Editor’s Note: On March 4, 2014 Lebanon’s State Council ruled that relatives of people who have disappeared in Lebanon have the right to the truth (about what happened to their missing family members). Below are translated excerpts from the landmark ruling. The missing text concerns technical matters or little relevance to the consecration of the right to the truth. We have indicated where such text was omitted to preserve the ruling’s format.

Background Information: On March 4, 2014, the first chamber of the State Council issued a historic ruling overturning the Lebanese Council of Ministers’ decision on the matter. The government had refrained from granting relatives access to the dossier on the investigations carried out by the official committee set up, to look into the fate of all those kidnapped or missing in Lebanon. The government also failed to publicly acknowledge the right of relatives to obtain such copies in accordance with the right to the truth. On December 24, 2009, the Committee of the Families of the Kidnapped and Disappeared in Lebanon and Support of Lebanese in Detention and Exile (SOLIDE) both filed a petition to the State Council on this subject.

The State Council came to this conclusion after consecrating a new basic right – the right of relatives to the truth. This was established on the grounds that this is a natural right derived from the following rights: the right to life, the right to a decent life and the right to an appropriate burial, the family’s right to respect for the family as an institution and to family reunion, and the right of children to familial and emotional support and to a stable life. These are all rights enshrined in international conventions and charters to which Lebanon is a party, and this necessitates recognizing that the relatives of missing people have a right to access all the investigation material to find out the fate of their relatives. This right can be restricted, curtailed or circumvented only by an explicit text, which does not apply in the current context.

Text of Ruling

[Text]

Whereas the plaintiffs are requesting that the State Council overturns the implicit decision by the prime minister’s office to reject the plaintiffs’ request to obtain a complete copy of the dossier on the investigations into the fate of missing or kidnapped persons, and while [the plaintiff] asserting the right of relatives of the missing or kidnapped to know the fate of these persons, a right enshrined in international conventions endorsed by Lebanon and in international customs, and that this right to the truth has become a general principle in international law;

[Text]

Whereas the plaintiffs base their request on the right of relatives of people who are missing or who have been kidnapped, detained or exiled to know their fate, and state that this right to the truth is enshrined in recent legal practice, especially court rulings and opinions expressed at international, regional and national forums, and that it is based on the right to a family life, the rights of the child and the right to speedy judicial remedy;

Whereas international and comparative legal discourse is unanimous in extrapolating a right to the truth from the sum of civil rights enshrined in international conventions, especially the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child – conventions ratified by Lebanon;

Whereas the United Nations Office of the Commissioner for Human Rights has included practices that result in mental suffering among the forms of torture prohibited by Article 7 of the International Covenant on Civil and Political Rights and by the Convention against Torture and and Other Cruel, Inhuman or Degrading Treatment or Punishment;

The prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim.

-United Nations High Commissioner for Human Rights, General Comment No. 20, 44th Session, 1992.

Whereas the Commission on Human Rights of the UN Economic and Social Council has consecrated the right to the truth as a protection guarantee to the relatives of missing persons from psychological torture, based on the above-mentioned Article 7, as a political and civil human right.

The Human Rights Committee has expressly recognized the right to the truth for families of victims of enforced disappearance, in connection with the right not to be subjected to torture or ill-treatment given the psychological torture which relatives of missing persons undergo.

-Economic and Social Council, Commission on Human Rights. Promotion and Protection of Human Rights, a Study on the Right to the Truth. February 8, 2006.

Whereas the International Committee of the Red Cross has made the right to know the fate of missing person a basic element in guaranteeing the right to a family life, the rights of spouses and children and in enabling families to mend, stabilize and perpetuate family links, and has included this right as part of respect for human dignity;

Respect for the family’s unity goes hand in hand with respect for human dignity. Every year, the ICRC and the Red Cross and Red Crescent National Societies help hundreds of thousands of people (displaced persons, refugees, detainees and missing persons) to restore family links and to clarify the fate of missing relatives.

-ICRC, Report on the Restoring Family Links Strategy (2008-2009).

Whereas the European Court of Human Rights has linked the right to the truth with the right to life, and has justified this link on the grounds that missing people may face imminent danger that may continue as long as their relatives do not know where they are being held, and are thus unable to avert that danger and provide them with legal protection. The European court has held that when states fail to carry out quick and effective investigations and are unable to determine where missing people are and what has happened to them, this constitutes a continuing violation of the right to life, which must be protected and guaranteed by implementing the law and making the necessary inquiries;

European human rights court

– Judgment of May 10, 2001, Cyprus/Turkey

– Judgment of December 18, 1996, Aksoy/Turkey.

Whereas most of the courts that have handled cases of involuntary disappearance have endorsed the right to rapid judicial remedy for detainees and missing persons and have asserted the need to provide effective means by which those whose rights or freedoms have been violated can lodge complaints, especially the European Court of Human Rights and the Human Rights Chamber for Bosnia and Herzegovina. The National Authority for Federal Crimes in Argentina, during the trials known as the truth trials, also considered that guaranteeing quick and effective judicial remedy would help lay the foundations for the rule of law and ensure that the system is transparent.

Whereas the UN General Assembly has endorsed as human rights the right to the truth and the right of relatives to obtain all information that might help them learn the fate of their missing relatives as quickly as possible, and said that this should take priority over other considerations;

Considering that the desire to know the fate of loved ones lost in armed conflicts is a basic human need which should be satisfied to the greatest extent possible, and that the provision of information on those who are missing or who have died in armed conflicts should not be delayed merely because other issues remain pending.

