By implicating politicians, longtime judge Fadi Sawwan had crossed a red line and entered into a standoff he simply could not win
L’Orient-Le Jour / By Jeanine JALKH, Nada Maucourant Atallah, Anthony SAMRANI
The bombshell came around 1 p.m. on Thursday, Feb. 18: Fadi Sawwan, the lead investigator into the Beirut port blast, the most complex case in the history of Lebanese justice, was removed from his post by the sixth criminal chamber of the Court of Cassation.
The Court of Cassation responded to the requests of Amal-affiliated MPs and former ministers Ali Hassan Khalil and Ghazi Zeaiter to remove Sawwan, citing legitimate suspicion. Sawwan had charged both with criminal negligence in relation to the port explosion.
In a country where the political sphere intervenes in everything on a daily basis, without even the need to hide it, the decision to remove Sawwan was nonetheless received with great suspicion and anger.
Let us begin with the composition of the sixth criminal chamber of the Court of Cassation.
Judge Joseph Samaha, the president of the Criminal Court of Cassation, has a reputation for being a man of integrity and a distinguished judge. He had retired a few months ago.
In order to replace Samaha on a provisional basis, the Higher Judicial Council — of which eight out of 10 members are appointed by decree in the cabinet and which can only pass decisions by a majority vote — nominated Jamal Hajjar, who is considered to be close to Prime Minister-designate Saad Hariri. Hajjar declined to respond to L’Orient-Le Jour’s inquiries.
Given the sensitive nature of the case, François Elias, who also belongs to the same chamber, preferred to step aside, as the code of criminal procedure allows him to do so.
He was replaced three weeks later, after “several names were discarded,” according to a source familiar with the case.
Finally, it was Yvonne Bou Lahoud — a judge with a fairly good reputation specialized in civil rather than criminal matters — who took over the case. Her decision, however, would be pivotal in nominating a new investigator.
Like Hajjar, she approved the removal of Sawwan against the advice of Fadi Aridi, the third judge of the sixth chamber, who was trained under Samaha’s wing.
The decision was taken by a two-thirds majority. The court had thus decided: Sawwan was dismissed. For what reasons? We will come back to this later.
The news came as a bombshell in the judicial sphere as everyone feared the impact it may have, not only on the continuation of the investigation but also on the entire justice system.
“It was as if the justice system was shooting itself in the foot,” says Chucri Sader, a former president of the Shura Council, Lebanon’s top administrative court.
Between the lines, the message was crystal clear: the Court of Cassation told Sawwan that he had crossed a red line by implicating politicians.
“The court’s decision was discouraging to a judge who wanted to act independently. This might have an impact on this case and all other cases,” says Nizar Saghieh, the head of Legal Agenda, a research and advocacy group.
The removal of the lead judge appears to be the result of a monthslong standoff in the shadow of an investigation in which much of the political class has a lot to hide and to lose.
Higher Judicial Council veto
Young volunteers were still clearing the streets of ash and debris produced by the blast, which left more than 200 dead and 6,500 injured, when President Michel Aoun dismissed on Aug. 7 any possibility of an international probe into the explosion. It would “dilute the truth,” he said.
In the absence of such an option, many feared that the truth would never be revealed in a country where assassinations are carried out with total impunity.
“The Lebanese justice system is infiltrated and does not have the means to carry out an investigation of this scale,” says Sader.
The stakes were high. But the people, still in shock, were not in a position to lead this battle that should mobilize the street. The political establishment won the first round hands down.
The authorities’ stranglehold on the local justice system gave them confidence that they could control the investigation, starting with the designation of the judge leading it.
In this process, the minister of justice proposes a name that must be approved by the Higher Judicial Council, in which all political parties are represented, which, in turn, opens the door to political interference in major legal cases.
Souheil Abboud, the head of the Higher Judicial Council, is an independent judge who seeks to reform the judiciary.
But he is quite alone among other judges, all of whom maintain privileged relations with politicians. Foremost among this cohort is Ghassan Oueidat, the country’s chief prosecutor, who is close to Hariri.
