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BADIL Resource Center On 12 February 2003 Belgian’s highest appeals court (Cour de Cassation) ruled that Ariel Sharon can be tried once he ceases to be prime minister, regardless of whether he is in Belgium or not. It also cleared the way for war crimes trials against Israeli General Amos Yaron (currently Defense Ministry director-general and former commander of the Israeli invasion forces in Beirut), former chief of staff Rafael Eitan and Major General (res.) Amir Drori. The Belgian court ruling is a landmark ruling, because it marks the end of a period of more than fifty years when Israel was permitted to stand above international law and Israeli perpetrators of war crimes could expect impunity. The fact that Israel – in line with its policy of exempting itself from all international law enforcement mechanisms – has never made a commitment to accept advisory rulings issued by the International Court of Justice (ICJ) might effectively prevent the Israeli government from seeking redress with the ICJ. BackgroundThe case was first lodged in Belgium on 18 June 2001 by 28 survivors of the 1982 Sabra and Shatila massacres charging Ariel Sharon, as well as other Israelis and Lebanese, with war crimes, crimes against humanity and genocide. Building on the evolving principles and mechanisms of universal jurisdiction, the petitioners demanded that those responsible for the massacres committed between 16-18 September 1982 in the two refugee camps in Beirut be brought to justice in Belgium, especially since an Israeli investigation committee (Kahan Commission, 1983) had found then Minister of Defense Ariel Sharon “indirectly responsible” but failed to bring legal charges against him. The suit was filed in Belgium under the 1993 “universal competence law”, which, among others, served as the basis for the prosecution of perpetrators of war crimes and crimes against humanity in Rwanda. Despite sustained support by the international human rights community including Amnesty International and Human Rights Watch, the suit faced numerous legal and political challenges. The Belgian law, for example, was returned to parliament in the spring of 2002 following a February ruling by the International Court of Justice (ICJ) in response to a petition by the Republic of Congo, which requested Belgium to bring its law in conformity with customary international law protecting the immunity of acting heads of states and leading ministers. In June 2002, procedures were ground to a temporary halt, when a lower Belgian court of appeal decided that Belgian jurisdiction was limited to cases of war crimes and crimes against humanity directly linked to Belgium. For more background information, see: http://indictsharon.net
The Ruling by the Belgian Court of Cassation On 12 February 2003, however, the petitioners were finally rewarded for their persistence and professionalism. Belgium’s highest appeals court (Cour de Cassation) ruled that Sharon can be tried once he ceases to be prime minister, regardless of whether he is in Belgium or not. It also cleared the way for war crimes trials against Israeli General Amos Yaron (currently Defense Ministry director-general and former commander of the Israeli invasion forces in Beirut), former chief of staff Rafael Eitan and Major General (res.) Amir Drori. The court ruled moreover that the charges filed were so severe that the accused could be tried in absentia. The case of Amos Yaron was referred to a lower court, which will determine his implication in war crimes. These proceedings are likely to begin in the next two or three months. The ruling means that Belgian courts will conduct their own inquiry into the circumstances of the 1982 massacres in the Beirut camps and the degree of responsibility of Israeli officers and their commanders. A full statement in French concerning this landmark ruling can be found at: http://www.cass.be/cass/cass2001/cass_fr/p4.htm)
The Israeli Response Confident that the case was closed by previous political pressure and legal appeals, Israel’s legal delegation in Brussels, the Israeli government, politicians and media were equally shocked by this ruling. Immediate media statements by Minister of Justice Meir Shitrit (“a political plot against the whole free and enlightened world, just like Belgium’s stand on the war against terror and Iraq”) and Foreign Minister Netanyahu (“a renewed blood libel against the Jewish people;” “we will not let them fuck the Jews;”) expressed fury, lack of understanding of the legal process involved and total disregard of the independence of the Belgian judiciary. Israeli spokespersons have announced “retaliation by diplomatic, economic and non-diplomatic means with the help of the United States – so far meaning the temporary downgrading of diplomatic relations with Belgium (Ambassador Yehudi Kenar has been called to Jerusalem for consultations and will not return to Brussels immediately) and the reprimanding of the Belgian ambassador to Israel in a meeting with Bibi Netanyahu. Very few voices in Israel reminded of the crucial role of the Belgian government in the ratification of the preferential trade association agreement between Israel and the European Union. Nobody has yet reminded the Israeli public and politicians of the fact that Israel was the first country in the world to endorse universal jurisdiction for war crimes in its national legislation in the context of the landmark case against the Nazi war criminal Adolf Eichman.
