Judging Identities: Beirut Criminal Court’s Phobia of Homosexuality and Right to Privacy*

2016-09-14    |   

Judging Identities: Beirut Criminal Court’s Phobia of Homosexuality and Right to Privacy*

Imagine hearing that a friend with whom you dined yesterday was murdered. Imagine that during the initial investigation of this friend’s murder, you inadvertently disclose that he and you belong to the same social environment; you, like him, are homosexual. Your testimony then becomes a “confession” made during an official interrogation. The Public Prosecution charges you for “intercourse contrary to nature”, the crime stipulated in Article 534 of the Lebanese Criminal Code. Moreover, the Public Prosecution, investigating judge, Indictment Division, and then the Criminal Court have no qualms about deeming the crime of murder and the misdemeanor stipulated in the aforementioned article (whose maximum punishment is only one year of imprisonment) inseparable. Hence, they refer the persons accused of murder and the persons accused of homosexuality to be tried in the same case before the Criminal Court. Of course, you have no connection to your friend’s murder. You are just a witness who ate dinner with him on the night of the murder. But because you inadvertently disclosed that personal information about yourself during the investigation, the Public Prosecution and all of the judges therein saw themselves entitled to prosecute and try you on account of it. Now imagine that, grieving over your friend’s murder, you stand not before one judge and their clerk, but before four judges, their guards, the Criminal Court’s clerks, and dozens of lawyers while being openly asked, “who do you have sex with?” and, “are you a faggot?”

The above scenario is not copied from Franz Kafka’s The Trial, or a recount of Oscar Wilde’s trial at the end of the 19th century. It is a reality that crystallized, in all of its crudity, on the stage of the Lebanese judiciary in the middle of this year. In a spectacle fraught with prejudices, it was concluded before the Criminal Court in Beirut under Presiding Judge Helena Iskandar, auxiliary Judge Hani Abdul Meneem el-Hajjar, and (delegated) auxiliary Judge Albert Qayyumji.

On June 7, 2016, the aforementioned court issued a decision convicting five young men of the misdemeanor stipulated in Article 534 of the Criminal Code, as well as convicting their friend’s murderers. To this end, the court did not hesitate to play the role of the existing patriarchal regime’s protector, just as it did a month later in its ruling on the Manal Assi case. It completely disregarded developments in psychiatry, in Lebanese society, and in the official stance of the Lebanese state, declaring that “homosexual relations must be considered relations contrary to nature according to the standards accepted in Lebanese society, for natural sexual relations in our society are those between a woman and a man and not between members of the one sex”. By not using any scientific, medical, or social criterion to define “nature” and “natural relations”, or what contravenes them, and instead merely formulating grounds in this manner in the absence of any proven act (as though the act is self-evident), the court’s decision constitutes a ruling on mere sexual identity. It may therefore be an example of prejudice far removed from any scientific, legal, or social thought, and from the reality of nature in and of itself.

To arrive at the aforementioned outcome, which reproduces heteronormative discourse, the regime’s court committed violations on four basic levels.

1.    The Court Violates Ratified International Agreements
One of the gravest effects of this ruling may be that it rendered “accepting the direct effect of the provisions of the international agreements if they clash with the provisions of regular domestic law” impermissible, “despite the recognition of the principle of the hierarchy of legal rules”. In other words, the court found that the litigants before it have no right to invoke the rights stipulated in international agreements should they conflict with domestic law. Rather, it is up to “the state that joins an international covenant [to itself amend] the texts of domestic positive law so that they are in line with the international agreements to which it has committed”. While this statement in effect neutralizes an important part of judges’ social role and of their institutional function in adapting domestic laws to the international agreements, it also ignores or even conflicts with a key section of the same legal doctrine that the Criminal Court invoked for guidance.

