The Electronic IntifadaIn attempting to sum up the key trends of 2003 in the Middle East in general and the Israeli-Palestinian conflict in particular, it is difficult to decide which, among a wide array of demoralizing events, was the defining news story of the year. Closer analysis reveals prevailing trends that have a global as well as a regional significance. Perhaps the most disturbing trend of the past year was the ongoing erosion of multilateral frameworks of decision-making and diplomacy in the Middle East, from Gaza to Baghdad, and the ominous marginalization of International Humanitarian Law (1) by the world’s hegemonic power, the United States, and its client Israel.
US and Israeli actions in 2003 set new and dangerous precedents for the successful violation of International Humanitarian Law (IHL) and United Nations resolutions, not to mention the UN charter itself, over which the US and the UK ran roughshod by launching a pre-emptive war on Iraq in March. Meanwhile, both the Likud and the Labor parties accelerated the construction of an imposing apartheid wall, supposedly meant to ensure security by separating Israelis from Palestinians, but in effect establishing new “facts on the ground” by altering borders and boundaries to encompass and illegally incorporate large swaths of Palestinian towns, orchards, farms, marketplaces, and roads throughout the West Bank.
In Gaza, Israel’s occupation army murdered tens of unarmed civilians, including dozens of children, as well as three foreign witnesses — American and British members of the International Solidarity Movement and an award-winning British filmmaker — without incurring substantial wrath, the loss of US funding, or even risking becoming a pariah nation. (As this article was going to press, an IDF soldier was arrested for the shooting of Thomas Hurndall.) It was only at the end of 2003, when the IDF shot and wounded an Israeli protestor, that Israeli society seemed to stir from its disregard of human rights to contemplate the injustices occurring just miles from Tel Aviv.
Benefiting from a growing international focus on Iraq and the folly of the US global “war on terror,” Israel enjoyed enhanced impunity for its violation of the Fourth Geneva Convention and a raft of UN resolutions throughout 2003. Even the supposedly “positive” developments of 2003 — the US-backed Road Map to peace and the Israeli-Palestinian Geneva Accords — are based on a tacit premise that the Universal Declaration of Human Rights and several UN resolutions can be ignored or suspended so as to legitimate and excuse Israeli violations of Palestinian rights, lives, lands, and resources.
Israeli impunity, though, was not limited to its own backyard in 2003, but even extended to Europe. One event in particular, scarcely covered by the international media, illustrated how and why Israel has successfully defied International Law: the US government’s successful battle to prevent Israeli and US officials from being investigated for war crimes and crimes against humanity in Belgium under the principle of universal jurisdiction. Israeli and US successes in crushing an emerging forum for international criminal prosecution represented a defeat for those struggling for a peace based on justice in the Middle East, as well as a dangerous set-back in the international campaign against impunity.
Understanding how and why Ariel Sharon, Amos Yaron, and other Israelis and Lebanese successfully avoided prosecution in Brussels for their involvement in the 1982 Sabra and Shatila massacre may provide guidelines for activists eager to continue pursuing the path of justice in a region marred by massive rights’ violations for far too long. The primary activists who must be mobilized in this endeavor, however, are Arabs and Israelis, as this essay will argue.
If realized in practice, the principle of Universal Jurisdiction (2) can play a crucial role in the international campaign against impunity for war crimes and crimes against humanity. In decreeing that the authors of such crimes are the enemies of all humankind, Universal Jurisdiction attempts to remove any safe havens for perpetrators by enabling citizens of one state to be tried for killing or torturing citizens of a second state in the courts of a third state. As such, Universal Jurisdiction supplements attempts to pursue justice in the states of the perpetrators or the states in which crimes were committed. It provides a mechanism for seeking justice in settings other than those that should, in an ideal world, be the proper venues for judicial investigations. If all states were to honor the principle of Universal Jurisdiction by respecting and enforcing the ideals encoded in international customary law and the Geneva Conventions, a truly international and universal framework of justice might emerge, preventing perpetrators of the worst crimes known to humanity from enjoying impunity.
Universal Jurisdiction is also one of the only options available to those wishing to prosecute crimes committed before the entering into force of the Rome Statutes establishing the International Criminal Court (ICC) on 1 July 2002 that have not already been addressed by UN-authorized ad hoc tribunals, such as the International Criminal Tribunals for Rwanda and the Former Yugoslavia. (3) Over the last five years, Universal Jurisdiction has been invoked in national courts to pursue former Chilean dictator and senator for life General Augusto Pinochet, Rwandans accused of aiding and abetting genocide, and former Chadean dictator Hissein Habre for his responsibility in the deaths of nearly 50,000 Chadean nationals by torture.
