WED 13 - 11 - 2019
Sep 24, 2019
The Daily Star
Commission for disappeared needs clarity
Nour El Bejjani Noureddine
Nine months after the passage of Law 105 on Missing and Forcibly Disappeared Persons in Lebanon, the Lebanese Justice Ministry nominated 10 individuals, including four women, to serve on the National Commission for the Missing and Forcibly Disappeared. The names have now been sent to the Cabinet for approval as stipulated in Article 10 of the new law. The step has largely been welcomed by civil society and the many families of the disappeared who are hopeful that implementation of the law will finally provide them with answers about their loved ones.
Yet, ICTJ’s long experience around the world shows us that not sharing the actual list of names with the public is reason for concern. Being open and transparent with the names and the selection process would quell any doubts about the independence and competence of the nominees and would show good faith from the start.
Unfortunately, while Article 11 establishes the criteria (e.g., high moral standing, integrity, independence and expertise) for selecting the commissioners, Law 105 does not require the kind of transparent, public and inclusive process that is essential for the meaningful involvement of all relevant stakeholders.
The absence of such requirements for the selection process has sparked controversy in the past. In 2018, the selection of some members of Lebanon’s National Human Rights Institution was met with resistance because the full list of candidates and their qualifications were not made public as a number of organizations had requested. According to them, this move significantly compromised the entire process, in part because nobody knew in advance whether the candidates fully met the criteria set in the law.
Publishing names before they are final can go a long way in earning the public’s confidence and setting the tone for the commission. Doubts about the aptness of even one commissioner could pose serious problems and could threaten the commission’s reputation and independence, as happened in Kenya. There, months after the Truth, Justice and Reconciliation Commission commenced operations, civil society organizations and others accused its chairperson of involvement in possible illegal land transactions and human rights violations that were, in fact, under investigation by the commission. He was ultimately pressured to resign, but the revelations caused a crisis of credibility at the TJRC. The ensuing litigation and internal disarray paralyzed the commission for over a year. The example leaves no doubt that reputable commissioners with unimpeachable conduct are a necessary condition for a successful commission.
Clear criteria and well-designed selection processes are important, but they do not always guarantee that a public selection process will be smooth and successful, especially if it is carried out too quickly and without sufficient public outreach and meaningful consultation with families, civil society and other interested parties.
This was the case in Tunisia. There, the National Constituent Assembly selected the 15 commissioners who made up the Truth and Dignity Commission in a manner that technically followed the legal process, but that, in reality, was hurried and nontransparent. The problems were manifold. An extremely tight deadline for applications and a lack of clear guidelines for the selection committee started the process on the wrong foot. A list of 288 candidates was eventually published and opened up for public comment.
However, by that point, insufficient public outreach and a growing disenchantment among Tunisians with the process meant that the committee received no objections. Facing political pressure, the NCA pushed forward a short list of 15 candidates. Seven of these candidates were widely criticized, mostly because of their perceived lack of independence.
Effective processes need not be administratively burdensome or unduly time consuming. For instance, South Africa’s Truth and Reconciliation Commission took only three months to reach a final decision. It was the first commission to establish an independent panel for selecting commissioners and to conduct public interviews of candidates. To ensure the composition of the panel was balanced and fair, its membership was divided evenly between political parties and civil society. The public was also given a chance to nominate candidates. The initial list of more than 300 nominations was published and circulated to various media outlets and then narrowed to a list of 50, whose names were published in newspapers. These nominees were then publicly interviewed, allowing for public comment. Eventually, the panel recommended a list of 25 people to President Nelson Mandela, who chose the final 17 commissioners and appointed only two more who were not among the candidates recommended, to round out geographic and political balance.
Even in peace negotiations and in very polarized contexts, independence, transparency and participation of the public in the selection process have been considered the basis for future legitimacy and credibility of the commissions. Colombia offers a highly effective - and very recent - example. The peace agreement signed between the Colombian government and the Revolutionary Armed Forces of Colombia - People’s Army (FARC-EP) provided for the creation a committee to select the commissioners for the Truth and Reconciliation Commission, the head of the Commission for the Search of the Missing and Disappeared, and the judges and magistrates of the Special Jurisdiction for Peace. The committee was composed of five independent experts (three international and two Colombian) who were appointed by five institutions, including the United Nations, the European Court of Human Rights, and ICTJ.
The committee designed a transparent and participatory process that allowed victims and civil society organizations to present candidates, included a screening of candidates’ qualifications that was open for public comment and required final interviews of candidates to be broadcast live. In the end, the process met Colombian society’s demands for transparency and participation.
There is still time to amend the ongoing appointment process in Lebanon to make it public, transparent and consultative, and to ensure the commissioners are broadly representative of diverse perspectives and backgrounds. But these changes must be made now. The criterion stipulated in Article 10 of the new law that four of the candidates representing the civil society should be recommended by three Lebanese associations is a good one but perhaps not enough. Immediately publishing the names of the 10 nominees and giving the public a chance to comment and raise concerns before the appointments are final, however, would help build public trust in the commission and would signal the Lebanese government’s commitment to the spirit of the law.
Transparency and the meaningful participation of victims and civil society in the appointment of the commissioners are vital to a successful and fully independent commission that can confront Lebanon’s violent past with honesty, integrity and vigor.
Nour El Bejjani Noureddine is a program associate in ICTJ’s Lebanon Office.
A version of this article appeared in the print edition of The Daily Star on September 19, 2019, on page 4.
The views and opinions of authors expressed herein do not necessarily state or reflect those of the Arab Network for the Study of Democracy
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