Legal Agenda statement on the beirut port massacre investigation


2020-08-25    |   

Legal Agenda statement on the beirut port massacre investigation

Summary

Following the Beirut port massacre on 4 August 2020, Lebanese citizens discovered that they are once again facing an enormous crime without fortified judicial and security institutions capable of investigating it and determining liabilities impartially, independently, and transparently. In this regard, we wish to make a number of observations:

1- The international and national failure to build judicial and security institutions

 The lack of trust in the local judicial and security institutions reflects a failure that is not only national but also international. The local judiciary has not been fortified nor its independence strengthened. From the other angle, the Special Tribunal for Lebanon failed to spur the development of the security and legal system toward ending the state of impunity. Consequently, today we once again face a dilemma between sovereignty and justice.

2- The government’s failure to take the measures needed to investigate the port massacre

The measures taken by the government are insufficient and absolutely not commensurate with the gravity of the crime for the following reasons:

 

  1. The establishment of an administrative committee composed of ministers and heads of security agencies constitutes a blatant departure from the principle of the separation of powers, whereas the executive branch in its entirety should be held to account.

  2. The crime’s referral to the Judicial Council constitutes another instance of resorting to a court wherein trials follow exceptional procedures that do not observe fair trial requirements and conflict with the Constitution, especially because of the inability to appeal decisions by the Judicial Council or judicial investigator. This opens the door widely for skepticism toward any ruling subsequently issued. This criticism is not refuted by the argument that the intent behind resorting to the Judicial Council is to avoid referring the case to the military judiciary and marginalizing the victims as guaranteeing the victims’ rights does not justify sacrificing the rights of defense.

  3. The judicial investigations into the massacre are being conducted by the current Public Prosecution offices without any government revision of the appointments inside them, most notably the position of cassation public prosecutor, which is occupied by Judge Ghassan Oueidat‎. There are numerous reasons to doubt Oueidat’s ability to conduct the investigations into the port massacre with neutrality, particularly his familial ties to certain suspects and his reception of reports about the storage of dangerous materials at the port before the explosion. Yet, so far, no influential political force has called for his replacement or at least that he be recused from the investigation into this case.

3- The need to guarantee an independent and transparent judicial authority

Any choice concerning the investigation and trial of this crime must guarantee the following essentials: all the victims’ rights, particularly their right to view the investigations and participate in the trial; fair trial conditions; the effectiveness of the investigations and the expertise needed to conduct them; the principle of the natural judge, meaning that the court is permanent and regular rather than special or established specifically to examine this case; and the case’s social, legal, and institutional effect – it should lead not only to the identification of liabilities but also to a genuine, serious effort to improve our judicial and security system and strengthen the prospects of judicial sovereignty in future.

4- The measures needed

As the domestic courts do not currently provide these conditions and guarantees, resorting to them requires a series of measures to be taken as soon as possible in order to avoid legitimizing international solutions (whether for conducting the investigations or the trial) as an inevitability, which could lead to high costs and foreign interference. The most important of these measures are:

 

  1. The execution of new appointments in the sensitive judicial positions, especially the Cassation Public Prosecution. This position should be assumed by a judge known for impartiality after the enormous powers granted to it to control the Public Prosecution offices’ work are reviewed.

  2. The immediate execution of a series of legislative reforms. The most important are adopting a law that guarantees the judiciary’s independence in accordance with international standards and abolishing the Judicial Council’s exceptional trial procedures or returning jurisdiction to the regular courts.

  3. The enlistment of the necessary foreign and international expertise that may be unavailable domestically.

 

Full Statement

Following the Beirut port massacre on 4 August 2020, Lebanese citizens discovered that they are once again facing an enormous crime without fortified judicial and security institutions capable of investigating it and determining liabilities impartially, independently, and transparently. They are thereby experiencing a sense of deja vu with other scandals and crimes (including flagrante delicto crimes) committed over the past decades, particularly the murder of Prime Minister Rafic Hariri in 2005. Just as occurred then, demands for international investigations or courts have arisen as an expression of distrust toward domestic institutions and expertise. Moreover, grassroots demands to “hang the nooses” have spread, and protesters actually displayed mock nooses for the leaders in central Beirut on August 8.

