an interesting tool for the STL and the Lebanese situation as a whole.

The Special Court for Sierra Leone and its TRC

The TRC in Sierra Leone was established on July 7 1999, after the signing of the Lomé Peace Agreement (1999). The TRC “has been established through an act of Parliament by the government of Sierra Leone, [but it] will be an independent body. The commission was later enacted in 2000 by the President and Parliament.”[12] The TRC in Sierra Leone has two main goals: to investigate the violations, and to restore human dignity to the victims. Its specific mandate is the following: “to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the conflict in 1991 to the signing of the Lomé Peace Agreement; to address impunity, to respond to the needs of victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered.”[13]

Vargas states that “it is clear that the TRC is not a judicial body; however, since there is a Special Court for bringing to justice those who were the most responsible of violations during the war, the TRC can focus then in a catharsis to promote reconciliation and reduce conflict over the past and not necessarily in finding who the guilty are. The TRC is a fact finding body but with the additional responsibility of setting up a follow-up process to put the country together once more.”[14]

The Moroccan TRC

The Moroccan TRC, called the Instance Equité et Réconciliation (IER), was created on 7 January 2004 by King Mohamed VI to investigate human rights violations such as disappearances and arbitrary detentions that took place between 1956 and 1999 in Morocco. Besides bringing justice to the victims of these violations, part of its mandate is to produce a report on these violations and to suggest various forms of compensations and reparations to the victims. King Mohamed VI further asked the IER to formulate recommendations to help Morocco in preventing the repetition of such crimes.[15] However, some criticism was leveled since grave human rights violations such as torture were not in the TRC mandate. Such criticism is what the STL is currently experiencing on its selective mandate.[16]

Building Bridges Between Mechanisms

Building bridges by making links between mechanisms that have worked and the possibility of creating a TRC is where such a realization might be judged as realistic or not. It could be achieved by relying on concrete measures, tying theory to practice with some guidelines to follow and guarding against repeating mistakes using previous experiences.

Sierra Leone did not refrain from establishing a TRC despite the existence of a special court. Even if it meant that more money was to be spent in the judicial field and that some sectors would lack funding, the government chose to implement a second institution for the quest of truth and justice. No doubt, Sierra Leone was acutely aware that the prolonged division within the population and the feeling of fear, frustration and injustice would bring nothing positive to its future. For Sierra Leone, the resolution of the conflict had no cost. In the end, it is after all a matter of priorities, of which choices to make. I think that Sierra Leone did choose correctly. Lebanon should, for its own sake, take inspiration from Sierra Leone and not be stopped by the existence of the STL. Indeed, judicial apparel was established in Lebanon. However, when it comes to its efficiency, criticisms are being made. Hence the urgency to find some solutions and suggest a complement to its work.

Then, why not base the Lebanese example on the Sierra Leone case? After all, they both have special courts and Sierra Leone still established a TRC despite the existence of a tribunal similar to the STL. Vargas claims that both institutions, i.e. the SCSL and the TRC,   “were created to address, in their own particular way, the same events, and are functioning at the same time. At the end, what it is meant is to answer if this transition process can lead to both: peace and justice.”[17] In addition, Lebanon can get inspired by the process in Sierra Leone where the TRC launched a “sensitization phase” of its program and work in 2002. Again, there is plenty of room for improvement of the STL’s outreach.

Each situation is unique and different. Therefore, I think that it is essential to first identify the challenges and issues, and then proceed with the best solutions fitting this and only this situation. The application of an ICT everywhere is not the answer, and the Lebanese example is the proof. It is important to include the work of not only psychologists, but sociologists and political scientists (in order to understand the sensitive issues in the region) to have a holistic approach and a vision as a whole. Indeed, if only jurists are involved in a process as huge as peace-building and reconciliation, no wonder the system is not working, as law and justice represent a part of the process. Maybe the most vivid example of such a mistake was in Iraq.[18]

CONCLUSION

There are quite a few unsolved issues with regards to the STL in Lebanon. Impunity and justice are still ongoing every day that passes by in which nothing is done to put a halt to them. It seems that Lebanon itself is unable to cure its own wounds, but this country managed to put its ego to one side and bluntly reached out to the international community for help. Thus, it is now the international community’s duty to provide relief in solidarity to the Lebanese population. The Lebanese population plays such a central role in the weight given to any political decision that this is why focus has to be made on the outreach of the STL. The STL needs the population’s support in order to fully complete its mandate. Therefore, its acceptance by the Lebanese is key.

