War Crimes
Update on Ariel Sharon: At the end of November, a Brussels Appeals Court held the first of several sessions to decide whether the Belgian judiciary has jurisdiction to continue legal proceedings against Ariel Sharon who is charged with genocide, war crimes and crimes against humanity.
The legal investigation was delayed in early September when lawyers acting on behalf of Sharon asked the investigative judge to drop the case on several grounds. Sharon’s lawyer, Adrien Masset, has argued that the purpose of the case is not to provide justice but to attack Israel. Moreover, Masset has argued that: 1) Hearing the case in a Belgian court is an impingement on Israel’s legal system, since the case was already heard by the Kahan Commission; 2) Belgium has no legal status in the case, since the plaintiffs are not Belgian, the defendant is not Belgian, and the alleged offence did not take place on Belgian soil; 3) Belgium has signed the agreement setting up the International Criminal Court (ICC), which states that it will hear cases of crimes against humanity from this time onward, but not retroactively. Belgium, however, is considering trying a case that happened 20 years ago; and 4) Sharon enjoys diplomatic immunity.
The legal team representing the more than 20 Palestinian plaintiffs, including survivors of the massacre, rejects the arguments raised by Sharon's lawyers. According to the plaintiffs lawyers, Sharon has not been the subject of a judicial procedure. The Kahan Commission was a governmental commission of inquiry (much like the current Or Commission investigating the killing of 13 Palestinian citizens of Israel by Israeli police in October 2000), not a court, and therefore not capable of imposing sanctions or issuing a conviction. Moreover, the lawyers maintain that according to the 1993 Belgian law (and 1999 amendment), under which the complaint was filed, Belgium has jurisdiction to try the case according to the legal principle of universal jurisdiction.
This includes foreign heads of state. The Belgian Prosecutor,
Pierre Morlet, also rejected the Israeli arguments of immunity,
lack of jurisdiction and the retroactive application of the Belgian
law. Morlet did take into account the argument about the difference
between how Belgium’s own politicians are tried and how it would
try foreign leaders. Drawing on the minutes of the original debates
in the Belgian legislature concerning special procedures for
foreign leaders, the lawyers for the plaintiffs have argued that
the special procedures were established to preserve the separation
of power in the Belgian government and that concern did not apply
to foreign leaders.
Additional evidence that corroborates the claim that Israeli
officials, including Sharon, were aware of the dangers facing
Palestinian refugees (including a potential massacre) and
encouraged if not supported the atrocities carried out by its ally,
the Phalange, continues to come to light as the case progresses
through the Belgian judicial system. In late November, for example,
The Guardian published excerpts from documents delivered to the
British newspaper that cover the period June-November 1982.
The lawyers for the plaintiffs say the importance of the
documents lies in recurring evidence that the IDF had “command
responsibility” for the Lebanese Forces before, during and after
the massacre. “In international law, command responsibility – also
known as indirect responsibility – is more severe than the direct
responsibility of those who actually do the killing,” says Chibli
Mallat, one of three lawyers representing the plaintiffs. “Whether
in the Yugoslav massacres or in Germany or Japan in World War II,
those who sat at the top, often miles away from the death camps,
are more responsible than those who pulled the trigger.”
In a meeting between Sharon and Bashir and Pierre Gemayel on August
21, as the first PLO fighters were leaving Beirut, Sharon demanded
that the Lebanese “clean the camps.” After repeated queries about
the Lebanese response to Sharon’s demand, Bashir informed Sharon
that “We are planning a real zoo” for the camps. The minutes of the
meeting contradict testimony by Sharon to the Kahan commission that
no one imagined the Phalange would carry out a massacre in the
camps. According to testimony by Mossad chief Yitzhak Hoffi to the
Kahan commission, the Phalangists “talk about solving the
Palestinian problem with a hand gesture whose meaning is physical
elimination … I don’t think anybody had any doubts about this …
They raised the issue of Lebanon being unable to survive as long
as this size of population existed there.” In a meeting with
another Israeli official, Bashir Gemayel “adds that it is possible
that in this context they will need several Dir Yassins.” (“The
Sharon Files”, Julie Flint, The Guardian, 28 November 2001). Film
taken by a television crew at the time, which has recently come to
light, also appears to corroborate testimony given by survivors of
the massacre. Some 1,800 Palestinian refugees “disappeared” within
24 hours of the massacre, often in areas under direct Israeli
military control. The film appears to show Israeli officers in the
presence of Phalangist gunmen – long after the Israelis knew their
Phalangist allies had carried out the massacre. (Robert Fisk, The
Independent, 28 November 2001)
Israeli officials themselves have recognized the principle of
command responsibility not only in relation to the conclusions of
the Kahan Commission which found Sharon indirectly responsible for
the Sabra and Shatila massacre, but also in relation to other
massacres committed by Israeli forces. In 1956, for example,
following the massacre of some 50 men, women and children from Kafr
Qasem, Israeli Prime Minister Ben Gurion stated, according to
government protocols, “Not every soldier can make the fundamental
calculation that a commander has to make…. So, I say the commanders
should be judged most severely, and the higher the rank, the more
severe the punishment.” (Excerpts from State Archives, reprinted in
Ha’aretz, 28 March 2001)
Despite efforts by Israeli officials to turn the case into a
political issue, both the government of Belgium and the legal team
for the plaintiffs, have made it clear that the issue is a legal
one and the process must respect the clear separation of powers
between the judicial and executive branches of government. Israeli
officials have become increasingly frustrated by the case. Ehud
Olmert, the Israeli mayor of occupied Jerusalem, for example,
recently described the government of Belgium as a "government of
bastards" who should "go to hell." Still others have tried to
de-legitimize the legal proceedings by labeling them as
anti-semitic.
