Applicable Law

Criminal responsibility and legal proceedings in the aftermath of the Beirut blast: throwing (more) dust in the eyes of the Lebanese?

By Lynn Fouad, étudiante au sein du Master droit économique

AJSP | Posted on 25 February 2021

This article explains what would be the applicable law – if the investigation and proceedings follow the domestic Lebanese legislation and raises the question of the international law that might be applicable.

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Compilation of international and Lebanese laws have been violated in connection with the Beirut Blast

In Lebanon

The Lebanese Criminal Procedural Code

Mentions the appointment of one investigative judge to probe the case.
Lacks witness protection programme

The Lebanese Criminal Code

Article 189: An offence shall be deemed to be intentional, even if the criminal effect of the act or omission exceeds that intended by the perpetrator, if he had foreseen the possibility and thus accepted the risk.

[The risk was foreseen and mentioned in several reports and yet the chemicals were not removed from the Port].

Alternatively:

Article 190: Fault exists where a harmful act results from negligence, recklessness or failure to comply with laws and regulations.

Article 191: An offence is unintentional if the perpetrator did not foresee the consequence of his wrongful act or omission although he could or should have done so, or if he foresaw it and believed that he could prevent it.

Article 547 : Anyone who intentionally kills another person shall be punishable by hard labour for a term of between 15 and 20 years.

Article 564: Anyone who killed another person by negligence, recklessness or failure to comply with laws and regulations shall be sentenced for 6 months up to 3 years.

International Law

Lebanon does not have domestic legislation in place criminalising international crimes. General rules of international law, arguably including international customary law, are recognised by the country’s constitution, and there has been a recent trend of activist judges directly applying international law domestically. Lebanon has also ratified a large number of conventions guaranteeing basic human rights.

The Lebanese Constitution in its preamble stipulates “Lebanon is also a founding and active member of the United Nations Organization and abides by its covenants and by the Universal Declaration of Human Rights. The Government shall embody these principles in all fields and areas without exception”.

The Right to Life

Rights to Remedy and Access to Justice

Universal Declaration of Human Rights, 1948

“The right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law”.

International Covenant on Civil and Political Rights, 1966

“ Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

The United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power (Victims’ Declaration) – 1985

The instrument focused on the status of victims before national jurisdictions.

It defined the victims as “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights”.

The principles set out in the Victims’ Declaration lay the foundations that will constitute the guarantees of the rights of victims of serious crimes. It urged States to adopt measures that would guarantee universal and effective recognition of the rights of victims and broadened the description of these measures to assist States in their endeavour to implement them (social assistance, education, prevention, awareness-raising, research work and monitoring of national progress in the protection of victims).

Additionally, it lists the rights of the victims which are:

• Access to justice and fair treatment: which implies compassionate treatment, respect for their dignity, and an active participation in proceedings while respecting the rights of the accused;

• Restitution and reparation;

• Compensation;

• Services: medical, material, psychological and social assistance.

The United Nations basic principles and guidelines on the right to remedy and reparation for victims of gross violations of international human rights law and serious violations of humanitarian law – known as the “Van Boven – Bassiouni Principles” – 2005

In its preamble, it recognises that “in honouring the victims’ right to benefit from remedies and reparation, the international community keeps faith with the plight of victims, survivors and future human generations, and reaffirms the international principles of accountability, justice and the Rule of law”.

These Principles set out the rights of victims of gross violations of human rights or serious violations of international humanitarian law, to an effective judicial remedy and reparations, and the duties of states to prevent violations, investigate, prosecute and punish perpetrators, provide effective access to justice to victims and afford full reparation.

The “Joinet – Orentlicher Principles” – 2005

Adopted for the protection and promotion of human rights through action to combat impunity, it sets out the duties of states to investigate violations of human rights and international humanitarian law and to bring the perpetrators to justice.

Its first Principle states that:

Impunity arises from a failure by states to meet their obligations to investigate violations:

to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by – ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished;
to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered;
to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.

The Joinet – Orentlicher Principles also define the right to know, the right to justice and the right to reparation and guarantees of non-recurrence.