The Sunset of Justice in Lebanon - International criminal justice in the Middle East is in deliberate decline, leading to defeat

Opinion analysis by Dr. Antonios Abou Kasm, Professor of International Law and Counsel practicing before international criminal courts, Visiting Contributor

November 21, 2021

Every crime that is committed in Lebanon and leads to the fall of victims, gets the discussion back regarding justice in Lebanon and its effectiveness and causes of division. The political conflict taking place today over justice regarding the Beirut port explosion’s as crime is a result of an abnormal behavior that has been developed over time and was adopted by the political and security leaders in Lebanon.

Going back to the era of justice, under the Second Lebanese Republic, that has witnessed a new social contract based on consensual justice, selective, retaliatory and discretionary justice, a justice whose sword is broken under the pretext of preserving the civil peace. Two constitutional Powers intervene in the judiciary and draw its road map. A legislative power that enacts laws to legitimize impunity, starting with the Amnesty Law (passed in 1991) for the criminals who assassinated about a quarter of a million Lebanese during the Civil War, followed by political special pardons to bring actors back into the arena and to bring former fighters with the rank of terrorists back to the evil scene. And an executive power is persisting with blatant interference in purely judicial affairs and judicial appointments, and the political parties in power are those who choose ministers for the portfolio of justice, classified under the category of service delivery ministries, while justice is based on independence, and that it renders judgements in the name of the Lebanese people and not in the name of the party, its president, its secretary-general or in the name of the advisor.

This aggravating behavior led to the loss of a large number of judges of their judicial identity, so the ambition has become towards assuming senior governmental positions, or providing advisory services to ministers in order to be part of the work of the executive authority, reaching the ambition to be a minister, especially if the portfolio is classified as a “service delivery ministries”, and unfortunately the portfolio of justice has been included in this category.

This judicial exodus is deeply troubling. It indicates the judges’ loss of the sense of responsibility of the bow and the mission of delivering justice. Losing the euphoria of judicial vigor at the expense of feeling the euphoria of power or money, even legally, raises the question of what are the judicial tasks, is it a job or a mission? Is it a process of competition for power, or is it a message based on detachment? The judge’s attempt to leave his/her mission to search for a profession that would earn him money, due to his frustration from the economic situation, raises the problem of the judge’s lack of faith in his mission.

Factors that became evident during the prosecution of criminals in cases of assassination, major corruption cases, and the embezzlement of public funds. Justice in Lebanon was subject to obstruction and international interference, which was manifested in the investigation, procedures, and trials in the case of the assassination of the late Prime Minister Rafic Hariri. This intervention encouraged the Lebanese judiciary to fail in delivering justice in major crimes, as the largest number of criminals involved in political assassinations is still “judicially” unidentified.

As for the Beirut port crime, it is as if the politicians’ impression toward the criminal justice system has not changed, already accustomed to a justice that takes into account political circumstances beside intelligence, sectarian, partisan and militia peculiarities. The domestic criminal trials have been discredited through such politicians’ impression, where judges are pelted with the arrows of politics and religion, while political and spiritual leaders are having in mind that independent judge doesn’t exist. 

In addition to the media war between judges and politicians, and the issue of the violation of the investigations’ secrecy and confidentiality, there where the media and the written press are truer news than judicial manuscripts. Who is responsible for leaking confidential information and publishing classified criminal investigations papers?

Despite the universality of the principle of Irrelevance of official capacity and the waiver of immunities for core international crimes in accordance with the contemporary International Criminal Law (E.g., Article 27 of the Rome Statute of the International Criminal Court), ‒ even though this principle is not yet applicable in the Lebanese legal system ‒, no-one from officials who enjoys functional immunity had the courage to request a waiver immunity in order to contribute in getting to the truth and out of respect for the martyrs’ souls. The most prominent reason is that the Second Republic has not branded any real criminal trial in major cases of a political nature, and not every judicial summons is ipso-facto enforceable.

This advanced type of “religious” immunity for politicians, where clerics intrude under the banner of justice and truth by interfering in the affairs of the Judiciary ‒ as if their religious judiciary is far from interference and not tainted by corruption ‒ made the victims to believe in the theory of "the Prince Judge". The adoption of the theory of the “Prince Leader” in governance in the Arab countries has eliminated the concept of democracy, whereby people are persuaded that without the prince leader, they would have been killed, raped, or starved. The Arab spring, could not change the rule of the prince leader, as the leaders of the revolution are reading in the book of Machiavelli.

Similar to the “Prince Leader”, the “Prince Judge” is inspiring to the people that he holds alone the truth: princely behavior that provides a cover for the credibility of his own theory of truth. The behavior of the “Prince Judge” reminds me of the Fable of “The Animals sick of the plague” by the French poet Jean de La Fontaine, where the Ass was accused of being the cause of the outbreak of plague among animals in the forest because of eating the abbey’s grass, while the predators were left free, those that search every day for prey, without any accountability or oversight.

It is clear that there is a convergence of interests between international and national entities not to delve into the investigations of the Beirut port, and so that they dislike to accuse neither the lion, nor the snake, nor the donkey, neither carnivores, rodents, nor herbivores (as there are many).

The lesson from the story “Heads have already ripened and it is harvest time” is very bitter, and it is necessary to deduce from it. The Special Tribunal for Lebanon, after long international inquiry and trials that lasted for sixteen years, has ended with a verdict on only one “Head”; we ignore if he was mature because his trial was held in absentia, as his allies were acquitted. One of the reasons for the inability to harvest the ripened heads is the absence of the will of the Security Forces in the harvesting process, as the International Tribunal was only able to try ghosts based on circumstantial evidences only, for the reason that no accused was arrested.

The scene is being repeated today, that the Security Forces are distancing themselves from notifying the accused in the Beirut Port’s Case or from being involved in the execution of the issued arrest warrants, similar to their passive behavior toward the orders issued by the International Tribunal. This repeated scenario indicates to the victims ‒ the families of the martyrs of the Port Explosion that the plan of seizing the international justice is not guaranteed, and the outcome of the judicial procedures will be frustrating in the absence of the serious and effective cooperation of the Lebanese Security Forces, which have proven their competency in several operations if they had the will! The same applies to some influential States that did not provide the Lebanese Prosecution with the Satellite pictures for reasons that can be presumed...and they constitute a presumption themselves.

International criminal justice in the Middle East is in deliberate decline, leading to defeat. A number of Security Council Member-States refuse to prosecute israeli officials before the International Criminal Court, in parallel of the refusal of the Security Council to refer the situation in Syria to this court. International courts are dispensed with, as a number of those responsible for violations of international humanitarian law are prosecuted before German courts, for example. ISIS members have not yet been tried before any court.

Among the questions that must be answered: who had the criminal intention to explode the Ammonium Nitrate? Who are the beneficiaries of the Port Explosion? Who has the interest in covering up the truth? As for the imminent and continuing danger, it is represented by the nitrates of corruption stored in the brains of the majority of civil and religious authorities, who pervert the course of justice, where the lack of dignity’s percentage is high, which makes the substance liable to explode to destroy what remains of sovereignty.

May the sunset of justice in Lebanon will not turn into an eclipse and the courts will be closed again, not because of the Beirut Bar Association’s strike, but because of the loss of citizen’s trust and the spread of the culture of Vigilante Justice.