Amidst the popular responses, the government – which resigned less than a week after the massacre – took steps incommensurate with the crime’s gravity. These steps began with the appointment of an administrative committee composed of ministers and the heads of security agencies to determine liabilities and ended with the case’s referral to the Judicial Council. It also declared a two-week state of emergency in Beirut, thereby militarizing the city.

Hence, we wish to make the following observations:

1- The international and national failure to build judicial and security institutions

The lack of trust in the local judicial and security institutions reflects a failure that is not only national but also international.

It is an international failure because the Special Tribunal for Lebanon (STL), established for trying those accused of killing Hariri and others, failed to achieve one of its fundamental goals, namely to boost the security and judicial system and advance it toward ending the state of impunity. According to former UN secretary-general Kofi Annan, this rationale for establishing the court justified incurring the high costs (which approached 1.5 times the budget of all the Lebanese courts over more than 12 years). Unfortunately, irrespective of the outcome of the STL’s work, this goal was not achieved at all as the case was predominantly handled as an isolated matter with no connection or impact on justice in Lebanon.

It is a national failure because the political forces failed to take any measures to develop the judicial or security institutions. This failure is evident, in particular, from the absence of any bill to fortify the judiciary or strengthen its independence and performance and from all the judicial practices over the past period that the Legal Agenda has documented multiple times. From this angle, these forces went against the logic and priorities they invoked in the debate about resorting to the STL. The side supporting the STL (the March 14 Alliance), which argued that peace presupposes justice, paid no attention to strengthening the domestic judiciary, as though domestic justice does not concern it. The side that opposed the STL based on sovereignty considerations (the March 8 Alliance) made no effort to fortify the domestic institutions and, by extension, the sovereignty sought in the face of the demands to resort to international justice when major crimes occur. Consequently, today we once again find ourselves facing a dilemma between sovereignty and justice because of the inadequacy of the judiciary’s institutions, just as we face a dilemma between sovereignty and restarting the economy or securing vital materials. Sovereignty is not merely a stance; rather, it requires wise policies that ultimately fortify and preserve it.

We have drawn attention to this issue repeatedly to no avail. We have called upon all parties to accord with their own logic by enacting legislations that guarantee judicial independence for the sake of justice and sovereignty at the same time.

2- Government excess regarding the investigation and trial authority in the port massacre case

The measures taken by the government – both the appointment of an administrative committee and the case’s referral to the Judicial Council – are insufficient and absolutely not commensurate with the gravity of the crime for the following reasons:

 

  1. The establishment of an administrative committee composed of ministers and heads of security agencies constitutes a gateway for steering or misleading the judicial investigation and a blatant departure from the principle of the separation of powers. In practice, this move entrusts the executive branch with the responsibility of investigating the complicity of the public administrations subject to its own authority, whereas the executive branch in its entirety should be held to account. Making matters worse, the military leadership has been asked to place anyone implicated in this case under house arrest pursuant to the State of Emergency Law, which will allow it to point fingers, influence the investigations, and undermine the presumption of innocence.

  2. The crime’s referral to the Judicial Council constitutes another instance of resorting to a court wherein trials follow exceptional procedures that do not observe fair trial requirements and conflict with the International Covenant on Civil and Political Rights, which is an integral part of the Constitution. The Judicial Council’s jurisdiction is decided by the Council of Ministers, the investigation is entrusted to a judge appointed specifically for this purpose, and five Court of Cassation judges conduct the trial. Decisions issued by the judicial investigator or the Judicial Council cannot be appealed. The absence of fair trial conditions in the Judicial Council opens the door widely for skepticism toward any ruling it issues and for people charged before or convicted by it to be considered arbitrarily detained. This criticism is not refuted by the notion that the case must be referred to the Judicial Council to circumvent the rules of regular jurisdiction (which would place the case in the Military Court and thereby marginalize the victims) because the referral exchanges one exceptional court for another; because guaranteeing the victims’ rights does not justify sacrificing the rights of defense; and, most importantly, because no attempt has been made to correct the Judicial Council’s trial procedures to guarantee a fair trial. Making this decision worse, the government referred the case to the Judicial Council without appointing the judicial investigator. A delay in this figure’s appointment will create a grey area where the Public Prosecution single-handedly administers the investigation and prosecution without the investigating-judge safeguard.