Also, it is essential to keep in mind that the consequences of this tribunal are not limited merely to the legal field, but also apply to every aspect of Lebanese life. Indeed, if there is so much controversy around the STL, it is not because jurists are debating it all over the world. It is because its symbol has repercussions and meaning for everyone, not only in Lebanon, but also beyond Lebanese borders. It instills fear because it is the living proof that justice can be enforced by the SC in any situation, even for only one death. And then looms another fear: what kind of justice is that? Such darkness and misunderstanding generate violent reactions and understandable concerns. It is now up to the STL to face these fears, and I propose that it does so through its outreach and, why not, through a coordinated TRC? However, a TRC may not be the most appropriate option, and therefore further analysis of other forms of mechanisms is needed. No matter what form that mechanism would take, the key word is ownership, as without it any type of institution will fail in its task to make the population connect with the tribunal.

There is something more to be done in Lebanon. For the reasons exposed throughout this research paper, I think the establishment of a TRC that would complement and support the STL’s work is a viable idea. Hence, this eventuality could be explored by experts of transitional justice. To anticipate the Lebanese expectations and reactions, a referendum among the population could serve as a barometer of the reception of such an idea. Now is the time to put into full action the machinery of justice and to put all the chances on the tribunal’s side for the STL to work efficiently. As the former Prosecutor of the ICC Luis Moreno Ocampo states, “silence has never helped or protected victims. Silence only helps the criminals.”[19] Therefore, it is about time that the STL’s silence on the suffering of the Lebanese population ceases, and that finally a mechanism such as a TRC echoes the unheard victims’ voices.


[1] The author is a graduate of the UNICRI 2012, LLM program in International Crime and Justice. You can email the author for more information: sevane.tadevossian@gmail.com

[2] Corm, Georges, “Le Liban contemporain, Histoire et société”, p.302

[3] Corm, Georges, “Le Liban contemporain, Histoire et société”, p.27

[4] The Agreement between the UN and the government of Lebanon for the establishment of the Special Tribunal for Lebanon (in the « Annex » section of this paper)

[5] See interview with Fatima Sara, Elias Mirza and O. and Iloubnan.com, « Le Tribunal Spécial, un instrument pour susciter les tensions à l’intérieur du Liban », posted on http://www.iloubnan.info/politique/interview/id/48016/titre/Le-Tribunal-sp%C3%A9cial,-un-instrument-pour-susciter-les-tensions-%C3%A0-l-int%C3%A9rieur-du-Liban

[6] See interview with O. and Wierda, M., Nassar, H., Maalouf, L., “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon” in Journal of International Criminal Justice, pp.1066

[8] See Corm, Georges, « Le Liban contemporain, Histoire et société » et « L’Europe et l’Orient, De la balkanisation à la libanisation, Histoire d’une modernité inaccomplie »

[9] Wierda, M., Nassar, H., Maalouf, L., “Early Reflections on Local Perceptions, Legitimacy and Legacy of the Special Tribunal for Lebanon” in Journal of International Criminal Justice, pp.1074

[10] See “Extracts” §2

[11] Hazan, Pierre, “Truth-Seeking and Justice in Lebanon and its Repercussion on the Conflict” in Expert Paper “Workshop 9 – Justice Mechanisms and the Question of Legitimacy: Concepts and Challenges”, p.5

[12] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.23; see also Romano, Cesare P.R., Nollkaemper André, Kleffner Jann K., “Internationalized criminal courts and tribunals : Sierra Leone, East Timor, Kosovo, and Cambodia”

[13] Truth and Reconciliation Act (2000), section 2 (b)

[14] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.25

[15] Human Rights Watch, “La commission marocaine de vérité : Le devoir de mémoire honoré à une époque incertaine”, p.2

[16] See section  « A mandate of selective justice » of this research paper, p.9

[17] Vargas Juarez, Raúl, “The relationship between the Special Court and the Truth and Reconciliation Commission in Sierra Leone : issues of transitional justice”, p.2

[18] Hazan, Pierre, « La paix contre la justice ? », p.124

[19] DVD “The Reckoning, the Battle for the International Criminal Court” de Pamela Yates (2009)