On March 4, 2014, Lebanon’s State Council issued a historic ruling declaring that relatives of people who have disappeared have the right to the truth concerning the fate of their family members. This includes the right to receive a complete copy of the dossier on the findings of the official Commission of Inquiry, that was set up in 2000 to investigate the fates of the missing.[1]  In their capacities as the two foremost associations representing the families of the disappeared in Lebanon, Support of Lebanese in Detention and Exile (SOLIDE) and the Committee of the Families of the Kidnapped and Disappeared in Lebanon had filed the petition in December 2009. This petition called for the repeal of the government’s refusal to turn the dossier over to them, and for compelling the government to act in accordance with the right to the truth.

The State Council’s decision is distinguished not only by the fact that it serves justice to the relatives of the disappeared, in the absence of any [legal] text, but also because it is the first ruling in which the State Council has consecrated a basic right on the grounds of the concept of “natural rights”. These two distinguishing factors represent a glimmer of hope concerning the possibility that administrative justice will reclaim its role in the protection of basic rights and human dignity regarding abuses of public administration, as a number of positions recently recorded run counter to these rights.[2]

In the view of the Council, if families were to obtain the investigation files of the official committee, they will gain access to significant information that would permit them to learn the fates of some of those who had been kidnapped, disappeared, and detained. It therefore required the administration to turn over the dossier to [the relatives of the missing]. The Council arrived at this decision after declaring a new basic right: the right of relatives of the disappeared to know the truth about the fate of their family members.

Sources of the Right to the Truth

What is remarkable in this case is that in the absence of any Lebanese legal text, the Council inferred this right from a set of civil rights that are enshrined in international conventions that Lebanon has ratified. In doing so, it built upon the legal analysis presented by the plaintiffs in this regard. [According to international law], as enunciated by the UN Commission on Human Rights, the right to the truth guarantees protection from “the psychological torture which relatives of the missing undergo”. It is also a key pillar of the right to a family life, and the right of children to familial and emotional support and to a stable life. It is also linked to the right to life and the right to a decent life, in that it eliminates the imminent danger that a missing person may face. Further, it is also based on the right to a prompt and effective judicial remedy for all individuals whose rights are violated, which would help lay the foundations for the rule of law and ensure the transparency of the system of governance. Finally, it is considered a basic human need for relatives to be permitted to hold decent burials and mourning ceremonies if their family members are deceased, and to know where they are being detained and work for their release, if they are still alive.[3]

In addition to the international agreements that consecrate these civil rights, the Council based its analysis on a number of judgments issued by the European Court of Human Rights, as well as the rulings and reports of United Nations bodies and the International Red Cross. Conversely, the ruling includes no reference to the International Convention for the Protection of All Persons from Enforced Disappearance, which Lebanon signed in 2007 but has yet to ratify. This convention, which entered into force in 2010, explicitly consecrates the right to the truth about the fate of the disappeared in its preamble and in Article 24.

The Right to the Truth: Its Nature and Nuances

The Council affirmed that the right to know the fate of the disappeared is a natural right belonging to the disappeareds’ relatives. It follows that this right is inherent to every person and derived from their human nature. It precedes any legal recognition and it is not conditioned by any intervention or text. Natural rights are considered a foundation for all other rights, and held above all positive laws. The Council’s ruling in this realm comes in accordance with a trend in contemporary legal doctrine, which considers the right to the truth as a general principle or customary right in international law. This is in view of the concept’s translation into laws and practices in several states, such as in Argentina, and in Bosnia and Herzegovina that have been home to gross violations of human rights due to armed conflict or repressive political authority.[4]

Likewise, the Council’s ruling is part of a trend within the Lebanese judiciary that infers -using the concept of natural rights- a set of rights that exist above all laws and considerations. In recent years, this trend has manifested itself clearly in a number of issues, including the right to asylum in a safe country, freedom of belief, and the integrity of the individual.[5][6][7] Drawing on this trend, the judiciary’s margin of interpretation can be widened in order to protect basic rights, especially in light of the legislature’s failure to formulate laws, and particularly those related to the basic rights of citizens.[8]

The Limits of the Right to the Truth

By recognizing the right to the truth as a natural right, the Council consequently rejected restriction of this right in the absence of an explicit text, affirming ”that this right can be restricted, curtailed or circumvented only by an explicit text, which does not apply in the current context”. Furthermore, the Council implicitly acknowledged that disclosing the fate of missing persons does not fall under the discretionary authority of the administration. This is along the same lines [of the decision of] the North Benghazi Court, which required the Libyan state to disclose the fate of the disappeared individuals in the case of the Abu Salim Prison.[9]