  3. The judicial investigations into the massacre are being conducted by the current Public Prosecution offices (namely the Cassation Public Prosecution and the Military Public Prosecution) without any government revision of the appointments inside them. One of the most notable is the position of cassation public prosecutor (the head of the Public Prosecution offices), which has been held by Judge Ghassan Oueidat‎ since September 2019. This is reflected by the Lebanese Judges Association’s statement on 10 August 2020, which faulted the Public Prosecution for making settlements with the banks, remaining silent about the Special Investigation Commission’s inadequate response to its request for investigation into suspicious accounts, and disengaging from the fight against corruption. In fact, there are numerous reasons to doubt Oueidat’s ability to conduct the investigations into the port massacre with neutrality: he has familial ties to certain suspects (he is married to the sister of Ghazi Zaiter, who was the minister of public works and transport when the ship’s cargo was unloaded into the port at the ministry’s request in 2014), and he received and investigated reports about the storage of dangerous materials at the port before the explosion. Yet, so far, no influential political force has called for his replacement or at least that he be recused from the investigation into this case. Note that the cassation public prosecutor represents the Public Prosecution in the Judicial Council, which means that Oueidat will continue to represent society and public right even now that the crime has been referred to it.

3- The need to guarantee an independent and transparent judicial authority

Facing the conundrum of reconciling between justice and sovereignty, and the government’s failure to take the appropriate measures regarding this case’s investigation, we must mention the essentials that any choice must guarantee:

 

  1. All the victims’ rights, particularly their right to view the investigations and participate in the trial.

  2. Fair trial conditions.

  3. The effectiveness of the investigations and the expertise needed to conduct them.

  4. The principle of the natural judge. In other words, the court must be permanent and regular rather than special or established specifically to examine this case, which would allow interference to occur either at the time of establishment or when its trial procedures are determined.

  5. The case’s social, legal, and institutional effect. This crime should lead not only to the identification of liabilities but also to a genuine, serious effort to improve our judicial and security system and strengthen the prospects of judicial sovereignty in future.

As the domestic courts do not currently provide these conditions and guarantees, resorting to them requires a series of measures to be taken as soon as possible. The most important are:

 

  1. The execution of new appointments in the sensitive judicial positions, especially the Cassation Public Prosecution. This position should be assumed by a judge known for impartiality after the enormous powers granted to it to control the Public Prosecution offices’ work are reviewed.

  2. The immediate execution of a series of legislative reforms in parallel with the investigations into the port massacre. Such reforms include adopting a law that guarantees the judiciary’s independence in accordance with international standards and abolishing the Judicial Council’s exceptional trial procedures or returning jurisdiction to the regular courts.

  3. The enlistment of the necessary foreign and international expertise that may be unavailable domestically.

All this cannot occur without broad, rational, and targeted social momentum.

 

Conversely, any negligence or procrastination in rectifying the present shortcomings and deficiencies will unfortunately increase the legitimacy of resorting to international solutions (whether for conducting the investigations or the trial) as an inevitability, which could lead to exorbitant costs and foreign interference and limit the prospects for capitalizing on this case to develop our judicial and security system. These negatives could be mitigated if the victims and public opinion play an active role in strengthening the case’s rights-related dimensions or if we resort to permanent, professional international authorities (such as the International Criminal Court) instead of special or exceptional ones.

This statement is an edited translation from Arabic.

 

Keywords: Lebanon, Beirut, Port massacre, Investigation, Justice, Sovereignty, Judicial Council

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