It took two and a half months of following the investigation into the Beirut port massacre for the Beirut Bar Association to determine that the concerns the Legal Agenda expressed in its article “Twelve Bad Signs at the Outset of the Beirut Massacre Investigation” were well placed. At the time of the article’s publication (21 August 2020), few realized that referring the case to the Judicial Council was a strategic error that would restrict the investigation to a politically appointed investigator whose decisions are not subject to any review. Most importantly, few realized that it would draw us into a trial that does not meet the condition of fairness. Few pondered the blatant signs that we pointed out – foremost among them the cassation public prosecutor’s conflict of interests – and that have gradually become conclusive evidence that the investigation has gone off course. The Bar Association, which unfortunately pushed and provided cover for the referral, wished to see for itself the earnestness of the investigation. Now, with a statement issued on November 7 and signed by its president Melhem Khalaf, the Bar Association has come out to tell Lebanese citizens frankly that the case faces “large challenges” and “many obstacles”. While it previously remained silent, it has now pledged loudly and clearly that it will not continue to do so and will not lose hope or give in until justice is delivered. In a second statement issued exactly one week after the first (November 14), it further elaborated its misgivings about the course of the investigation.

The Bar Association’s statements reveal two things:

• Judicial Council investigator Fadi Sawan did not comply with many memoranda that it submitted calling for the investigation to be expanded and for ministers and other people previously questioned as mere witnesses on the basis that they enjoy constitutional or de facto immunity (such as the heads of security and military agencies) to be interrogated as defendants. The Bar Association stated that, “All the studies that [it] conducted based on doctrine and jurisprudence indicate unambiguously that the judicial judiciary has the jurisdiction to prosecute ministers, heads of governments, and other public persons implicated in crimes”.
• The investigator sought to restrict his investigations to negligence, thereby ruling out any other theories – including those involving an intentional act – without any investigation.

Hence, the Bar Association seemed to be sounding the alarm that many suspects are being immunized and spared from any charges or even investigation, along with many theories.

The day after the first statement, Maronite Patriarch Bechara Boutros al-Rahi echoed these concerns, albeit more diplomatically, in his weekly sermon. First, he stated that he is waiting for an investigation that encompasses the successive ministers concerned. He then put the Judicial Council investigator to the test: “President Fadi Sawan: all eyes – especially those of the families of the casualties, the people affected, and the disabled and those of the Church and society – are on you after more than three months of concerning silence. It is time for the impartial and courageous judiciary. It either restores trust in itself or loses it entirely. … One of our Lebanese judges said, ‘A judge loses half his strength when he fears the powerful, and he loses the other half when he wrongs the weak’”. Al-Rahi ended the sermon by thanking the Bar Association for its efforts to represent the victims, thus indicating that he shares the concerns that it raised in this regard.

On November 5, groups that arose from the October 17 uprising called for a protest near Sassine Square, which ended in front of the Judicial Council investigator’s home to induce him to charge top officials or recuse himself. The families of the deceased and the United for Lebanon alliance also held several protests in front of the courthouse the following week.

At the same time as the Bar Association’s first statement, the Supreme Judicial Council’s Media Bureau also issued its second statement about the progress of the investigation (the first having been issued on September 24). Despite the statement’s reassuring tone, the Judicial Council investigator appeared to have finished interviewing defendants, and witnesses and domestic investigations, and was merely awaiting the responses to his letters of request to American, French, and British parties (though he also declared his intention to interview the victims for whom the Bar Association recently filed claims). The investigator explained that the British Embassy had informed him that Scotland Yard needs several weeks to reply. Hence, the statement confirmed the fear that the domestic investigations and allegations are finished. Exacerbating this concern, the judicial investigator made no reference whatsoever to the possibility of questioning ministers or to any of the memoranda that the Bar Association said it submitted.

These developments warrant several observations:

The Investigation’s Deficiency Is Not a Surprise but the Result of a Set of Well-Known Factors

What is happening is no surprise. Rather, it is an outcome that any rational, not overly optimistic analysis of the existing situation, particularly the issues in the investigation and trial conditions, could have anticipated. The more deficient the fair trial standards in the investigation’s procedures (i.e. the problems that we highlighted in the aforementioned article), the greater the likelihood that it fails to achieve truth and justice. Just as whoever knew about the storage of nitrate in the port and the danger it posed could have anticipated the explosion, whoever knew about the lack of fair trial conditions in the Judicial Council’s investigation could have anticipated its now well-established shortcomings. Similarly, just as the silence about the nitrate and the lack of action to remove it constitutes a trivialization of threats to people’s lives and property, silence about the violation of fair trial guarantees constitutes a trivialization of threats to justice and truth.

While we view the Beirut Bar Association’s pledge to be frank with the public and not be silent about the course of the investigation positively, we would also like to draw its attention to the fact that the negatives it perceives in the investigator’s work are not the only issue that must be confronted. Rather, before all else, we must address the factors that produced these negatives in order to rectify them, avert more like them, and promote justice and prevent its trivialization. To do otherwise is tantamount to forsaking our chances of correcting the course of the investigation before it is too late.

Appealing to the Judicial Council Investigator’s Conscience is Not Enough

Given the above, apostrophizing the judge, confronting him with his responsibilities, and preaching to him (as in al-Rahi’s sermon) or calling upon him to be courageous and listen to his conscience (as in the Bar Association’s November 14 statement) is a half measure tackling one negative effect of the system’s deficiency. In reality, contenting ourselves with this half measure without any effort to address the roots of the problem is more akin to an attempt to deflect blame and exculpate ourselves from the investigation’s outcome and consequences than an attempt to correct its course.

