BEIRUT: Earlier this year, Ziad Itani, a well-known actor, was detained for six days during which time he alleged he was tortured before being turned over to a court.
He was held in solitary confinement in a detention center for 54 more days before ultimately being released without charge.
In 2017, 14 civilian protesters were charged and detained for rioting and destroying property following demonstrations over the 2015 trash crisis; the court that charged them ultimately ruled it didn’t have jurisdiction over the case.
But neither case took place in a regular civil or criminal court, and neither was presided over by an independent civilian judge. Rather, they are two high-profile examples of the trial of civilians in Lebanon’s secretive Military Court system, in front of a military judge.
Allegations of mistreatment and torture within this system remain unaddressed, and experts warn the court’s jurisdiction over civilians for certain crimes goes against fundamental standards of justice. These experts have expressed hope that if and when a government is finally formed, politicians may finally get around to addressing the issue.
The trial of civilians in Lebanese Military Court is technically legal under Articles 24 and 27 of the Lebanese Code of Military Justice, passed in 1968. As a May briefing paper from the International Commission of Jurists notes, Lebanon’s Military Court can try “civilians as well as military personnel for a wide range of offenses.” Such offenses include crimes against national security; terrorism-related crimes; damaging military equipment; crimes committed against a member of the military, the Internal Security Forces or General Security; and offenses committed by civilian employees of military or security institutions.
But many experts say that rather than building faith in the judicial system by holding demonstrably fair trials for specific crimes, military courts struggle to overcome bias when trying civilians. In fact, several international legal instruments proscribe the trial of civilians by military courts.
The so-called Decaux Principles, for instance a set of guidelines on military courts adopted by the United Nations in 2006 and invoked by prominent supranational courts including the European Court of Human Rights state: “Military courts should, in principle, have no jurisdiction to try civilians.”
The International Covenant on Civil and Political Rights, to which Lebanon is a party, states that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
The Human Rights Committee, authorized to monitor compliance with the covenant, has found in general that the “trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned.”
Even so, in Lebanon the number of civilian cases that go before the Military Court remains “very high,” according to Georges Ghali, executive director of Lebanese human rights NGO ALEF. The state has not released any official figures, he says, but they “remain archaically stored in handwritten form.” Ghali emphasized military courts are not assuming jurisdiction where they do not legally have it “it’s simply that their jurisdiction [is] very wide.”
Caretaker Defense Minister Yaacoub Sarraf, whose ministry oversees the Military Court system, declined to answer any questions from The Daily Star for this story.
In Lebanon, the structure of the courts can be a barrier to civilians’ receiving a fair trial. As a 2017 report from Human Rights Watch notes, “The dominance of military judges without required legal training, the subordinate rank of some judges, and the fact that military judges remain answerable to the defense minister, undermines the competence, independence and impartiality of the courts.” A military judge, for instance, might find himself under pressure to rule in favor of a more senior military colleague if the latter were to face trial.
Furthermore, civilians brought before the Military Court are not guaranteed the same rights they are entitled to in civil courts.
As Myriam Mehanna, a legal expert with Lebanese NGO the Legal Agenda, says, “When a civilian who’s not [affiliated with the] military goes before a court that is composed largely of military, there’s something wrong with the appearance of independence.”
In the Military Court, hearings are normally public, just as they are in civil courts, but the judges have the full discretion to conduct hearings in secret. As a 2016 report from ALEF notes, the lack of criteria specifying which hearings should be conducted in secret is “a clear violation of international standards of a fair trial.”
The HRW report documented numerous other fair trial violations as well, such as interrogations without the presence of a lawyer, ill-treatment, confessions extracted under torture and a limited right to appeal.
The report documented 10 instances of alleged torture.
“From recurrent allegations and reports we received, there [are] certainly problems in matters of torture,” Ghali said. While he emphasized that it has not been possible to verify such claims, “these allegations remain unaddressed.”
Ghali also told The Daily Star that while certain good practices exist in the Military Court system, they depend on the whims of Lebanese Army commanders, rather than a legal framework. By contrast, “in civil prisons or detention facilities [the system] is regulated by a law.
“There’s a decree that identifies the rights of the detainee ... how to carry out visits and such matters.”
According to Ines Osman, legal coordinator at the Geneva-based human rights NGO Alkarama, “Too often, individuals brought before military courts [in Lebanon] were previously detained incommunicado [denied contact with their family and lawyer] by the military intelligence, and forced to sign confessions extracted under torture.”
In an attempt to remedy the issue, a number of draft laws that lay out varying approaches to how the Military Court should handle civilian cases are currently before Parliament. The author of one such law, ex-MP Robert Ghanem, told The Daily Star the legislation he drafted intends to create a firm distinction between the jurisdiction of the civil court and the Military Court: that only civilians accused of acts of terrorism and acts against the state would be tried in the Military Court.
“We kept terrorism and any act of terrorism and any act against the state [under the jurisdiction of] the Military Court because they [operate] quickly and they are strong,” he said.
But even such qualifications to the trial of civilians in military courts do not always find favor: In 2008 the U.N. special rapporteur on the promotion and protection of human rights urged caution in trying terrorism cases in military courts because of concerns over the courts’ impartiality and independence.
Former Lebanese Forces MP Elie Keyrouz, the author of another proposed draft law, told The Daily Star his law was even more stringent. Under it, he said, “no civilian would be referred to the Military Court.”
“I want to suspend the existing Military Court law. As for civilians, they should be tried in front of the [civil] court, along with soldiers that commit nonmilitary crimes.”
Keyrouz said that although he is no longer an MP, he hopes that the LF’s greater presence in the current Parliament will increase the chances of his law being passed.
But, Mehanna said, many of the laws currently proposed to Parliament are too politicized. Instead of actually ensuring civilians get a fair trial, legislators want “more power in appointing judges. “For us, the important thing is to get the topic back to the fundamental freedoms of people,” she said.
However, Keyrouz’ draft law has won some admirers in civil society. Both Ghali and Mehanna told The Daily Star that his proposal was the only one that would address the problem of civilian trials in the Military Court in a comprehensive way.
“This is the only one when we talk about taking [civilians] out [of] the jurisdiction of the Military Court,” Mehanna said.