L’Orient-Le Jour contacted Oueidat and Abboud in relation to this article, but both declined to comment.
In the wake of the explosion, Justice Minister Marie-Claude Najm first proposed Samer Younes, a young judge determined to shake up the system, to lead the investigation. The Higher Judicial Council vetoed the proposal.
Najm then proposed Tarek Bitar, another judge of the new generation seeking to detach himself from politics, but with a less revolutionary profile on paper. But during the hearing with the Higher Judicial Council, Bitar reportedly expressed reservations about his nomination, prompting the council to turn him down.
The choice ultimately landed on Sawwan, a judge born in 1960, who, ostensibly, would cause no trouble.
During his long career at the military tribunal, where he cultivated his inclination for discretion, Sawwan learned how to navigate his way through these troubled waters, where the law is entangled with political interests.
While Sawwan managed to preserve his independence despite everything, he never challenged the established order, which raised doubts as to his ability to resist pressure in a case as sensitive as that of the explosion of 2,750 tons of ammonium nitrate at the Beirut port.
Privilege of immunity
Everything about this case is fundamentally political. In summary, the investigating judge must answer three essential questions:
• Who imported the ammonium nitrate to Beirut? A chemical with such a high concentration of nitrogen can only legally enter Lebanese territory after a decision by the cabinet.
• Who is responsible for storing the chemical in unsafe conditions for six years?
• And finally, what was the cause of the Aug. 4 explosion?
For lack of means, Sawwan — who also declined to comment to L’Orient-Le Jour — concentrated, a priori, most of his effort on the second question.
The lead investigator worked in extreme secrecy and enjoyed great powers. As soon as he was appointed, he detained 25 people without justifying the reasons for their arrest, including Maj. Joseph Naddaf, head of the port’s State Security office, who had alerted authorities to the danger of the unsafe storage of ammonium nitrate at the port.
As weeks went by, Sawwan’s working methods became increasingly enigmatic. He did not hold any press conferences and only appeared in one picture showing him standing sideways with army chief Gen. Joseph Aoun.
Was he in a position that he could not share more information? This question continues to raise controversy. Sawwan was clearly bound to respect the secrecy of the investigation.
But, Najm said, “given the scale of the disaster, it was possible to take a less classic view and address the public to convey certain information. I had proposed this to the chief prosecutor and the public prosecution, but I could not impose it nor do it myself, of course. The justice minister does not naturally have access to the content of the case.”
The information that did emerge in the media might have suggested that Sawwan was only preying on the small fish and sparing the bigwigs.
But this was a false impression. In fact, supported by the bar association and civil society organizations, Sawwan on Dec. 10, 2020, charged former Finance Minister Ali Hassan Khalil, former Public Works ministers Youssef Fenianos and Ghazi Zeaiter, as well as caretaker Prime Minister Hassan Diab — a first in Lebanon.
Once more, no information was communicated to the public, except for what was leaked to the press. The four politicians were charged with criminal “negligence” — an important piece of information to remember for the rest of the story.
“The defendants had received several written reports warning against procrastination in getting rid of the ammonium nitrate,” a judicial source told AFP. All of them decried the decision and condemned it as unjust, claiming that the judge had violated the laws and the constitution.
As sitting MPs, Khalil and Zeaiter benefit from the immunity provided for in Article 40 of the constitution, which stipulates that “no member of Parliament may be prosecuted or arrested during the session for committing a crime, unless authorized by Parliament, except when caught in the act.”
Here, it is also important to remember this part for later in the story.
If impeached by a two-thirds majority of Parliament, the prime minister and ministers must be tried before the Higher Council, a special judicial body.
As former ministers and a resigned prime minister, the accused could still benefit from a corrupt regime.
But the law had changed since the early 2000s, notably after the Barsoumian case — involving former Industry Minister Shahe Barsoumian, who was sentenced to 11 months in prison — and now says that regular legal proceedings ought to take place as long as Parliament does not decide to take up the matter.
It was this law that Sawwan relied on in his investigation.
At the end of November 2020, the lead investigator called on Parliament to investigate several current and former ministers suspected of having failed in performing their duties.
