Lebanese authorities have failed in the past six months to deliver any justice for the catastrophic explosion at Beirut’s port on August 4, 2020, Human Rights Watch said today.
The stalled domestic investigation, riddled with serious due process violations, as well as political leaders’ attempts to stop the investigation reinforce the need for an independent, international inquiry.
The investigation has been paused since December 17, 2020, after two former ministers charged in the case filed a motion asking Lebanon’s Court of Cassation replace the investigating judge, Fadi Sawan. It is not clear when the investigation will resume. Sawan has, since August, brought charges against 37 people, 25 of whom are detained under conditions that appear to violate their due process rights. Those detained are mostly mid to low-level customs, port, and security officials; and their families and lawyers say that the judicial authorities have not yet presented the specific charges or evidence against them.
“Lebanese authorities publicly promised that the investigation into the blast that killed more than 200 people and devastated half the city would take five days, but six months later, the public is still waiting for answers,” said Aya Majzoub, Lebanon researcher at Human Rights Watch. “Moreover, the court handling the case appears to have run roughshod over detained defendants’ due process rights, signaling that it is unable or unwilling to deliver justice.”
On August 10, the Lebanese government referred the Beirut explosion to the Judicial Council, a special court, and on August 13, the justice minister named Sawan the judicial investigator. Sawan’s appointment process was opaque and shrouded in allegations of political interference. The Higher Judicial Council rejected two judges the justice minister initially proposed, but refused to explain why, saying that their deliberations are confidential.
Human Rights Watch spoke with the families and lawyers of four of the people detained. All have been held at the headquarters of the military police in Rihaniye since their arrest in August. Their lawyers said that their clients, as well as the 21 others behind bars, are charged with the same litany of crimes despite their varying roles and responsibilities.
Those detained include the heads of the customs administration and the port authority, as well as employees of a maintenance company contracted to do some work on the warehouse where the ammonium nitrate was stored. The crimes include homicide with probable intent (i.e. the accused foresaw the occurrence of the crime and accepted the risk of its occurrence), unintentional homicide, causing an explosion, storing dangerous goods, disrupting the security of the port and the country, and polluting the environment.
Lawyers said that the judge did not tell them or their clients which charges applied to them or the evidence against each of the accused, citing the secrecy of the investigations. The lawyers said that they will only find out what evidence and specific charge apply to their clients at the end of Sawan’s investigation, when he will either stay the prosecution or indict the defendants. Given that the investigation is paused, the indictments may not be imminent.
The lawyers said that the judge only questioned their clients once, in August. Lawyers also said that two guards are always in the room during their meetings with their clients, and that their clients had been detained 10 to 16 days before the judge issued an arrest warrant.
Lebanon’s Code of Criminal Procedure gives the judicial investigator, whose decisions are not subject to appeal, the authority to hold suspects in pre-trial detention indefinitely. But that violates their due process rights, including the right of anyone held in pretrial detention to a speedy trial or release and an independent judicial review of a decision to detain them.
Under the International Covenant for Civil and Political Rights, which Lebanon ratified, defendants have the right to a timely hearing, and delays in the trial process could result in a violation of the rights of an accused person to be brought promptly before a judge to review the necessity and legality of a decision to detain them, and the right to a trial within a reasonable time or to release.
Delays may heighten the risk of indefinite detention, contrary to international human rights law. Defendants also have the right to know the criminal charges against them and the evidence on which such criminal charges are based, including exculpatory evidence. In addition, the UN Human Rights Committee has found that a lack of privacy between lawyer and client violates the right to legal representation.
Lebanon cannot invoke a provision of domestic law to justify violating an international treaty it has ratified. International law automatically forms part of Lebanon’s domestic law, and article 2 of the civil code provides that international treaties ratified by Lebanon prevail over domestic law. Lebanon should reform the Code of Criminal Procedure so that its provisions comply with the principles of a fair trial, Human Rights Watch said.
After Sawan concludes his investigation, he can either decide to stay the prosecution or indict the defendants and refer them to the Judicial Council. But there are also serious concerns about the Judicial Council’s independence.
The Cabinet appoints Judicial Council judges by decree based on the justice minister’s proposal and approval by the Higher Judicial Council.
The Higher Judicial Council, responsible for recommending the appointment of judges to specific courts, also lacks independence, and has been a vehicle for political interference in the judiciary. The executive branch appoints 8 of its 10 members. It also lacks financial independence, as its funds are allocated through the Justice Ministry’s budget. The Lebanese Judges’ Association has been an outspoken critic of the lack of the judiciary’s independence and has been leading an effort for reform.
The Judicial Council’s decisions are not subject to appeal. The absence of an appeal violates the right to a fair trial, which guarantees the right of everyone convicted of a crime to have their conviction and sentence reviewed.
Political interference has also stalled and tainted the investigation. Sawan charged the caretaker prime minister, Hassan Diab, and three former ministers on December 10 in connection with the blast. But the Prime Minister and two of the former ministers refused to appear for questioning, and caretaker interior minister, Mohammad Fahmi, said that he would not ask the security forces to arrest them, even if the judiciary issued arrest warrants.
Leading political figures, including those charged, accused Sawan of violating the constitution by bypassing parliament, which under Lebanon’s constitution has the authority to form the “Supreme Council for Trying Presidents and Ministers,” a body consisting of seven parliament members and eight judges. But parliament has never activated this body. The Lebanese Judges’ Association and the Beirut Bar Association also contend that immunity from prosecution for public officials does not apply in this case, as the crime of killing or causing the death of citizens is not directly related to the exercise of duties in office.
Although the Court of Cassation said on January 11 that Sawan can resume his investigation until it decided on the ex-ministers’ motion to replace him, judicial proceedings are on hold due to the Covid-19 lockdown until at least February 8.
Lawyers familiar with the case told Human Rights Watch that even if Sawan resumes his investigation, legal challenges to his role will persist given the fact that the entire political establishment has pushed back against his investigation. To ensure the full independence of any criminal investigation, prosecution, and trial, the subjects of the investigation should not be able to influence or interfere with any investigation or decision to prosecute or go to trial, Human Rights Watch said.
Lawyers familiar with the case also said it is unclear whether Sawan’s team has the technical capacity to conduct a comprehensive investigation, including into how the ammonium nitrate landed in Beirut and how the explosion was triggered. Media reported that his staff consists of only two clerks, who take notes by hand.
British parliament members have called for an investigation into a UK-registered firm that a Lebanese investigative journalist linked to the blast and to Syrians sanctioned by the United States.
The apparent transnational elements of the crime, as well as the judicial investigation team’s lack of technical capacity, add to the necessity of an international investigation, such as a United Nations Commission of Inquiry, to uncover the truth. The evidence it finds should be used in domestic criminal prosecutions in Lebanon’s ordinary courts.
Lebanon should urgently pass bills to guarantee the independence of the judiciary and to ensure that criminal procedures meet international standards, Human Rights Watch said.
“Denying defendants due process does nothing to achieve justice for the victims of the blast,” Majzoub said. “An international, independent investigation as well as urgent reforms to Lebanon’s judicial processes, are the best guarantee that the people will get the answers they deserve.”