For war crimes and crimes against humanity occurring in the Middle East prior to 1 July 2002, Universal Jurisdiction represents the sole option for pursuing justice, particularly for Palestinian refugees. Indeed, given the temporal and territorial limits of the ICC’s jurisdiction, Palestinians, whether refugees or not, have little hope of pursuing justice in the world’s newest and most promising international judicial forum.
The 1998 Rome Statute that established the ICC specifies that the court can only exercise jurisdiction over crimes occurring on the territory of a state party, or crimes involving an accused who is a national of a state party. Israel is not a signatory to the Rome Statute, and Palestine is not yet a sovereign state. As a Belgian attorney, Luc Walleyn, has noted, stressing the importance to Palestinians in particular of Belgium’s Universal Jurisdiction legislation: “Today, the Palestinian people lack effective courts of law and have no means of defending and vindicating their rights as defined by International Humanitarian Law and the Geneva Conventions. This absence of judicial recourse cannot continue. The effort to end impunity will not cease.”
Prosecuting war crimes and crimes against humanity through the principle of Universal Jurisdiction, possible until recently in Belgium, and still possible in Spain, is first and foremost a judicial endeavor, but it is often a profoundly political undertaking as well. Individuals contemplating filing cases under this principle ignore this fact at their peril. Not only can these cases spark acrimonious debates, heighten diplomatic tensions, impact the course of political events, and raise troubling questions about state sovereignty, but such prosecutions can also engender new conceptions and forms of political power by consolidating transnational coalitions of activists, parliamentarians, scholars, journalists, and legal specialists. Last but not least, the practice of Universal Jurisdiction can empower survivors of atrocities, often among the weakest and most marginalized of the world’s citizens, to play an important political role on a global stage. For some, this represents a profoundly threatening development.
Acknowledging the risks posed by the non-judicial dimensions of Universal Jurisdiction prosecutions, both Human Rights Watch and Amnesty International have stressed the necessity of building the requisite political will from the ground up in those states willing to undertake extraterritorial prosecutions. Bottom-up processes are indeed crucial for successful prosecutions of international crimes in national courts, particularly given the considerable threats posed by the opposite sort of political directionality: pressures exerted from the top-down by political and economic elites who are indifferent to popular opinion and dismissive of international law.
Hamad Mohammed Shamas holds a famous photograph taken in the aftermath of the massacres. He lay injured under the bodies on the left of the frame for a day and night. (Philip Reynaers)
The Universal Jurisdiction case lodged by 28 survivors of the Sabra and Shatila massacre in a Belgian court against Ariel Sharon, Amos Yaron, Elias Hobeika and other Israelis and Lebanese (4) demonstrated that what is most essential for ensuring that bottom-up political processes are not nullified by top-down pressures is a different sort of politics: lateral political efforts grounded in relations of solidarity that can provide simultaneous and overlapping pressures from all sides, most crucially from the sociopolitical contexts of the victims themselves, in this case, Palestine and Lebanon.
In an ideal world, the Lebanese government should have brought a case against the killers responsible for the Sabra and Shatila massacre. That, alas, is not likely to happen. Although hundreds of Lebanese citizens were murdered in the camps — by other Lebanese citizens under the direct or indirect command of Israeli Defense Force officers and soldiers — the Lebanese Government has made no attempt to date to pursue justice or seek accountability for their deaths.
Given that approximately 17,000 Lebanese citizens are still missing, having been kidnapped, disappeared, and in all likelihood murdered during the long Lebanese war of 1975-1990, the inaction of the Lebanese judicial authorities in the Sabra and Shatila massacre is not surprising. Indeed, one of the first acts of the newly reconstituted Lebanese government in 1991 was to declare a general amnesty law (al-`afou al-`aamm) absolving all groups and individuals of any guilt for war crimes and crimes against humanity committed between February 1975 and May 1991. Such amnesties are not recognized by International Humanitarian Law, which stipulates that there is no statute of limitations for particularly heinous crimes.
Clearly, Lebanon suffers from a particularly shaky architecture of justice and a near absence of the rule of law. Popular support for the case lodged by the massacre survivors in Belgium was nil in Lebanon. Many people perceived this endeavor — correctly — as a threat to the official post-war policy of amnesia. Opening the Sabra and Shatila file would risk opening all of Lebanon’s war files, to the detriment of the post-war political class, many of whom are indictable for war crimes. Impunity reigns in Lebanon, as it does in most of the surrounding countries and in Occupied Palestine. Thus, the Sabra and Shatila survivors had to travel all the way to Europe to seek justice.
