From International Investigation to International Tribunal
All you need to know
Why outsourcing is the only solution.
Seven months into the Beirut Blast and the thirst for justice is intensifying. With investigations permeated with due process violations, and reports surfacing with more tangled evidence, a demand for an international independent and impartial fact-finding mission is increasing.
Before we advance as to why a national investigation into the Beirut Blast is not our optimal option, one must know why such proposition is necessary. Why is it essential to have an impartial and independent investigation into 210 lives taken and 300,000 more displaced? The purpose of any investigation into a deprivation of life is to determine what are the circumstances of the acts that took place. Accordingly, a clear assessment should be formed onto whether the deprivation took place arbitrarily, and subsequently, the right to life was not respected. If such assumption is legitimate, an arbitrary deprivation of life then entails a duty to uncover the factual causes behind that loss of life.
This article makes three advancements. The first is that the current national investigation does not respect international obligations undertaken by the Lebanese State. The second is that a UN Fact finding mission proves itself, under the circumstances present, to be the only solution that could ensure justice, accountability and reliability in the elucidation of facts that led to the Beirut Blast. Finally, it argues that whatever the outcome of the fact-mission avers, officials cannot be prosecuted under International Criminal Law on the prevailing narrative of crime of negligence without proof of mens rea, criminal intent.
Domestic Investigations do not Comply With Lebanon’s International Principles and Obligations
The Republic of Lebanon is bound to international instruments from which stem international legal obligations.
The International Instruments Binding Lebanon
The preamble of the Lebanese Constitution provides that “Lebanon is a founding and active member of the United Nations Organization and (bound by) the Universal Declaration of Human Rights, and international covenants’ (Among them are the International Covenant on civil and Political Rights (ICCP), the UN Convention Against Corruption (UNCAC) and the UN Convention Against Torture).
Projecting the case of the Beirut Blast onto these international instruments, we observe that the right to life is mentioned in Article 3 of the Universal Declaration of Human Rights, article 6 of the international covenant on civil and political rights, article 2 of the European convention on Human rights and article 4 of the Arab charter on human rights, and Lebanon adheres to all these covenants. In fact, article 2 of the Lebanese code of civil procedure provides that “the Covenant has primacy over the provisions of ordinary law but not over the Constitution”.
Therefore, any failure to ensure the respect for this fundamental right also means the failure to investigate any potential arbitrary deprivation of life, and that would then cause a breach of all these aforementioned articles.
Additionally, if such failure of conducting a transparent investigation into this serious crime, being the deprivation of life, avers the result of corruption, this would also constitute a breach of article 5 of the UNCAC that requires state parties to “maintain effective, coordinated anti-corruption policies that reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.”
An additional obligation emanates from the UN General Assembly resolution number 60/147 (2005) related to the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”. It contains guiding principles on undertaking independent investigations to secure “victims’ right to remedy and reparation”.
This puts at the forefront the question of how does an investigation, currently underway, put in jeopardy all these international obligations, and how can the international substitute alternatively pave the way to justice and accountability?
The Breaches of International Law
The investigation could be said to have an aggrandized three-pronged strategy.
First, an administrative inquiry into the Beirut explosion took place upon the request of the Government. This was then followed in parallel by a military investigation. Nevertheless, the Lebanese Public Prosecutor soon recommended the cessation of both inquiries and proposed the referral of the case to either the Military Public Prosecution or the Judicial council (both being exceptional courts under Lebanese Law). The Government opted for the second option and the Judicial Council received the case, naming Judge Sawan as Judicial Investigator to commence his investigation. It is worth stopping here and noting that, in and by itself, the Judicial council regime goes against the Lebanese government’s international obligations.
The politically-coaxed appointment of the members of the Judicial council by the Minister of Justice and the Higher Judicial Council, consists the starting point of the breach of trust with the judiciary and subsequently, the breach of article 14 under ICCPR and article 10 under UDHR guaranteeing the right to a fair trial before an independent and impartial tribunal.
Another breach of international law is related to the suspects held arbitrarily in pre-trial detention without specific charges or evidence brought against them. This is a breach of the State’s obligation to respect the international standards of fairness and due process (codified in the ICCPR, but also in the Universal Declaration of Human Rights and customary international law norms), which are sine qua non to the right to be tried “without undue delay” (Article 14.3 ICCPR). By the same token, the Lebanese Legislator gave the Judicial Investigator the power to have his decisions not subject to appeal, which consists another breach of the right to two degrees of trials, stipulated in Article 14.5 in ICCPR.
How are the decisions of the Judicial Council denied of review, when it is mandated to have exclusive jurisdiction over the most dangerous crimes that touch homeland security and public safety1?
Additional citations from International Organizations or UN reports serve to reveal the extent of violations of international principles and mistrust in Lebanese Judicial Proceedings :
- “The Committee expresses concern about the independence and impartiality of the State party’s judiciary, and notes that the delegation itself conceded that the procedures governing the appointment of judges and in particular members of the Conseil Superieur de la Magistrature were far from satisfactory. The Committee is also concerned that the State party does not, in many instances, provide citizens with effective remedies and appeal procedures for their grievances. The Committee therefore recommends that the State party review, as a matter of urgency, the procedures governing the appointment of members of the judiciary, with a view to ensuring their full independence.” – The 1997 United Nations Human Rights Committee report about the justice system in Lebanon.
