For a country that is notorious for both a legacy of violence and a culture of impunity surrounding that violence, it is no surprise that the ongoing investigation of the Beirut Port explosion that shook Lebanon on August 4, 2020 is taking center-stage as the country passes through a historically severe economic and financial crisis. Calls for accountability and justice for the victims of the explosion in effect are intertwined with the aspirations of angry and exhausted Lebanese citizens who, since the momentous uprising of October 17, 2019, have expressed a need and desire for a change in the status quo. If the present state of affairs can be defined by impunity, which is the foundation of the current regime, any new foundation should necessarily be built upon accountability.
Accountability for the port explosion has the potential of breaking the regime of impunity. The port that had suffered from “serious governance, transparency, and accountability issues” is a microcosm of how vital resources, public funds, and ports of entry have been mismanaged for at least three decades. Even former Prime Minister Hassan Diab, who is refusing to appear before the judge investigating the case, acknowledged this fact on his resignation after the explosion. He blamed political corruption for the tragedy, stating that “the system of corruption is bigger than the state.” Thus, successfully holding those responsible for what took place on August 4, 2020 will be a harbinger of accountability measures against other crimes committed in Lebanon since the end of the civil war in 1990.
Two Judges Already; a Third on the Way?
The case of the explosion was referred to the Higher Judicial Council on August 10, 2020. Judge Fadi Sawwan was appointed to lead the investigation on August 13; he survived in his post until February 18, 2021, when Judge Tarek Bitar replaced him the following day. Bitar’s fate is currently in question, given the scale of the attacks against him and following the deadly clashes that ensued October 14 after a protest organized against him by the Amal Movement and Hezbollah—accusing him of politicizing the investigation—turned violent.
At present, there is a government deadlock until a solution for the Bitar issue is found, with a clear equation being set by his opponents: either he goes, or the government goes.
At present, there is a government deadlock until a solution for the Bitar issue is found, with a clear equation being set by his opponents: either he goes, or the government (which took 13 months to be formed) goes. Bitar is also being blamed by Hezbollah’s deputy leader Naim Qassem for bringing “problems and crises” to Lebanon and for responsibility for the deaths and injuries resulting from the October 14 fighting.
Five Fundamental Points to Consider in this Controversy
The full details of the case and the legal controversies around the two judges are beyond the scope of this analysis. However, five points are highlighted here as an attempt to summarize what is fundamentally at stake in the political attacks on the judge by some, and the enthusiastic—albeit cautious—public support for his work by others.
1. Both judges were appointed by the Executive Branch. It is important to note that the then-justice minister (Marie-Claude Najm) appointed both judges after the approval of the Higher Judicial Council. Thus, the executive branch was directly involved in the process as per Article 360 of the Code of Criminal Procedure: “the investigation shall be conducted by an Investigating Judge appointed by the Minister of Justice with the consent of the Higher Council of the Judiciary.” Political parties that are currently leading the charge against Bitar were and remain an integral part of the government and did not raise any issues related to the independence or integrity of the judge in question at the time of his appointment.
2. From the beginning, concerns were about political immunity. The government took the decision to refer the case to the Judicial Council, an entity known to have certain shortcomings when it comes to international standards of fair trial guarantees. According to local and international rights organizations, it is a “special court whose decisions are not subject to appeal, violating fundamental fair trial safeguards.” However, the critics of both judges did not raise concerns about fair trial guarantees for detainees because of their respect for human rights; rather, they were concerned about immunities related to politicians the moment both judges started to go after ministers, members of parliament, heads of security agencies, and a prime minister.
It is clear that the ruling political parties want Bitar to focus on port employees and lower-level state officials.
In other words, the objection starts and ends with the ability of the investigative judge to go after high-level politicians and heads of security agencies. If Bitar backs off, they would be happy with the investigation to continue under him. It is thus clear that the ruling political parties want Bitar to focus on port employees and lower-level state officials; this is blatant interference in the work of the judiciary in terms of setting parameters regarding whom a judge can or cannot prosecute.
It was striking that this sudden zeal for “independence” and “impartiality,” in addition to the subpoenaed ministers and parliamentarians’ “legitimate suspicions” around both judges, coincided with the time when both judges decided to go after them. Only then did they accuse Bitar of “politicization” and “serving foreign agendas.” In the case of Sawwan, they managed to remove him by a decision from the Court of Cassation on grounds that he was personally invested in the case because his house was damaged during the explosion and thus he would be unable to be impartial. Many argue that it will be difficult to find anyone in Lebanon who was not at least emotionally affected by the blast, one of the largest non-nuclear explosions in history.
3. What the Constitution says about jurisdiction and immunity sets the framework. Judge Bitar’s name had been under consideration to lead the case since August 2020. However, he was hesitant and was setting conditions for accepting the post, according to a recent profile. He had apparently specifically asked, among other demands, for an amendment to the laws in order to be able to bypass “immunities” and “authorizations” for state employees. Bitar’s main intention was therefore quite clear from the outset: not to allow immunities to hinder the investigation. It also seems reasonable to infer that those who agreed on his appointment were aware of his conviction that any serious investigation would inevitably have to target high-level politicians, including those who are protected by immunities or who require authorizations by their superiors.
It is worth noting here that the investigative judge is unable to go after the president of the republic as per Article 60 of the Constitution, which states the following [emphasis is the author’s]:
While performing his functions, the President of the Republic cannot be accountable except in his violation of the Constitution, or in case of high treason.
