There is broad consensus in Lebanon regarding the need to reform the country’s judiciary and to work toward enhancing its independence, as stipulated by both the Lebanese Constitution and international standards. Politicians across the political spectrum can be heard calling for the “independence of the judiciary.” Their sincerity, however, is questionable. Lebanon’s civil society has long been working to achieve this goal, including by forming the Independence of the Judiciary Coalition in Lebanon (IJCL) and advocating for a draft law proposal that to date has not been passed in parliament. And the independence of the judiciary was among the chief demands raised by the protesters and groups that took part in the October 2019 uprising against the Lebanese political system.
There is also widespread consensus among the general public that the judiciary is incapable of delivering results when it comes to matters of national security and national interest. While there may be trust in individual judges and in the judicial system in resolving certain matters, there exists a realism based on the fact that since the end of the civil war in 1990, high-level corruption in Lebanon regularly goes unpunished and political assassinations and crimes remain unsolved. The legacy of violence that plagues Lebanon is in large part due to a reigning culture of impunity, under which accountability for such crimes has never been achieved.
Lebanon has been witnessing a battle within the judiciary, with implications for the rule of law and democratic principles that threaten to drive the country further down into the abyss.
Against this backdrop, it is no surprise that the August 2020 Beirut Port explosion is suffering the same fate as other major crimes in Lebanon. This author’s previous assertion that the investigation of this crime will shape the future of Lebanon holds true, and developments are leading in an unfortunate direction: burying the investigation amid a loss of trust in the ability of the local investigator, Judge Tarek Bitar, to carry out his duties due to the continued obstruction of his work. Indeed, Lebanon has been witnessing a battle within the judiciary, with implications for the rule of law and democratic principles that threaten to drive the country further down into the abyss rather than pulling it upward toward a path of recovery built on the foundations of accountability and the independence of the judiciary.
What Caused the Recent Judicial Fiasco?
Recent developments that took place between Judge Bitar and General Prosecutor Ghassan Oueidat have significant implications. After more than a year of Judge Bitar being unable to carry out his investigations and hearings due to a strategy by high-level politicians summoned in the inquiry of holding up the investigation with repeated lawsuits, Bitar decided to resume work based on a legal study he had carried out granting himself permission to proceed based on an interpretation of his role as an investigative judge who cannot be obstructed by such lawsuits.
Oueidat’s response came fast and furious. He charged Bitar with “rebelling against the judiciary and usurping power” and issued a travel ban against him. He also ordered the release of all suspects detained as part of the investigation. Worth noting is that Oueidat had previously recused himself from the case due to a conflict of interest, and is one of the individuals who have been summoned for interrogation by Judge Bitar in relation to the case. It is thus no surprise that his moves were heavily criticized and denounced as a “mafia-style coup” and a “judiciary farce.” What, then, are the implications of this recent judicial fiasco on the investigation itself, and more generally, on the rule of law and the judiciary in Lebanon?
Beyond the Judicial Feud
Regardless of the many details and the infighting taking place, it is worth remembering that the issue at stake in this inquiry is one of justice in one of the largest non-nuclear explosions in modern history, which inflicted human and material damages, in addition to mass psychological trauma. Thus, beyond a discussion about the legal soundness of Bitar and Oueidat’s actions, and beyond questions of jurisdiction and legality, the danger inherent in what is taking place is that the recent judicial fiasco will result in an absolute mockery of and disdain for both justice and the judicial process.
What is taking place is the cementing of a deeply abnormal and perverted status quo in relation to the investigation, with that status quo being an attempt to stop, and even bury the investigation.
In other words, what is taking place is the cementing of a deeply abnormal and perverted status quo in relation to the investigation, with that status quo being an attempt to stop, and even bury the investigation unless it steers clear of high-ranking security officials and politicians, or unless it proceeds according to the whims and preferences of influential political parties in Lebanon. Needless to say, this is as direct an affront on the principles of the separation of powers and the independence of the judiciary as can possibly happen in a supposedly democratic republic.
Thus, framing the issue as an internal judicial one, or labeling it a case of a judge “gone mad,” as Bitar’s opponents would have it, or of a “hero’s battle,” as his supporters claim, misses the point. The wider context, and not just that directly preceding recent judicial decisions, is incredibly important.
Viewing recent developments in the wider picture of an investigation that was not intended to happen, except within parameters set by the political parties in charge of the country today, is the key takeaway from the current judicial stalemate. In practice, this has meant that the Beirut Port explosion investigation has been on hold for roughly 15 months. Thus, Bitar’s move to proceed with the investigation using unorthodox means can be seen as an “interpretation of necessity,” as the IJCL recently stated, the purpose of which is “to put an end to impunity in the matter of the explosion.”
In other words, Bitar did not simply decide to provide legal justification for himself under normal circumstances. This may well be understood as an attempt by Bitar to be “creative” with the law in order to push forward in his investigation and to find a way around the obstacles thrown at him from high-level politicians (including most notably fierce opposition to his work by Hezbollah) and security officials who are intent on removing him from his post.