In the case of Lebanon, the reporting judge had recommended rejecting the plaintiffs’ request, on the grounds that releasing the dossier on the investigations falls within the discretionary authority of the Council of Ministers, and would lead to “negative consequences with regard to domestic peace, the stability of the security situation, and turning the page on the civil war”. The government’s own commissioner supported this recommendation. Despite this, the Council disregarded these considerations in its final ruling and rejected any restrictions on the right to the truth, thereby implicitly recognizing the impossibility of turning the page on the civil war without learning the fate of the disappeared. In previous instances, the Council has also refused to recognize that basic rights cannot be restricted in the absence of explicit legal texts. This is illustrated in their rulings on issues that touch upon constitutional freedoms, including freedom of conscience and freedom of expression.[10]

Strengthening the Concept of Transitional Justice

 

This ruling was issued a few days before the International Day for the Right to the Truth Concerning Gross Human Rights Violations and for the Dignity of Victims which took place on March 24.[11] Accordingly, it strengthens Lebanon’s position within this international trend, which represents one of the cornerstones of transitional justice for the purposes of overcoming the effects of armed conflicts such as the Lebanese Civil War. The question of knowing what happened to the disappeared is one of the most important elements of transitional justice: The relatives of the disappeared can be characterized as a category of victims whose suffering is ongoing, and will not cease except through learning the fates of their relatives.

The movement representing the families of the disappeared decided earlier to resort to the judiciary, with the aim of learning the fates of their relatives after all political efforts proved unsuccessful, and government committees and parliament failed to achieve any progress in this area.[12] Parliament has also neglected, to this day, to discuss the proposed law on the kidnapped and the disappeared that was presented by the two associations in 2012.[13] The lawsuits filed by the relatives of the disappeared which requested for the protection of mass graves and the exhuming of buried human remains, were based on the natural right to know the fate of the disappeared. In the context of these lawsuits, a number of preparatory judicial decisions (such as the appointment of experts) that implicitly consecrated the right to the truth, without going so far as to consecrate it explicitly in the way that the State Council ruling did. Consequently, the State Council’s ruling comes as a confirmation of the legitimacy of the demands of the relatives of the disappeared, and of their recourse to the judiciary in the pursuit of justice – more than 15 years after the start of their campaign entitled “It is our right to know”.

This article is an edited translation from Arabic.
 

_______

[1] The ruling was issued from the first chamber and written by its President Shukri Sader and two judges, Mireille Amatouri and Fatima Owaidat.

[2] See: Ghida Frangieh’s, “Lebanon’s State Council: Serving Political Power at the Expense of Fundamental Freedoms”, The Legal Agenda, February 2014.

[3] For more on the sources of the right to the truth, see Nizar Saghieh's study, “The Relatives of the Disappeared and the Policies of Silence and Denial: What Openings for Conveying Their Demands to the Judiciary?”, published on the website of The Legal Agenda on August 20, 2012.

[4] Juan Mendez, An Emerging Right to Truth: Latin-American Contributions in Legal Institutions and Collective Memories, Suzanne Karstedt, ed., Oxford: Hart Publishing, 2009.

[5] See: ruling issued by a criminal judge in Beirut (Yahya Ghabboura), September 10, 2009, cited in Nizar Saghieh’s, “The Best Rulings of 2009: The Judge as a Pioneer in Society”, al-Akhbar, January 17, 2010, and the ruling issued by a criminal  judge in Tripoli (Nazek al-Khatib), May 28, 2012, and commentary by Ghida Frangieh: “Judicial Ruling to Overturn ‘Preconceived Notions’ in the Case of a Syrian Refugee: Practicing the Right to Asylum is Not a Crime”, The Legal Agenda, Issue No. 5, July 2012.

[6] See: ruling issued by a criminal judge in Tripoli (Nazek al-Khatib), January 19, 2012, and cited in Nizar Saghieh’s, “Judge Khatib, Hizb al-Tahrir, and Article 9 of the Constitution: To Whomever Wanted to Believe in Islamic Caliphate – Or Not”, The Legal Agenda, Issue No. 3, January 2012.

[7] See: Youmna Makhlouf’s, “Controversy Before the Judge of Summary Affairs in Lebanon: The Integrity of the Individual Above All Else”, The Legal Agenda, Issue No. 14, February 2014.

[8] See: Lama Karame’s, “What has the General Assembly of Parliament Accomplished in 2012? The Military and Limited Competition, and a Judiciary Without Independence”, The Legal Agenda, Issue No. 7, January 2013.

[9] See: ruling issued from the Court of First Instance in North Benghazi, June 8, 2008, and response, “The Massacre at Abu Salim Prison in Libya: When Law Became a Weapon in the Hands of the Families of the Disappeared”, The Legal Agenda, Issue No. 5, July 2012.

[10] See note 2 above, idem.

[11] For more information about the International Day, see http://www.un.org/en/events/righttotruthday.

[12] See: Nizar Saghieh’s, “The Relatives of the Disappeared and the Policies of Silence and Denial: What Openings for Conveying Their Demands to the Judiciary?”, published on the website of The Legal Agenda on August 20, 2012.
[13] Proposed Law on the Kidnapped and Disappeared in Lebanon, January 2012.