Parliament, however, rejected his request. Sawwan was prompted to charge politicians.
This was denied at the time by the legislature’s secretary-general, Adnan Daher, who is close to Speaker Nabih Berri.
A few weeks later, however, Deputy Parliament Speaker Elie Ferzli admitted that Sawwan did indeed make the request but Parliament refused to comply, citing lack of documents and evidence supporting the accusations.
Lack of political intelligence
Up until December, the case appeared not to garner much interest from the political sphere, but leveling accusations against four politicians unleashed a series of reactions.
Playing on sectarian sentiment, Diab was quick to claim that Sawwan’s charges targeted not only him personally, “but his post” as a prime minister — a call for help to the Sunni leadership
Diab drove his message home. The next day, Hariri, Grand Mufti Abdel-Latif Derian and former prime ministers Tammam Salam and Fouad Siniora came to his rescue.
Could the story get any more ironic?
All these figures had taken a very dim view of Diab’s appointment as prime minister, viewing him as a puppet in the service of Hezbollah and the Aounists.
For months, Hariri had made no secret of his disdain for this “technocrat” who had the ambition to challenge him for the leadership of the Sunni community.
But sectarian sentiment has its reasons that politics ignores. On Dec. 11, 2020, Hariri visited the Grand Serail — for the first time since Diab’s appointment — to offer his support.
On the same day, Hezbollah issued a statement accusing Sawwan of politicizing the probe. The lead investigator was in the hot seat. He had entered a standoff that he could not win.
And by maintaining a wall of silence, Sawwan was playing into the hands of his opponents who accused him of being a tool serving the Aounists.
Why was the president not implicated too? Why did he choose to charge these four politicians if the responsibility for storage spans six years?
Sawwan was not acting as an amateur, according to several sources familiar with the case.
“There was nothing suggesting that he was not going to implicate other political figures later on,” says one of these sources.
It was obvious, however, that the lead investigator lacked political intelligence by throwing a stone into the pond and hoping that it would not sink.
“He has every reason to question these officials, including Hassan Diab. But the nitrate has been stored in the port for six years and [Diab] has only been there for a year,” says Moustafa Allouche, a vice president of the Future Movement.
On Dec. 13, 2020, Maronite Patriarch Bechara al-Rai supported Sawwan and called on the political class not to interfere.
The next day, Diab refused to appear before the judge for investigation and Oueidat recused himself as prosecutor in the explosion investigation as he is the brother-in-law of Zeaiter, one of the accused.
Both Amal MPs, who declined to comment to L’Orient-Le Jour, refused to appear for questioning on Dec. 16, 2020. The next day, they lodged an appeal against Sawwan before the Court of Cassation on grounds of legitimate suspicion.
The same evening, demonstrators held a sit-in outside Sawwan’s house in a show of solidarity with his approach. But it was already too late.
In less than a week, Sawwan lost his bet. The investigation came to a halt. His days as a lead investigator were numbered.
“Fadi Sawwan has proven that if a judge wants to work with integrity and independence, he can do so even under the current circumstances,” says Akram Azouri, a criminal lawyer, defending Sawwan’s approach to the probe.
‘The investigation is now closed’
On Dec. 30, 2020, Sawwan, pressured by the Court of Cassation, handed over the investigation dossier.
On Jan. 11, the court returned it to him after having rejected the two MPs’ request to suspend the probe — a move perhaps intended to calm public opinion. The investigation was all set to resume, only to be rocked by yet another turn of events.
The next day, Al-Jadeed published the results of a long investigation indicating the involvement of three Syrian businessmen (Georges Haswani and Imad and Moudallal Khouri), who are close to Syrian President Bashar al-Assad, in the transport of the ammonium nitrate cargo to the Beirut port.
The shadow of the Syrian regime hung over the port blast and cast further doubts on the Lebanese justice system’s ability to bring out the truth.
A few days later, Hezbollah Secretary-General Hassan Nasrallah said in a speech that the “investigation is now over.”
