Update of War Crimes
The Sabra and Shatila Case in Belgium: A Guide for the Perplexed
Is the war crimes case against Ariel Sharon, Amos Yaron, and other Israelis and Lebanese still being pursued in Belgium’s courts?(1) Or have dramatic legal decisions coupled with blunt political pressures rendered the case lodged by 23 survivors of the 1982 Sabra and Shatila massacre an interesting though failed attempt at obtaining international justice? If the Belgian Supreme Court found in favor of the plaintiffs’ motion on 12 February 2003 to overturn a lower court’s ruling halting the case, why did world news headlines proclaim the following day that “the case against Ariel Sharon has been thrown out by Belgium’s highest court”?(2) If investigations have already been launched by Belgium’s judiciary to determine how and why more than one thousand innocent Palestinian and Lebanese civilians met such gruesome deaths 21 years ago, why did Ariel Sharon’s government return its ambassador to Belgium with an official statement expressing Israel’s satisfaction that the Belgian authorities had finally halted a “cynical attempt” to politicize and exploit its courts? And why did Sharon and Yaron, a few weeks later, withdraw from all judicial proceedings after two years of legal battles?
Surprising court decisions in Brussels and the Hague taken
in a particularly volatile international political context have
ensured that those working on and following this landmark case have
remained perched on the edge of their seats, experiencing one
judicial cliff-hanger moment after another. As an exasperated
observer noted, “If you aren’t manic-depressive when you start
following all the dramatic ups and downs of this case, you soon
will be!” It is no surprise, then, that even seasoned journalists
and well-informed policy analysts are unsure of the precise status
of this case, particularly since no small amount of media spin has
been devoted to minimizing the case’s significance, or even
obfuscating what was really happening in the Belgian courts.
In addition, many observers are uncertain about how recent Belgian
legislative developments might affect this case. The Belgian
Parliament passed an interpretative law in April that updates
Belgium’s 1993 and 1999 universal jurisdiction laws (also known as
“Anti-Atrocity laws”), under which the Sabra and Shatila survivors
filed their complaint. So far it looks unlikely that these changes
will negatively impact the Sabra and Shatila case, though some of
the new changes introduced by this legislation (discussed below),
present the risk that Belgian and foreign political pressures may
be brought to bear on this and other cases.
The levels of analysis required to understand this rapidly evolving
case are multiple -- local, national, and international; legal,
historical, and political – as well as dynamic and constantly
interacting. Regardless of its final result, the repercussions of
this case are already global. , encoded in the Fourth Geneva
Convention, international customary law, and the 1984 Convention on
Torture, is grounded in an international legal consensus that some
crimes are so heinous that they threaten the entire human race. The
jurisdiction for prosecuting such violations must therefore be
universal, not simply territorial. The Geneva Conventions
specifically state that all signatories to the Convention have not
only the right, but also the duty, to either prosecute individuals
guilty of war crimes, crimes against humanity and genocide, or to
make sure they are extradited to a jurisdiction where they will be
properly tried.
Given the progressive evolution of international criminal law,
which has gradually placed more emphasis on defending the rights of
individual victims over the rights of states and state officials to
enjoy immunity from prosecution for war crimes and crimes against
humanity, a major collision of opposing ideas, interests, and
visions was inevitable. Much of the background story of the Sabra
and Shatila case is a narration of that collision.
Good News…
Reports announcig the death of this case have been greatly
exaggerated and persistent, but to date, categorically false. For
supporters of the growing global campaign against impunity for war
crimes and crimes against humanity, the good news is that the case
lodged by the Sabra and Shatila survivors is still very much alive,
although it has been affected by rulings of the International Court
of Justice, the wear and tear on Belgium’s bi-lateral ties with the
US and Israel, and a global political context that has sharpened
debate about war crimes, impunity, and the limitations and
requirements of international criminal prosecution. Although they
knew they were initiating something out of the ordinary and quite
dramatic when they lodged the case two years ago, neither the
plaintiffs nor their lawyers could have imagined what sort of
roller coaster ride awaited them. Nor could the Israelis and
Lebanese accused have imagined, as the stench of death spread over
a refugee camp in Beirut two decades ago, that some of the
impoverished and stateless refugees wailing over the corpses of
their loved ones on that hot September morning would eventually be
empowered by a European legal system to demand answers from them in
a Brussels courtroom.
