“This time, it’s different” has become a rallying cry amongst the families of victims of the Beirut port blast, mobilized in their pursuit of truth and justice for the August 4th massacre1. 16 months and 2 judges later, the investigation into the devastating port explosion is at risk after suspected senior officials refused to appear before authorities, claiming they have immunity from prosecution.
In a country plagued with multiple generations of legal impunity, the domestic investigation into this obscene crime has become a major focal point in our efforts to bring an end to the rampant impunity of the ruling political class, paving the way for a reconstruction of our national institutions on the pillars of accountability and judiciary independence2.
These efforts are led today by one judge, Tarek Bitar. Judge Bitar has rapidly emerged as a symbol of the judiciary that we strive to establish, climbing an uphill battle with limited resources in a challenging political and judicial context3 in the midst of an unprecedented economic meltdown. The impact of these efforts is not merely limited to the blast investigation; it would assuredly facilitate accountability for other crimes committed by the elite ruling establishment. In this article, we highlight how the legal standoff against politicians’ immunities has played out thus far.
Judges, Victims, and Suspects
“Down with immunities” shouted thousands of people as they marched in Beirut on August 4th, 2021 alongside the blast victims demanding the removal of immunities on senior officials named as suspects. Relatives of victims have been mobilizing all year long for the lifting of immunities. They were met with tear gas and beatings by the police and violent counter-protesters.
The campaigns to challenge immunities started in February 2021. When the first investigator Judge Fadi Sawwan charged former ministers for suspected involvement in the crime, he was swiftly removed from his post on the basis of “bypassing the correct protocols related to lifting immunities”4. Victims’ groups immediately took to the streets demanding the swift appointment of a new judge. Within 24 hours, Judge Tarek Bitar, head of Beirut’s Criminal Court, was appointed to the post.
In July 2021, Bitar officially requested the relevant authorities to lift immunities for suspected senior officials. He learned lessons from his predecessor’s experience and adopted a different strategy that strictly adhered to due legal process. Bitar confirmed Sawwan’s decisions and doubled down by pursuing charges against former Prime Minister Hassan Diab, former Ministers Ghazi Zaayter, Ali Hassan Khalil, Youssef Fenianos and Nuhad Mashnouk, former Army Commander Jean Kahwaji, current General Security Head Abbas Ibrahim, current State Security Head Antoine Saliba, and three judges.
Although the suspects allegedly knew about the stored ammonium nitrate, and despite Bitar respecting all procedural guarantees related to their immunities, the ruling establishment unleashed a bitter campaign accusing him of political bias, as they had done with his predecessor5. To justify their refusal to lift immunities, they presented a distorted interpretation of the constitution to shield suspected officials from any accountability. However, with the letter of the law behind him, Bitar has not yet relented in his pursuit for justice.
Challenging the Immunities of Members of Parliament (MPs) and Civil Servants
When the Minister of Interior and Higher Defence Council (a mini-government that includes the President and Prime Minister) refused to grant Bitar authorization to prosecute security heads Ibrahim and Saliba, Bitar sent another request to the Prosecution whom the law grants the right to override such a refusal. The Prosecution subsequently refused to execute the override. When a new government was formed, Judge Bitar repeated his requests, only to be rejected yet again in what can only be described as a clear-cut example of abuse of political privilege.
When the Parliament’s bureau falsely argued that they cannot lift the temporary immunities of former MPs Zaiter, Khalil, and Mashnouk unless they received all evidence against them, Bitar responded that the law only requires a “summary” of the evidence to respect the confidentiality of the investigation6. When the former MPs lost their temporary immunities after the Mikati government gained Parliament’s confidence7, Bitar was able to summon them without approval from Parliament8.
Confronting the Illusion of Ministerial Immunity
The most dangerous manoeuvres to cripple the investigation came from politicians who falsely argued that Bitar does not have jurisdiction to investigate former ministers. They claim that Parliament is the sole authority that is permitted to accuse them before the “High Court for the Trial of Presidents and Ministers”. However, this is an “imaginary” court composed of judges and MPs that has never convened in three decades, and is only permitted to try ministers if Parliament accuses the suspects of high treason or failing their duties9. In other words, it cannot try ministers suspected of serious criminal behaviour such as homicide as is the case of the blast investigation. This legal position is not only shared by Bitar and his predecessor, but also by the Court of Cassation10, the Lebanese Judges Association11, the Beirut Bar Association12, and the Legal Agenda13.