While there may be valid questions in relation to the timing of Judge Bitar’s recent decision (some have tied it to a January 2023 visit by a judicial delegation from France), and while there may be divergent interpretations of the soundness of the legal opinion on which he based his return to the investigation, the wider context points to this being the case of a judge who is intent on carrying out his investigation within a political environment full of individuals and groups that are intent on standing in his way.
The wider context points to this being the case of a judge who is intent on carrying out his investigation within a political environment full of individuals and groups that are intent on standing in his way.
What warrants such a conclusion is the manner in which suspects detained in the investigation were dealt with. Granted that fair trial principles stipulate the necessity of a speedy trial and due process and that there was a need to deal with the issue of those detained in relation to the case, there is absolutely no way to rationally explain why a decision was made by Oueidat, a judicial official who is not handling the case, to release detainees amid mounting pressure from their families. Furthermore, there was increasing pressure from the US to release Mohammad Ziad al-Ouf, a Lebanese American citizen who was head of safety and security at the Beirut Port. The result of the judicial fiasco was that al-Ouf was on a plane to the US shortly after his release, despite the fact that Oueidat’s memo included a travel ban on released detainees.
It is thus reasonable to presume that their release was meant to provide “relief” for judges and the Lebanese authorities from the pressures they are facing both externally and internally to speed up the process of handling the detainees in the midst of a frozen investigation. In other words, it seems that the move was made with the assumption that the investigation is and will remain stalled. Thus, the result of the judicial feud has been and will likely continue to be a return to the status quo that was in place prior to recent developments, but with one difference: there are no longer any suspects detained in relation to the case.
As of this week, there seems to be an attempt to diffuse tensions in the Palace of Justice after what appeared to be an inevitable showdown between Bitar and Oueidat and the inability of the Higher Judicial Council to meet. Investigation sessions that were scheduled to start on February 6 were postponed by Judge Bitar, who expressed the need for cooperation between the investigative judge and the general prosecutor for the sake of any investigation. And given that such cooperation is currently missing, this problem, according to Bitar, needs to be solved in order for the investigation to resume. Thus, there is now talk about working to reach an agreement in order to solve the judicial mess arising from the past two weeks.
Indeed, it is difficult to foresee a situation where Judge Bitar will be allowed to resume his work without making serious compromises in the manner in which he has been proceeding. It is also difficult to envision Bitar backing off or compromising and still managing to maintain the trust of the families of the victims and those portions of civil society and the opposition that were supporting him. The inquiry is thus facing three possible scenarios, two of which are unlikely.
First, Bitar is removed and a new judge is assigned to the case. Second, Bitar is allowed to continue his investigation with no obstructions, leading to an indictment and trial. The third, and most likely scenario—absent a “deal” or “compromise” or “agreement”—is that the abovementioned status quo will continue indefinitely, with an investigative judge unable to investigate, a prosecutor general unwilling to cooperate, a Higher Judicial Council paralyzed by political disagreements and unable to take action or to even convene, families of victims growing increasingly frustrated and impatient with the delays and obstruction, a political establishment satisfied with the status quo, and a general public increasingly convinced that the judiciary in Lebanon remains incapable of delivering when it comes to Lebanon’s legacy of violence.
As a matter of principle, Bitar should unequivocally be allowed to continue his work and to either step down himself if he feels there is no cooperation or to issue indictments if he believes that he has enough evidence. Should he step down or remain obstructed, the case for an international UN-backed fact-finding investigation (which has its own merits and disadvantages) will be seen as stronger by families of the victims and members of civil society who are in search of a way to push for truth and justice. Unless there is a serious internal change of behavior in relation to the investigation—a possibility that remains far-fetched—calls for “internationalizing” the investigation will become the only path forward.
The Truth Must Be Revealed
Interestingly, in Oueidat’s first response to Bitar’s recent decision to resume the investigation, he quoted from both the Bible and the Qur’an. The Bible verse he chose was Mark 4:24: “With the measure you use, it will be measured to you—and even more.” Perhaps coincidentally, the verses that directly precede this one discuss the idea that the truth should not be kept hidden, but rather must be revealed: “For whatever is hidden is meant to be disclosed, and whatever is concealed is meant to be brought out into the open. If anyone has ears to hear, let them hear.”
Indeed, there is no choice but to keep pushing for disclosing whatever is hidden in relation to the Beirut Port explosion and for bringing into the open whatever is concealed. Any move in that direction would be welcomed by the explosion’s many victims, and by Lebanese society more broadly. But any move in the direction of concealing the truth should be confronted with all available means in order to defend what is left of the notion of justice and accountability in the struggling Lebanese republic.
The views expressed in this publication are the author’s own and do not necessarily reflect the position of Arab Center Washington DC or its Board of Directors.
Featured image credit: Shutterstock/Ali Chehade