A number of bad signs concerning the course of the investigation into the Beirut port massacre have emerged. The most prominent are the following:
Best practices dictate that immediate measures be taken to preserve the crime scene and thereby prevent any evidence tampering. Moreover, when an in flagrante felony occurs, the Code of Criminal Procedure requires the competent public prosecutor and first investigating judge to go immediately to the location. While acting government military commissioner Fadi Akiki did visit the site, neither the head of the Military Court’s Investigation Department Fadi Sawan nor the head of the regular Investigation Department in Beirut Charbel Abou Samra did.
The Council of Ministers decided to refer the case to the Judicial Council (JC) at the behest of Minister of Justice Marie-Claude Najm. This is a bad sign because the JC is an exceptional court that does not provide fair trial conditions to victims or defendants.
Besides the fact that referrals to this court occur via a discretionary decree adopted by the Council of Ministers, the judicial investigating judge is appointed by the minister of justice following approval by the Supreme Judicial Council (SJC, eight of whose ten members are appointed by the executive branch) in the absence of any objective criteria.
Moreover, none of the decisions of the JC or its investigating judge are appealable. Consequently, the measures, actions, and rulings adopted by them are liable to be widely criticized irrespective of their correctness. In this regard, a November 2004 Amnesty International report titled “Lebanon: Samir Gea’gea’ And Jirjis Al-Khouri: Torture And Unfair Trial” called for Geagea, who was tried in the JC, to be released or retried in a court more compliant with fair trial conditions. Such criticisms will probably arise sooner or later in connection with the current case.
Before the case was referred to the JC, Cassation Public Prosecutor Ghassan Oueidat hastily removed the investigation from the government military commissioner using the exceptional powers legally granted to him, which include the comprehensive power to investigate any crime himself as he sees fit. Yet certain facts raise legitimate doubt about Oueidat’s impartiality. Firstly, the request to impound the ship and unload its cargo in 2014 came from the Ministry of Public Works and Transport while it was headed by Ghazi Zaiter, Oueidat’s brother-in-law. Secondly, Oueidat himself received warning letters from State Security and took no initiative to destroy the cargo under the 1978 Hamburg Rules to protect public safety.
This conflict of interest is not negated by the possibility that another member of the Cassation Public Prosecution could be charged with the investigation as the law gives the cassation public prosecutor an unchecked right to direct and issue written and verbal orders to all the members.
Moreover, the cassation public prosecutor also holds the position of vice-president of the SJC and therefore has great influence over its decisions. These decisions include, most importantly, the approval of the proposed JC investigating judge in the present case. Hence, Oueidat is involved in the appointment of the judge who should examine and evaluate the correctness of his own actions in this case, which compounds the danger of the aforementioned conflict of interest.
4-9: Six Bad Signs Concerning the JC Investigating Judge’s Appointment
After the case was referred to the JC, the minister of justice had to appoint an investigating judge approved by the SJC. Clearly, this decision has a large impact on the investigation for two reasons. Firstly, the investigating judge is granted broad powers (from ordering arrests and releases and adopting investigation measures to identifying the crimes committed and the defendants, thereby creating a binding framework for the trial). Secondly, the judge exercises these powers single handedly and without any scope for appeal, as previously explained. Hence, given the gravity of this crime and the absence of other safeguards, the profile of this judge is a key factor for ensuring the investigation’s independence and effectiveness. We must therefore examine this profile and the selection criteria.
The minister of justice proposed three judges successively (namely Samer Younes, Tarek Bitar, and Fadi Sawan) before the SJC approved the final one. Although the minister of justice and the SJC have kept quiet about the selection criteria adopted, the following bad signs are apparent:
The appointment of the JC investigating judge was sectarianized, as was clearly evident from the insistence that this judge be Christian because the most damaged neighborhoods have traditionally been Christian. While the minister of justice bears responsibility for limiting the nominations to Christian judges, the Legal Agenda has for some time recorded the emergence of a custom of appointing the JC investigating judge from the same sect as the victim, whether it be a political figure or a community that came under attack. This custom is apparent from, for example, the appointments issued by former minister of justice Ashraf Rifi in 2014 in relation to the bombings in Bir al-Abed, Ruwais, Haret Hreik, and Tripoli; the Iranian embassy bombing; and the assassination of former minister Mohamad Chatah and his entourage.
This sectarianization conflicts with not only the principle of equality among judges but also the principles of apparent independence and apparent impartiality, which require that judges remain at an equal distance from the victims and the accused.
