Beirut: A city still seeking justice - A closer look into the domestic investigation and the possibility of going international

Analysis Report by Joelle El Sheikh, Featured Writer

April 16th, 2021

Eight months into the most devastating explosion in Lebanese history and the search for justice still continues. On August 4th, 2020, thousands of tons of ammonium nitrate, that were recklessly stored at the Beirut Port, blew up, causing massive destruction to the city and its residents. The following day, the Minister of Interior, Mohammad Fahmi, assured the Lebanese people that the investigation that would dig deep into the root cause behind what happened would only take five days, stating that “Those responsible for the explosion will be held accountable”. Less than a week later, Hassan Diab, the Lebanese Prime Minister that had been in office for a little over six months, announced his official resignation, having said: “corruption is bigger than the state”. To ensure that accountability and justice be pursued, four main indicators must follow through: The duty to prosecute, the right to truth, the right to reparation, and the duty to ensure non recurrence.

The duty to prosecute

Nine days after the explosion, military court judge Fadi Sawan was appointed by the Supreme Judicial Council to lead the investigation. Sawan had stated from the beginning that he was determined to bring justice to the victims of the blast by examining the origin of the ammonium nitrate, why it remained there for years, the failure to properly store it, and the trigger that eventually lead to its explosion. The arrests began between late-August and December, where Sawan charged 37 people linked to the port, most of which were low-level government employees and officials. According to a reportissued by Human Rights Watch, at least 25 of those 37 people were detained under conditions that violated their right to due process. More specifically, their detainment goes against the International Covenant for Civil and Political Rights, which Lebanon has signed and ratified. The ICCPR states that the defendants have the right to a timely hearing, and any delays in the trial process could possibly violate the right of an accused person to be brought promptly before a judge. On multiple occasions, the lawyers of the detained have said that the judge did not tell them or their clients which charges applied to them or the evidence presented, citing ‘secrecy of the investigations’, which also goes against the ICCPR. Lebanon cannot, under any circumstance, solicit a domestic law provision to justify violating an international treaty that it has previously ratified. According to the Human Rights Watch report on the investigation, “International law automatically forms part of Lebanon’s domestic law, and article 2 of the civil code provides that international treaties ratified by Lebanon prevail over domestic law.”

Everything was going smoothly in the eyes of the Lebanese government, until the 10th of December, when Sawan chargedcaretaker Prime Minister Hassan Diab and three former ministers with ‘criminal negligence’. Documents obtained by the Washington post revealed that officials had long known about the ammonium nitrate stored in the port, and the dangers they posed. Additionally, a report by Lebanon’s national security agency, which was sent to Diab two weeks prior to the explosion, explicitly stated the analysis of an expert at the Lebanese University, who had examined the material and warned that “if ignited, [it] would cause a massive explosion, one of whose results would cause the semi-destruction of Beirut’s port.” It wasn’t until then that two of the ministers charged-whom are also current sitting members of parliament- requested Judge Sawan’s dismissal, stating that parliamentary immunity is enough to invalidate any charges against them. After two months of the suspension of Sawan’s probe, the investigation was finally set to resume with the oversight of the judicial chamber. However, and to the public eye’s surprise, the panel of judges from Lebanon’s highest court abruptly and unjustifiably removed Sawan from the entire investigation on February 18th, when one of the indicted ministers refused to appear before him, again. A 26-page decision dismissing Sawan from the case stated that there was ‘legitimate suspicion’ regarding his neutrality and impartiality, mainly due to his inability to recognize the legal immunity previously claimed by the indicted ministers. The Minister of Justice then appointed Judge Tarek Bitar to restart the entire investigation. 

Families of the victims of August 4th took the streets following the announcement of the removal of Judge Sawan from the case, expressing their anger and refusal of such a decision, and stating that they had faith in Sawan’s handling of the case. 

“They don’t care about us. They don’t care about the martyrs. We are just here crying but [the politicians] only care about themselves” said Mona Jawish, whose daughter Rawan was killed by the Blast. 