Although Ariel Sharon enjoys temporary immunity from prosecution as
sitting prime minister of the State of Israel for the atrocities
committed in Sabra and Shatila, his former military aides and
assistants are starting to feel the heat of international justice.
Israeli leaders are very worried that legal proceedings may reveal
new and disturbing facts concerning the extent of the IDF’s
involvement in the massacre. Investigation has already begun
concerning the roles of top Israeli Defense Forces (IDF) officials
such as retired Generals Amos Yaron and Rafael (Raful) Eitan during
the massacre.
Lebanese Phalangist leaders are also the subjects of investigation,
although some key suspects have met mysterious and gory ends since
the case was first lodged. Elias Hobeika was killed on 23 January
2002 when it became clear to Sharon that he would testify in
Belgium.(3)
The 12 February 2003 Supreme Court ruling enabled a number of other
pending cases to move forward to the trial stage, most notably the
case against Hussein Habre and cases filed by families of Belgians
killed in Guatemala and Rwanda.
The next hearing in the Sabra and Shatila case is scheduled for 10
June 2003. Lawyers for the plaintiffs, in a 28 May Press Release
announcing that Ariel Sharon and Amos Yaron had capitulated
judicially by dismissing their legal counsel in Belgium, sounded a
note of cautious optimism in describing their expectations for the
case from this point forward:
If nothing else, universal jurisdiction in Belgium’s courts has enabled victims of grave human rights violations, such as the Sabra and Shatila survivors and the victims of Chad’s Hussein Habre, to turn Thucydides’ ancient adage about the calculus of war upside down: In war the strong may do as they will, and the weak may suffer as they must, but the latter will eventually see the former in court. |
A request for indefinite postponement of the case, lodged by Mr.
Adrien Masset, counsel for Messrs. Ariel Sharon and Amos Yaron, was
rejected by the Appeals Court's decision of 6 May 2003. On the very
eve of the new hearing of 27 May, Mr. Masset has just announced
that his clients will no longer participate in the pre-trial
hearings before the Appeals Court in Brussels…
In effect, the lawyer for the Israeli accused has just announced
their judicial capitulation. This latest move stands in sharp
contrast to the adamant claims made by the defense of Sharon and
Yaron in September 2002, when they accepted the legal debate with
the conviction that their legal arguments would prevail.
Now that they have failed judicially, the accused are resorting to
pressures on the purely political level….
We expect any newly formed Belgian government to remain outside
legal proceedings despite the open and persistent pressure of the
Israeli government to derail the course of justice. Since the case
was lodged on 18 June 2001, we have respected and protected, on
behalf of our clients, the judicial character of these proceedings.
Justice was consecrated in the decision of the Court of Cassation
(Belgium's Supreme Court) in the plaintiffs’ favor in its historic
decision on 12 February 2003, and the investigation should now
proceed accordingly.(4)
…and Bad News
The bad news is that recent legislation in Belgium, inspired in
large part by negative reactions to the Sabra and Shatila case, has
weakened Belgium's admirably progressive universal jurisdiction
law; it is now considerably less universal. To what extent it might
affect the Sabra and Shatila case is still unclear. The new
interpretative law passed on 5 April 2003 erects some new and
formidable obstacles to the prosecution of future cases by
requiring a nexus with Belgium. Either the victims or the alleged
perpetrators must now have some connection to Belgium. Civil
parties hoping to file cases as victims of crimes against humanity,
genocide, or war crimes occurring outside Belgium can now only
bring such cases if they have lived in Belgium for three years. The
public prosecutor may have been given discretion, under the
reinterpreted anti-atrocity legislation, to reject some cases
(Belgian officials stress that will be the exception, not the rule,
however.) If the accused lives in a democratic country with an
impartial judiciary capable of rendering a just ruling to the
victims in a fair trial, then Belgium will refer the criminal
complaint back to that country, or to the International Criminal
Court (ICC) if the crimes occurred after 1 July 2002 and in a
country that has ratified the ICC.