- “New witnesses have approached the Commission who were reluctant to have any contacts with the Lebanese authorities due to lack of confidence.”- Report of the International Independent Investigation Commission established pursuant to Security Council resolution 1595 (2005) reveals a practice of intimidation and non-protection for witnesses, informants and victims in criminal proceedings.
- In its 2017 report, the ICJ mentioned that the Higher Judicial Council’s institutional, administrative and financial independence are yet to be carried out to ensure judicial independence.
- Most recently, the 2021 report of the 37th session of the working group related to the Human Rights Council on the Universal Periodic Review expressed concern about “the political pressure reportedly exerted on the judiciary and about allegations that politicians used their influence to protect supporters from prosecution”. The Human Rights Committee recommended that Lebanon “ensures that the procedures for the selection, appointment, promotion and removal of judges were in compliance with the principles of independence and impartiality, as set out in the Covenant.”
These observations force us to ask a legitimate question: is the individual or entity responsible to carry out an investigation into such a deprivation of life, independent from the individuals or entities implicated in this crime? The answer is why an international investigation needs to be pushed for. Basic human rights and guarantees should no longer be stuck in a political imbroglio. The absence of the Rule of Law should never become the de facto Rule of Law, and a crime that almost wiped out a city should no longer be stuck in a limbo.
How would a UN Fact-Finding Mission Conduct an Investigation Compliant with International Standards?
As established earlier, investigations should have the purpose of ascertaining the truth, but if national efforts have little technical capability, knowledge and resources needed to reach the factual reality of an event, States tend to outsource an international investigation mechanism.
UN Fact-Finding Mission: A Necessity
Previous fact-finding missions have been deployed to investigate practices and crimes in a lot of areas in the world, going from investigating the Apartheid in South Africa, to investigating chemical weapon attacks against Syrian civilians, or investigating human rights violations committed against Rohingyas in Myanmar, etc…
As for Lebanon, this is not the first time the Lebanese State requires the deployment of a UN International Independent Investigation Commission (UNIIIC). In fact, following the assassination of Former Prime Minister of Lebanon Rafic Hariri, a UN fact-finding mission conducted a three-week investigation into the assassination2. Later that report was presented to the Security Council. Years after, a Special Tribunal for Lebanon got created.
A series of UN resolutions gave effect to a myriad of UN fact findings missions. The nomination of these missions might be different and sometimes, sound confusing as it can range from “commission of inquiry” to “commission of experts, panel of experts, (high-level) fact-finding mission, preparatory fact-finding commission, technical assistance mission, special commission, mapping exercise, and independent investigation commissions”. However, the difference between these different UN subsidiary investigative organs is the mandate that is conferred to each of them. The panoply of instructions can go from mere factual investigations, to investigations in light of international law, to human-rights focused investigations.
But in all cases, these fact-finder mechanisms have the purpose of establishing and consolidating facts while identifying perpetrators of crimes they set to investigate.
Establishing the Fact-Finding Mission
Although there are several mechanisms to create an independent impartial ad hoc inquisitory organs, the main holder of this investigative powers and inquisitive competences, is the UN Security Council (UNSC) through article 34 of the UN Charter.3 Member states are then obliged to cooperate abiding by article 35 of the UN Charter. However, practice has shifted throughout the years and the current common norm resides in the request the UNSC forms next to the UNSG (United Nations Secretary General) to establish a commission of inquiry.
Alternatively, the UN General Assembly (UNGA) can also create such fact-finding missions (pursuant to articles 10, 11, 14 and 22 from the UN Charter). Such methods have been used on several occasions, for example following the murder of UNSG Gad Hammerskjöld or the assassination of the prime minister of Burundi, Pierre Ngendandumwe. The UNSG can benefit from the delegation of authority conferred to it by either the UNSC or the UNGA and similarly establish a commission of inquiry.
A myriad of additional mechanisms exists, such as the creation of a commission at the request of a State made directly to the UNSG, or through a request presented by the UN High Commissioner for Human Rights, which would further require an endorsement from the UNSC.
The fact-finding mission is, at its core, just a means to get to an end that satisfies Justice, but it is one that goes by the principles of conscientiousness, impartiality and elucidation of facts. “Given a deep mistrust that has prevailed among the Lebanese people towards their security and judicial authorities, the Commission has become a source of great expectation and hope for change, as well as an “interface” between the Lebanese people and their authorities”, stated the report of the UNIIIC deployed to Lebanon in 2005. Sixteen years after the arrival of the first fact-finding mission, the same feeling seems to resurface at the wake of the Beirut Blast.
