Thinking about Legality: What Memory Studies Can Contribute to Transitional Justice

Sune Haugbolle, Roskilde University

This memo was drafted for POMEPS Studies 30,The Politics of Post-Conflict Resolution.” 

A vast, interdisciplinary literature has examined the ways in which post-conflict societies deal with the past. Not all parts of this literature communicate equally well with each other, however. Scales of analysis vary, as do methodological and theoretical assumptions. There is a particular disconnect between law-driven writings on transitional justice, where international politics dominates, and anthropology-driven work on social/collective/historical memory ‘from below.’ In this short memo, I draw on my previous work on Lebanon to analyze how proponents of critical debate about Lebanon’s wartime past envision justice and reconstruction. I argue that studies of formal political processes should engage with the ways in which post-war societies deal with the past and think about justice and legality. This is because cultural work involves political and ideological interpretations that relate directly to law and ethics. By taking the intricacies of memory work seriously as part of the legal-political spectrum, we may be able to arrive at a broader understanding of transitional justice.

While Lebanon has long been seen as ‘post-war’ society transitioning from war to peace in its drawn-out post-war phase since 1990, the absence of war trials in Lebanon have meant that academics rarely analyze Lebanon in relation to transitional justice. This has something to do with definitions. For most scholars, transitional justice is enacted at a point of political transition from more repressive to less repressive forms of governance, or at the point of transition from war to peace (Sriram 2007). At the same time, transitional justice refers both to judicial and non-judicial means of addressing past crimes. Non-judicial measures include debate, art, and other forms of cultural representation of the kind that have flourished in Lebanon. Because this necessary cultural work has not been connected to judicial measures such as criminal prosecutions, truth commissions or reports, or reparations programs led by a ‘transitioning’ Lebanese state, memory makers have tended to view transitional justice as a future-oriented scenario where memory becomes a tool for transition.

The academic literature on the Special Tribunal for Lebanon is mainly couched in the politics of international law. International law experts have analyzed the status of the registry, the rights of suspects and accused, the trial in absentia feature, the regulation of the conduct of counsel, and other legal issues (Alamuddine et al 2014). Others focus on innovations in the STL and compare it with other mixed courts. From a Lebanese point of view, Knudsen (2012), Mugraby (2008), and Blanford (2008) have analyzed the politicization of the STL and the way it contributed to the divide between the “March 14” and the “March 8” coalitions after 2005. Mugraby (2008) highlights how the architects of the STL deliberately delinked it from a longer struggle for justice and why this was problematic. Instead, he argues for a general form of universal jurisdiction through a combination of Lebanese judicial reform and the creation of an international human rights tribunal with the right of appeal from local courts.

Ethnographic studies of memory culture in Lebanon have given us a deep textured understanding of the production of such discourses on memory. By zooming in on the memory makers that dominate the discursive space, memory studies allow us to appreciate, sociologically, the logic of different approaches to the problematic of the past. That is great, but it should not stop scholars from also being critical of the voices that they analyze. I have suggested a number of issues that should be raised in the spirit of sympathetic criticism. I have stressed that the politics of memory and atonement in Lebanon presents a case where the nation state has left the task of addressing difficult questions about mass violence in the recent past to cultural producers and activists. Atonement, which can be political work, is thus transformed into cultural work in a public sphere of cultural production and consumption that too often fails to reach the less educated, less internationally oriented parts of the Lebanese population (Haugbolle 2010: 228-237). That is one level of critique. Another level is the question of whether a wholesale social revolution through memory work is at all realistic. If not, promoting ‘memory culture’ risks becoming a distraction from other kinds of political work to change the status quo (Haugbolle 2012).

Even though they focus on cultural production, most studies address the politics surrounding memory of the war. Some adopt the memory makers’ wholesale critique of the Lebanese political class and its silencing of the past. They also embrace the supposedly cathartic potentials of memory culture, not just in terms of the healing effect of truth telling for war-scarred individuals, but equally for society and the body politics. In that sense, memory culture is prescriptive of a particular memory politics that would, for most of its proponents– memory makers and memory scholars alike – involve abandoning or reforming consociationalism; trials against former warlords-cum-current politicians; a reformed history curriculum that addresses the civil war more directly; more monuments; and a truth report – or a combination of some of these elements. All of this would bring about not just increased awareness about Lebanon’s wartime past, but something like a social and political revolution. Justice would create transition.


