BACKGROUND:

The charges against Kamal el Batal, executive director of MIRSAD, and Ziad Mugraby, manager of Destination, originated with a police campaign to close a gay Lebanese web site. This campaign has now escalated from harassment to the threat of imprisonment. Their prosecution before a military court, on the grounds that they insulted the police, circumvents and flouts their fundamental right to a fair trial.

This harassment began on Monday, April 3, 2000, in Beirut, Lebanon, when two plainclothes police officers from the Police des Moeurs (vice squad) entered the offices of Destination without a search warrant . They identified themselves as acting under orders from the Beirut prosecutor, Mr. Joseph Maamari, to collect information on the persons or persons who financed or installed a website at a specific internet address. The web page at this address had content related to the Lebanese gay community, with chat spaces as well as information on the need for legal reform.

Later conversations between Destination's attorney and the head of the vice squad indicated that police had no evidence that Destination was connected to the website, which in fact was hosted in the United States; indeed, the officer appeared to confuse the internet service provider with a television broadcasting service. Nonetheless, Ziad Mugraby, Destination's general manager was ordered to appear at the Hobeich police station for further interrogation.

The next day, on Tuesday, April 4, 2000, Mr. Mugraby went to the Hobeich police station accompanied by a lawyer. One of the officers who had entered Destination's offices, a captain, interrogated Mr. Mugraby further. Part of the interrogation was conducted in a threatening and offensive manner, and the lawyer was barred from attending with his client.

On the morning of Monday, April 17, 2000, Mr. Mugraby was summoned again to the Hobeich police station. The vice squad officers brought a consultant from the police headquarters, Major Jacques Bakayev, as a technology information expert to interrogate Mr. Mugraby. Police threatened that, unless they received information about the names and whereabouts of the owners of the IP address, Destination would be shut down by order of the Beirut prosecutor. Prosecutors have no such power under Lebanese law, according to MIRSAD.

The police finally released Mr. Mugraby. He and Destination were given until Thursday, April 20, 2000, to reconsider and provide the information required. MIRSAD, a major Lebanese human rights organization, came to the defense of Destination, issuing a protest on April 18, 2000; and IGLHRC joined MIRSAD in sending out an action alert, deploring the actions of police in entering Destination's offices without a proper warrant, and harassing and detaining its personnel.

These police actions are part of a long-standing pattern of hostility not only to gay and lesbian communities, but to freedoms of expression and association in general. The Lebanese penal code criminalizes "unnatural" sexual acts, and the Lebanese justice system is generally unsympathetic to gays. However, homosexuality is not a crime per se in Lebanon. To the contrary: the Lebanese Constitution and the Universal Declaration of Human Rights protect the freedom of all people to associate and to express themselves.

However, those freedoms are unevenly enjoyed, at best, in Lebanon. When IGLHRC and MIRSAD issued their action alerts in April, both were concerned that harassment of Destination in fact only marked the beginning of a general campaign to institute censorship in Lebanon, camouflaged behind an attack against a relatively weak and marginalized group. Evidence suggested that Syria, which exercises a strong influence over Lebanese affairs, wished to tighten its control and censorship over telecommunications, particularly the internet.

Meanwhile, police continued their interrogations in this case. On July 21, 2000, Kamal el Batal, director of MIRSAD, was summoned by the police to the Hobeich Police Station. He was questioned about MIRSAD's condemnation of the police harassment of Destination.

This was followed by direct action against both Destination and MIRSAD. The civilian prosecutor in Beirut, Joseph Maamari, sent the file to the office of Lebanon's military prosecutor, General Nasri Lahoud. On August 5, 2000, the military prosecutor brought charges under Article 157 of the Lebanese Military Penal Code against Mr. el Batal of MIRSAD, and Mr. Mugraby of Destination, accusing them of "tarnishing the reputation of the Police des Moeurs by distributing a printed flyer." Article 157 of the Lebanese Military Penal Code carries a penalty of imprisonment from three months to three years.

The basis for the charges was flimsy in the extreme. According to reports, Major Jacques Bakayev--the "technical consultant" brought in by the Police des Moeurs for the April 17 interrogation of Mr. Mugraby--subsequently received a phone call from a human-rights supporter, concerned about threats Bakyayev had reportedly made during the questioning. Major Bakayev apparently determined that the source of these reports was MIRSAD's call for action, and later received an e-mail containing that call for action. This (not a "printed flyer") is the document on which the military prosecutor's accusations are based.

Still more serious, though, is the practice of trying civilians before military courts. Article 157 of the Military Penal Code protects the Lebanese army and flag against defamation. It reportedly contains no mention of the Police des Moeurs - a non-military police force - nor of other non-military security forces. Why, then, did Mugraby and el Batal face military charges?

Because the military itself decides on its own power to arrest and try civilians. The trial, which opened on September 25, was repeatedly postponed as defense attorneys questioned the military tribunal's jurisdiction. On January 5, however, Brigadier General Maher Safieddine, head of the tribunal, issued his own ruling n the matter. He held that the court could indeed try civilians who had defamed the Police des Moeurs. He based this on paragraph 4 of Article 157, which stated that in matters relating to the honor of the flag and army, internal security forces--although civilian in status--were covered by extension.

