Unfinished Business: Peacebuilding, Accountability, and Rule of Law in Lebanon

Much of the time, transitional justice measures are developed alongside the implementation of peace agreements and peacebuilding efforts, and are expected by their framers and advocates to contribute to peace. The claim is that accountability measures can help to deter future violence and prevent revenge attacks, demonstrate and help to reinstall the rule of law and democracy, and contribute in so doing to longer-term stability. And indeed, transitional justice measures are expected to work alongside specific measures of peacebuilding, such as rule of law promotion, security sector reform, and disarmament, demobilization, and reintegration of excombatants, and increasingly those developing such measures of peacebuilding are expected to take transitional justice measures into account. What happens, however, when a transitional justice measure is developed decades after the end of the conflict, where such standard measures of peacebuilding were not pursued, or are incomplete? Can a transitional justice mechanism have the desired effects? And what if that mechanism is not designed to address the wide range of past crimes, but a more recent subset? This chapter considers the prospects for the Special Tribunal for Lebanon (STL) to have any serious impact on the country itself, against the backdrop of long-term, but unconsolidated, peacebuilding or reconstruction efforts. It argues that while Lebanon has undergone extensive reconstruction since the end of its brutal civil war, no serious peacebuilding efforts were undertaken, meaning that many of the changes a post-conflict society is expected to undergo, arising from demobilization of large numbers of fighters, reform of the justice and security sector, did not take place. In this context, accountability for the abuses of the war and in the 15 years after it in which the country was under Syrian occupation has yet to take place and seems unlikely. The STL is nonetheless often expected to operate as a mechanism analogous to ordinary transitional justice mechanisms, yet it does not have the remit to address the legacy of conflict and occupation, but rather only the assassination of former Prime Minister Rafik Hariri and related assassinations. It seems unlikely that it can have the effect expected of transitional justice mechanisms and ascribed by its advocates to it as well, of promoting human rights and accountability, and even peacebuilding, in the affected country. Rather, after two decades of reconstruction, the tribunal is unlikely to contribute to peace, and may run the risk of promoting conflict should it try defendants, whether in person or in absentia

Human Rights Claims vs. the State: Is Sovereignty Really Eroding?

It is often argued that the increase in agreements, specialized courts, and litigation protecting human rights or responding to past abuses of human rights has begun to erode sovereignty. Contrary to traditional principles of non-interference in internal affairs, it is argued, genuine protection of human rights involves an invasion of the sovereign preserve of the state. While many examples might be adduced in support of this claim, ranging from the ad hoc criminal tribunals for the former Yugoslavia and Rwanda to the European Court of Human Rights, this article examines two types of transnational procedures: civil accountability through the use of the Alien Tort Claims Act in the US, and criminal accountability through the exercise of universal jurisdiction in a number of European countries. This article suggests that even in situations where courts of one country are in essence sitting in judgment upon actions taken by state officials in other countries, significant protections of sovereignty remain. Specifically, state and official immunity remain significant obstacles to pursuit of key rights abusers. These immunities, recently re-affirmed by the International Court of Justice in the DRC v. Belgium case, are also routinely respected by national courts

The Prosecutor of the ICC: Too Political, Not Political Enough, or Both?

Much of the criticism of the behavior of the prosecutor of the International Criminal Court, Luis Moreno-Ocampo, revolves around two apparently contradictory criticisms, although both may well be true: that he is too political, and that he is not political, or politically savvy, enough. Certainly, his rush to pursue high-profile indictments, contemporaneous with his pursuit of the “low-hanging fruit” (supposedly easy cases such as that of Thomas Lubanga Dyilo), suggest a prosecutor with sharp political instincts and a recognition of the need for a new institution to have a few “quick wins.” Yet, simultaneously, his blundering approach with respect to investigations and prosecutions arising from Darfur, and insistence in the context of the debates over the appropriateness of pursuing indictments of leaders of the Lord’s Resistance Army during active peace negotiations that his job was a legal one, rather than a political one, suggests the opposite

Looking Forward, Backward, or Just Away?

