Lebanese Identity Clash as the Agent Returns

Despite the massive events which have preoccupied the Lebanese since their uprising began on October 17^th last year, which is continuing albeit with lesser magnitude, and despite their concern over seriously worsening living conditions as well as the implications of the American “Deal of the Century” for their country and the Palestinian refugees living there—despite all that, many eyes are still fixed with anxious anticipation on the unfolding trial of Amer Fakhouri, the renowned agent known as the “executioner of Khiam prison.”

He was detained when he returned to Lebanon last September, and there are active American attempts to save him from Lebanese justice, on the grounds that he holds US nationality as well as Lebanese. It seems that, on this rare occasion, those attempts have faced strong resistance from the Lebanese judiciary, leading it to issue an indictment for crimes for which the penalties go up to capital punishment.

One of the most dangerous things to happen to Lebanon after the 1975–1989 civil war may have been the decision to merge the warring militias into the Lebanese Army, with no vetting or training for fighters whose hands were stained with Lebanese blood. The second great mistake was not to prosecute Israel’s agents and collaborators seriously through the courts, after the liberation of the south from Israeli occupation in 2000.

These two mistakes produced a scandal which has rocked Lebanese public opinion recently: the return of the fugitive agent Amer Elias Fakhouri, the executioner of Khiam, the worst Israeli secret prison in what at the time was called the occupied south Lebanon border strip. He returned to Beirut via its international airport, travelling on an American passport issued despite the fact that he had been sentenced to prison in absentia, arriving with the complicity of a general on active service in the Lebanese Army.

That was last September 11. The Lebanese were stunned by the details of the news, including the fact that General Security at the airport, after examining Fakhouri’s file—he was sentenced in absentia in 1996 to 15 years for collaboration with the enemy—were not able to detain him! Why not? It seemed that “a certain quarter” had erased his name from Bulletin 303, in which Lebanese Army Intelligence circulates the wanted list for people crossing the border.

All the airport security could do was to hold his American passport, and let him walk free, with the proviso that the next day he visit the General Security Directorate in Beirut, which retains the names of agents and terrorists even if they have been removed from the Bulletin. What about his prison sentence? It had expired because of the passage of time, under Lebanese law, which is peppered with loopholes thanks to which many war criminals have gone free, in a country which produces more of that breed than its enemies need.

But what aroused the suspicions of General Security about the reason for the removal of Fakhouri’s name from Bulletin 303 was a sentence written at the bottom of the official document sent by the Army Intelligence Directorate in 2018 which said: “Because he has been detained and the necessary measures taken”. But when was he detained, since he was now entering Lebanon for the first time since 2000?

One “Certain Quarter” Against Another

Countering the “certain quarter” which had removed the name, it seems that another leaked the news. It came as a bombshell to public opinion, which expressed its anger in various ways, especially in the villages and towns of the south where Fakhouri had committed his crimes. Adding fuel to the fire, “a certain quarter”, presumably the same one who leaked the news, published photos of Fakhouri with the current commander of the Lebanese Army, Gen. Joseph Aoun (who belongs to the Free Patriotic Movement (FPM) of the President of the Republic Michel Aoun, and who is himself a potential presidential candidate) in the Lebanese embassy in Washington at the Lebanese Independence (!) Day event hosted by Ambassador Gaby Issa, who belongs to the same party.

So the social media exploded with hashtags declaring “No to the return of agents” and “Execution for the butcher of Khiam”, demanding that Fakhouri be put on trial for crimes committed when running Khiam prison under Shabak¹ supervision, all of which under international law is classed as war crimes and crimes against humanity. But what these people did not know is that Lebanese law has no provisions or punishments for such classifications, so there can be “no punishment without legal text”. Lebanon had refrained from changing its laws to align with international agreements and conventions which it had earlier signed, including those that would have prescribed Fakhouri’s arrest and trial for war crimes the moment he entered Lebanese territory.

Fakhouri’s lawyers (including an American lady attorney permitted to attend by the Lawyer’s Syndicate on the grounds of his US citizenship) had no sooner proposed that he be freed because of the expired limitations than former Khiam prisoners objected and sought ways of legally enforcing his trial and punishment for his crimes against them. A large number of lawyers volunteered for this task. So they brought personal prosecutions against Fakhouri, and appeared before the judiciary to give their testimonies one after another, and recount the torture the enemy agent and his aides inflicted on them during interrogation, sometimes in the presence of Israeli officials.

Testimonies

One of the few former women detainees willing to speak, on condition of anonymity, about the conditions of their detention and interrogation by Fakhouri recounted tearfully how he and his aides would take pleasure in torturing female prisoners when they were on their periods. They would be beaten hard on their backs, stomachs and breasts, causing their blood to flow onto the floor, mingled with the cold water poured over them constantly during torture, to the derision and mockery of the abusers. She told Orient XXI that actual rape did not happen, but she vividly remembered how they took pleasure in stripping and groping them during torture, by electric cables or punches. Explaining why there were no rapes, she supposed that the torturers and interrogators had orders not to do it, “otherwise they would not have hesitated”.