The SJC refused to explain its decisions to reject the first two judges proposed by the minister of justice, arguing twice that the Judicial Judiciary Organization Law compels it to keep its deliberations confidential. In the first instance, on August 12, the SJC responded to the minister of justice’s request for its reasons for rejecting Samer Younes by stating that its deliberations are confidential and nobody can compel it to explain its reasoning. In the second instance, on August 19, the SJC issued a statement of its own accord after increasing media criticism of the appointment process. In the statement, the SJC explained that any questioning of its stance is “unrealistic speculation”, that it would not disclose its deliberations because of the secrecy governing them, and that it “implores everyone not to cast doubt over the investigations that have occurred and are underway and to give the judiciary complete trust”. While Article 11 of the Judicial Judiciary Organization Law does indeed deem the deliberations confidential in a manner analogous to court deliberations, this confidentiality – just like the confidentiality of court deliberations – does not encompass the final decision that follows the deliberations, its rationale, or the votes of the members. Hence, irrespective of whether the SJC’s decisions on the proposed candidates were correct, its appeal for complete public trust in the judiciary was akin to a call for blind faith – all while its vice-president, Ghassan Oueidat, controls the investigations and appointments despite a clear conflict of interest.
Another bad sign was the investigating judge’s appointment under time pressure. This was one negative consequence of the case’s referral to the JC, where this judge is not pre-appointed – as required by the principle of the natural judge – but appointed following the referral. The pressure was worsened by the presence of people under arrest by order of the Public Prosecution. Any extension of these arrests beyond four days would require warrants from the competent investigating judge, so the judge’s selection had to be expedited to avoid releasing the arrestees or keeping them detained arbitrarily. Moreover, any delay in appointing this judge would keep the investigations exclusively under the cassation public prosecutor’s control. Hence, the investigating judge was selected without recourse to best practices in this area, such as inviting judges to run for the position and interviewing them to select the most qualified candidate.
As mentioned above, the proposal by the minister of justice to appoint Samer Younes was rejected without any explanation. Some media figures mentioned certain objections to him, namely that he has a “hard character” (a common expression in the judicial system generally meaning that someone is intolerant of any interference in their work), that he is politicized or from a political family, and that he was an advisor to former minister of justice Salim Jreissati. As evidence, some of them republished an old article about a lecture Younes delivered on human trafficking in his capacity as Jreissati’s representative. Clearly, the aim of these leaks was to justify the SJC’s rejection of the proposal to appoint Younes and prompt the minister of justice to abandon it.
Facing the SJC’s silence about the attack on a judge of recognized integrity and independence, Younes issued a statement denying any links to any political force. He explained that he represented the Ministry of Justice under several ministers based on his assignment to pursue the humanitarian issue of human trafficking and no special ties to any of those ministers resulted from it. More importantly, his statement included significant insights into the factors that he believes probably prompted the SJC – or most of its members – to reject him.
In this regard, the introduction read:
“I am the judge who has never declared that he lacks jurisdiction, knowledge, or ability. In 2010, I stood alone in confronting the grim crime at the White House [Restaurant]. Everyone raced and competed to bury the truth and exonerate the influential, so only the minor criminals got their punishment – or perhaps they didn’t get punished!”
Here, Younes was referring to the incident in which bodyguards accompanying banker Antoun Sehnaoui shot a number of patrons, including one of his opponents in a commercial dispute, at the White House Restaurant in Beirut. The mention of this crime at the beginning of Younes’ statement is particularly significant because he stood, in particular, against the first investigating judge’s decisions to forgo interviewing Sehnaoui, and that judge was none other than current cassation public prosecutor Ghassan Oueidat.
Hence, Younes seemed to be suggesting that he was ruled out not only because he fought for the truth in this and other crimes, as his conception of his judicial function and independence requires, but also because he is a testament to the weakness of some of the most prominent SJC members. By contrast, these members “raced and competed to bury the truth”, stand “at the doorsteps of one political faction or another in order to snag and capture the highest positions”, and are “agents” who falsify and bury facts to cover up the crime.
In this way, not only was the statement an explanation of how and why Younes was rejected; it was also, first and foremost, an eloquent warning about the threat posed to the investigation into the Beirut massacre by the corruption of certain judges who continue to occupy the highest positions.
The circumstances surrounding the rejection of Tarek Bitar – who, like Younes, is a judge known for his ethics and independence – are unclear. However, talk that he declined was leaked to the media to absolve the SJC of any responsibility for rejecting him. Bitar also issued, via the SJC’s Media Bureau, a statement that was clear about his readiness to perform the task but silent about the substance of the reservations he voiced to the SJC. Rather tellingly, it spread among reformist judges that he did not decline but was “made to decline”.
The SJC’s hasty acceptance of Fadi Sawan, who has occupied the position of military investigating judge since 2009, is another bad sign because he neglected to visit the crime scene as required by law (as mentioned earlier) and because of two other facts that cast legitimate doubt over his conception of a judge’s independence.