International law doctrine distinguishes between international agreements that do not enjoy direct effect, and those that are effective in and of themselves (self-executing),[1] i.e., those that litigants can invoke directly before the courts. For an agreement to have direct effect, two conditions must be met. Firstly, the international legislature’s intent must be to establish direct rights for individuals. Secondly, the phrasing of the agreement or some of its clauses must be clear and not tied to any implementation mechanism, the responsibility for which falls upon the signatory state.[2] In the current case, the Criminal Court ruled out the possibility of “direct effect”, especially the direct effect of Articles 2, 17, and 26 of the International Covenant on Civil and Political Rights (ICCPR), which Lebanon signed in 1976. To do so, it invoked the obligation that Article 2 of the ICCPR places on party states to take the necessary measures to effectuate the rights stipulated in said Covenant. However, the legal doctrine recognizes that despite the existence of such obligations on the party states, explicit clauses aimed at establishing a human or basic right necessarily enjoy direct effect and litigants may therefore directly invoke them before the courts.[3] Jurisprudence and comparative law doctrine agree that all clauses of the ICCPR in particular enjoy said effect.[4] More specifically, the clauses that the defendants invoked before the Criminal Court (primarily those of the ICCPR) are clearly not orientated toward just the party states; rather, they enshrine basic rights directed toward all and do not make the effect of said rights contingent on any specific implementation mechanism.

In this regard, the United Nations Human Rights Committee has noted that “the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary [itself] in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law”.[5] While the Criminal Court ruled out this possibility entirely, thereby obstructing the judge’s role in this area, some Lebanese judges have not hesitated to use the international agreements to expound domestic texts that are obscure or open to interpretation without rendering them ineffectual. This is precisely what the single criminal judge in Matn (Presiding Judge Hisham Qantar) did when he elaborately defined and interpreted the term “nature” used in Article 534 of the Criminal Code. He invoked the principles enshrined by the UN to rule out the application of this article to homosexuals without rendering the article ineffectual.

On the other hand, to evade the international Covenant’s effects, the Criminal Court stated that in any case, the Covenant’s stipulation on “the right of persons to enjoy all the rights and freedoms therein without distinction on the basis of race, color, sex, language, religion, and so forth does not imply the legalization of homosexual relations because the word ‘sex’ means man and woman, not the sexual orientations of either of them”. This argument is also invalid, for the Covenant did not merely enumerate specific categories (such as race, color, and sex); rather, by including the phrase “or other status”, it also opened the door for the inclusion of other categories not explicitly mentioned. In doing so, the Covenant aimed to take a flexible approach in dealing with other forms of differential treatment that could arise from the evolution of discrimination over time.[6] In 2009, the United Nations Economic and Social Council confirmed that the phrase “or other status” implicitly encompasses “sexual orientation”.[7]

2.    The Court Violates Article 534 and Issues a Ruling on Identity
The Criminal Court found the defendants’ act of “intercourse against the order of nature” to be a proven fact. To this end, it relied on their confession of homosexuality made during the preliminary investigation, and the statement that one made in court “that he supports personal freedom so long as it does not encroach on the freedom of others”. The court also cited the consistency of the defendants’ statements and the report made by the forensic doctor who examined the victim’s corpse, which noted that it “bore marks consistent with ‘liwat muzmin’”.

Muzmin means chronic and Liwat in Arabic may refer to sodomy. But in this case, the court is employing the phrase in a derogatory manner as in “chronic faggotry”. In other words, the court saw no need whatsoever for the “intercourse” element stipulated in Article 534 of the Penal Code to be present in order to apply the article. The mere confession of homosexuality is enough; there is no need thereafter to ascertain that intercourse occurred in a specific time and place, nor is there any need to ascertain the involvement of a second person in said intercourse (even though intercourse presupposes the presence of at least two persons). The court thereby deviated from its procedures for proving other crimes; it convicted people for just stating that they are homosexual or had homosexual relations, whereas a person’s statement that they are a murderer or a thief means nothing unless the actual murder or theft is proven, and the time and place is determined.

