International Investigations & Assistance
The text that follows provides some initial information on four possible possible legal avenues for an international intervention towards accountability for the victims of the 4 August 2020 Blast.
- International Commissions of Inquiry, Commissions on Human Rights, Fact-Finding missions and other Investigations
- Complaints to the Commission on Human Rights and The 1503 Procedure of the Commission on Human Rights
- Truth Commissions
- Public Inquiries – the UK model
Commissions of inquiry, Fact-finding missions and Investigations
In cases of serious violations of human rights, such as the Beirut Blast, there are several options under the United Nations mandate for the establishment of an accountability mechanism.
Information collated from: From https://www.ohchr.org/EN/HRBodies/HRC/Pages/COIs.aspx
United Nations mandated commissions of inquiry, fact-finding missions and investigations are increasingly being used to respond to situations of serious violations of international humanitarian law and international human rights law, whether protracted or resulting from sudden events, and to promote accountability for such violations and counter impunity.
These international investigative bodies have been established either by the Security Council, the General Assembly, the Human Rights Council, its predecessor, the Commission on Human Rights, the Secretary-General or the High Commissioner for Human Rights.
International commissions of inquiry and fact-finding missions are a key tool in the United Nations response to situations of violations of international human rights law and international humanitarian law, including international crimes. They are established with mounting frequency to address violations in a growing variety of contexts.
Commissions of inquiry and fact-finding missions have proved to be valuable in countering impunity by promoting accountability for such violations. They gather and verify information, create an historical record of events, and provide a basis for further investigations. They also recommend measures to redress violations, provide justice and reparation to victims, and hold perpetrators to account. In some situations, like the former Yugoslavia and Lebanon, the commission’s work was followed by the establishment of an international tribunal – the International Criminal Tribunal for the former Yugoslavia and the Special Tribunal for Lebanon, respectively.
The formulation of mandates
There is no single format for the constitution of commissions of inquiry and fact-finding missions, and they all function with a degree of flexibility.
This has helped such bodies address a variety of situations.
In some instances the mandate covered the entire country for example, Libya or the Syrian Arab Republic;
in others only part for example, Darfur.
Many commissions/ missions were given a very general mandate to investigate alleged violations of human rights or international humanitarian law or both.
Some mandates related to a specific incident or event as was the case with the UN International Independent Investigation Commission or UNIIIC established in the aftermath of the Hariri assassination, while other mandates defined longer periods for investigation, with varying degrees of precision.
Over the past 20 years, many commissions/missions have been established to assess some of the most serious situations of human rights and humanitarian law violations across the world.
In the former Yugoslavia, Darfur, Timor-Leste, Lebanon, Guinea, Côte d’Ivoire, Libya, the Syrian Arab Republic, Myanmar, Yemen, the occupied Palestinian territory and elsewhere.
An interactive map of fact-finding missions and missions of inquiry can be found here: https://libraryresources.unog.ch/factfinding/maps
Information collated from: From https://www.ohchr.org/EN/HRBodies/Petitions/Pages/1503Procedure.aspx
The procedure before the Commission on Human Rights, called the 1503 procedure after the resolution of the Economic and Social Council whereby it was established is the oldest human rights complaint mechanism in the United Nations system. Under this procedure the Commission, a political body composed of State representatives, generally deals with situations in countries rather than individual complaints.
Who can submit a complaint under 1503 procedure?
Under the 1503 procedure, the Commission has the mandate to examine a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms occurring in any country of the world. Any individual or group claiming to be the victim of such human rights violations may submit a complaint, as may any other person or group with direct and reliable knowledge of such violations. Where an NGO submits a complaint, it must be acting in good faith and in accordance with recognized principles of human rights. The organization should also have reliable direct evidence of the situation it is describing.
The case of Lebanon
Right to Life
The right to life is enshrined in Article 3 of the Universal Declaration of Human Rights, in Article 6 of the International Covenant on Civil and Political Rights, in the Convention on the Rights of the Child under Article 6 and in the Convention on the Rights of Persons with Disabilities under Article 10.