It has been more than eight months since the blast, and a domestic investigation is still utterly struggling to break through the corruption and negligence of the state. For a domestic investigation to truly succeed, Lebanon must adjust its Code of Criminal Procedure to comply with the provisions of a fair trial, and pass the law to provide for the independence of the judiciary. However, what happens when the duty to prosecute is no longer entrusted with the state? Where does the truth lie? 

The right to truth 

The preamble of the Lebanese constitution states that “[Lebanon] is a founding active member of the Arab League, committed to its Charter; as it is a founding active member of the United Nations Organization, committed to its Charter and the Universal Declaration of Human Rights”[1]. Translating the above mentioned onto the case of the Beirut Blast, we note that the right to life is mentioned in article 3 of the Universal Declaration of Human Rights, article 6 of the international covenant on civil and political rights, article 2 of the European convention on Human rights and article 4 of the Arab charter on human rights, all of which Lebanon adheres to. Thus, it can be deduced that any failure to ensure the right to life, and conversely, any failure to investigate arbitrary deprivation of life, would be considered a breach of the aforementioned articles. 

Given that international law is an integral part of the Lebanese domestic law, can an international investigation be the key to obtaining the right to truth? It is understandable that the truth cannot be obtained easily and quickly, but the families of the victims and the Lebanese people need a guarantee that it eventually will. What is almost certain is that an independent investigation has proved difficult within the Lebanese context after eight months, and so it is a legitimate question to wonder whether or not an international, independent investigation is within reach. 

The second we ask ourselves that question, existing barriers start to come to light, namely the fact that Lebanon is currently not a state party to the International Criminal Court’s Rome Statute. This means that “the International Criminal Court does not, prima facie, have jurisdiction to judge members of the Lebanese government for their criminal liability in the Beirut blast”. However, articles 13, 14, and 15 of the Rome Statute state that a State Part or the UN Security Council can refer the case to the Court, or even to the ICC prosecutor herself to open an investigation (even without Lebanon being a state party to the Statute), then the ICC could still have jurisdiction over the case if the committed crime falls under the list of crimes mentioned in Article 5 of the Statute (Genocide, crime against humanity, ethnic cleansing, war crime). The closest category that the Beirut Blast can be put under, as far as the list goes, is a crime against humanity; however, the presence of ‘murder’ requires criminal intent to be clearly demonstrated. 

The International criminal court does not recognize negligence as a legitimate element that gives rise to criminal responsibility, but has previously recognized recklessness (‘dolus eventualis’) in cases such as the ICTY in the Blaskic. Article 30 of the ICC Rome Statute states that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.” The article continues to define intent with the perpetrator having been aware that the consequence “will occur in the ordinary course of events”. Despite the possibility of proving intent with the fact that Lebanese officials were fully aware of the dangers and consequences of the chemicals stored in the port and could not possibly ignore the risk they pose, it will nevertheless prove difficult to overlook Lebanon’s non-ratification of the Rome Statute as well as the absence of explicit characterization of recklessness that gives rise to international criminal liability. It is therefore safe to say that the possibility of bringing the Beirut Blast in front of the ICC remains narrow. 

The right to reparation 

After having carefully studied the extent of the damage caused by the blast, Charbel Cordahi, an economist and financial adviser to the president, estimated that it would require around $15 billion to repair all the destruction, including compensation. The explosion came at a time of extreme economic and political turmoil, with nearly half of the Lebanese population living under the poverty line. To this day, many residents are still unable to go back to their homes that remain visibly and structurally damaged, a problem that should have been resolved by the authorities. Instead, officials have called for international aid to help re-construct Beirut, with Gen. Mohammed Kheir, secretary general of the Higher Relief Council stated: “We would be grateful if each country rebuilt a street or neighborhood in Beirut, like they did following the 2006 Israeli aggression. That would be the best way.”