Memory culture and memory makers in Lebanon

The Lebanese Civil War, 1975-1990, was one of the most devastating conflicts of the late 20th century, leaving more than 100,000 dead from a population of three and a half million, and displacing more than two thirds of the Lebanese population. The Ta’if Accord that ended the war in 1989 failed to resolve or even address the key conflicts from the war, such as the sectarian division of power in Lebanon, the Palestinian refugee issue, the presence of Syrian forces on Lebanese soil, and Hizbollah’s status as an armed militia outside the state. Official policies promoted forgetfulness and a spirit of moving on rather than dwelling on, and dealing with, the past. Members of the political class, most of whom had taken part in the war and, in many instances, were responsible for well-documented war crimes, had no interest in remembrance. They conveniently dealt with the legal dimension by engineering a law of general amnesty in 1994. The political order of post-war Lebanon, therefore, rests on the unwritten rule that legal reckoning with political violence is impossible. As a result, civil society rather than the state has taken the lead in promoting attempts to debate the war’s legacies.

The one partial exception to this pattern has been the Special Tribunal for Lebanon (STL) set up to hold trials for the people accused of carrying out the attack of 14 February 2005, which killed 22 people, including the former prime minister of Lebanon, Rafiq Hariri. However, it is a very limited and incomplete aberration, in that it only refers to crimes committed in 2005, and thirteen years later has failed to bring any individuals to trial. The designers of the STL never intended it to achieve transitional justice, however, nor to engage the ethical questions of war and memory. The STL did not establish any connection to the many existing civil society initiatives of artists, activists and academics, and other ‘memory makers’ who have vigilantly pushed for a culture of active remembrance,

Although the war ended 28 years ago, the question of civil war memory is still acute for many Lebanese, who continue to debate the war and create public commemoration. The killing of Hariri in 2005, the 2006 war between Hizbollah and Israel, and continued political instability in the country since then, have only added to the sense among many Lebanese that war and political violence are endemic to their body politic. As times goes by, the relevance of talking about the civil war can seem to some Lebanese less urgent that addressing current problems such as the Syrian refugee situation since 2011. At the same time, the civil war has remained an important topic for artists and activists who see the seemingly endemic disease of recurrent violence as a structural problem for which the appropriate medicine has to be national awareness of the past and active remembering through campaigns. They include relatives of the thousands of the kidnapped and disappeared during the war, filmmakers, journalists, and artists, as well as NGOs dedicated to discussing war memory.

A case in point are the couple Monika Borgmann and Lokman Slim, who since 2005 have run the documentation and research centre UMAM with a focus on war memory. For them, the Lebanese civil war has continued through other means in the sense that the periodic rounds of violent conflict plaguing Lebanon since 1990 all relate to conflicts left unresolved since the Civil War (UMAM D&R 2018). Remembering, analyzing and understanding mass violence in Lebanon through public events and exhibitions at their centre in the southern suburbs of Beirut, therefore, is not just an academic exercise for these memory makers. For them, and for many Lebanese engaged in promoting remembrance of the war, it is an urgent task directly linked to political reform, reconciliation and legality. In other words, there is a link between memory work and transitional justice, even if analysts rarely make the connection.


The STL and the push for legality

Ever since the first campaigns and cultural work on memory began in the early 1990s, legal reckoning has been an explicit or implicit goal for memory makers. The novelist Elias Khoury, for instance, wrote important plays and novels about the war and edited the cultural pages of the newspaper al-Nahar, where war memory became a recurrent theme. People like Khoury and the historian Amal Makarem, who organized a large public conference on memory in post-conflict societies in 2001, had hoped that their work would shine so much light on the crimes that current leaders committed during the war that, ultimately, a reawakened Lebanese people would confront the warlords and call for change. Political change could include a truth report, an international commission, or perhaps tribunals (Haugbolle 2010: 64-95). This would, so they hoped, alter the post-war formula of “la ghalib, la mahglub” (“no victor, no vanquished”) that allowed political leaders from the war to be integrated into the post-war system, and at the same time established a status quo between Lebanon’s sects, enshrined in the Ta’if Agreement.

As a case in point, Amal Makarem’s 2001 conference and the book that followed from it was called “Memory for the Future” (Makarem 2002). Makarem and others wanted their work to start a social process, which could pave the way for reconciliation rather than the state of ‘cold war’ between sects and groups that characterizes Lebanon today, according to them. There were many positions in the debate, and some, like the sociologist Antoine Messara, defended the political model of power sharing, while many others argued for total reform along secular lines. But for all of them, a critical, public engagement with the past would eventually open the population’s eyes to the culpability of their leaders and the necessity of a transitional process either to reform the consociational system, or to bring it down altogether. In this scenario, transitional justice does not bring about reconciliation. Rather, memory work would forge national reconciliation, which in turn would become the necessary stepping-stone towards transitional justice.

Whereas the amnesty law effectively took criminal prosecution off the table, both state and society embraced reconciliation as a national goal after the war. Reconciliation became part of the official as well as the critical civil society vocabulary from the early 1990s. Reconciliation was already a stated goal in the 1980s, when the UN and the Arab League tried to mediate and push for peace building initiatives. Similar to the picture of Syria today that Frances Brown describes in her memo here, outside intervention in the Lebanese Civil War was a mixed bag of military support for militias or the state, diplomatic intervention and peacekeeping missions, humanitarian aid, and from the mid-1980s also support for physical reconstruction and social reconciliation. When civil society re-constituted itself in the 1990s, many groups and individuals from the wartime peace movement adopted a new logic of memory work that began to be in vogue internationally. In the age of liberal peace in the early 1990, creating awareness of conflicts in the past became one of the ways for civil society and its international sponsors to stimulate transition to democracy.


