Sarah Leah Whitson is the executive director of Democracy for the Arab World Now (DAWN). Mike Eisner is the General Counsel and Chief Operating Officer of DAWN.
Published in Just Security on May 21, 2020
It seemed that the long arm of justice had finally caught up to Lebanon's so-called "butcher of Khiam." Amer Fakhoury, a Lebanese-American, acquired this nickname for his alleged role as a senior warden at the infamous Khiam prison in southern Lebanon in the 1980s and 90s. Some 30 years later, Fakhoury was detained in Beirut in 2019, when he returned on vacation, and charged by a military tribunal in February with the torture and murder of Khiam detainees. The trial offered the opportunity for a precarious democracy to affirm its adherence to the rule of law and come to terms with a dark chapter in its violent past. But the trial never occurred. The United States shut down the proceedings just as they began, threatening sanctions against Lebanon unless Fakhoury was released, and eventually airlifted him out of the U.S. Embassy in Beirut in March. Fakhoury's family, who has denied his involvement in any crimes at the infamous prison, praised his return, as did Senator Jeanne Shaheen (D-N.H.), who had worked for his release. But in Lebanon, the Fakhoury case represented a dark day, a setback for a small but deeply important effort at justice and accountability. It was also a disturbing display of the United States' subversion of the rule of law that it purports to champion.
During its existence, the Khiam prison gained notoriety in Lebanon and among international human rights groups for its brutal mistreatment of detainees. From 1985 to 2000, a Christian-dominated militia called the South Lebanon Army (SLA) operated the prison on behalf of Israel during its occupation of a "security zone," a swath of land in southern Lebanon that comprised roughly 10 percent of the entire country. In separate reports, Amnesty International and Human Rights Watch described the murder of detainees by SLA prison officials and depicted the use of torture as "systematic." The 1992 Amnesty report detailed various torture methods, including electric shock, beatings with electric cables, suspension from an electricity pole, and deprivation of sleep and food.
According to victim accounts in multiple news reports, Fakhoury played a key role in the systematic torture, personally perpetrating and overseeing the abuse and killing of detainees. We interviewed three former Khiam detainees, Abbas Qiblan, Ahmed Karim, and Ali Darwish. Abbas Qiblan recounted beatings that Fakhoury himself had inflicted upon him with electrical cables, sticks, and the butt of a rifle. He also reported Fakhoury's involvement in the murder of two detainees, Ibrahim Abu Izza and Bilal al-Salman in 1989. Ahmed Karim described how Fakhoury personally ordered, directed and oversaw torture and beatings of prisoners with wood sticks, pots and boots. Ali Darwish described a 1991 prisoner hunger strike to protest the harsh conditions and attempts by the SLA guards to break the strike with violence. Darwish told us how guards dragged him out of his cell and pinned him to the floor, while Fakhoury beat him with his fists and boots, before putting a pistol in his mouth and threatening to kill him if he didn't eat. Darwish alleged that he sustained severe injuries as a result of the beating delivered by Fakhoury. He was hospitalized, he stated, and had to undergo multiple surgeries on his neck and leg. Darwish was 16 years old at the time.
As the SLA disbanded, Fakhoury fled Lebanon, making his way to Israel, where he acquired Israeli citizenship. He entered the United States on a visa in 2001 and applied for but was denied political asylum. He did eventually obtain U.S. citizenship, taking the more roundabout route of applying through his daughter, who was a U.S.-citizen. By the time of his naturalization in 2019, Fakhoury had by all accounts become a model citizen. He lived with his family in Dover, New Hampshire, owned and operated a four-and-a-half star Yelp-reviewed Lebanese restaurant, and became involved in a local church as well as Republican politics.
The story might have ended there, a leave-the-past-behind tale of an immigrant from a war-torn country finding refuge and success in a new world. The process of becoming a U.S. citizen has been redemptive and uplifting for hundreds of thousands of immigrants, a kind of spiritual journey that can wash away the blood and sweat and sins of the past.
Not all sins are the same, though, and some, like torture, can't simply be forgotten. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ratified by the United States and Lebanon along with 167 other countries, provides for universal jurisdiction over the crime of torture and negates any statute of limitations with regard to prosecuting the offense. In effect, the Convention eliminates any safe haven for torturers, no matter where they reside or how much time has passed since the acts of torture took place. It also imposes upon its signatories a legal obligation to investigate allegations of torture, and, if credible evidence is found, to extradite or prosecute the suspected perpetrator.
In September 2019, Fakhoury returned to Lebanon for the first time in 20 years to visit family. Lebanese authorities, according to Fakhoury, had given him assurances that they had expunged his absentia conviction for collaboration with Israel during his time with the SLA and that they would not prosecute him upon his return. But news of Fakhoury's arrival in the country sparked outrage amongst former Khiam detainees, many of whom demonstrated outside the Ministry of Justice in Beirut, demanding justice. Within days, a military tribunal detained Fakhoury. A military investigative judge subsequently charged Fakhoury with kidnapping, torture, and the murder of detainees at Khiam prison. Awaiting trial, Fakhoury disputed the charges. He admitted serving as a senior warden at the prison, but claimed that his role had been strictly logistical, with no prisoner contact.