The first relates to how Sawan has exercised his functions as head of the Military Court’s Investigation Department. This position places him in charge of distributing the department’s cases among the various investigating judges in accordance with his own convictions. However, it has been widely said – and not denied by Sawan – that in 2019, he complied with a request by Salim Jreissati (then minister of presidential affairs, or “palace minister”, as he liked to call himself) to refer the Qabr Chamoun case to a specific investigating judge. Such compliance indicates that in Sawan’s conception, his independence exists under the ceiling of requests received from the presidential palace.
The second fact relates to Sawan’s performance as investigating judge in the case of the killing of Alaa Abou Fakher, the “martyr of the revolution”. First, he decided to release Colonel Nidal Daou, who is suspected of ordering the killing. Then, after the Military Court of Cassation overturned this decision, he released the colonel again amidst the COVID-19 lockdown.
Moreover, Sawan is generally known for taking measures and issuing indictments that accord with the Military Public Prosecution’s analyses and requests. Rarely does he go against them or decide to expand the investigation beyond the scope that they set out.
Since the investigation began, some journalists have endeavored to leak certain information to direct blame in or away from a particular direction.
Some of these leaks addressed the course of the investigation. They consisted of the publication of erroneous information or conclusions, as we explained above in relation to the rejection of the proposed appointment of Samer Younes and Tarek Bitar, and information suggesting that a “vehement campaign” is underway to remove the investigation file from the cassation public prosecutor in order to have the general director of customs released.
Other leaks pertained to the liabilities arising from the storage of aluminum nitrate at the port. They aimed to downplay the warnings that the General Directorate of State Security gave the Cassation Public Prosecution and the latter’s failure to decide to destroy the dangerous materials to protect public safety. They also aimed to deflect suspicion from former minister of public works Ghazi Zaiter even though his ministry (represented by the Directorate General for Land and Maritime Transport) was the authority that asked the judiciary to impound the ship and it acted at the behest of a law firm where the minister’s son was then training.
These leaks appear to come from circles close to the cassation public prosecutor as they relate to information to which he is presumably the priviest and they reduce his liability and the liability of people close to him. This increases their gravity and the gravity of his aforementioned conflict of interest.
On August 14, the National News Agency published a report attributed to the Cassation Public Prosecution indicating that it had postponed interviewing the current and former ministers of public works and transport. While this move could be explained via the case’s transfer to the newly appointed investigating judge, who is consequently now in charge of the investigation, the report immediately added that this judge will send “a letter to the Cassation Public Prosecution regarding his lack of jurisdiction to investigate ministers as that is up to the Supreme Council for Trying Presidents and Ministers”. This report seemed to be an effort to induce and pave the way for the investigating judge to forego interviewing these figures on the pretext of no jurisdiction.
The next day, the Lebanese Judges Association responded with a statement calling attention to a decision issued by the full bench of the Court of Cassation on 27 October 2000. This decision excluded this immunity in crimes not directly connected to the office. The association argued that per this decision, the crime of killing defenseless citizens (oblique intent) or causing their death remains within the jurisdiction of the regular judiciary and does not benefit from any immunity. It also stressed that following this precedent to prevent the loss of victims’ rights is even more necessary because the Supreme Council for Trying Presidents and Ministers has so far not been formed, any prosecution by it would be difficult given the country’s political corruption and sectarian divide, and Parliament’s archives are devoid of any prosecution. In this regard, any referral to the aforementioned council requires an accusation by two thirds of the MPs.
To all the above can be added the outgoing government’s declaration of a state of emergency in Beirut following the disaster. In practice, this declaration enables the Supreme Military Authority (the army leadership) to make exceptional decisions that restrict freedoms, including decisions to impose curfews, ban protests and assembly, subject freedom of publication to prior censorship, place people under house arrest, and invade homes without a judicial order. The greatest concern is that the military authority will use this power to constrict freedom of expression and publication in connection with the progress of the investigation. This danger is evident in the statement that the General Directorate of State Security issued on August 11 in response to leaks concerning its general director, Tony Saliba. After imploring everyone to refrain from leaks and analyses because they mislead the ongoing investigation, the statement made a veiled threat: “We are now under a state of emergency in Beirut, which means that perpetrators will have serious liabilities”. Of course, this statement can be interpreted not as a threat to prosecute people who spread fake news about the investigation but as an effort to lay the groundwork for subjecting publication to prior censorship using the power granted to the military authority.
Making matters worse, the state of emergency has been extended for more than a month via an administrative memorandum issued by General Secretary of the Council of Ministers Mahmoud Makie after approval by President Michel Aoun and outgoing prime minister Hassan Diab. As the Legal Agenda explained in its statement, this announcement occurred via an invalid decision that is as good as nonexistent.
Keywords: Lebanon, Beirut, Massacre, Investigating judge, Investigation