“Red Lines” in Beirut Blast Investigation: How Exactly Lebanese Politicians Escape Accountability

Seven months ago, thousands of tons of ammonium nitrate exploded in the port of Beirut, Lebanon, causing unfathomable destruction to the city and its residents. The effort to investigate and hold accountable those responsible for the deadly explosion reveals the convoluted system of impunity constructed by the Lebanese political elite. The blast investigation provides a lens into the messy battle for justice that is raging now in Lebanese society, offering both insight into how the Lebanese political elite manage to evade accountability, and an example of current local efforts to break this pattern.

The Investigation  

Nine days after the Aug. 4, 2020 blast, military court judge Fadi Sawan was appointed by the Supreme Judicial Council, Lebanon’s judicial oversight body, to lead the probe. In carrying out the investigation, Sawan had to determine the causes of the explosion, including the origin of the ammonium nitrate, the reason for its continued presence in the port, the failure to secure it, and the cause of the fire that ultimately ignited it. Between August and early December, Sawan charged 37 people in connection with the blast. The vast majority were port officials and other low-level government employees. According to a recent Human Rights Watch investigation, at least 25 have been detained in violation of their basic due process rights.

However, on Dec. 10, 2020, Sawan issued four key indictments. He charged acting Prime Minister Hassan Diab and three former ministers — two of whom are current sitting members of parliament — with criminal negligence. These two former ministers challenged the indictments and requested Sawan’s dismissal, arguing that their parliamentary immunity invalidated any charges against them. Sawan’s probe was suspended a week later. After a two-month standstill, Sawan was set to resume his investigation with the approval of the judicial chamber overseeing it. But on Feb. 18, one day after one of the indicted ministers again refused to appear before him, the panel of judges from Lebanon’s highest court abruptly reversed course, removing Sawan from the investigation.

The court provided no public justification for its decision, but journalists obtained the legal documents which revealed a two-part rationale. First, the court claimed that Sawan could not be impartial because his house, located in the Ashrafiyeh neighborhood of central Beirut, was damaged in the blast. Second, the court said there were reasons to suspect Sawan was not impartial and instead was unduly influenced by public opinion because of his refusal to respect a red line: the legal immunity claimed by officials and former officials.

Both of the reasons have been widely criticized: The blast, one of the largest non-nuclear explosions in history, damaged the homes of hundreds of thousands of people. What’s more, the claimed immunity of the officials and ex-officials so far implicated by Sawan is at best constitutionally disputed, if not wholly non-existent or inapplicable here (more on that below).

Sawan’s appointment, investigation, and then dismissal are a microcosm of the Lebanese judiciary, where attempts to hold powerful interests to account typically wither on the vine. But how and why do the Lebanese political elite evade accountability so consistently?

The Lebanese Judiciary: A Study in Patronage Politics

 In theory, Lebanon’s judiciary is an independent, coordinate branch of government. Instead, the patronage politics and corruption that characterize the rest of Lebanese institutions also pervade the judiciary. To understand why government-led efforts at political accountability and judicial review – the Beirut blast investigation included – tend to be exercises in futility, it is important to first understand how the judiciary’s very structure promotes impunity.

The Supreme Judicial Council (SJC) sits as an oversight body atop Lebanon’s judicial system (though not at the pinnacle of appellate jurisdiction; its role is administrative). The SJC’s powers include approving judicial appointments, promotions, and transfers in conjunction with the Ministry of Justice; undertaking disciplinary actions and monitoring court performance; and proposing judicial reforms.

However, unlike in other countries (such as France, the United Kingdom, and South Africa) with similar judicial oversight and appointment bodies, the SJC lacks financial independence and the executive branch exerts direct control over appointments to the council itself. Only two of the council’s ten members are directly elected by judges; the rest are chosen by the executive. The SJC wields enormous power over appointments and discipline for other courts, allowing it to ensure that the rest of the judiciary operates in a way that does not threaten the political status quo.

In large part because of the appointment scheme, Lebanon’s numerous courts are all vulnerable to political influence. This jumble of courts includes, at the trial level, distinct courts for civil, criminal, and commercial matters, as well as labor, land, administrative, and juvenile courts. At the appellate level, there are six appellate courts (one for each district of Lebanon). The court of last instance is the Court of Cassation (the equivalent of the U.S. Supreme Court). There is also a dedicated constitutional court to evaluate the constitutionality of legislation, religious practices, and election-related disputes, but citizens lack standing in this court.