As for the male prisoners, they were shackled to metal pillars naked and without sleep or food for days, until two of them died. Khiam survivors have not forgotten how Fakhouri and his aides threw tear-gas grenades into small, windowless cells when suppressing a prisoners’ revolt in 1998, killing two of them and causing chronic respiratory problems and other ailments for others.

In addition to the liberated survivors who swiftly took to the streets and TV screens when Fakhouri returned, a large number of Lebanese rose up and demanded to know how Fakhouri’s name had been erased from Bulletin 303, and who was the army general who escorted him from the airport (he was later detained), and how it was that the “traitor to his country,” as they called him, came to be photographed with the current Army Commander at the Lebanese embassy in Washington. And, furthermore, they questioned the responsibility of the president, Michel Aoun, and his FPM movement, who raised the slogan of “the return of those exiled to Israel”, for facilitating Fakhouri’s entry and suggesting his record be cleared, for sectarian—read electoral!—gain.

Virtual Civil-War Battles

But a tweet by the former detainee Suha Bishara², who immediately brought a personal case against Fakhouri, sparked a clash on social media sites.

In her tweet, Bishara (who belongs to the Communist Party) criticised “those, including [Aoun’s] FPM, who are demanding the repatriation of ‘those forcibly exiled’”, and asked what classification was being applied to those who collaborated with the occupation and fled on the day of liberation, fearing the revenge of the resistance or the people. “Who exiled them in the first place? They chose to join the army of the traitor Antoine Lahd, and fled after him to Israel.” And she asked: “How can Fakhouri come back to Lebanon without the label of enemy agent? Is that label removed by the passage of time?” She maintained that “the bulk of the torture of prisoners was carried out by Fakhouri himself and the guards under his direct command.”

Some of the Aounists (the vast majority of them Christian), who were mentioned this time by name in an apparent admission of responsibility, lost no time in responding with astonishing violence and vulgarity to the tweet by a woman regarded by the Lebanese as an “icon of national resistance.” They launched a campaign of moral degradation against her on social media, which required a response, and she riposted.

The fact that she is Christian cut no ice with these fanatics, who considered her a “traitor to the sect,” underlining the depth of the ancient structural identity rift among the Lebanese, which sometimes takes ideological form, and sometimes sectarian. This rift became sharper after the 1975-89 civil war, which ended fraudulently, with those who were complicit in it declaring everybody “winners,” issuing amnesties for themselves, and awarding themselves a share of power under the Taif agreement.

Verbal/Ideological Clash

But one specific sentence in Bishara’s tweet was the most significant in depicting this Lebanese identity split, when she questioned the meaning of the expression “forcibly exiled” applied by the Christian parties to those who chose to flee to enemy territory on the eve of liberation, fearing the revenge of their fellow citizens.

It is worth noting that no such revenge took place at any level, in response to the call by the Hezbollah secretary general who urged people to leave that issue to the law, in order to avoid the chaos on which the Israelis were betting when they carried out their sudden withdrawal without even warning their collaborators in the south. Hassan Nasrullah also called on “innocent families”—i.e. the families of collaborators—to come back home without fear. Indeed, in the years following the liberation of the border strip, many of them did come back, to a relative silence agreed on nationally, albeit despite some popular anguish, in exchange for light legal penalties.

But conversely there were those who tried to inflame the “victimisation of the Christians” in this regard, to exploit it politically by changing the word “fugitives” to “forcibly exiled,” thus demanding they be allowed to return in order to preserve “national coexistence,” aka demographic/sectarian balance, with its implications for a share in power.

The main ones to exploit this Christian “victimhood” were the right-wing Christian parties, and especially in recent times Aoun’s FPM. It is the Christian ally of Hezbollah in power, under the historic accord known as the “Mar Mikhail agreement,” named after the church in Beirut’s southern suburbs which are a Hezbollah stronghold and the birthplace of President Aoun.

In fact, in all these years, Hezbollah—although known for its attention to political terminology—never mentioned this word game, at least publicly … until Fakhouri came back.

Then the Hezbollah leader Hassan Nasrullah came out with a speech most of which was devoted to this case, and in which he stressed that “the calling to account of the agents must be strenuous and harsh … calling them ‘exiles to the occupation entity’ is wrong. There are fugitives, and the fugitive has to surrender to the Lebanese authorities if he wants to come back.” He added that “the resistance distinguishes between the agent and his family and abided by that rule throughout the occupation … handing agents over to the judiciary … any agent who comes back has to hand himself in to Intelligence for questioning.”

In reply to some who interpreted the sixth article of the Mar Mikhail agreement³ as going easy on former collaborators, Nasrullah said: “We were clear on the issue of the agreement. Nobody is saying that the borders and crossings should be open to the agents without any accounting. There are legal mechanisms, and to those who did not get involved in collaboration we say welcome, and many families have returned.”