Most recently, the caretaker minister of economy Raoul Nehme sent a letter to the lead investigator judge Tarek Bitar asking him to issue an official report stating that the causes that led to the Beirut Port explosion are not related, in any way shape or form, to acts of war or terrorism. Nehme claimed that the reason behind that is to allow insurance companies to be able to provide indemnity to the victims. According to lawyer Diane Assaf, this is a clear and dangerous intervention of the executive power in the judiciary, stating: “How can a minister demand from the judge, investigating one of the largest blasts in history, which decision he should issue”? Assaf continues to stress on the fact that Article 419 of the Criminal Code states that any person who intervenes in the judiciary should face jail-time. 

More importantly, in this narrative are the voices of the families who have lost their loved ones and have made it their life mission to uncover the truth. The families who have repeatedly said that financial compensation means nothing without justice. Regardless, the right to reparation is undeniably a crucial part of the recovery process post-disasters, another step the Lebanese authorities have failed to achieve. 

The duty to ensure non recurrence

Lebanon has a long history of political violence; from the civil war to the assassination of over a dozen of political figures over the years, the principle of accountability has not exactly followed through. It is enough to say that some of the main political actors behind the civil war are still ruling the Lebanese people today. Lebanon cannot handle another amnesty, another pardon, and another tragedy put under the rug. It is almost impossible to imagine a rebuilt Beirut, a brighter Lebanon, without justice for what happened at 6:08 PM on August 4th. 

The time has come to break the pattern of non-accountability. The time has come for justice to override corruption. Because if not now, if not for the victims of August 4th, then when and for whom? 

Bibliography:

“Beaking: Lebanon Removes Judge Fadi Sawan From Beirut Blast Case”, The 961, https://www.the961.com/breaking-lebanon-sawan-beirut-blast/

“Lebanon PM Resigns: Corruption is bigger than the state”, Shafaq, https://shafaq.com/en/World/Lebanon-PM-resigns-Corruption-is-bigger-than-the-state

 “Beirut Blast: International Investigation?”, Lebanon Law review, http://www.lebanonlawreview.org/beirut-blast-international-investigation/

“Criminal responsibility and legal proceedings in the aftermath of the Beirut blast: throwing (more) dust in the eyes of the Lebanese?” Sciences Po Law Review, http://www.revuedesjuristesdesciencespo.com/index.php/2021/02/25/criminal-responsibility-and-legal-proceedings-in-the-aftermath-of-the-beirut-blast-throwing-more-dust-in-the-eyes-of-the-lebanese/

“Fahmi: Investigations in Beirut explosion will be transparent, will take 5 days”, LBC News, https://www.lbcgroup.tv/news/d/lebanon-news/539114/fahmi-investigations-in-beirut-explosion-will-be-t/en

 “Lebanon: Flawed Domestic Blast Investigation”, Human Rights Watch, https://www.hrw.org/news/2020/10/22/lebanon-flawed-domestic-blast-investigation

“Lebanon: No Justice 6 months after the Blast”, Human Rights Watch, https://www.hrw.org/news/2021/02/03/lebanon-no-justice-6-months-after-blast

“Lebanon’s $15bn blast repair bill adds to economic misery”, Arab News, https://www.arabnews.com/node/1715336/business-economy

“Lebanon’s Constitution of 1926 with Amendments through 2004”, CONSTITUTE, https://www.constituteproject.org/constitution/Lebanon_2004.pdf?lang=en

“Red Lines” in Beirut Blast Investigation: How Exactly Lebanese Politicians Escape Accountability”, Just Security, https://www.justsecurity.org/75252/red-lines-in-beirut-blast-investigation-how-exactly-lebanese-politicians-escape-accountability/

“Rome Statute”, https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf

“Six months after massive Beirut explosion, official investigation has been upended”, The Washington Post, https://www.washingtonpost.com/world/middle_east/beirut-explosion-blast-investigation/2021/02/20/632f75a6-72ba-11eb-8651-6d3091eac63f_story.html

[1] “Lebanon’s Constitution of 1926 with Amendments through 2004”, CONSTITUTE, https://www.constituteproject.org/constitution/Lebanon_2004.pdf?lang=en