On August 4, 2020, one of the world’s largest non-nuclear explosions took place at the port of Beirut, the result of 2,750 tons of negligently stored ammonium nitrate catching fire in the hangar where the chemicals were stored. The explosion killed over 200 people, injured thousands, and displaced roughly 300,000 people from their shattered homes. For more than two years, the investigation into the explosion has stalled due to political interference, including attempts by political figures involved in the probe to file dozens of legal challenges to have the probe’s investigative judge Tarek Bitar removed. The most recent interference has come from the country’s head Public Prosecutor, Ghassan Oueidat, whose legal actions have in effect halted the investigation, after Bitar named him a person of interest and summoned him for questioning. In turn, Oueidat retaliated against Bitar, charging him with “usurping of power” and “rebellion against justice” and placed him under a travel ban. Meanwhile, victims of the explosion are fighting an uphill battle to access justice in a system that was built to facilitate impunity.
The Court of Justice
From the outset of the investigations into the Beirut port explosion, the bodies and procedures charged with the handling of the port explosion case have been heavily criticized for lacking a proper separation of powers and adequate due process guarantees. The case was referred to the Court of Justice, which is an exceptional criminal court that only hears “serious offenses” referred to it by the Council of Ministers, such as those pertaining to state security, sectarian strife, or involving firearms and explosives. The court is made up of five judges; the first is an automatic appointment of the president at the Court of Cassation, while the remaining four members are appointed by the Council of Ministers at the recommendation of the Minister of Justice, allowing for heavy political influence.
The judicial investigator to the Court of Justice (as Bitar is) is appointed by the Minister of Justice with the approval of the members of the High Judicial Council, the judicial body responsible for overseeing and maintaining order across the entire civil court system, including the appointment and transfer of judges within the civil judiciary. The High Judicial Council has also been criticized for lacking a separation of powers; five of its 10 members are selected by the Council of Ministers, and three are automatic appointments from the Court of Cassation, including the public prosecutor, leaving only two members to be elected by their peers. The selection processes of the Court of Justice and Higher Judicial Council both run afoul of Article 20 of the Lebanese Constitution guaranteeing a separation of powers, specifically stating that “judges shall be independent in the exercise of their functions.”
The inability of Lebanese judicial bodies to ensure a fair trial has been demonstrated by the repetitive political interference in the current investigation. Over 25 complaints have been filed against Judge Bitar since his appointment, and meetings of the plenary assembly of the Court of Cassation were repeatedly delayed due to lack of quorum after several judges retired and political interference prevented their replacement. For example, Minister of Finance Youssef Khalil refused to authorize the appointment decree of six judges for months based on the pretense that the selected judges did not meet sectarian criteria. In addition, caretaker Minister of Justice Henri Khoury caused controversy by attempting to have the High Judicial Council appoint yet another judicial investigator to rule on matters while Bitar’s investigation was stalled, despite there being no precedent or legislation authorizing such an appointment. This appointment might have been successful were it not for the opposition of the President of the High Judicial Council, Souhail Abboud.
Power Struggle: Prosecutor vs. Investigator
The complaints levied against Bitar and the delay in the appointment of judges described above caused the investigation to stall for 13 months. However, in January 2023, Bitar conducted a legal analysis concluding that a removal from his role would be a breach of the principle of separation of powers, and he attempted to resume his investigation. He also ordered the release of several persons that had been held in prison since the explosion and summoned high-profile political and administrative figures for questioning, including Ghassan Oueidat.
Oueidat, public prosecutor at the Court of Cassation of Beirut, holds the highest prosecutorial position in the country, and is responsible for overseeing and instructing all judges within the Public Prosecution Service. He is also the Vice President of the High Judicial Council. The public prosecutor is appointed by the Council of Ministers, based on a recommendation by the Minister of Justice. This allows for significant influence by members of government over the prosecutor’s work.
Prosecutor Oueidat had recused himself from the port explosion case in December 2020 after his brother-in-law, Ghazi Zaiter, was called in for questioning. Zaiter, who was the Minister of Transportation when the ammonium nitrate shipment was received at the Beirut port, is still under investigation by Bitar. According to the Beirut Bar Association, Oueidat’s recusal was duly accepted by the Court of Cassation, barring him from taking any further actions or decisions on the case. However, after becoming a person of interest in Bitar’s investigation, Oueidat unilaterally revoked his recusal to stop the investigation, in a move described as a judicial “coup” by the Coalition for an Independent Judiciary. In addition, Oueidat directed law enforcement not to comply with Bitar’s orders, ordered the release of 17 detainees held in connection with Bitar’s investigation, charged Bitar with “usurping of power” and placed him under a travel ban. Several legal institutions have since criticized Oueidat for violating the Court of Cassation’s decision and called his actions an “abuse of power and violation of the law.”
Indeed, Oueidat’s charges against Bitar are not supported by the law: Articles 361 and 362 of Lebanon’s Rules of Criminal Procedure state that the role of the public prosecutor at the Court of Cassation is to present possible charges for a case and refer the investigation file to the investigating judge. Beyond that, Bitar as investigating judge has broad powers to issue warrants without the approval of the public prosecutor and to question defendants even if they were not initially charged by the public prosecutor; the judicial investigator’s “decisions in this regard are not open to any kind of review.” As such, the public prosecutor does not have the authority to override charges levied by the investigative judge nor interfere with the investigative judge’s discretion to call additional persons in for questioning. However, on February 6, Bitar decided to postpone his scheduled interrogations until the legal obstacles are resolved and he is able to properly resume the investigation.
Some advancements in the case have been made in courts abroad, such as the court ruling in February 2023 in the United Kingdom which found the UK chemical trading company that owned the ammonium nitrate liable to three families whose relatives were victims of the explosion. Other prosecutions are being initiated in courts abroad, but many of them rely on the continuation of the investigation, whether domestic or international, to gather more evidence. The longer the case is delayed, the more likely that evidence will erode, disappear, or be tampered with, and the more opportunity for implicated political actors to flee the country.
In light of the political class’s attempts to thwart the investigation and escape accountability, activists and human rights organizations have been calling on members of the UN Human Rights Council to put forward a resolution that would allow for an international, independent, and impartial investigation of the port explosion. So far, these calls have yet to be honored as members of the council have deferred to France to lead on such a resolution, considering France’s colonial history in the country and its close ties with the Lebanese authorities. But activists and families of the victims have not given up, maintaining pressure on the UN Human Rights Council to take up the investigation and ensure that those responsible face justice.
Nadine Kheshen is an international criminal and human rights lawyer who has been working on conflict and human rights in the Middle East since 2016.
This analysis was originally published as a feature piece in Issue 1 of the Rule of Law Developments in the Middle East and North Africa newsletter, produced by Konrad-Adenauer-Stiftung Rule of Law Programme Middle East & North Africa and TIMEP.