Instead, if citizens want to bring suit against the government, they should be able to do so in Lebanon’s parallel administrative courts. However, the country’s trial-level administrative courts have yet to be formed due to a failure by the Ministry of Justice and State Council Bureau to issue implementing decisions.

As a result, the administrative court of last resort, the State Shura Council (also known as the State Council or the State Consultative Council), has been presiding over empty air for twenty years. The State Council additionally fulfills both an advisory and an adjudicative role, meaning that it at turns provides legal advice to the government and decides lawsuits brought against the government by other parties.

For family law matters like custody and divorce, an array of religious tribunals have exclusive jurisdiction: Each of Lebanon’s 15 recognized sectarian groups maintains its own personal status law. Military courts, which are only authorized to try military and security personnel and cases relating to terrorism and national security, have nevertheless long played a role in prosecuting civilian dissidents and protesters.

Across the tangled expanse of the judiciary, judges’ careers are subject to extensive political gatekeeping and interference. To become a judge, candidates must pass both a written and an oral exam. But to even sit for the written exam, candidates must first pass through two rounds of interviews. At every stage, the SCJ and a separate entity, the Judicial Studies Board (whose composition is entirely controlled by the executive), possess broad discretion to reject candidates they dislike without proffering a substantial reason.

During a three-year training period at the Institute for Judicial Studies, trainee judges’ career prospects rise or fall based on evaluations by the Board and the SJC. The SJC has total discretion in deciding which trainees to elevate to full, tenured judges. This decision is not subject to appeal. Predictably, these layers of gatekeeping have produced a judiciary filled with judges who have connections to the political elite. A 2018 study by the Lebanese human rights NGO Legal Agenda found that one-ninth of all judges were children of judges. In 2016 alone, of 17 total appointments, six were children of judges and three of those six were children of SJC members.

Sectarian power-sharing norms further complicate the picture. The SJC, as with other top government positions, must be equally balanced between Muslim and Christian members, in accordance with the Ta’if Agreement. Although the rest of the judiciary has no legally codified sectarian quotas, the unwritten norm of sectarian power-sharing retains immense force: The Lebanese judiciary maintains a 50-50 Muslim-Christian split. This makes it even more difficult for qualified candidates to be appointed, since vacant seats carry implicit sectarian labels.

Even after appointment, the SJC retains the discretion to dismiss judges from their duties at any time, with minimal process. Judges are also subject to transfer to other jurisdictions or courts without their consent and with no clear justification. These transfers are a favorite tactic of retaliation against judges who cross political leaders.

The Lebanese judiciary also lacks avenues for meaningful accountability and disciplinary action against judges. Once again, the minister of justice and the cabinet exercise appointment powers over both investigatory and disciplinary bodies. As a result, political actors can drive spurious disciplinary proceedings against judges they want to punish, and judges who have engaged in misconduct at the behest of these same actors face no consequences.

Thus, the apparently impartial judiciary is, in fact, subject to complete financial, administrative, and disciplinary control of the other branches of government. In this way, the judiciary plays a key role in sustaining the political apparatus, providing a veneer of impartiality and legitimacy while entrenching elite political interests and incentives.

The Warlords’ Bargain

The corruptibility of the judicial system is no accident. Instead, the convoluted structure of the judiciary complements the structure of the rest of the political system – in that it facilitates impunity at the highest levels and protects those who have retained power in the aftermath of Lebanon’s civil war.

The post-civil war era in Lebanon began with a grand bargain to wipe slates clean of the varied atrocities committed by all sides to the conflict. The Ta’if Agreement was signed in October 1989, largely ending the active civil conflict. In March 1991, (some of) the many militias of the civil war disarmed. And in late August 1991, the Lebanese parliament voted to grant a blanket amnesty for crimes committed in the course of the 15-year war, including both political offenses and war crimes.