Perhaps most troubling, human rights activists and legal analysts
fear that the new legislation may unduly politicize cases by
breaching the necessary separation between Belgium’s judiciary and
the executive branch of government; the latter can now weigh in on
cases in which the accused is from the aforementioned class of
“democratic” countries. We have already witnessed the first
demonstration of the workings of this new procedure: Belgium
refused to investigate or prosecute a war crimes case against US
Army General Tommy Franks for war crimes committed in Iraq in March
and April of this year on the grounds that the US, despite its
refusal to sign the treaty establishing the International Criminal
Court, could be trusted to follow up on these accusations in its
own courts. Ironically, it was accusations about the politicization
of the Belgian courts by foreign interests under the original 1993
and 1999 anti-atrocity legislation and fears that Belgium was
taking on the role of the “world’s policeman,” that led to the
revisions encoded in the new interpretative law. It appears that
politics – real or perceived -- are inescapable when the pursuit of
international justice for war crimes is at issue.
If nothing else, universal jurisdiction in Belgium’s courts has enabled victims of grave human rights violations, such as the Sabra and Shatila survivors and the victims of Chad’s Hussein Habre, to turn Thucydides’ ancient adage about the calculus of war upside down: In war the strong may do as they will, and the weak may suffer as they must, but the latter will eventually see the former in court. |
The newly interpreted anti-atrocity law may narrow the
possibility of seeking justice for war crimes committed prior to
the establishment of the International Criminal Court last July.
Recent moves to limit cases of human rights violations brought
under the Alien Torts Claims Act (ACTA) in the United States would
also deny victims of war crimes yet another means of pursuing
international justice through national courts.
Two Steps Forward, One Step Back
In addition
to being the most high-profile case ever brought before the Belgian
courts under the 1993 and 1999 anti-atrocity legislation, the Sabra
and Shatila case has also been a bellwether case for international
criminal prosecution, a thorn in the side of those interested in
preserving smooth EU-Israeli, US-Israeli, and EU-US relations, and
a rallying point for a wide variety of organizations, causes, and
groups.
The Israeli government and its friends in some sectors of the media
made sure to trumpet the end of the case on three separate
occasions on three separate occasions -- following the 14 February
2002 ruling by the ICJ in the Congo v. Belgium case (concerning
Belgium’s issuance of an arrest warrant for Congolese Foreign
Minister Yerodia Ndombasi), which confirmed that sitting heads of
state and foreign ministers enjoy temporary immunity from
prosecution; following the 26 June 2002 Belgian Appeals Court
decision that the Sabra and Shatila case could not proceed because
the accused "were not found on Belgian soil"; and most recently
after the Belgian Parliament's April 2003 reinterpretation and
limitation of the 1993 and 1999 universal jurisdiction law in
response to a practical need to update the legislation in light of
the establishment of the ICC and add filters to prevent the filing
of spurious cases. These alleged near-death experiences inspired
premature and rather cheery eulogies from parties who were
obviously unnerved by the ghosts of Sabra and Shatila, but the
response outside Israel was far less supportive and credulous than
the Sharon government had hoped.
Shock and Awe at the Belgian High Court
And then the
Belgian Supreme Court (Cour de Cassation) brought much needed and
welcome clarity to the case, deciding on 12 February to side with
the Sabra and Shatila plaintiffs on the clear strength and clarity
of the 1993 and 1999 law. The massacre survivors had petitioned the
Supreme Court to review and reverse the 26 June 2002 Appeals Court
ruling that the accused had to be present on Belgian soil for an
investigation and trial to go forward. And the Supreme Court did
just that, awing human rights supporters while shocking the case’s
detractors, who, in a classic show of arrogance, had appeared in
force in the courtroom expecting to celebrate a victory for Sharon,
Yaron and others.