Reflecting on this comment, Saghieh asks, “How can a politician order the investigative judge like this?”
“This shows that he especially does not want anyone to know who imported the [ammonium] nitrate, on whose behalf and for what purpose,” he argues.
On the fateful date of Feb. 18, the justice minister learned from the press that Sawwan had been removed.
“I never interfered or asked any questions about the content of investigation, out of respect for the independence of the judiciary. If there is political pressure, I ask the judge to speak out and denounce it,” Najm says.
But an Amal MP, who asked not to be named, contends “there is nothing political about this whole thing, it’s just technical.”
Let us then focus on the technical aspect of the case. It is complex, a little off-putting, but essential to understand what happened before the sixth chamber.
‘Two ridiculous assumptions’
The sixth chamber was supposed to judge whether or not Sawwan’s behavior warranted questioning his impartiality, but it did not assess the legality of his approach, since it was dealing with a recusal appeal and not an appeal in cassation.
This was what Aridi would explain when he opposed Sawwan’s removal.
The court has thus been derailed from its role, according to several judicial sources familiar with the case, who consider that its ruling did not have sufficient legal basis.
Why is that? Because the grounds of its decision were not solid. “There was a will to drown the fish, and the court based [its decision] on two ridiculous assumptions to remove Sawwan,” Sader says.
These “ridiculous assumptions” are first of all the fact of believing that his house, where he used to live, and which belongs to his wife and was damaged by the explosion, might compromise his impartiality in carrying out the investigation.
“This decision sets a very dangerous precedent as it might become the rule in the future, especially in lawsuits against banks. Which judge does not have a bank account?” warns a source familiar with the matter.
But the court mainly based its decision to remove him on the assumption that Sawwan failed to respect parliamentary immunity.
The lead investigator had in fact said that “he would not be deterred by any immunity or any red line,” which, according to the court, was a “flagrant violation of the law.”
But Sawwan had indeed justified his motives in charging the politicians. First, he was prosecuting them in their capacity as former ministers and not as sitting MPs, and second, immunity did not apply in their case anyway.
“Fadi Sawwan based [his decision] on the law that distinguishes between deliberate negligence and unintentional negligence. In the first case, [parliamentary] immunity does not apply,” Saghieh explains.
Another source familiar with the matter says, “In any case, if they wished to challenge [the decision] of being summoned for interrogation on the basis of their parliamentary immunity, both MPs could have requested their lawyer to do so through what is called a procedural exception.”
The source explains that “if immunity was maintained, Fadi Sawwan would then have been forced to request [Parliament Speaker] Nabih Berri lift it or ask the bar association for permission to prosecute them. But [the two MPs] did not follow this procedure.”
The war is far from over
By showcasing the sanctity of parliamentary immunity, thus contradicting its own case law, the court gave a golden gift to the entire political class, and not only the concerned MPs, amid calls for those in power to be held accountable.
“We know for a fact that the issue of immunity has fueled impunity in the country for 30 years,” Saghieh says.
But is this enough to deal a fatal blow to the investigation? Not really.
A few hours after the decision to remove Sawwan was announced, the families of those killed in the explosion were able to transform “a legal setback into a small victory.” They demonstrated and mobilized en masse against the decision, prompting the justice minister and the Higher Judicial Council to agree to appoint a new investigator in less than 24 hours.
Bitar, a judge with a considerable reputation, replaced Sawwan.
For its part, the Beirut Bar Association is looking into possible loopholes that would allow for an appeal to annul the decision of the Court of Cassation, “to prevent this from creating a precedent and to protect Tarek Bitar in his mission,” says a lawyer close to the bar.
Politicians have won a battle, but the war is far from over.
On March 2, the families of the victims held a press conference in which they requested that Bitar release the results of his investigation within three weeks.
Above all, they sent a warning to anyone who would try to get between the lead investigator and their thirst for justice: “We will not allow what happened with Fadi Sawwan to happen again. In the event of further political interference in the probe, we will head directly to the officials obstructing the investigation.”
This article was originally published in French in L’Orient-Le Jour. Translation by Sahar Ghoussoub.