Fair enough. Unlike the inmates at Khiam prison, Fakhoury would have had his day in court where he and his lawyers could have presented their case. The story had garnered international attention, and his trial would have been scrutinized closely, particularly by the United States, whose consular officers had regularly visited Fakhoury in prison. Indeed, it seemed that under the glare of the international spotlight, Fakhoury would have a chance to defend himself and perhaps clear his name. For Lebanon, the trial offered the country and its citizens a rare opportunity for a peaceful reckoning with at least one slice of their violent and painful past. It also provided the chance for the country to affirm its adherence to the rule of law and the independence of its judiciary.
But this reckoning never occurred. Nor did the affirmation of the rule of law. There was no day in court. No attempt at justice for the victims. And no vindication for Fakhoury.
Instead, the United States, the biggest donor of humanitarian and military assistance to Lebanon, intervened with a heavy hand, reportedly using back and front channels to demand Fakhoury's immediate release. Senior State Department officials held talks with top Lebanese government officials reportedly to pressure them into releasing Fakhoury, while Shaheen and Senator Ted Cruz (R-Texas) introduced bipartisan legislation, called the "Zero Tolerance for Unlawful Detentions of US Citizens in Lebanon Act," in February 2020 to impose sanctions against any Lebanese officials involved in Fakhoury's "illegal" detainment, as well as those officials' immediate family members and associates.
Neither Shaheen nor Cruz, nor officials at the State Department or White House replied to our questions concerning the nature of the inquiry they had conducted concerning the truth of the charges against Fakhoury, whether they had contacted any of the former Khiam detainees who have alleged that Fakhoury was involved in torture and murder, or whether they had conducted any inquiry at all before demanding the release of Fakhoury. Indeed, it appears that U.S. officials ignored their legal obligation under the Torture Convention to conduct an "examination" of the available evidence to help get to the bottom of the allegations against Fakhoury. Nor did the United States make a showing of presenting any evidence or legal arguments to challenge the charges against Fakhoury.
As U.S. pressure mounted, and Lebanon faced a deep economic crisis, Lebanon blinked. On March 16, a military court dropped the charges against Fakhoury on the ground that the domestic 10-year statute of limitations for torture had passed, disregarding the fact that the statute had been rendered null and void when Lebanon ratified the Torture Convention. The very next day, amidst domestic protests against the acquittal, another military judge appealed the decision, and a third judge issued a ruling preventing Fakhoury from leaving the country for two months pending the appeal.
The U.S. paid no heed to these subsequent rulings. On March 19, a Marine Osprey helicopter picked up Fakhoury at the U.S. Embassy and whisked him out of the country despite the Lebanese judiciary's ban on his travel, effectively making him a fugitive from justice. The escape caused significant political turmoil in Lebanon. Three days later, a former Khiam prison guard and associate of Fakhoury, Antoine Al-Hayek, was shot dead at close range by a silencer-equipped pistol near the southern Lebanese port of Sidon. No one claimed responsibility for the shooting, but there was little doubt that it was an attempt to get justice the old-fashioned way, murdering a stand-in for Fakhoury after the Lebanese authorities proved themselves unwilling or unable to carry out their charge.
It's worth noting that the United States virtually never brings such maximal leverage against allies detaining American citizens, even ones held quite clearly as political prisoners. There have been no dramatic airlift escapes for the six American citizens still detained in Egypt, or for a seventh, Mustafa Kassem, who died in custody this January while on hunger strike. Nor has there been any threat of sanctions against the Saudis for jailing two American citizens, Salah al-Haidar, the son of detained women's rights activist Aziz Youssef, and Bader al-Ibrahim, for over a year now based on their political writings. Indeed, it's not exactly clear why Washington would go to such lengths to rescue a man facing serious accusations of torture and murder.
Soon after Fakhoury's arrest, a new development increased the sense of urgency surrounding the trial, as doctors diagnosed Fakhoury with Stage IV terminal cancer. Given his illness and the compounding health risks of COVID-19, Lebanese authorities could and should have conducted an expedited and fair trial. If Fakhoury were found guilty, Lebanon might have chosen to grant him humanitarian parole based on his medical condition. Such an outcome might have been dissatisfying to former Khiam prisoners, but it would have provided them with their day in court, and the opportunity to speak out about what they had endured at Khiam prison. Just as important for the country, it would have secured the historical record of what had happened in Khiam Prison. It also would have affirmed the independence of the Lebanese judiciary from external pressures and demonstrated the capacity of the courts and the country potentially to dole out mercy even to the most brutal of its war combatants. Regardless of the outcome, it was for those authorities to decide.
In the end, the judiciary conducted no trial at all. Instead, it buckled in the face of significant U.S. pressure, betraying its mission in the process. Meanwhile, U.S. officials, including President Trump, celebrated Fakhoury's release and praised Lebanon's judiciary with no regard to the political havoc they had caused by undermining justice and accountability in the country. In the Fakhoury case, the U.S. administration, backed by some members of Congress, used its power to strike a blow against judicial accountability in the Middle East, undermining the rule of law in Lebanon and reinforcing the cynical view of many in the region that real justice is either elusive or only comes from the barrel of a gun.