Scholars, activists, lawyers, and judges who have followed the
trajectory of universal jurisdiction for the last decade, not to
mention thousands of survivors of grave rights abuses throughout
the world, saw the 12 February Supreme Court ruling as comparable
in its implications and reverberations to Spain's bid to extradite
Chilean dictator Gen. Augusto Pinochet from the UK in 1998. Another
corner in the global campaign against impunity had been turned,
another precedent set in the living, growing, and tumultuous body
of laws, court decisions, and commentaries that constitute the
dynamic field of international criminal prosecution.
One Final Cliff-Hanger Moment?
One month after the plaintiffs and their lawyers were vindicated by
the Supreme Court decision, however, reports of a new case, one
even more controversial than that lodged against Ariel Sharon and
others, were on all lips in Brussels. On 18 March, a case was
brought with great publicity against present and former high-level
US government officials. This time the accused included President
George Herbert Walker Bush and Colin Powell, who were named as the
responsible parties in a U.S. attack on the al-Amiriyya shelter in
Baghdad during the 1991 Gulf War, where some 400 Iraqi civilians
died. The mover and shaker behind this case was allegedly none
other than former Iraqi Foreign Minister Tariq Aziz. What Iraqi
plaintiff, after all, would have dared to bring a case without the
Baghdad authorities’ permission? Who would have known full well
that the case would go nowhere, and be simply an embarrassment to
the Belgian government? Every supporter of universal jurisdiction
for war crimes and crimes against humanity, every defender of
Belgium's right and duty to pursue such cases through its courts,
was immediately put on the defensive by local and international
media and angry US officials.
Not only states, but also individuals and non-governmental organizations, have a stake in the future of international criminal prosecution. To be heard, they will have to organize, collaborate, initiate and delegate. In other words, they will have to take up a political role as advocates and educators, not only on the international level, but even more so at home. |
Bitter accusations about the vulgar politicization of judicial
proceedings in Belgium quickly replaced the previous month's
accolades from human rights organizations and Israeli cries and
whispers about the anti-Semitic nature of the Belgians. Some US
spokespersons and media pundits noted with relief how fortuitous it
was that President George W. Bush had had the foresight to withdraw
the US from the Rome Statute establishing the International
Criminal Court. They wondered how Belgium could find itself poised
to prosecute officials from a democratic country while leaving the
odious Saddam Hussein untouched, despite his clear and horrific rap
sheet of war crimes committed with malice aforethought, while the
US had never meant to commit any crimes, and could hardly be held
responsible for mere "collateral damage."
Ignored or silenced by these protestations were earlier attempts to
bring Saddam Hussein and his key military and intelligence
associates to justice in European courts by means of the principle
of universal jurisdiction. Such judicial attempts to clip Saddam
Hussein’s wings focused mainly on crimes committed against Iraqi
Kurds during Iraq’s genocidal Anfal campaign of the late 1980s, a
systematic, criminal assault on Iraqi citizens launched and
executed while Saddam was a friend and ally of the United States,
not to mention a recipient of considerable US financial and
military aid. Human Rights Watch and the Indict Campaign, among
others, had been at the forefront of a noble attempt, sadly aborted
during the last years of the Clinton Administration, to remove
Saddam Hussein from power through the precepts, principles, and
moral force of international human rights law rather than through
bombing campaigns and military invasions of dubious legality. And a
case against Saddam was indeed ready to go forward in Belgium under
the universal jurisdiction law. It had been lodged in the summer of
2001, just after the Sabra and Shatila case, and was bound to
benefit from the 12 February Supreme Court ruling.
At any rate, the Iraqi case against Bush, Sr. and Colin Powell
could not have come at a better time for the US and Israel, leading
some to joke darkly that perhaps Tariq Aziz had been an Israeli or
American agent all along. Within days, Belgian officials found
themselves on the receiving end of harsh lectures and alarming
threats from US diplomats and defense department emissaries who
were then haunting the halls of European capitals in the run-up to
America’s mid-March attack on Iraq. US Secretary of State Colin
Powell threatened to move NATO headquarters to Poland if
"politicized" cases against the US and its close allies in Belgian
courts were not halted forthwith.