Despite this legal consensus, several MPs, notably from Hezbollah, Amal, and the Future Movement, submitted a petition requesting Parliament to accuse the former ministers, a manoeuvre that aims to transfer the investigation from the Judge to a Parliamentary body that hasn’t taken any action to ensure accountability since the blast. In response, victims’ groups labelled the petitioners as “the Nitrate MPs”, and succeeded in preventing this petition from advancing when the quorum for voting was not met.
Once again, Bitar persevered and countered this attempt to circumvent the law. He insisted on his jurisdiction to investigate ministers and issued in absentia arrest warrants against Fenianos and Khalil when they failed to appear for their hearings. However, the Prosecution office that is mandated by law to represent the interests of society continues to refuse to enforce these warrants. Prosecution Judges14 have defended the suspects by adopting positions in favor of maintaining the immunities of ministers and civil servants. Two of them, in fact, have conflicts of interest in this case as they had been involved in investigating the nitrate storage prior to the explosion.15
Where We Stand Today
More recently, relentless attempts by legal teams representing former members of the government continue to try to impede the investigation and remove Bitar. They have filed around 20 lawsuits thus far with the objective of crippling the investigation, but the courts have denied most of their requests. On November 4th, Judge Habib Mehzer, one of the heads of the Court of Appeals in Beirut and a recently-appointed member of the High Judicial Council, issued a blatantly illegal decision to temporarily suspend Bitar’s involvement in the port investigation until a decision was made on a request for his removal (submitted by former minister Fenianos). His decision amounted to a flagrant “assault” on the investigation as he did not have the legal authority to issue it. More than a month later, on December 7th, Fenianos’ request was dismissed by the Court and Mezher’s decision was declared unlawful. After dodging all attempts for his dismissal and despite Cabinet ministers threatening to resign if he was not replaced, Bitar remains in his post leading the probe into the blast.
Despite all these obstacles, the investigation continues to challenge this regime of impunity while awaiting the Accusation Act. Most importantly, Bitar is not defying the regime alone. Victims, their lawyers, rights and activist groups are also fighting back, challenging the questionable legal narratives of the establishment, and advocating for all senior officials to submit to justice. Now more than ever, it has become a priority for everyone to stand behind the August 4th victims and Judge Bitar, and to demand the lifting of immunities, new appointments at the Prosecution offices, and the reform of our compromised judiciary system.
1 Statement by the Families of the Victims of the Beirut Port Massacre: We Stand United for Truth and Justice, The Legal Agenda, 03/02/2021
2 Joint Letter to the Human Rights Council calling for an International Investigative Mission into the Beirut Blast, The Legal Agenda, 06/15/2021.
3 Legal Agenda statement on the Beirut port massacre investigation, The Legal Agenda, 25/08/2020.
4 Nizar Saghieh, Lebanese Court Removed Judge Who Sympathized With Beirut Explosion Victims, The Legal Agenda, 04/28/2021.
5 Nizar Saghieh, Lebanon’s Battle Over Ministerial Immunity is Threatened by Impunity Politics, The Legal Agenda, 01/18/2021.
6 Article 91 of the Parliament Internal Regulations and Article 53 of the Code of Criminal Procedures
7 Articles 40 and 69-3 of the Constitution
8 Article 97 of the Internal Regulations of Parliament
9 Articles 70 and 71 of the Lebanese Constitution
10 Court of Cassation (General Assembly), Decision No. 7/2000 of 10/27/2000 Sanioura vs the State
11 Lebanese Judges Association, Statement of 15 August 2020.
12 Beirut Bar Association, Statement of 14 November 2020.
13 Legal Agenda, Legal Guide for Victims of the Beirut Port Blast, March 2021
14 Judge Oueidat recused himself from the case in December 2020 due to his family relationship with his brother-in-law Ghazi Zaayter. He appointed judges Ghassan Khoury and Imad Kabalan in his position. Khoury was removed from the investigation in November 2021 by the Court of Cassation following a request filed by the Beirut Bar Association.
15 Beirut Bar Association, Statement on 4 August 2021
Ghida Frangieh, The Legal Agenda
Ghida Frangieh is a lawyer and researcher based in Beirut. She has been a member of The Legal Agenda since 2011 and currently heads its Strategic Litigation Unit. She recently worked on producing a legal guide for the victims of the Beirut port blast of 4 August 2020 to support their path to justice and closely monitors the domestic investigation.
Ghida holds a Master’s degree in Applied Human Rights from France and has various publications related to social justice and human rights issues. She is also a founding member of Ruwad Al-Houkouk Association and the Lawyers Committee for the Defense of Protesters.