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 means that the Government should take appropriate measures to safeguard life by promulgating laws to protect its citizen and, in some circumstances, by taking steps and decisions to protect them if their lives are at risk.
The Government of Lebanon has breached its duty of care and the right of life of its citizen when it let a dangerous material sit in the Port of Beirut, in the middle of the Capital for over 6 years. It did not take the appropriate measure to mitigate the risk and it did not take the right decisions to protect its citizen. As a result, over 207 persons including children lost their right to life and were killed.
Accountability
A local investigation is currently ongoing. A year later, there is no real information on what happened and the way the investigation is conducted leads one to think that it is not transparent, impartial or neutral. Many victims consider that if there won’t be an international investigation or at least a UN fact-finding mission to assist the local investigation, they will never know the truth. Never knowing the truth is another breach to the victims’ rights. In a study conducted in 2006, the Office of the UN High Commissioner for Human Rights concluded that the right to the truth about gross human rights violations and serious violations of human rights law is an inalienable and autonomous right, linked to the duty and obligation of the State to conduct effective investigations and to guarantee effective remedy and reparations.
Right to adequate housing
Adequate housing is recognized in the Universal Declaration of Human Rights of 1948 and in the 1966 International Covenant on Economic, Social and Cultural Rights.
Lebanon in its preamble abides by the UDHR and has ratified the ICESCR in 1972.
The United Nations Committee on Economic, Social and Cultural Rights emphasized that the right to adequate housing should not be interpreted narrowly. Rather, it should be considered as the right to live somewhere in security, peace and dignity.
While the right to adequate housing does not imply that the Government should provide accommodation to the entire population, it certainly means that the Government should refrain from certain practices or actions and take measures necessary to guarantee and protect the right to adequate housing.
The Government of Lebanon did not take any action or necessary measures to remove the ammonium nitrate from the port of Beirut and therefore did not protect the right to adequate housing. When the explosion occurred, over 80.000 units were totally or partially destroyed and over 300.000 people lost their housing.
Information collated from https://www.ictj.org/sites/default/files/ICTJ-Book-Truth-Seeking-2013-English.pdf
Truth commissions are official, nonjudicial bodies of a limited duration established to determine the facts, causes, and consequences of past human rights violations. By giving special attention to testimonies, they provide victims with recognition, often after prolonged periods of social stigmatization and skepticism. Truth commissions can contribute to prosecutions and reparations through their findings and recommendations, assist divided societies to overcome a culture of silence and distrust, and help to identify institutional reforms needed to prevent new violations.
The Right to the Truth
The right to the truth should be pursued through both judicial and nonjudicial proceedings. The state should attempt to establish the truth about the Port explosion and establish the identity of perpetrators, the causes that led to the explosion, the circumstances and facts that led to the explosion. While courts can certainly be used to establish facts, they may present certain unavoidable limitations such as being unable to hold effective trials if the state is failing and the independence of the judiciary is not guaranteed.
Nonjudicial measures may be required to satisfy the right to the truth such as establishing truth commissions and other non-judicial commissions of inquiry.
Why Does the Truth Matter?
Establishing the truth about what happened and who is responsible for serious crimes helps communities to understand the causes of past abuse and end it. Without accurate knowledge of past violations, it is difficult for a society to prevent them from happening again. The truth can assist in the healing process after traumatic events; restore personal dignity, often after years of stigmatization; and safeguard against impunity and public denial. Establishing truth can initiate a process of reconciliation, as denial and silence can increase mistrust and social polarization. A political order based on transparency and accountability is more likely to enjoy the trust and confi dence of residents and citizens.
Establishment of Truth Commissions
The way that a country establishes a truth commission is largely determined by the political and institutional environment and the characteristics of the transition. Only local actors can make an informed decision about the best approach to ensuring a strong commission. What is most important is the need to ensure the commission’s independence, credibility, and effectiveness.
Typically, the executive or legislative branch of government establishes a truth commission.
