06 Aug Lebanon: Accountability and Redress for the Victims of the Beirut Port Explosion
A whole year has passed since the devastating Beirut port blast on 4 August 2020, and yet, the victims, their families and the Lebanese people are still waiting for truth and justice.
The investigation promised by the Lebanese government has not only been severely flawed, but has been met with obstruction at every turn. The government should stop interfering with the ongoing investigation and ensure that those responsible be held to account swiftly.
However, in light of its unwillingness and inability to do so (more on this below), and given the domestic investigation’s irreparable flaws, along with the systemic deficiencies undermining the independence of the judiciary in the country, the UN Human Rights Council and UN Member States should step in and establish, as a matter of urgency, an international investigative mechanism to ensure accountability and justice for victims.
The Beirut port blast
On Tuesday 4 August 2020, a massive explosion shook the entire city, flattening the port and surrounding neighborhoods. The blast, thought to be one of the largest non-nuclear explosions in history, claimed the lives of 218 people, including six children. Over 7,000 people were injured and hundreds of thousands more were displaced by the destruction caused.
The explosion was caused by the igniting and detonation of a stockpile of ammonium nitrate. This highly explosive material arrived at the port as cargo in November 2013, where it was subsequently transferred to a hangar in October 2014 and stockpiled there since. The precise cause of the ignition is as yet undetermined.
What is clear, however, is that a pattern of mismanagement and neglect at various levels of the government led to a stockpile of dangerous chemicals being left unsafely stored in the port since 2013, despite warnings to the various authorities on multiple occasions. Furthermore, a recent investigation by Human Rights Watch highlighted officials’ failure to disclose the potentially explosive nature of and risks associated with the cargo.
Lebanon’s investigation into the explosion
In the days following the explosion, Lebanese officials promised a full investigation. However, despite immediate calls for an independent mechanism, the ensuing domestic investigation conducted over the past year has failed to live up to the authorities’ promise and, indeed, blatantly falls short of the benchmarks set by UN experts for a credible investigation.
The investigation has suffered from delays, conflicts of interests, obstruction from authorities, abuse of legal immunities and potential evidence tampering, all of which have been exacerbated by procedural and systemic flaws in the country’s judicial system.
On 10 August 2020, the Lebanese government referred the case for investigation to the Judicial Council and, on 13 August, the Minister of Justice appointed Judge Fadi Sawan as investigative judge. Judge Sawan brought charges against 37 people, predominantly junior to mid-level customs and port officials as well as employees of a maintenance company, 17 of whom remain in pre-trial detention. In addition, on 10 December 2020, Judge Sawan charged former Ministers: Ali Hassan Khalil, Youssef Fenianos and Ghazi Zeaiter, as well as the then caretaker Prime Minister Hassan Diab, with criminal negligence. However, following a lawsuit filed by Zeaiter and Khalil to have Judge Sawan removed from the case, on 18 February 2021, the Court of Cassation relieved him of his functions with respect to his investigation into the port blast.
Legal immunity from prosecution has been a persistent sticking point throughout the domestic investigation. On 2 July, Judge Tarek Bitar, who replaced Judge Sawan as investigative judge in the case, requested that the legislature lift the parliamentary immunity of Khalil, Zeaiter and Nouhad Machnouk. In reaction, 26 Members of Parliament signed a petition to seize “the Supreme Council for Trying Presidents and Ministers,” which is a jurisdiction composed of MPs to try cases of treason or breach of duty. Their clear objective was to frustrate Judge Bitar’s request for the lifting of the parliamentary immunity of the above-mentioned MPs, and thus ultimately scupper the chances of the investigation unearthing the truth. Following a public outcry at this turn of events, six MPs withdrew their signature to the petition.
Furthermore, on 9 July, the caretaker Minister of Interior, Mohammad Fehmi, rejected Judge Bitar’s request to question the head of General Security, Major General Abbas Ibrahim. Judge Bitar then brought this decision before the Court of Cassation Public Prosecutor for review, who, in turn, claimed he did not have the authority to decide, having recused himself from the case after Judge Sawan charged Zeiter, who is his brother-in-law.
As of today, despite recent statements from the parliament’s speaker indicating the legislature’s willingness to remove the parliamentary immunity of the above-mentioned MPs, the Lebanese parliament has not yet lifted their immunity and, as a result, a year on from the explosion, calls are growing stronger for an international, independent and impartial investigation.