Such arm-twisting helped to sway a number of Belgian MPs’ views
concerning the interpretative legislation that had already been
initiated to update and fine-tune the 1993 and 1999 anti-atrocity
laws. MPs from centrist parties who had earlier given verbal
support for minor changes to the 1993 and 1999 universal
jurisdiction law now changed their minds and voiced approval for
more far-reaching and radical changes to the law. Belgium’s
right-wing parties, largely representing Flemish regions, attempted
to parlay the new international balance of forces to their own
local and national advantage. They were suddenly empowered by US
and Israeli pressures to curtail the 1993 and 1999 anti-atrocity
legislation to a degree that few watching Belgian politics could
have predicted just six months earlier.
The Will and the Way: Politics are Inescapable
Assessing the strengths and weaknesses of the principle of
universal jurisdiction in practice, Amnesty International and Human
Rights Watch have both stressed the crucial role of national
governments' political will in aiding the successful prosecution of
international crimes in national courts. Recent events in Belgium
have illuminated some important socio-political dimensions of the
rapidly transforming international criminal prosecution
environment. Although the role of other states’ governments and
emissaries has already been discussed, such political pressures
from above are not the whole story. Grassroots’ pressures from
below have been equally crucial in shaping Belgium’s universal
jurisdiction legislation, and played no small part in the events
that led to last February’s dramatic decision by Belgium’s Supreme
Court.
The 26 June 2002 ruling by the Belgian Appeals court that Sharon,
Yaron and others could not be tried since they were not present in
Belgium sparked an unprecedented joint initiative by local,
transnational, and international human rights organizations as well
as members of the Belgian Parliament and government to save and
strengthen Belgium's 1993 and 1999 universal jurisdiction law. The
subsequent emergence of a grassroots, multi-party legislative
initiative did not bear all the fruits it seemed to promise,
largely as a result of sudden and unexpected US pressures following
the attempt to try former President George H.W. Bush. Yet this
attempt served as a good illustration of the key ingredients
required for the collaborative construction of the necessary
political will to prosecute war crimes, from the ground up.
The goal of advocates of halting impunity for war crimes must not
be to bring more and more cases to Belgium, but rather, to increase
and widen venues for the prosecution of war crimes, crimes against
humanity and genocide, whether by incorporating the principle of
universal jurisdiction formally into more states’ national criminal
code, or by urging more states to become signatories to the treaty
establishing the ICC.
As a result of the many lessons learned and the various legal
corners turned over the past two years, the International Campaign
for Justice for the Victims of Sabra and Shatila
(www.indictsharon.net) will be renamed “The International Campaign
for Justice in the Middle East” (www.icjme.net), acknowledging the
fact that an initial aim of the campaign, the indictment of Ariel
Sharon, was effectively achieved when the public prosecutor brought
the case forward on two separate occasions in the early and late
Summer of 2001, and the competence of the Belgian courts to look
into the hideous crime perpetrated in September 1982 was confirmed
by the 12 February Supreme Court ruling. Our campaign will continue
to focus and report on the continuing Sabra and Shatila case in the
Belgian courts, but will also collect, analyze, summarize and
disseminate information about international criminal prosecution
with a special focus on war crimes, crimes against humanity, and
genocide in the Middle East. We aim to recognize and responsibly
address the fact that politics cannot be separated entirely from
the pursuit of international justice at the local, national, or
international levels. We will aim to assist others in building the
political will -- from the ground up -- to halt war crimes and
other grave violations of human rights in the Middle East.
We will endeavor to foster and facilitate multi-national and
broad-based alliances of individuals and groups – Arab, Iranian,
Israeli, Turkish, European, Latin American, African, and North
American – who share a common concern to halt the toxic effects of
continuing impunity in this most volatile region of the
contemporary world, and who are ready to engage in an honest, open,
and self-critical dialogue about the legal, moral, political,
cultural, and historical dimensions and prerequisites of the search
for justice in the Middle East. Just as this campaign began, in
part, when a group of friends and colleagues in the US, Lebanon,
Belgium and Latin America, inspired by Spain’s attempt to extradite
Augusto Pinochet, decided to launch an email petition calling for a
judicial inquiry into the Sabra and Shatila massacre, we hope that
the courage of the Sabra and Shatila survivors and the unstinting
efforts of their lawyers will inspire individuals and groups
throughout the Middle East to bring other authors of atrocities to
account.