Defense attorneys objected strongly. They noted that paragraph 4 had been deleted from Article 157, in an amendment dated July 8, 1971. The military, however, arrogated to itself the right to fix the limits of its own jurisdiction---and to resurrect legal provisions discarded thirty years before. The military does not abide by the law: it decides it.

IGLHRC deplores the fact that the persecution of Kamal el Batal and Ziad Mugraby has led to an unjust and intimidating sentence. The right to free expression is basic to the Lebanese Constitution. The Lebanese Constitution of 1943 (as amended in the years after the civil war) enshrines respect for individual rights and freedoms. Paragraph (c) of the preamble added to the Lebanese Constitution on 21 September 1991 provides that "Lebanon is a democratic parliamentary Republic, based on respect for public freedoms, foremost among which is freedom of opinion and belief, and on social justice and equality of rights and obligations among all citizens without distinction or preference." Furthermore, Article 13 of the Lebanese Constitution also protects the right to freedom of expression "by word or pen, freedom of the press, freedom of holding meetings, and freedom of association." The Lebanese government violated these provisions in attempting to suppress a web site, and in harassing the internet service provider which it believed to be hosting that site.

In addition to these protections within the Lebanese legal system, the right to freedom of expression is strongly established in international law. Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR)--the latter of which Lebanon has ratified and is bound by--affirm this fundamental freedom, violated by the Lebanese government's harassment.

Moreover, Lebanon has both continued and compounded that violation by convicting Mr. el Batal and Mr. Mugraby for their legitimate and indeed necessary actions in calling attention to police abuse of power. The United Nations' "Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms" guarantees to all the right "freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms" (Article 6.b). It also holds (Article 12.2,3) that "The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration . . .In this connection, everyone is entitled, individually and in association with others, to be protected effectively under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms." The Lebanese government's abusive actions will exert a chilling effect on all human rights defenders within the country.

Particularly ominous is the decision to try Mr. el Batal and Mr. Mugraby before a military court, on the pretense that they defamed the police. Military trials have become widespread in Lebanon, revealing an increasing and dangerous erosion of the administration of justice in that country. On the day of Mr. Mugraby and Mr. Batal's trial, the military tribunal heard a total of 93 cases. Of these, only 24 involved military defendants. The rest were civilians. A military court provides no neutral administration or investigation. Rather than preserving the ordinary judiciary's independence of executive authority, the military is an enforcing arm of the executive branch.

The unacceptability of such trials is also established in international law. Principle 5 of the United Nations' "Basic Principles on the Independence of the Judiciary" holds that "Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals" (emphasis added). Moreover, the United Nations Human Rights Committee has condemned the use of military tribunals against civilians-most notably in a number of communications against Uruguay, in which the Committee held that this practice could only be justified in the most exceptional circumstances, failing which it violated Article 14.1 of the ICCPR. That Article states, "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." The reliance on military charges and a military tribunal in this case is a blatant attempt not only to continue the harassment of Mr. el Batal and Mr. Mugraby, but to deny them equality before, and fair treatment by, the law. It is also a barely veiled attempt to threaten all the human rights activists in Lebanon who might dare to speak out against their government's abuses. IGLHRC demands an end to the practice of military trials in Lebanon, and an end to the harassment of Kamal el Batal and Ziad Mugraby.

ACTION:

Please send letters and/or faxes ( A SAMPLE LETTER FOLLOWS) to the following officials of the Republic of Lebanon urging:

1. revocation of the unjust sentences handed down to Mr. Kamal el Batal and Mr. Ziad Mugraby; 2. the enactment of effective laws guaranteeing and promoting freedom of expression; 3. an end to the trial of civilians under grossly unfair procedures before irregularly-constituted military tribunals; and 4. rigorous adherence to Lebanon's obligations under the various international human rights treaties to which it is a party, as well as under customary international law; 5. an end to discriminatory treatment and harassment of gay, lesbian, bisexual, and transgender people in Lebanon, and clear legal protection of their basic rights, including the right to freedom of expression.

Please send letters and/or faxes to the following officials of the Republic of Lebanon:

His Excellency Emile Lahoud, President of the Republic of Lebanon,

The Presidential Palace Baabda Beirut, Lebanon, +961-5-451217, opendoor@presidency.gov.lb

His Excellency Salim el Hoss, Prime Minister of the Republic of Lebanon,

Grand Serail rue des Arts et Métiers Sanayeh, Beirut, Lebanon FAX: +961-1-602020; +961-1-354929; +961-1-865630, marasem@pcm.gov.lb

Joseph Chaoul, Minister of Justice,

rue Sami Solh Beirut, Lebanon FAX: +961-1-425670, +961-1-427957 , minister@justice.gov.lb, justice2@justice.gov.lb

Ghazi Zeaiter, Minister of Defense

+961-1-424161; +961-5-951014; +961-1-616401, cmdarm@lebarmy.gov.lb

Or contact the Lebanese Embassy or Consulate near you.

Please send copies of your letters to:

IGLHRC

1360 Mission Street,
Suite 200,
San Francisco,
CA 94103 USA
fax: +1-415-255-8662

as well as to:

MIRSAD

P.O. Box 11-6856,
Beirut,
LEBANON