Within months of the beginning of the investigation into the Beirut port blast, the issue of immunities emerged as an obstacle to prosecuting many of the suspects. While such a discourse had appeared before,^[1] this was the first time it was associated specifically with an active judicial effort to disregard these immunities. The issue first emerged in the case following the 10 December 2020 decisions by the initial Judicial Council investigator, Fadi Sawan, to prosecute then caretaker prime minister Hassan Diab and several former ministers.^[2] However, it returned more prominently – this time to stay – following decisions by current Judicial Council investigator Tarek Bitar on 2 July 2021.

 

Because of the seriousness of the port blast and widespread interest in it, these decisions and the extensive interplay surrounding them can provide extremely important lessons about the system of impunity and the factors underpinning and perpetuating it. This interplay culminated in public outrage over a petition that approximately thirty MPs signed to free Diab and four former ministers (hereinafter the “charged ministers”) from the Judicial Council investigator’s grasp and a mass protest in support of the blast victims and the course of the investigation on 4 August 2021. Thus, the Legal Agenda’s stance^[3] that the domestic judiciary should conduct the investigation into this crime because that is the most effective way to develop the justice system and build public support for it seemed to be bearing fruit.

 

However, the forces aggrieved by the investigation quickly sensed the limits of their strategy of defending the system of immunities. Hence, they gradually – but clearly and systematically – transitioned to attacking the Judicial Council investigator with the goal of ousting him. Their offensive strategy began with manufacturing doubt in the investigator in public discourse. They then pursued various practical means to stay his hand, means that went beyond the courts to include various forms of pressure that reflect a desire to enforce their vision of justice (i.e. their own private justice). These efforts peaked with a government shutdown amidst the worst crisis to afflict Lebanon, which they continued until they had achieved their goal of suspending the investigation. Certain forces seemed to have declared an open, escalatory war on the Judicial Council investigator, using any means they deemed fit to remove him.

 

While these forces utterly failed to convince the public of their position on immunities, their offensive strategy, the political and media campaigns to discredit Bitar’s performance, and the political reactions they evoked did largely manage to shift the focus from immunities and impunity to Judge Bitar’s performance and legitimacy. The debate that the case sparked over the legitimacy of immunities and their negative impact on the entire legal system (an issue vital for overcoming the destructive system of impunity) careered down the alley of “Bitar’s performance”. Consequently, a vital, principled discussion about enabling the domestic judiciary to perform its role in major crimes (a precondition for establishing a justice system based on equality) transformed into a circumstantial discussion focusing on whether Bitar was intentionally or unintentionally serving factional agendas (especially against the “Resistance”, Hezbollah, and its allies) and evoking political and sectarian partisanship (both for and against these parties). This transformation muddies the case such that it ends up in the quagmire of politicization and sectarianization, just like several other rights issues. When this occurs, forming a decisive public opinion on it in one direction or another becomes impossible. Thus, the case loses its ability to instigate any positive change in the justice system and risks becoming another opportunity for hostilities and bloodshed, as occurred in the Tayouneh incident.

 

These concerns are exacerbated by the fact that the effort to cast doubt over the judge’s performance involved means that have often been used to obstruct accountability and consolidate the system of impunity. The gravest of these means include invoking the concept of inviolable dignitaries (maqamat, a concept that contradicts the principle of equality), regularly claiming to be being targeted selectively in order to portray the judiciary as the assailant and the suspects as the victims, sectarianizing and evoking group partisanship, and pressuring the judge to recuse himself and anyone powerful to help disqualify him. If these means are accepted and considered legitimate, anyone with influence can use them to obstruct judicial work and guarantee their own impunity. In other words, irrespective of these forces’ intentions or the validity of any of their criticisms of the Judicial Council investigator (about which we have our reservations), the means they employ deepen the problems affecting justice and render the judiciary (like they would any judiciary) incapable of fulfilling the responsibilities for which it was created in this case or any other. This analysis is corroborated by anti-Bitar forces’ failure to present any vision of how to improve and protect judicial performance and, in practice, properly conduct the investigation in this case or any other given the entrenchment of such practices. Their discourse was devoid of any prospects, as was demonstrated by their indifference when the investigation was frozen entirely.

 

Under such a situation, documenting and analyzing these means is particularly important for restoring clarity to the port blast case and better understanding the system of impunity and its foundations. This understanding is necessary for a mature public debate free of the dimensions that have usually rendered it inert, negative, and even divisive, which is essential for truth and justice not only in this case but also in cases concerning the corruption that spanned the last three decades and caused a near-total economic, monetary, and financial collapse. This is what we intend to do in this study by documenting the three battles that emerged from the case: the battle over immunities in Chapter 1, the battle over evaluating Bitar’s performance and impartiality (or rather to manufacture distrust of him) in Chapter 2, and the battle to remove Bitar one way or another in Chapter 3. These battles are interconnected not only because the forces opposed to the Judicial Council investigator and striving hard to remove him also all reject the lifting of immunity from any defendant in this case, but also because of the particular means used and ends sought, as previously explained.

 

Hence, we declare from the outset that this study aims to re-raise the core issue (impunity and the related crisis in the relationship between the judiciary and the politician or – more generally – between the judiciary and anyone with influence) without being dragged into a discussion of the faults in the Judicial Council investigator’s decisions. Whether Bitar is poor or outstanding is irrelevant amidst the absence of any prospect of accountability and the prevalence of means that foil any judicial action irrespective of its appropriateness.

 

In other words, this study seeks to correct the course of the debate in this case in the hope that it rises above a discourse charged with group partisanship and gain-loss calculations and opens prospects for a desperately needed improvement in justice values and institutional performance.

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^[1] An equally raucous discourse about immunities emerged in 1999 and 2000 when Émile Lahoud, at the beginning of his presidency, pursued a number of prosecutions for corruption.

^[2] Nizar Saghieh, “Wa-Infatahat Ma’rikat ‘Hasanat al-Wuzara’’… Khutwa Hamma Tuhaddiduha Siyasat ‘al-Iflat min al-‘Iqab’”, The Legal Agenda, 13 December 2020.

^[3] Legal Agenda Statement on the Port Massacre: “Justice for the Victims Requires More Than Legal Accountability”, The Legal Agenda, 7 August 2020.