The declassification and leaking of the so-called “torture memos” only supplements much which was already publicly well-known, but has offered a fresh opportunity to frankly debate American values, in particular its commitment to the rule of law, its own constitution, and international human rights and humanitarian law obligations to which it has committed itself, and which the Supreme Court has confirmed are part of domestic law. It is a shame, therefore, that the debate has been so stunted, diverted by the red herring of Dick Cheney’s rantings, and the apparent willingness of a segment of the population to accept, first, without evidence, that torture and other illegal activities have actually generated valuable intelligence that has thwarted potential attacks, and, second, that the rule of law and our core values can simply be suspended when they appear to be inconvenient. This includes, apparently, not only international legal obligations, but obligations under the Constitution, and clear guidance formally embedded in military training through the documents such as the US Army Field Manual dealing with human intelligence gathering

A Curse Not Limited to Cambodia

Brinkley’s piece draws welcome attention to the virtual farce of hybrid justice now underway in Cambodia, although the emphasis of the piece on the prevalence of corruption de-emphasizes a broader point: human rights protections are not respected in Cambodia, and serious accountability for the abuses by the Khmer Rouge or any subsequent abuses are unlikely, not merely because leaders are corrupt, but because the wide scale culture of impunity makes the protection of human rights and functional rule of law virtually impossible

Peace as governance? Critical challenges to power-sharing peace deals: Lessons for policymakers

This policy paper seeks to offer insights for policymakers regarding the strengths and weaknesses of the use of power-sharing in peace processes. It is based upon close studies in three countries with protracted armed conflicts and peace processes—Sri Lanka, Sudan, and Colombia—as well as comparative analysis of nearly thirty peace processes involving power-sharing elements since the end of the Cold War. Power-sharing should be understood as a broad strategy, comprising not only power-sharing as traditionally understood, involving political power-sharing, but also other governance incentives commonly offered to induce armed groups to negotiate peace agreements, and to implement peace agreements, such as resource-sharing, inclusion in security structures, and territorial autonomy. Close examination demonstrates that while these incentives often have appeal for armed groups, this appeal is often overrated, and may frequently generate institutional arrangements and political dynamics that are unstable in the medium to long term. A re-evaluation of this strategy is sorely needed, as it is commonly deployed relatively uncritically, and power-sharing and similar incentives can often reify existing cleavages in societies, increasing rather than decreasing the risk of conflict. Specifically, power-sharing may import or embed social divisions that have the potential to become conflictual in new, weak, or dysfunctional institutions of governance that are not prepared to manage them

A breakthrough in justice? Accountability for post-election violence in Kenya

The International Criminal Court (ICC) provides the most promising, and potentially only, venue for accountability for those most responsible for serious post-election violence in Kenya. • International scrutiny, specifically the involvement of Kofi Annan and diplomatic pressure, sought to promote a resolution to violence and gave weight to the recommendations of a domestic commission of inquiry, but were unable to ensure domestic or hybrid accountability proceedings. • The ICC is expected by many in Kenya and beyond to pursue positive complementarity— that is, to have a significant impact on domestic accountability and the fight against impunity in the country. • The approval of the investigation into the situation in Kenya turned on a determination that crimes likely to be tried were not being investigated or tried in Kenya, and that they were of sufficient gravity to merit ICC scrutiny. • It will be difficult to ensure that ICC proceedings are accessible to the population, but potential for impact of the trials in Kenya depends on this. • Both case selection and the approach to timing and publicity of arrest warrants are sensitive politically. • Though the new Kenyan constitution, approved in a referendum in August 2010, might help prevent political violence in the future, serious and sustained efforts will be required to avoid tragic scenarios around the 2012 elections and beyond

Transitional Justice and Peacebuilding: Considerations for policymakers

It is critical to take into account the ways in which policies and programming in peacebuilding and transitional justice may be not only contradictory but also complementary. This brief examines the interaction of the following peacebuilding activities with transitional justice processes: Disarmament, Demobilization, and Re-integration (DDR), Security Sector Reform (SSR) and rule of law promotion