Memory and Reconstruction

The Lebanese state ignored or actively counter-acted such discussion about the war. Instead, it sought to address the legacy of the war as set of practical challenges related to physical reconstruction, security sector reform, and repatriation and compensation under a Ministry of the Displaced. As Deen Sharp argues in his memo, the Lebanese state’s ideological focus on reconstruction of the state and the nation through reconstruction of the built environment covered over a political economy that favored the political class.

Civil society groups – ranging from relatives of disappeared and kidnapped to groups of artists, journalists, activists and writers concerned about the lack of public memorialization of the war – felt that a public debate about the war, and hence a process of ‘truth telling’ and dealing with the past was missing. They argued that this ‘state-sponsored amnesia’ – embodied by the reconstruction process of Rafiq Hariri that Deen Sharp analyzes – was a conscious policy by the elites of the new regime after the war, which integrated a number of former militia leaders who had no interest whatsoever in delving into the past. Instead, reconstruction became a vehicle of reconstituting the sectarian state in the guise of a neoliberal political economy overseen by an ostensibly reconciled political class. This pattern has continued and only been reinforced by the reconstruction of the parts of Lebanese that were destroyed in the 2006 war between Israel and Hizbollah.

The STL did not address political violence during the war, but still represents the most important attempt to alter the legal-political order of post-Ta’if Lebanon. Established in 2009 to investigate and prosecute the assassination of the former Prime Minister in February 2005, the Special Tribunal is a mixed court based in The Hague. It brings together international and Lebanese judges, and applies Lebanese criminal law. The enactment of the Tribunal’s Statute through the UNSCR 1757 from 2007 caused heavy political debate between pro-Hariri and pro-Syria supporters in Lebanon about its legitimacy. Given the disagreement between political parties in Lebanon over the tribunal, it is unlikely that the STL can live up to its promise to deliver justice. The Tribunal indicted members of Hizbollah, but because of Hizbollah’s power of and influence, no one in Lebanon, and certainly not the state itself, will arrest them.

Reconstruction in post-war Lebanon, although very different from Syria today, displays a similar pattern of continuity of economic governance to the one Steven Heydemann describes in his memo. It has not reconstructed a Lebanon that existed before the war, but continued a transformation of neoliberal – and extremely dysfunctional– consociationalism. Like in Syria, the reconstruction process empowered the political economy undergirding the system in Lebanon. In addition, like in Syria, this structural change-so-things-can-stay-the-same was accompanied by an ideological super-structure of promises of national reconciliation. Reconstruction and reconciliation went hand in hand.

Lebanon’s memory makers have sought to destabilize this ideology. Meanwhile, for academics writing about post-war Lebanon, memory production became a way of writing critically about reconstruction. In tandem with the emergence of a memory culture in Lebanon since the 1990s, a number of studies drawing on Lebanese cultural production and debate relating to memory have been published. As a result of field work carried out from the mid-1990s onwards, we now have studies of memorials and other forms of material memory culture (Haugbolle 2010; Khatib, 2010; Volk 2010, Maasri 2009), anthropological studies of oral history among younger and older generations (Kanafani 2011; Larkin 2012), and edited volumes covering various locales and perspectives on the ways in which the war has been remembered and forgotten (Mermier and Varin 2010; Choueri 2007), as well as a long list of journal articles and edited books. The academic literature dovetails with, and reflects on, a much larger literature about the war – ranging from memoirs to local histories, interviews and polemical books – published by Lebanese in French, Arabic and English (Haugbolle 2012). Memory scholars like myself have befriended and supported memory activists. All of the resulting studies start from the assumption that Lebanese civil society has managed to address the legacy of the Lebanese Civil War in the absence of any state-sponsored attempt to deal with the past. In that way, the academic literature tends to echo the activist narrative.

These critiques notwithstanding, the memory campaign undoubtedly has established itself as a pivotal discourse in Lebanese cultural life, which has accentuated the idea that memory of the Lebanese Civil War should be addressed publicly in order to move the nation from trauma to a post-traumatic, post-conflict stage of development. At the same time, that idea has not translated significantly into political action. As of 2018, the Lebanese state has taken no significant steps towards implementing judicial transitional justice, and a recent survey from the International Center for Transitional Justice suggests that large parts of the Lebanese youth have a very limited and often politically skewed understanding of what happened during the civil war (ICTJ 2017). In that sense, there is much work to do, not least in getting Lebanon’s political leaders interested in supporting a critical, national debate about the past.


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