However, the end of the war did not signify a return of the state. Instead, the ceasefire and amnesty enabled the transformation of war-time systems of distribution into political and quasi-legitimate patronage networks. Describing the civil war-era governance structures, sociologists John Nagle and Mary-Alice Clancy observe:

In the absence of a functioning state, the warlords nurtured forms of governance that covered their sectarian fiefdoms. The sectarian militias constructed their own spheres of civil society to distribute a wide portfolio of services for the communities they claimed to defend. Practically everything – ranging from medical care, education, refuse and postal collection, the supply of gas and electricity, to even childcare – became subject to the purview of the sectarian militias. By providing basic services, the militias exploited the situation to extend coercive control over their war-weary communities.

Rather than surrender these “fiefdoms” upon the cessation of hostilities or integrate them into the state, civil war-era leaders largely retained their personal, sectarian control over social services and state functions and, with their newly minted impunity for wartime offenses, transformed their civil war constituencies into political clients.

And it was not just the abstract clientelist strategies that persisted after the war. The very same individuals who commanded these domains during the war transformed themselves into the heads of state, trading their fatigues for suits.

Thus, the distribution of social goods – including access to justice, as well as careers in the judiciary – flowed along the same clientelist channels as other social services during and after the war. The allocation of discretion within the Lebanese judicial system is designed to both ensure control by the same cadre of leaders (by concentrating control of the judiciary in the executive, which is itself allocated among these warlords) and to reward and punish its constituents – lawyers, judges, and citizens seeking justice – according to their placement within this system of power.

Impunity in Law and Practice

The warlords not only dodged consequences for their past crimes. In the process of molting from militia commanders to presidents and ministers, they granted themselves immunity from prosecution or accountability for future offenses too.

Politicians enjoy layers of protection from accountability. Parliamentary immunity from criminal arrest or prosecution extends to all current members of parliament except in cases where the person is caught in the commission of a crime (in flagrante delicto), and that immunity can be lifted only by vote of parliament itself (Lebanese Constitution, Art. 39-40). This immunity is explicitly limited in text to current members of Parliament (MPs): “No Chamber member may be prosecuted or arrested, during the session, for committing a crime, unless authorized by the Chamber, except in case he is caught in the act” (emphasis added), and perhaps only then to the time of year when Parliament is actively in session.

The president is likewise immune from prosecution during his term (as is the case in many systems). The constitution specifies an impeachment process in cases of violations of the constitution or treason by the president, but notes that charges for these – or for ordinary crimes – require approval from a two-thirds majority of parliament (Art. 60). Again, the text suggests that this immunity extends only as long as the president holds office: “While performing his functions, the President of the Republic cannot be accountable [except for impeachable constitutional violations or treason]” (emphasis added).

In contrast, the constitution affirms that both the prime minister and members of the cabinet can be impeached for treason or violation of their duties by parliament, but it does not include any limiting language indicating that they enjoy immunity from ordinary criminal or civil charges either in office or after (Art. 70). Nor does the constitution suggest that consent of parliament would be required to bring criminal charges against a sitting member of the cabinet. Commentators argue that the absence of any specific language on immunity from ordinary criminal charges, especially in light of Article 60’s explicit presidential immunity, strongly suggests that no such immunity applies to ministers including the prime minister. Nevertheless, ministers continue to claim immunity from any criminal responsibility. Even former ministers claim immunity. A specialized tribunal – composed of seven current MPs and eight judges – has jurisdiction to try ministers and presidents accused of impeachable offenses, but has yet to hold any ministers or presidents to account.

It is notable that in all cases of constitutional protection from prosecution, the text is either silent or strongly implies that the immunity lapses upon leaving office, yet former ministers, MPs, and prime ministers unanimously claim continued immunity from prosecution for acts committed while in office.

The effects of these formal immunities are amplified further by their indeterminacy and the political power involved in their interpretation. Efforts to hold politicians to account are often defeated by these technical provisions which are deployed as shields to diffuse scrutiny even when the law does not clearly provide immunity.

“Red Lines”

Not only are these forces of elite impunity at least partially to blame for the deadly port explosion, they have also emerged to doom – for now – the investigation. Sawan charged the three former ministers and the country’s caretaker prime minister, who resigned days after the explosion amid public fury, with criminal negligence in relation to the blast. But the former ministers uniformly resisted the charges, not just claiming their factual innocence but citing their supposed ministerial immunity. Caretaker Prime Minister Hassan Diab acquiesced to be interviewed as a witness in September, but objected strenuously to the idea that a former prime minister could be criminally charged, rejecting the charges as “politically targeting the position of prime minister” and accusing Sawan of violating the constitution by charging him directly instead of referring the charges to parliament. His line of argument, it should be noted, ignores the fact that the prime minister is not afforded immunity from ordinary criminal charges under the constitution – even less so, former prime ministers.