Independent and Impartial: The Possible Outcomes of an International Investigation
The outcome of a comprehensive investigation could be either the creation of an ad-hoc tribunal (similar to the Special Tribunal of Lebanon) upon a country’s request to the United Nations, or the deferral of the case to the international criminal court (ICC) which holds the jurisdiction to summon and prosecute individuals from all ranks and functions for grave crimes (genocide, crime against humanity, and war crimes). However, as Lebanon is not party to the Rome Statue (convention that established the ICC), the deferral of the Beirut Blast could be done through4 the Security Council under Chapter VII (related to “action with respect to threats to the peace, breaches of the peace and acts of aggression”).
It is worth noting that, not only Lebanon is not a state party to the Rome Statue, but that it also does not have domestic legislation that can criminalize international crimes. The General rules of International Law are recognized by the country’s constitution (in its preamble) but under the current legislation in place, authors of crimes against humanity cannot be prosecuted.
Having established that, how would International Criminal Law qualify the Beirut Blast? Several scenarios emerge from different narratives.
Crime Against Humanity
If the findings aver that it was an Israeli attack, it would then be qualified as a war crime and a crime against humanity by targeting civilian population and property. In that case, if we ought to apply the rules of international criminal law, for if we wish to qualify it as a crime against humanity, it requires that the author is set to kill one or more individuals in a widespread and systematic attack against civilian population.
If we would like to push the uphold this narrative and sub-qualify this crime against humanity as extermination, it would require that this author kills a group of people part of a widespread and systematic attack against civilian population.
To date investigations have not yielded evidence to point towards Israeli interference, meaning the most probably scenario is negligence.
Information to date provides that the explosion resulted of a fire breaking out in the port premises, leading to the detonation of a highly explosive ammonium nitrate, stockpiling inside the port facilities for 7 years. Reports have uncovered that officials knew and were warned about the enormously detrimental effect it would have in case the material detonated, and they failed to take any action to remove it.
If we ought to consider this crime as one resulting from negligence, we need to understand how it is perceived in International Law. The first course of action is to consider the Lebanese government (represented by the officials, party to this investigation) guilty of a “perpetration of a crime against humanity by omission”.5 However, in order to accept this qualification, there is an important prerequisite that needs to be fulfilled: there should be a criminal intent, a mens rea.
It is because civil law jurisdiction shave categorized the rules of “mens rea”, that International Criminal Law has borrowed the reasoning from it and divided it into three categories:
- Dolus directus : It happens when the accused knew what the consequence of his acts would be, but it was his aim to bring about these consequences.
- Doclus indirectus: It happens when the accused knew the consequence is a foreseen possibility and substantially inevitable, but it was not his objective to bring about these consequences.
- Dolus evantualis: It happens when an accused had foreseen the risk and consequences emanating from their actions, but nevertheless accepted the risk of such possibility from occurring and continued regardless.
In order to examine the criminal responsibility of the officials who knew “كانوا يعلمون”, we need to make the accusation more stringent. Did they know with certainty that a consequence would occur of their omission to act? Or did they act without being aware of the extent of their actions’ consequences? Did they simply recognize that a consequence might occur in relative certainty, or did they know there is a high possibility of it occurring?
As it can be observed, this concept has different thresholds attached to it and needs a thorough investigation that could either provide incriminating or exculpatory evidence. International Criminal Law Jurisprudence has been careful on adopting the lowest threshold definition to this concept, but has however taken into consideration a victim-centered approach that can expand a protection to the most affected victims.
In the words of Judge Antonio Cassesse, the President of the Special Tribunal for Lebanon: “Regardless of whether some findings are necessary for the conviction of the Accused, specific factual and contextual findings are necessary and intrinsic to justice and to the truth”. As such, if the Lebanese government avers to have breached fundamental human rights guarantees emanating from International Human Rights Law or International Humanitarian Law (whether it is violations of negative or positive obligations), it has the duty to make reparations in integrum to the victims.
Is it recklessness, negligence or indifference? With no national law that can criminalize International Crimes and recognize dolus eventualis as an element of a crime against humanity, the only answer resides in international legal instruments.
Will Justice ever prevail?
- Report on behalf of victims of the Beirut Explosion of 4 August 2020 (Legal Action Worldwide)
- Rome Statute of the ICC
- An inquiry into the Role of Commissions of Inquiry in International Law: Navigating the Tensions between Fact-Finding and Application of International Law
- UNIIIC Report on Hariri assassination
- A reckless crime against humanity: Justice for Victims of the Beirut Blasts (Justice in Conflict)
- Human rights council Working Group on the UPR (18-29 January 2021)
- Independence of the Judiciary, Legal Agenda
- As stipulated in Article 356 of the Lebanese Code of Criminal Proceedings.
- On 7 April 2005, United Nations Security Council issues Resolution number 1595, upon which an Independent Investigation Commission (UNIIIC) was established to investigate the killing of the former Prime Minister of Lebanon.
- Providing that “The Security council may investigate any dispute or any situation which might lead to international friction or give rise to a dispute in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security”.
- Article 12 of the Rome statute.
- Blagojević and Jokić Appeals Judgment- ICTY.