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Could an international investigation in Beirut's blast case be effective?

It has now been nearly three eventful, arduous years since the notorious explosion that shook Lebanon’s capital, Beirut, to its core[1] leading to an economic collapse, an exponential rise in inflation and widespread deprivation, with economic losses resulting from the blast being estimated at $3 billion.[2] An ongoing investigation in the Levantine country, led by the state’s judicial branch has been faced with numerous interruptions, attempts at intimidation, manifestations of vested interests and expressions of discontent.[3] Most recently led by Judge Tarek Bitar,[4] the investigation has been paused since December 2021[5] and contentiously resumed in January 2023,[6] at all stages stifled by increasing political pressure.



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The difficulty of internal judicial investigations in Lebanon


Lebanon’s legal system, rooted in the principles of Civil Law as inherited from the French legal system,[7] provides for an inquisitorial rather than adversarial set up,[8] meaning the Judges have always taken an active and probing approach to the establishment and finding of the facts in any case before them. This structure is one which is tailored for an investigation resembling the current one, as it allows, in theory, judges to exercise all manner of zeal to attain any and all necessary information and witnesses and question any involved parties they wish to investigate.


Article 20 of the Lebanese Constitution provides the judiciary with an independence in the exercise of its functions.[9] In that sense, judicial functions are free of executive or any other political interference which would render any pressure exerted by political factions constitutionally unlawful. Such a distinction is not easily drawn in Lebanon. Although members of the executive power cannot lawfully exercise any influence on the investigation, the reality has refuted the validity of any claim that such guarantees provided by the constitution are in fact upheld.[10] Members of the executive continue to hold sway over judges, in that it is they who control and enact judicial appointments and the Minister of Justice in particular, with the approval of the High Judicial Council (members of which are equally appointed by Cabinet decree), who can order the transfer of judges and restructuring of court presidencies and appointments.[11]


The reality of this structure then leads to an inadequate outcome, one which entails an inability by the judges to act fiercely and impartially without apprehension as to the impact their actions and decisions will have on their career and, more pertinently, their ability to continue with the investigation as relevant to the blast. This view was vindicated when in November of 2021, three Judges had resigned in protest of what they described as an incessant subjection to political and administrative pressures restraining the arduous, yet vital judicial task.[12]


It is evident that any judge burdened with the insurmountable task of investigating the explosion in Beirut would be unable to act without being faced with interference, be it coercion, intimidation or simply non-cooperation by high profile parties being investigated. The four interruptions to the investigation, which have on each occasion led to extensive pauses, are testament to the ability of the executive branch to meddle with what is a strictly judicial matter.[13] One must therefore wonder whether any investigation at an international sphere would hold any merit, if merely to assist or guide the Lebanese judges in their mission.


The virtues and vices of an international investigation


Following persistent appeals to the international community emanating from the victims’ families, United Nations (UN) experts have called for an international investigation led by the Human Rights Council (HRC),[14] a call previously made by Lynn Maalouf of Amnesty International, thus far to no avail.[15] This eventuality might lead to a more impartial approach to fact finding and the establishment of liability. The difficulty is in determining the extent to which such an investigation can be deemed legitimate), and to what extent its outcome will be binding and enforceable against those held liable. These concerns can be categorised as follows:


1. the sovereignty and supremacy of the national courts of law - indeed wider questions surrounding jurisdiction; and

2. the nature of the case, or indeed the area of law which this case would fall into.