The principle practiced
On 12 February 2003, the Belgian Supreme Court issued a landmark ruling on the implementation of Universal Jurisdiction in response to an appeal filed by the survivors of the Sabra and Shatila massacre. The plaintiffs in this high-profile case had petitioned the Supreme Court to reverse a 26 June 2002 Appeals Court ruling that threatened to halt the massacre survivors’ search for justice in Brussels by stipulating that the accused had to be “present on Belgian soil” for an investigation and trial to proceed.
The Supreme Court sided with the plaintiffs on the clear strength and intent of Belgium’s 1993 and 1999 Universal Jurisdiction, or anti-atrocity, legislation, confirming that international justice had a local address in Brussels. This dramatic ruling cleared the way not only for the continuation of the Sabra and Shatila case, but other atrocity cases lacking any nexus with Belgium as well.
Scholars, activists, lawyers, and journalists who had followed the trajectory of Universal Jurisdiction for the last decade, not to mention countless survivors of grave rights abuses throughout the world, viewed the 12 February 2003 Belgian Supreme Court ruling as comparable in its implications to a Spanish court’s attempt to extradite Chilean General Augusto Pinochet from the United Kingdom in 1998.
Apparently, 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. But the ruling handed down by the Supreme Court was not to be the last word in the massacre survivors’ search for justice. Other efforts from above, and struggles from below, had yet to play out.
Bottom-up efforts: Necessary but not sufficient
The 26 June 2002 Appeals Court ruling alarmed not only the Sabra and Shatila plaintiffs and their lawyers, but other plaintiffs and lawyers who had filed similar cases as well. The Appeals Court’s ruling that accused parties had to be present on Belgian soil endangered these efforts and sparked an unprecedented joint initiative by local, transnational, and international human rights organizations, in concert with members of the Belgian parliament and government, to save and strengthen Belgium’s Universal Jurisdiction law. In addition to Belgian parliamentarians and lawyers specializing in IHL, this coalition included representatives of Amnesty International-Belgium, Le Ligue Belge des Droits de l’Homme, Liga voor Mensenrechten, Federation Internationale des Ligues des Droits de l’Homme, Human Rights Watch, and Avocats sans Frontieres.
Responding to a strong lobbying campaign initiated by this NGO coalition, a group of Belgian senators drafted a proposal for an “interpretative law” to clarify and reconfirm the intent and meaning of the 1993 and 1999 laws. All were encouraged when the Belgian government, especially the prime minister, decided to back this initiative, linking it to a second, more general proposal. The first proposal confirmed the interpretation of the law intended by parliament at the time of the 1993 and 1999 legislation, contrary to the June 2002 ruling of the Brussels Appeal Court.
The second proposal aimed to bring Belgium’s Universal Jurisdiction law into line with two important recent developments in international law: a February 2002 regressive ruling by the International Court of Justice (ICJ) affirming head of state immunity in Congo v. Belgium, and the Rome Statutes of the International Criminal Court. Both of these proposals benefited from the in-put of European and international human rights NGOs and broad public support within Belgium. On 29 January 2003, the Belgian Senate demonstrated its commitment to preserving its Universal Jurisdiction law by adopting both proposals, despite growing protests from Israel and the US, as well as increasing pressures from the Federation of Belgian Enterprises, a group keenly aware of the potential impact of international criminal prosecution on Belgian enterprises abroad, particularly in southeast Asia and Africa.
Although the efforts of human rights NGOs, Belgian politicians, victims, and activists were well suited to the task of building political will from the ground up in the context of Belgian parliamentary politics and public debate, such bottom-up efforts were no match for the considerable top-down pressures soon exerted from outside Belgium, notably US officials’ demands, voiced with increasing fervor throughout the spring and early summer of this year, that Belgium rescind its anti-atrocity law.
Top-down pressures: A narrowing of options
The Amiriya bomb shelter in Baghdad, the roof showing damage from the US strike in 1991. (Dahr Jamail)
The primary catalyst for external, top-down pressures opposing Belgium’s Universal Jurisdiction law was the March 2003 filing of a case in Brussels by Iraqis who accused former President George H.W. Bush and other members of his administration with war crimes stemming from the deaths of 400 Iraqi civilians incinerated when a US missile penetrated a Baghdad bomb shelter in January of 1991. Overnight, US officials, past and present, began panicking over the possibility that they could be in the dock in Belgium.