Moreover, the court found supporting personal freedom to be evidence of having committed intercourse against the order of nature. The court seems to view belief in personal freedom (one of the axioms of rights-based thinking) as significant proof of having committed whatever the laws that restrict this freedom prohibit (in other words, beware of personal freedom advocates). The court also had no qualms whatsoever about deriving its proof from rectal exams (“tests of shame”) performed on the murder victim’s corpse. These examinations are scientifically unrecognized because of their unreliability, and their use as a means of proof has in any case been banned in Lebanon since 2012.

Thus, the court clearly violated the text of Article 534, even if we presuppose that it concerns homosexuals.

Additionally, to convict the defendants on the basis of their sexual identity without presenting any proof of intercourse, is to convict them of a crime not stipulated in Article 534 (even if we suppose that homosexual intercourse constitutes intercourse against the order of nature) and, moreover, a crime for which no legal text exists. Hence, the court’s stance violates the principle of [legality] (“no crime without legal ground”).

3.    The Court Violates Judicial Ethics
Besides the above, it is clear that the Criminal Court set out from preconceptions to condemn homosexuality before analyzing the facts, and without examining the law. This is evident, firstly, from the means of proof that it used to form its conviction, which are no more than preconceptions, as explained earlier.

Secondly, the ruling was pervaded by a number of moral judgments on homosexuals in general that lack any scientific basis, and are entirely beyond the scope of any discussion of law. On the one hand, the court held that “natural sexual relations in our society are those between a woman and a man and not between members of the one sex”, as mentioned earlier. On the other hand, it stated that the countries that “have legalized homosexual relations and gay marriage” would not have done so “had they considered these relations natural”. In this regard, the court seemed to conflate the decriminalization of homosexuality by many countries with the legalization of gay marriage, once again allowing preconceptions to obscure the details.

Together, these issues are the best evidence of the court’s disposition toward condemning the homosexual identity specifically, and not just the act of intercourse contrary to nature (however we may understand it). Subsequently, the ruling may be inconsistent with the Lebanese Judicial Code of Ethics Main Principles published in 2005, which states that “there can be no justice when the judge sets out from prejudices before analyzing the facts and examining the law”. This inconsistency may henceforth make it possible to request that the members of this court excuse themselves from any case related to Article 534 of the Criminal Code brought before them.

4.    The Court Restricts the Role of Judges
In 2009, 2014, and 2016, the single judges in Batroun and Matn issued pioneering verdicts that ruled out the application of Article 534 to homosexual relations, and the Lebanese state boasted about such verdicts in its official statement before the UN to show that it respects gay rights. In contrast, the Criminal Court has now curtailed the functional and social role of judges, turning them into implementers of the law and, in practice, false witnesses to any injustices therein. Unfortunately, the Criminal Court’s behavior is fully in line with the stance taken by the Supreme Judicial Council following the “Sexual Perversion” conference held by the Catholic Media Center just days before the court issued its ruling. The message is clear: judges may not *interpret in a manner that expands or constricts the penal texts, and should they do so, they will be deemed to be encroaching on parliament’s legislative authority.

However, this traditionalist view of the judicial function is completely inconsistent with the concept of the judge’s contemporary role in the social environment to which they belong; the rule of law is no longer synonymous with legal text, but has become a product of the judge’s application of the latter.

Finally, note that this decision was appealed on August 18, 2016.


*An earlier version of this article had the following headline: The Phobia of Beirut’s Criminal Court: Prosecuting Privacy and Homosexuality

This article is an edited translation from Arabic.


[1] Nguyen Quoc Dinh, Droit International Public, 5e édition, L.G.D.G.; this is the only doctrinal source that the Criminal Court invoked for guidance in this case.

[2] Frédéric Sudre, Droit européen et international des droits de l’homme, 10e éd., PUF, Janvier, 2011.

[3] Jean-François Lachaume, Droit international et juridiction judiciaire, Rép. Dr. Int., Dalloz, 2013.

[4] Frédéric Sudre, op. cit.

[5] United Nations Human Rights Committee, 80th Session, General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted on March 29, 2004.

[6] Committee on Economic, Social, and Cultural Rights, General Comment No. 20, 42nd Session, May 2009.

[7] Ibid.

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