Nevertheless, Diab was joined in these critiques by a cadre of former prime ministers and other political rivals. This solidarity marked an abrupt (and self-serving) departure from past relationships between Diab and other recent prime ministers and political elite, who had regarded the caretaker minister as an outsider since his designation.

On Feb. 18, these objections seemingly won out. Sawan was dismissed.

The Battle for Accountability

Yet this win for political impunity may not be permanent. Despite fears that Sawan’s dismissal would allow indefinite postponement of the blast probe, direct action led by victims and their families forced an uncharacteristically swift response from the government. Within hours of the announcement of Sawan’s removal, families of the victims staged a protest and sit-in in front of the Ministry of Justice, expressing their rage and pain. The SJC appointed Tarek Bitar – the head of Beirut’s criminal court – as new lead investigator the next day.

Bitar’s swift appointment may signal that the political establishment feared stronger backlash from further delay of the investigation. But it remains to be seen whether Bitar can fulfill the demands of victims and of justice. In the aftermath of Sawan’s dismissal, the families of blast victims outlined three central demands for the investigation: (1) that the new judicial investigator possess both integrity and courage, emphasizing that integrity alone is not sufficient; (2) that the investigator be independent and not affiliated with any political party; (3) that a special assistant to the investigator be appointed in order to speed up the process.

This local struggle for accountability is nothing new. Civil society organizations and activists’ calls – for specific, granular policy and legislative changes, as well as much more expansive, structural transformation – date back decades. These demands include changes to address the three sources of corruption: the lack of judicial independence, the warlords’ bargain, and official immunity.

When it comes to the judiciary, a coalition of human rights organizations, unions, and professional associations has identified a shortlist of priorities for reform: full financial independence for the SJC (and other bodies in charge of judicial appointments, training, and discipline); political independence for these bodies (replacing the executive’s role in appointing members with direct voting by judges’ peers); safeguards for judges (including changes to the tenure structure and implementing protections from involuntary transfers); and transparency in training, selections, and discipline. Draft legislation incorporating these reforms, developed by Legal Agenda from 2014-2018, remains pending before a parliamentary committee.

Efforts to unseat the warlords and their allies reached a peak in 2019 with unprecedented protests in which the ubiquitous cry “Kelon ya’ane kelon” (All of them means all of them) was used to signify opposition to the entire entrenched political class. So far, however, these extraordinary protests have not managed to shake the foundations of power. On Oct. 22, 2020, five days after the anniversary of the start of the protests, which unseated him the year before, Saad Hariri was once again designated as prime minister.

Meanwhile, local organizations have continued to question the extent of official immunity. Local human rights watchdog Legal Agenda notes favorable precedents for narrowly interpreting constitutional grants of immunity. Proposals to curtail financial corruption have elicited similar legal interpretations suggesting that immunity is not absolute, especially for ministers. Yet officials have aggressively resisted these efforts, including by quietly killing legislation that would voluntarily lift immunity in some cases as well as seeking new forms of impunity through vague amnesty laws.

Although Bitar has been appointed as Sawan’s replacement, this is far from a guarantee that the probe will be allowed to proceed without further interference. Bitar has a reputation for relative political independence from his time as head of Beirut’s criminal court, but his position on “red lines” surrounding immunity remains unclear. Civil society and human rights organizations are watching his next steps closely. For their part, families of the blast victims have made it abundantly clear that they are prepared to escalate in the future if the political class derails the investigation again, and the fate of the investigation will serve as an indicator – to the Lebanese and international communities alike – of the prospects for justice and rule of law in Lebanon.

Image: The State Council building in downtown Beirut on Oct. 29, 2019 at the height of protests against Lebanon’s ruling class. Banners unfurled from its windows contain pro-revolutionary slogans. Photo by Tess Graham

 

About the Author(s)

Tess Graham

Postgraduate Fellow at Just Security; Research Scholar at NYU School of Law. Follow her on Twitter (@tess_e_graham).

Elena Hodges

Elena Hodges (@ElenaRHodges) is a Student Staff Editor at Just Security and a JD student at NYU School of Law.