-General Assembly Resolution 3220, November 8, 1974.[1]

Whereas the right to know the fate of persons who have been abducted or are missing, and to know whether they are dead or alive, is a natural right of their family members, so that in the first case the family can perform the rites of burial and mourning in a manner appropriate to the human dignity of the deceased, and in the second case so that investigations can be made to find out where the missing persons are being detained and whether they can be seen, so that action can be taken to secure their release if they have been abducted or to provide a legal defence if they have been imprisoned, and so that medical care and emotional support can be provided. These are basic rights enshrined in international law and the Lebanese Constitution;

Whereas the state has not denied that the relatives of missing persons have the right to know their fate by giving them access to the dossier on the investigations carried out by the Commission of Inquiry set up in 2000 to investigate the fate of persons who were abducted or missing; in fact, in the course of a submission to the Interim Relief Court, [the state] indicated that it had given them the complete dossier related to the above-mentioned inquiry;

Whereas the plaintiffs, in the course of their commentary on the report and on the review by the government’s representative, stated that the documents they received amounted to no more than the commission’s report, which was just two and a half pages, and the reports of the two forensic doctors, but that they did not include a transcript of the testimony given by people who were militia officials during the war and did not include any information on how the commission was able to identify the sites of the mass graves it mentioned in its report, given that it would be essential and logical for the commission to have documented the activities and investigations as it was given a mandate to carry out and on which it based the conclusions cited in its final report. They also stated that the state had not made public a list of contents for the report.

Whereas it says on page 2 of the Commission of Inquiry’s report, dated July 25, 2000, which the state made public and a copy of which the plaintiffs received in the course of the suit they filed in the Court of Urgent Matters, that:

“Thirdly, the conclusion:

a. it has not been established that any abducted or missing persons remain alive on Lebanese territory, following the confirmation that there are no abducted persons held by any of the parties or organizations that were active in Lebanon up to the year 1990.

b. all the armed organizations and militias carried out reciprocal killings during the war and the bodies were disposed of in various places including Beirut, Mount Lebanon, the north, the Bekaa and the south, and some of them were buried in mass graves that are inside the Martyrs’ cemetery in the Harj Beirut area, in the Mar Mitr cemetery in Achrafieh and in the English cemetery in Tahwita.

c. it was clear from inspection that it would be difficult to identify the bodies because of their nature and because of their age.

d. according to the laws of all religious sects on missing persons and civil status, which unanimously agree that anyone who has disappeared without trace under circumstances in which death is a strong possibility and whose body has not been found within at least four years, [Text follows].”

Whereas, on the other hand, Dr Fouad Faris said in an Affidavit on July 24, 2000, a copy of which was provided to the plaintiffs: “I the undersigned, Dr Fouad Faris, a specialist in DNA, after examining some of the bones taken from mass graves, affirm that it would be possible to determine whose bones they were if the families of missing people agreed to give blood samples for DNA analysis. But given that the DNA laboratory of the Internal Security Forces is still under construction, it would be difficult to do this analysis at the present time;”

Whereas it can be surmised from the contents of the above-mentioned documents that the Commission of Inquiry did in fact hear individuals from armed organizations and militias confirm that they eliminated certain persons and buried them in mass graves that they identified. It can also be concluded that the commission suggested that everyone who had been missing for more than four years should be considered to be dead;

Whereas developments in genetic engineering techniques and DNA analysis, the construction of a genetic engineering laboratory for the Internal Security Forces and of other laboratories, and the release of certain detainees after more than four years in detention constitute strong evidence that, if the plaintiffs were to obtain all the information available in 2000, it would allow them to find out what happened to some of those who were kidnapped or detained or went missing;

Whereas the right to know the fate of missing relatives is a natural right that derives from the human right to life and the right to a decent life and to an appropriate burial, from the family’s right to respect for the family as an institution and to family reunion, and from the right of the child to family protection, emotional welfare and a stable life. These are rights enshrined in international conventions and laws to which Lebanon is a party, which entails declaring that the relatives of missing persons have the right to examine all the inquiry material to find out the fate of their relatives, and that this right can be restricted, curtailed or circumvented only by an explicit text, which does not apply in the current context;

Whereas, as a consequence of that, it is necessary to overturn the Council of Ministers’ decision that is being challenged and that was issued by the prime minister’s office, and to declare that the plaintiffs have a right to obtain a copy of the complete dossier on the investigations by the official Commission of Inquiry set up to find out the facts about the fate of all those who were abducted or went missing;

[Text]

It is therefore unanimously decided:

Firstly, to accept the petition dated July 8, 2013 and to include it in the dossier.

Secondly, to accept the petition in its formal aspects.

Thirdly, to accept the petition in substance and to overturn the disputed decision, and to declare that the plaintiffs have the right to obtain a copy of the complete dossier on the investigations carried out by the official Commission of Inquiry set up to find out the fate of all those abducted or missing.

Fourthly, that the defendant should cover all fees and costs.

Judgment given and made public on March 4, 2014.

Clerk: Jeanne D’Arc al-Hage

Judge: Fatima al-Sayegh Owaidat

Judge: Mireille Afif Amatouri

President: Shukri Sader

To view the Arabic version, click here

Click below for the original version of the ruling

[1] According to UN archives, GA 3220 was issued on November 8, 1974. The Legal Agenda has opted to preserve the date as it appeared in the Lebanese ruling.