The Belgian court ruling is a landmark ruling, because it marks the end of a period of more than fifty years when Israel was permitted to stand above international law and Israeli perpetrators of war crimes could expect impunity. The fact that Israel – in line with its policy of exempting itself from all international law enforcement mechanisms – has never made a commitment to accept advisory rulings issued by the International Court of Justice (ICJ) might effectively prevent the Israeli government from seeking redress with the ICJ. Thus, a development most feared and successfully avoided by Israel’s legal advisors and politicians following the brutal military assault against the Jenin refugee camp in April 2002 has become a reality in February 2003. Israel was able to block – with the help of the United States – the 2002 UN investigation into possible war crimes in the Jenin camp. It was unable to block the independent Belgian court. ------------------------------------------------- Attachment: The International Campaign for Justice for the Victims of Sabra and Shatila PRESS RELEASE DATE: 14 February 2003 FOR: Immediate Release RE: An open letter to Foreign Minister Netanyahu from the Sabra and Shatila massacre survivors' legal team CONTACT: Laurie King-Irani, North American Coordinator, [email protected], 250-213-6872
AN OPEN LETTER TO MR. BINYAMIN NETANYAHU 13 February 2003 Mr. Benjamin Netanyahu Minister of Foreign Affairs Israel Dear Mr. Netanyahu, On Thursday, you declared that the Belgian Supreme court made "a scandalous decision, which legitimizes terror and harms those who fight it. This turns the tables -- when those who fight terror turn into the accused and the terrorists are victorious." As counsels of the plaintiffs, 28 Palestinian and Lebanese survivors of the Sabra and Shatila massacre, we cannot accept your language, tone, or the characterization of yesterday's landmark ruling. Our clients are not "terrorists," but ordinary people who were raped, tortured, and wounded; who were forced to witness -- and relive everyday since -- the slaughter of their children, parents, husbands and wives, or who had their close relatives "disappeared." By calling these victimized survivors "terrorists," after all that they have endured for over twenty years, you have brought shame upon yourself as Foreign Minister, and upon your country, which, to its great credit, acknowledged the responsibility of Israeli politicians and military in this crime against humanity two decades ago, yet has never gone one additional and crucial step further by legally prosecuting the perpetrators and compensating the victims. As Minister of Foreign Affairs of Israel, you should not accuse the Belgian Supreme Court of legitimizing terrorism simply because it accepts the principle that Belgian courts have universal jurisdiction over perpetrators of war crimes, genocide, and crimes against humanity. Your country was the very first country in the world to endorse universal jurisdiction for such crimes in its national legislation. Israel arrested war criminals like Eichmann in other countries, or sought to have suspects extradited. Israel has failed, however, in respecting and discharging its clear obligations under the Fourth Geneva Convention to arrest and prosecute those responsible for the Sabra and Shatila massacre, expressly qualified by the United Nations as an act of genocide and perpetrated in territory then under the control of the Israeli Defense Forces. Your statement gratuitously inflicts additional pain and suffering on our clients. The Middle East has been plagued by violence and revenge for over half a century. Our clients' legal action constitutes the very first attempt by victims of mass violence in the region to seek redress through non-violent legal action before an independent court, and we expect any decent person in the world to respect this choice. We are issuing this public request that you apologize for your cruel remarks. Sincerely, Luc Walleyn, Michael Verhaeghe, Chibli Mallat Brussels/Beirut |