The judicial body entrusted with prosecuting the Beirut blast
The Judicial Council (JC), to which the Council of Ministers referred the case, is an “exceptional court” that has jurisdiction over a number of high-profile offences, such as State security and terrorism-related offences, as well as offences involving violence provoking civil war or a sectarian conflict.
The JC considers exclusively cases referred to it by the Council of Ministers (the government), which also appoints the JC’s judges based on the Minister of Justice’s recommendation and the consent of the High Judicial Council (HJC). In a similar vein, the Minister of Justice appoints the investigative judge into a case after the approval of the HJC.
In addition, JC’s decisions are not subject to appeal. Nor are decisions by the investigative judge subject to any type of review, including the investigative judge’s decisions to order the pre-trial detention of individuals, the duration of which is not restricted to the maximum period allowed by the Code of Criminal Procedure.
All these “exceptional” elements greatly undermine the JC’s independence and impartiality, and are inconsistent with fair trial rights under international human rights law. The right to an independent and impartial tribunal is an integral part of the right to a fair trial guaranteed, among others, by article 14 of the International Covenant on Civil and Political Rights, by which Lebanon is bound.
Since its establishment in 1923 and until 2019, the JC purportedly investigated around 250 cases. After long years of investigation and trial, sometimes up to 35 years, the JC reached a decision for a number of these cases. However, it has issued no decision in the vast majority of these cases.
The independence of the judiciary in Lebanon
The flaws and obstructions characterizing the investigation into the port explosion are typical of the Lebanese judiciary. Indeed, Lebanon has a long history of improper influence and interference by political actors, which continually undermined the independence of the judiciary. Moreover, the legal frameworks concerning the HJC, the career of judges, judicial accountability and the Office of the Public Prosecutor are severely deficient, falling short of international human rights law and standards as already comprehensively documented by the ICJ.
The HJC, whose lack of independence is a key indicator of the overall lack of independence of the judiciary in Lebanon, suffers from various structural flaws. For instance, the Minister of Justice is directly responsible for the selection and appointment of five out of 10 of the HJC members and directly influences the selection of the three ex officio members, leaving only two members to be elected by their peers. This goes against international law and standards, which require that at least half of the HJC members be judges chosen by their peers to guarantee the membership of the body’s overall independence.
Furthermore, the independence of the judiciary requires judges to be held accountable for their misconduct, to prevent personal or political biases or corruption, under the condition that holding them accountable should not affect their independence. However, the legal framework regulating judicial ethics and conduct in Lebanon is severely flawed, lacking clear definitions of disciplinary infractions and related, proportionate sanctions. Rules of conduct regulating the duties and responsibilities of judges, where accountability mechanisms are independent, objective, transparent and impartial do not exist.
An international investigative mechanism
Given the blatant unwillingness and inability of the Lebanese authorities to thoroughly and impartially investigate the blast, in June 2021, the ICJ and 49 other international and Lebanese human rights and civil society organizations called on the UN Human Rights Council to establish an international independent investigative mechanism.
In a joint letter to the Human Rights Council, the NGOs urged that an “independent investigative mission into the Beirut blast should identify human rights violations arising from the Lebanese State’s failure to protect the right to life, in particular whether there were:
- Failures in the obligation to protect the right to life that led to the explosion at Beirut’s port on August 4, 2020, including failures to ensure the safe storage or removal of a large quantity of highly combustible and potentially explosive material;
- Failures in the investigation of the blast that would constitute a violation of the right to remedy pursuant to the right to life.”
The independent investigative mechanism should also make recommendations to Lebanon and the international community on steps that are needed to redress the violations of the victims’ right to an effective remedy, including reparations, and to ensure that such violations do not reoccur in the future.
As such, an international independent investigative mechanism would help and complement the domestic investigation and subsequent prosecution by establishing the facts in a thorough, impartial, independent and transparent way. It would support the Lebanese investigative judge by providing additional resources, international expertise and by applying the highest international standards, including with respect to victim and witness protection.
In pursuit of justice and accountability, the truth needs to be established independently and impartially; those responsible must be held accountable; victims’ right to an effective remedy, including reparations and guarantees of non-repetition must be ensured. The Human Rights Council should take immediate action to provide truth, justice and redress to the victims and their families.