To that end, the campaign’s web site will continue to focus on the
ongoing Sabra and Shatila case as an object lesson in the pursuit
of international justice in national courts. The campaign will also
urge activists, scholars, journalists and lawyers throughout the
Middle East to strive to bring their own countries’ policies and
judiciaries into compliance with the Geneva Conventions, the
Convention against Torture, and the Genocide Convention, while
encouraging more countries in the region to ratify the treaty
establishing the International Criminal Court. The legal struggle
continues in Belgium’s courts, while further efforts are just
beginning on the ground in the Middle East.
(Laurie King-Irani is North American Coordinator for the
International Campaign for Justice for the Victims of Sabra and
Shatila. She can be reached at [email protected].)
Endnotes
(1) The case lodged in
Belgium on 18 June 2001 by 23 survivors of the 1982 Sabra and
Shatila massacres charges Ariel Sharon, former Israeli defense
minister and Israel's current prime minister, formal IDF Gen. Amos
Yaron, as well as other Israelis and Lebanese with war crimes,
crimes against humanity, and genocide related to the massacres
committed between 16-18 September 1982 in two refugee camps in
Beirut. The central argument of the case hinges upon Ariel Sharon's
and other Israelis’ Command Responsibility as General and high
officers of the Israeli Defense Forces (IDF), which were in full
control of Beirut when the massacres took place in the contiguous
refugee camps of Sabra and Shatila. Although the killings of
between 1000-2000 unarmed Lebanese and Palestinian civilians were
carried out by Lebanese militia units directly or indirectly
affiliated with the Israeli-allied Christian Lebanese Forces (the
Phalange), the legal, military, and decision-making responsibility
for the massacre ultimately rests with Ariel Sharon under
established and recognized principles of International Law.
(2) The Court of
Cassation (Belgium’s Supreme Court) on 12 February 2003 upheld the
competence of Belgian courts under the 1993 and 1999 universal
jurisdiction laws to address serious violations of international
humanitarian law, namely war crimes, crimes against humanity and
genocide, regardless of where the plaintiff is or any other
condition not specified by the law. It thus reversed the 26 June
2002 decision of the Court of Appeals and sent the case back for
correction (by the Court of Appeals, but with a different
composition than the earlier court), allowing the investigation and
trial to go forward. The Court drew a clear distinction, however,
between Ariel Sharon and the rest of the accused. For the former,
being Prime Minister of Israel, enjoys procedural immunity from
prosecution under international customary law so long as he holds
that position. The others accused do not, however, enjoy immunity,
and their trial can go forward.
(3) Although this
author previously wrote in a January 2002 analysis (“Detonating
Lebanon’s War Files: The Beirut Car Bomb and the Belgian Court
Case” at http://www.merip.org/mero/mero013102.html ) that Israel
was probably not behind Hobeika’s assassination, or at least not
the sole party responsible for his killing, new information
received from a confidential source indicates that Israelis ordered
Hobeika’s killing.
(4) Although this
author previously wrote in a January 2002 analysis (“Detonating
Lebanon’s War Files: The Beirut Car Bomb and the Belgian Court
Case” at http://www.merip.org/mero/mero013102.html ) that Israel
was probably not behind Hobeika’s assassination, or at least not
the sole party responsible for his killing, new information
received from a confidential source indicates that Israelis ordered
Hobeika’s killing.
(5) For the complete
text of the 27 May 2003 Press Release by lawyers Luc Walleyn,
Michael Verhaeghe, and Chibli Mallat, see the website of the
International Campaign for Justice for the Victims of Sabra and
Shatila at www.indictsharon.net.