The form chosen depends on the institutional and political realities in each country, with both approaches having advantages and disadvantages:
• In most constitutions, executive decisions, like presidential decrees, have less strength than formal legislation. Decrees are often succinct documents with limited reach, unable to empower commissions with the investigative powers typical of parliamentary inquiries. Depending on the context of a transition, the executive may have less political support than the legislature.
In some countries, executive decrees can be as strong and legitimate as parliamentary legislation, and they may be faster and less contrived than legislative processes. Examples of successful truth commissions created by executive action include most Latin American commissions, Morocco, and Timor-Leste (under UN administration).
• Establishment by the legislature may reflect broader political support and institutional strength. However, the legislative process can be slow and is often subject to unpredictable negotiations that could affect the integrity of a commission’s mandate. Most African commissions, including South Africa’s, were established by parliamentary action.
Canada is the only case of a truth commission created from a judicial process. Established to address the forced assimilation of indigenous children, it was the result of a court-mediated negotiation between Canadian civil society, churches, and the government, which concluded in a comprehensive settlement, including material compensation to survivors and memorialization initiatives.
Objectives of Truth Commissions
The objectives of a truth commissions are outlined in the legal instrument that established it, often a law or some form of executive decree. These may be expressed in different ways, reflecting the priorities or circumstances of each country.
Three objectives are fundamental:
1. Truth commissions should establish the facts about violent events that remain disputed or denied.
2. Truth commissions should protect, acknowledge, and empower victims and survivors. Commissions establish a relationship with victims and survivors not only as informers, but also as rights-holders, partners, and as people whose experiences deserve recognition.
3. Truth commissions should inform policy and encourage change in the behavior of groups and institutions, thus contributing to social and political transformation.
The final recommendations of a truth commission try to identify and address the causes of abuse and violations in order to prevent their recurrence. Closely related to this objective, some commissions consider reconciliation between former rival communities to be of primary importance.
The case of Lebanon
Victims can request a Truth Commission either through the Government or through the Parliament – pressure and lobbying together with an assistance from the UN or the EU might make it possible.
The possibility of an internationally-assisted/appointed Truth Commission should be explored.
Public Inquiries – the UK model
Information collated from: From: https://www.instituteforgovernment.org.uk/explainers/public-inquiries
The information below is based on UK experience where Public Inquiries are quite common. The model would have to be adapted to Lebanon, with the assistance of the international community.
What is a public inquiry?
Public inquiries are major investigations – convened by a government minister – that can be gifted special powers to compel testimony and the release of other forms of evidence.
The only justification required for a public inquiry is the existence of “public concern” about a particular event or set of events. Inquiries have addressed topics as wide-ranging as transport accidents, fires, the mismanagement of pension funds, self-inflicted deaths in custody, outbreaks of disease, and decision-making that has led to war.
What is the purpose of a public inquiry?
Jason Beer QC, the UK’s leading authority on public inquiries, argues that the main function of inquiries is to address three key questions:
- What happened?
- Why did it happen and who is to blame?
- What can be done to prevent this happening again?
All inquiries start by looking at what happened. They do this by collecting evidence, analysing documents and examining witness testimonies.
Inquiries then often draw on experts and policy professionals to help them form recommendations. These are intended to guide the Government and others to make the changes which will prevent recurrence.
What do public inquiries cover?
Each public inquiry begins when its terms of reference are set out. These are specific instructions outlining the questions that the inquiry should address, the types of information and feedback that the Government wants, and often a sense of when the inquiry should issue its report.
Increasingly, inquiry chairs consult on the terms of reference with individuals and groups affected by the issue. Partly because of this, terms of reference have been growing longer and more detailed.
The case of Lebanon
- The victims of the Beirut Blast could draft the terms of reference for an inquiry led by international experts (with or without the participation of Lebanese experts) and possibly supervised by the UN or the EU.
- A law would probably need to be passed in order to allow this inquiry access to relevant documents and to give them power to summon witnesses
- International assistance should be sought in terms of funding.