An investigation solely conducted by the HRC is an unlikely prospect, since the conventional view would suggest the existence of deliberate acts by state actors in violation of the Universal Declaration of Human Rights (DHR). The primary obstacle, however, is the absence of an enforcement mechanism[16] coupled with the character of the HRC in being an international body of experts, professionals and administrators as opposed to a judicial body. It is yet to be established, if publicly, whether the blast had been the result of a deliberate act, or merely a result of negligence and omissions. An attack would most likely insinuate the involvement of a foreign entity, placing the case within the remit of acts of aggression, thus crimes of aggression or what had previously been known as crimes against peace. A negligent act or omission by public bodies in Lebanon on the other hand, would render the case one of criminal negligence and therefore potentially inscrutable as a matter of international law, which has seldom engaged with cases of a tortious nature. Similarly, the International Criminal Court (ICC) would not hold the necessary jurisdiction to try this matter, due to Lebanon’s failure to ratify the Rome Statute.[17]


The International Court of Justice (ICJ), being an organ of the UN, would equally be incapable of trying this case as a contentious one, since it can only do so when a case is submitted before it by a UN Member State.[18] The ICJ can nevertheless engage with the question in the form of Advisory Proceedings culminating in an Advisory Opinion,[19] with the HRC as an auxiliary. The HRC would be entitled to put such a question of law forward to the ICJ, in reliance on Article 8 of the DHR, dictating that ‘(e)veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law’.[20] Article 8 is in fact the only instrument upon which it can rely in a strive to act on the victims’ call for justice. This would not be without its challenges, as the wording of the Article demonstrates an emphasis on ‘acts’ as opposed to omissions or failures.


The materialisation of an advisory opinion, in fact the mere hearing of this case by the ICJ, would therefore rely entirely on their willingness to apply a purposive approach rather than a literal interpretation to the letter of Article 8. The Court must be satisfied that, in drafting this segment of the DHR, the UN intended to protect all citizens of member states from both acts and omissions ‘violating the fundamental rights’. The state would therefore be encumbered with a positive duty to prevent the violation of fundamental rights rather than a mere refraining from deliberate acts to that effect. Nevertheless, such an opinion would not trigger any legally enforceable mechanism, but could only be conducive to an exertion of pressure on the Lebanese State, which would transform into a set of recommendations as to how to abide with the terms of Article 8, and thereby reach ‘an effective remedy’.


Ultimately, the cooperation of the Lebanese State will be paramount to the full implementation of an international investigation, that in addition to a guarantee by executive actors to refrain from any breaches of the constitutional guarantees of judicial independence. This means that an international investigation would face the same difficulties as those faced by the national Judiciary, namely issues of enforceability and political interference.



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A newfound judicial zeal


In a sudden and bold action by Judge Bitar, the investigation was resumed as of January 2023 against all expectations.[21] Bitar has been described by TV5 Monde as ‘Le Juge Libanais qui dérange’,[22] indeed he who disrupts or disturbs. The News Corporation equally made a reference reminiscent of Maximilien Robespierre by invoking the term ‘Juge Incorruptible’.[23] Indeed, Bitar seems to have orchestrated a ‘terreur’ of his own. High ranking security officials were charged by the Judge including former Army Commander Jean Kahwaji, but they have all denied any wrongdoing.[24] The judge equally charged the former Prime Minister, Hassan Diab, as well as the country’s Prosecutor General Ghassan Oueidat.


The charges entailed, among other things, probable intent to murder and arson.[25] The investigation is now characterised by a stand-off between Bitar and Oueidat over the questions of authority and jurisdiction. Bitar has brought charges onto Oueidat, who in turn has reciprocated by issuing a travel ban ‘Judge Bitar has his hands tied and the decision to return to work is illegal’.[26 ]The standoff demonstrates a reignited judicial zeal to achieve justice and bring closure; however, the uncertainty surrounding who in fact holds absolute authority and jurisdiction has led to an over-politicisation of the investigation, in which Bitar is unlikely to win. The current situation leads us to conclude that political interference in the investigation is not near an end, nor is one likely to lead to justice or closure.