His liability for ordinary crimes is subject to public laws. He cannot be charged with these crimes, or with violating the Constitution and high treason except by the Chamber of Deputies by a decision issued by a two-thirds majority of all its members, and is tried before the Supreme Council provided for in Article 80.
As for ministers and the prime minister, there is a difference of opinion regarding the jurisdiction of the Judicial Council. The question is if it is only the prerogative of the Supreme Council for Trying Presidents and Ministers. A conservative interpretation of Articles 70 and 71 of the Constitution could lend political immunity to ministers; indeed, Article 71 states that “the Prime Minister and the accused Minister are tried before the Supreme Council.” Further, Article 70 states that parliament “may charge the Prime Minister and Ministers with high treason, or with the violation of duties assigned to them. A decision to impeach cannot be issued except by a two-thirds majority of all the members of the Chamber of Deputies. A special law determines the conditions of the legal responsibility of the Prime Minister and Ministers [emphasis is the author’s].”
However, such a narrow interpretation of Articles 70 and 71 renders any form of accountability for government members practically impossible. Suffice it to mention that as the legal watchdog organization, The Legal Agenda, has noted, “over the last three decades, the Supreme Council for Trying Presidents and Ministers has not conducted a single trial, and ministers have therefore enjoyed impunity for all their actions irrespective of the gravity.” This interpretation was also rejected by the Beirut Bar Association, the Lebanese Judges’ Association, and other rights organizations which argued that “the crime of killing or causing the death of citizens is not subject to immunity, as it is not directly related to the exercise of duties in office.”
4. Judicial independence is key. Any serious and credible investigation requires that the judge has a high level of independence and discretion in terms of the strategy he/she adopts for the investigation. Lebanon is still at the stage where Bitar has not publicly revealed a comprehensive overview about his strategy or tactics, in order to guard the secrecy of the investigation, nor has he issued an indictment that would detail the accusations and evidence in preparation for trial.
What is known so far is that Bitar took the approach of going after people about whom he has written documentation that they knew about the ammonium nitrate that was stored at the port and failed to act on it. However, this only gives an indication as to the identity of those he will question and charge (and possibly arrest), but nothing about what the investigation and questioning sessions involve. To be sure, no serious observer can make unsubstantiated judgments or accusations about the process before the indictment is issued or the motions of prosecution and defense are followed during the trial. The reason this is an important point is also related to the accusation of selectivity raised against the judge. In other words, how can it be ascertained what the people called for questioning said or will say or whom their statements may implicate or exonerate? Who from the highest echelons of the political establishment might later be called for questioning, or at least named in the investigation, as having a role in what transpired on that fateful evening in August 2020?
Furthermore, it is practically impossible for any judge to summon every single individual in the political and security establishment related to the port blast. Now one may suggest it as a political demand, as many are doing, given the sectarian complexity of Lebanese politics, but relying on the fact that a judge needs to appease the public or critics will set a precedent that will derail the investigation at every subsequent point. That is, if Bitar succumbs now to pressure by his detractors and decides to issue subpoenas against “everyone,” who can guarantee what the next demand will be and whether it will be feasible for Bitar to accommodate it? Aside from the fact that such an approach is time-consuming and treats the investigation as a case that should be handled with consensus and compromise, such political interference is a clear violation of the basic principles of the independence of the judiciary.
The manner in which the campaign against Bitar has developed raises legitimate concerns that the issue is not really about him but about any attempt by a judge to go after the untouchable “big fish” in Lebanon.
5. The government has no business tying its operations to the work of a judge. The manner in which the campaign against Bitar has developed raises legitimate concerns that the issue is not really about him but about any attempt by a judge to go after the untouchable “big fish” in Lebanon. Even calling them in for questioning or issuing an arrest warrant against one of them has become like a declaration of war worthy of being challenged on the streets (as happened on October 14) or by paralyzing the work of the government, as Hezbollah and Amal are currently doing. (It is worth noting here that other members of Lebanon’s political and religious establishment have also attacked Bitar, but they have not organized demonstrations against him.)
Linking the investigation and the judge to the government is in itself a clear condemnation of the parties taking part in the onslaught. Aside from the moral and political implications of such a move for a country in deep crisis, exchanging the removal of the judge for a resumption of government meetings is a clear affront to the independence of the judiciary and to the constitution that is supposed to protect that independence and the separation of powers. Indeed, the executive branch has no business tying its operations to the work of a judge it appointed to lead an investigation. This is a textbook example of political interference in the work of the judiciary.
More of the Same, or a Chance for Accountability?
Given the number of key political parties and security agencies that share the responsibility of running the Beirut Port, holding those responsible for the explosion will be able to break the regime of impunity. Only then will the independence of the investigation be safeguarded and the court able to rule with impartiality and fairness, regardless of the identity and rank(s) of the accused.
Conversely, if Lebanese political leaders are able to succeed in their current attacks and threats on Bitar, after removing his predecessor Fadi Sawwan, a precedent will be set. The post-crisis Lebanese system will then be defined as either one built on the foundations of accountability, or one that continues to protect political impunity and corruption. If impunity for the port explosion wins the day, the toxic culture of impunity will continue spreading to all other issues in Lebanon that require an independent judiciary, thus dashing any hopes for change in the behavior of an entrenched political elite.
Lebanon’s elite have thus far been able to escape accountability by dividing the public on sectarian grounds to maintain tensions and fears when needed, or uniting together whenever any serious challenge to their authority arises—whether from the October 2019 uprising or during an investigation. It is high time for impunity to end.