Hence, we again emphasize the need for the legal and social public discourse to go beyond awareness-raising and appeals to a sense of responsibility, and instead work to ensure the rights of the victims and society in a trial that meets the highest standards of fairness. We must work to achieve the following four complementary goals:

• To replace Cassation Public Prosecutor Ghassan Oueidat because of his conflict (or conflicts) of interests, which clash with the most obvious fair trial principles. Oueidat is the brother-in-law of Ghazi Zaiter, who was the minister of public works and transport in 2014 when the ministry requested that the ship carrying the nitrate be impounded and its cargo unloaded. Moreover, Oueidat conducted investigations into the [contents] of the warehouse where the materials were stored weeks before the explosion, and he is among the figures who learned of the danger without taking the initiative to make the appropriate decision to avert it. In this regard, recusing the cassation public prosecutor from the case is not enough because of the powers vested in him to issue oral or written orders to any public prosecution judge. Twice, the Court of Cassation has rejected demands by United for Lebanon to relieve Oueidat of his duties as Judicial Council prosecutor, namely via decisions issued on October 15 and November 3.
• To immediately suspend the Judicial Council investigator due to the doubt that the Bar Association eloquently expressed about his performance and handling of the memorandums and requests submitted to him. In this regard, we refer to the Legal Agenda’s and Lebanese Judges Association’s positions on the issue of ministerial immunities, all of which match the Bar Association’s position.
• To provide fair trial guarantees by rectifying the grave error of referring the case to an exceptional court, namely the Judicial Council, and working to return it to the regular judiciary or at least pressuring for Judicial Council trial procedure to be promptly amended to enshrine these guarantees, particularly the appealability of decisions by the investigator and the Judicial Council itself. Because of what the case has come to, this requires a corrective legislation without delay.
• To quickly adopt the bill on judicial independence and transparency that the Legal Agenda drafted, which will hopefully have positive effects on the overall judicial system, including the course of this investigation and trial. Alarmingly, Parliament’s Administration and Justice Committee is still working, under the cover of its discussion confidentiality, to trim this proposal of judicial independence standards, which could lead to the adoption of a superficial reform more fit for proud boasting than building a state based on law and justice.

While some may argue that these issues stem from difficulties that would be hard to overcome in the foreseeable future, whereas uncovering the truth demands prompt steps that can be accomplished immediately, this reasoning has several flaws:

• The period needed to achieve the four aforementioned goals depends on the presence of the political will to do so. In other words, they require a specific (political) circumstance more than time.

• While the difficulties of reform, especially judicial and institutional reform, in Lebanon are significant, the coincidence of the Beirut massacre with the state’s bankruptcy has made this circumstance more realizable than ever before. Besides the hundreds of thousands of casualties and people affected by the explosion and millions of people who were already affected by the bankruptcy, these two factors have created an acute awareness of the dangers posed by the deterioration of the public service and, in particular, the justice system. The best evidence of this awareness is the emergence of judicial independence as a social priority at the forefront of the 17 October 17 Rrevolution’s demands. This is a natural development as large, cataclysmic events often spur societies to develop their institutions.
• Even if these goals are not immediately achieved, insisting on them will strengthen awareness, concert efforts, and thereby increase the chances of accomplishing reform and successfully challenging the outcome of the investigation and trial as soon as the balance of power changes. Conversely, neglecting these considerations will only drown the case in secondary issues related to the performance of Judge Fadi Sawan himself while obscuring all the other issues that threaten it and thousands of other cases pending before both exceptional courts and regular judges.

The Victims and Their Supporters Must Be Rallied Together in Their Battle

Finally, without downplaying the significance of the Beirut Bar Association, rights organizations, and other bodies now supporting the demands for truth and justice, we must acknowledge that achieving the aforementioned imperatives today requires pooling efforts to support justice and, before anything else, what we labeled in the wake of the explosion as “constructing the victim identity” and “institutionalizing the pain”, which would provide the advantages described below:

• What we mean by “constructing the victim identity” is to entrench the victim’s sense not only of victimhood and pain but also that they share it with all the other victims without any discrimination. This promotes cross-sectarian rights-based and humanitarian considerations at the expense of the sectarian considerations and political calculus that usually dominate. From this perspective, entrenching the victim identity is the ideal means of preserving the memory of the victims and the most effective shield against attempted politicization and sectarianization: firstly, it prevents victimhood from turning into sectarian grievances, which would confine people’s sympathy to their sectarian brethren; and secondly, it prevents the sectarianization of the perpetrators’ liabilities, which would plunge accountability efforts into games of mutual pardoning (and self-pardoning) and bargaining.
• What we mean by institutionalizing the pain is to transform the momentary solidarity with and among the victims in the face of the enormity of the crime into permanent solidarity fueled and perpetuated by the memory, which can be done via the establishment of associations for the victims and networks of solidarity around them. Besides the benefit this provides for entrenching the identity and memory of the victim, it also creates long-term pressure to keep the demands for truth and justice at the forefront of social priorities irrespective of how much circumstances and interests change or how many efforts are required to achieve these two demands. In this regard, the best example is the achievements made by the Committee of the Families of the Kidnapped and Disappeared in Lebanon, which, through the power, impetus, and institutionalization of sympathy, constituted the strongest testament to the horror of the 1975-1990 war and the noblest form of resistance [in the sense that it is free of veiled interests] to the regime that emerged from it. Its perseverance in its demand culminated in one recognition after another of the “right to know” – all in the face of a system whose hegemony is based on suppressing the truth and, with it, the war’s tragedies. The distinction of this noble resistance (i.e. the resistance by the victims) becomes apparent when it is compared to the stances of most other social institutions, which have frequently endeavored to align with, or at least placate, the existing regime.

 

This article is an edited translation from Arabic.