Legally Speaking

It is hard to write about an issue that is still unfolding, as is the case with Fakhouri, who is currently facing a re-trial, after the military tribunal revoked its earlier ruling on the lapsing of limitations on his crimes. Pressure mounted by former detainees of Israeli occupation prisons, and popular support for their stand, bypassed the legal loopholes allowing the former official in General Lahd’s army of collaboration with the enemy occupying south Lebanon (1978–2000) to escape. That was done by bringing personal cases again him for “torture, deprivation of liberty, providing information to the enemy to the detriment of Lebanese citizens, not to mention murder and forced disappearances.”

That last point, forced disappearance, was perhaps the most important, in that it allowed the lawyers to take advantage of the legal clause relating to “continuation of the crime”. This is because one of the prisoners at Khiam, Ali Hamza, went missing during his detention, after Fakhouri put him in the boot of his car following a savage torture session, according to eyewitnesses. They said that Hamza was shouting the names of his children all the while, meaning that he was still alive. Thus according to the Lebanese civil registers, Hamza remains alive, so his family have joined the cases raised, in the hope of clarifying his fate.

No War Crimes in the Land of Wars

Professor of Law at the Lebanese University, Dr Hassan Jouni, told Orient XXI that “war crimes” do not exist in Lebanese law. He explained that the military judiciary, before and after liberation, issued light sentences, in accordance with an agreement between the resistance and the army, to encourage the return of those who had lived under occupation with symbolic sentences for those who had committed no crime. He continued that “some continued reducing these sentences to the point where some criminals were given only three months!”

As for the former Lahd official Fakhouri, “he will not be tried on charges of collaboration which he faced before, because there is a legal clause forbidding the trial of an accused of the same crime twice.” But he committed many subsequent crimes, including being in contact with the enemy and aiding it in times of armed conflict. Plus by his own account, he entered enemy territory and obtained Israeli citizenship after he fled there in 2000, so his crimes, according to the Lebanese penal code and all international law, are considered a continuing crime.

The expert sighed as he enumerated those at fault over the case. “The Lebanese state is at fault, because it failed to put him on the Interpol list like all those wanted for serious criminal cases, and secondly, it failed to request his extradition from the United States, knowing he was there, before his sentence expired because of the statute of limitations.”

But what about the US, which granted him citizenship when he was condemned in his own country for collaboration? He replies: “There are general principles in international law dealing with the pursuit and handing over of the perpetrators of crimes against humanity. According to Article 2 of UN General Assembly resolution 36/49 of 1984, the right of refuge is denied to any person of whom there is serious reason to believe he has committed crimes against humanity or war crimes.”

But Fakhouri had not been convicted of crimes against humanity, despite the fact that Lebanon had supposedly joined the international conventions which it signed. Why? Jouni says that “signing is one thing and joining is another.” How so? “Signing is just signing, it is non-binding on the state, while joining means ratification of the agreement by other official bodies such as parliament for example, and when that happens, it’s called joining.”

Then the expert asks: “But how did Fakhouri, convicted in his own country in absentia, manage to get US citizenship? In what way does that accord with the conditions for gaining such citizenship?”

Jouni elaborates, stressing that “the other nationality held by the accused, whatever it may be, does not protect him from submitting to the courts of his country. According to the Lebanese penal code, if the criminal or the victim were Lebanese, or the crime was committed on Lebanese soil, that is sufficient for him to be tried in Lebanon, i.e., the criminal remains subject to Lebanese justice even if he has obtained a foreign nationality.” And he adds: “This is known in legal parlance as retention of the citizenship factor, and it is a general principle around the world.”

On 3 February, a scheduled court session to question the agent Fakhouri was postponed as he was “undergoing chemotherapy”, as the court announced. For a time it seemed that the case would be delayed repeatedly, with the defence playing for time in the hope that American pressures might induce the judiciary to exonerate him or release him through some legal escape route. But the day after the postponement, the military prosecutor announced Fakhouri’s indictment on charges carrying penalties up to death, as a sort of signal that the prosecution was still on track. Meanwhile the accused’s family in America appealed to President Donal Trump personally to help him, arguing that he was not the person in Khiam prison! And also that he was suffering from fourth-stage cancer. The families of the survivors of the famous jail shook their heads in disbelief at this pathetic attempt to save a man who had no mercy for his fellow citizens when he represented the power of the Israeli occupier.

Lebanon’s history in such cases does not inspire much optimism. Most recently, the judiciary closed the file on the case of the visit to Israel in 2008 by Lebanese-origin Carlos Ghosn when he was head of the Renault-Nissan conglomerate—he shook hands with the prime minister, Ehud Olmert, not long after the August 2006 war which destroyed Ghosn’s original homeland. But we must await developments in the prosecution of Fakhouri, hopeful that Lebanon, now rising up against its corrupt system, might deliver justice to the victims of this butcher, lest they remain, as in most cases from the Lebanese civil war, with eyes fixed and pounding hearts awaiting the hammer of the law: were it not for their hope for its justice, they would long since have turned from victims into criminals, wreaking vengeance themselves on those who committed all these evil crimes against them and their homeland.