Since the case was filed in June 2000 several international human
rights organizations have issued statements in support of the legal
process. Following an earlier statement by Human Rights Watch,
Amnesty International issued a statement in October, welcoming
"actions taken in accordance with international law to combat
impunity. "We support the judicial investigation into Ariel
Sharon's responsibility with regard to the Sabra and Shatila
massacre."(AI Press Release, 3/10/01)
If the Belgian Appeals Courts rules in favor of the plaintiffs it
will be the first time that a sitting head of state will face war
crimes while in office. The court recently found two nuns guilty of
abetting the genocide in Rwanda under the same law. According to
the legal team representing the plaintiffs, the Belgian court would
be able to try Sharon in absentia, but it would also be capable of
demanding his extradition. The appeals hearings are to last through
the end of January at which time the Court of Appeals will rule
whether the investigative judge should continue with the case.
For more information on the case, including copies of the complaint
(French, English, Arabic), see, www.mallat.com; For information on
the Sabra and Shatila massacre and war crimes see the BADIL
website.
"Testimony from the “Complaint Against Sharon”
I was 11 years old. It was night and we could hear shelling and
gunfire. (…) We took refuge in the bedroom and stayed there. As
soon as they arrived, they went straight to the living room, and
they tore down the photos from the walls, including the one of my
brother who was killed in "Black September." They ransacked the
living room, cursing and swearing. After having looked for us
without finding us, they went up to the roof and stayed there all
night long. We spent that night in terror in our hiding place,
listening to the shooting and people screaming, while Israel fired
flares to light the sky until sunrise.
The next morning they started saying, "give yourself up and your life will be spared." My nephew was 18 months old. He was hungry and we were far from the kitchen. My sister wanted him to quieten down, and she put her hand over his mouth for fear that they would hear. Her husband decided that we would have to give ourselves up, adding that each person's fate was anyway preordained by God. The women went out first, my brothers, my father, my brother-in-law and other members of the family followed. My brother was ill. As soon as they heard our voices, they shot in our direction and came straight back inside the house. They asked us where we had been the day before when they had come in and not found anyone there. Then they ordered the women and children to go out.
My brother-in-law started kissing his little girl as if he were saying goodbye. An armed man came towards my niece, tied a rope around her neck and threatened to strangle her if her father didn't let go of her. He let go of her and gave her to me. They wanted to take me too but my mother told them I was a girl. They made my mother and the women walk to the Sports Centre. While I was walking I saw my aunt's husband, Abu Nayef, killed near our house with blows of an axe to his head. The dead bodies were disfigured. While I was carrying my niece, I bumped into a dead body that had been hit with an axe and I fell over. They knew then that I was a boy, and one of them put me up against the wall; he wanted to fire a bullet into my head. My mother begged him and kissed his feet so that he would let me go. He pushed her away. When he did that, he heard the clinking of some money she had hidden next to her chest.
He asked her what that meant. She replied that he could have all the money he wanted but he had to let me stay with her. In this way we carried on our way and we arrived at the Sports Centre. The Israeli bulldozers were busy digging large trenches. We were told that we all had to get in because they wanted to bury us all alive. My mother started begging him again, and then she asked for a mouthful of water before dying. At the Sports Centre, I saw the Israeli military, as well as tanks, bulldozers and artillery, all Israeli. We also saw groups of Phalangists with the Israelis.
The Sports Centre was packed with women and children. We stayed
there until sunset. An Israeli came then and he said, "Everyone go
to the Cola region, whoever comes back to the camp will die." We
left, as they fired shots in our direction.
Mahmoud Younis. Mr. Younis lost his father, three brothers, his
maternal uncle, his maternal cousin, two paternal cousins and other
members of his family.
The “Complaint Against Ariel Sharon,” Official Translation,
archived on www.lawsociety.org/sharon/complaint.htm
Kafr Qasem Massacre
The Public Committee for the Commemoration of the Kafr Qasem
Massacre organized several activities on the 45th anniversary of
the massacre. This included approaching schools for activities, a
march in Kafr Qasem and a special leaflet about the massacre.
Forty-nine Palestinian men, women and children from the village
were killed on 29th October 1956 when Israeli forces opened fire on
villagers working in their fields. Villagers were unaware of a
curfew imposed by the IDF on Palestinian villages in the southern
“triangle” following the start of the Suez crisis.
Tantura Massacre
In early November, the Supreme Court
ordered historian Teddy Katz of Haifa University to publish an
apology for his claim in his Masters thesis that the Alexandroni
Brigade massacred Palestinians at the village of Tantura in 1948.
Testimony from villagers and others indicates that some 200
Palestinians were massacred in Tantura. The Court rejected Katz’s
appeal against a decision reached by the Tel Aviv District Court,
authorizing a compromise agreement that called for a public
apology, and ordering Katz to pay NIS 20,000 to the Alexandroni
veterans for court expenses and a further NIS 10,000 to Haifa
University.
The compromise agreement ended a libel suit against Katz filed
by veterans of the Alexandroni brigade. Katz has argued that the
deal was signed under duress. Later in November, the Council for
Graduate Studies at Haifa University disqualified Katz’s thesis.
The Council has demanded that the thesis be revised and the Haifa
University rector ordered the library to take the thesis off its
shelves until it is rewritten. (Ha’aretz, 7 and 20 November
2001)