Thoughts


There is hitherto an absence in an international mechanism by which campaigners, or indeed the victims’ families, would be able to establish liability and an ensuing set of enforceable punitive measures. Instead, the international institutions, namely the ICJ and UN, can play but an advisory function and can merely seek to guide the Lebanese judiciary in its strive to overcome what is a veritable obstacle course embodied in political interests, amounting to transgressions on judicial independence and the spirit of the Lebanese Constitution. If such political power plays have successfully halted advancements in the investigation by the Courts in Lebanon, then this would vindicate the proposition that ambitions for an international investigation are but calls for an intervention by an ultimately toothless tiger whose inability to act would supersede that of the Lebanese Courts. It is also uncompromisingly evident that Bitar remains a stand-alone judge whom, although empowered by the Constitution and demonstrating an unshakable zeal to act fiercely and independently, is disarmed in his capabilities due to the sheer magnitude of political interference in Judicial matters.





Endnotes


[1] Sam Meredith and Natasha Turak, ‘Beirut mourns victims of catastrophic blast, pushes for

answers over missed warnings’ (CNBC, August 6 2020) accessed October 21st 2022.

[2] Chirine Khalil Nassar and Corina-Cristiana Nastaca, ‘The Beirut Port Explosion: Social,Urban and

Economic Impact’ [2021] (Theoretical and Empirical Researches in Urban Management) Vol.16

Issue 3 42,46.

(Reuters, 7 December 2021) accessed November 4th 2022.

[4] Maya Gebeily, ‘Lebanon seeks to name second investigator to stalled Beirut blast probe’ (Reuters, 7 September 2022) accessed November 4th 2022.

[5] The National MENA, ‘Beirut blast investigation suspended for fourth time’ (December 23 2021) accessed November 2nd 2022.

[6] Laila Bassam, Maya Gebeily and Timour Azhari ‘Judge unexpectedly resumes frozen Beirut blast investigation’ (Reuters, January 23 2023) accessed March 7th 2023.

[7] Warren G. Wickersham and Marwan M. Nsouli ‘Legal System of Lebanon’ [1971] The

International Lawyer Vol. 5 No.2 accessed November 6th 2022.

[8] Guest Blog ‘Sponsored briefing: Lebanon’s dispute resolution system’ (Legal Business, April 30th

2021) accessed November 6th 2022.

[9] Art 20, Lebanese Constitution 1926 (with amendments through 2004).

News, 26 April 2022) accessed November 2nd 2022.

[11] Karim Merhej, ‘Towards an Independent Judicial Branch in Lebanon?’ (The Tahrir Institute for

Middle East Policy, 26 October 2021) accessed October 22nd 2022.

November 2021) accessed October 22nd 2022.

[13] Lana Sweidan ‘How The Beirut Blast Investigation Is Constantly Interrupted’ (The 961, August 2

2022) accessed October 25th.

[14] United Nations Human

Rights Office of the High Commissioner, ‘UN experts call for international investigation into 2020 Beirut explosion’ (3 August 2022) accessed October 25th 2022.

[15] Amnesty International, ‘Lebanon: Only an international investigation can set the course for justice for Beirut blast victims’ (7 September 2020) accessed November 3rd 2022.

[16] Hannah Moscrop ‘Enforcing International Human Rights Law: Problems and Prospects’ (EInternational Relations, April 29 2014) Accessed November 3rd 2022.

[17] International Court of Justice, Assembly of States Parties to the Rome Statute accessed November 1st 2022.

[18] International Court of Justice, ‘How the Court works: Contentious Cases’ accessed November 1st 2022.

[19] International Court of Justice, ‘How the Court works: Advisory Proceedings’ Accessed November 1st 2022.

[20] The Universal Declaration of Human Rights 1948, Article 8 accessed November 7th 2022.

[21] Bassam et al (n6).

[22] TV5 Monde, ‘Liban, qui est le juge Tarek Bitar qui défie l’ensemble de la classe politique’ (25 January 2023) accessed March 16th 2023.

[23] Ibid.

[24] Bassam et al (n6).

accessed March 20th 2023.

[26] Najia Houssari, ‘Tensions rise in Lebanon after Judge investigating Beirut blast takes aim at top officials’ (Arab News, 24 January 2023) accessed March 21st 2023.

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