Suddenly, Belgium’s Universal Jurisdiction legislation was threatened not simply with modification, but cancellation. The threat came not from Belgian civil society or Belgian parliamentarians, but rather, from another state, one that proceeded, paradoxically, to interfere in Belgium’s sovereignty on the pretext of protecting its own. The US government feared that even a modified law with filtering mechanisms and a clearly delimited scope might still lead to the arrest and prosecution of US military officials attending NATO meetings in Brussels.
In early June 2003, US Secretary of Defense Donald Rumsfeld traveled to Brussels to “teach Belgium a lesson,” in his own words. Rumsfeld threatened that the US would relocate NATO headquarters to Warsaw unless Belgium’s newly elected Parliament rescinded the country’s progressive anti-atrocity legislation. Combined with back-channel pressures exerted by the US Chamber of Commerce and some major US corporations involved with NATO, Rumsfeld’s threat produced immediate results: the newly elected Belgian parliament, as its first order of business, complied with US desires by annulling the 1993 and 1999 law.
Before giving in completely to US pressures, however, Belgium’s outgoing government had asked its EU partners if they would support its attempt to preserve the Universal Jurisdiction law. Belgium received no support from this new transnational politico-legal framework, however. EU tensions and disagreements over the US-UK war in Iraq as well as clashing perspectives on how to handle EU-US-Israeli relations hindered concerted action. Thus, at the end of the day, Belgium had no choice but to give into US pressures to change its own laws based less on popular, grassroots will built up from below than on coercive pressures exerted from above.
Sadly, the efforts of the International Campaign for Justice for the Victims of Sabra and Shatila (ICJVSS), undertaken by loosely organized local committees in Brussels, Beirut, Australia and New York City linked through the campaign’s website (www.indictsharon.net), were also impotent before the challenges posed by US pressures on Belgium. The ICJVSS, as well as the lawyers representing the Sabra and Shatila plaintiffs, made a strategic error by assuming that Belgian public support for Universal Jurisdiction constituted the sufficient and necessary political will for continuing with our case and other prosecutions. Hence, the ICJVSS focused on educating the general public elsewhere, largely throughout Europe and North America, about the legal principles and precedents underlying the case, assuming that fostering grassroots, civil society support within leading Western democracies while also focusing media attention on developments in Belgium’s courts would be the best guarantors of the law’s survival in the face of US and Israeli opposition.
Given mainstream media spin that usually favored the Israeli accused while dismissing the demands of the Lebanese and Palestinian plaintiffs, not to mention the generally poor public comprehension of International Humanitarian Law, the ICJVSS’s efforts were often bogged down with having to deny accusations that the case was motivated by anti-Semitism, or explaining over and over again that the Belgian government had not arrogated to itself the right to “sit in judgment on the entire world,” but rather, had simply offered up its courts as a forum for the pursuit of international justice.
In other words, the ICJVSS was often on the defensive and thus tended to be reactive rather than proactive. As a result, the network was blindsided by some of the developments described in retrospect by Luc Walleyn and Michael Verhaeghe, the Belgian attorneys for the survivors, in an interview conducted by this author in Brussels on 4 September 2003:
Attorney Michael Verhaeghe: We had a clean victory on the legal level with the Supreme Court’s decision in February and then the Appeals Court’s ruling in May, which confirmed that there were no impediments to beginning the trial [of all the accused except Ariel Sharon, who enjoyed temporary immunity as a head of state]. But then, well, politics stepped in, with the unfortunate developments of the cases brought against US officials and the way the Belgian government handled them. The Belgian government simply backed down and said ‘We will abandon the principle of Universal Jurisdiction.’ They just balanced out Universal Jurisdiction against the prospect of losing NATO. Principles against money! And money won!
Attorney Luc Walleyn: And then, there was also a very well-planned campaign to make the Universal Jurisdiction law appear ridiculous. You suddenly saw in the media politicians and others writing letters to the editor and speaking out against Universal Jurisdiction quite systematically.
Laurie King-Irani: This was manufactured, you mean? Not something coming from the grassroots in response to the cases filed against President Bush, Sr. and US General Tommy Franks?
Michael Verhaeghe: First of all, opposition to Universal Jurisdiction has no real grassroots. Human rights activists and NGOs have grassroots, but there’s no grassroots among the Association of Belgian Corporations …You suddenly saw officers from the US Chamber of Commerce saying, though not exactly openly, that ‘NATO needs a big investment, and the US is the only party that can fund it…’ US corporations said to their members: ‘We don’t think it is wise to invest in Belgium anymore; the climate is unsafe…’ The worst damage was done, in my view, through what I’d characterize as a campaign to ridicule the law. It went very quickly….I think that if we made a mistake, it was media-related. We contacted only reporters and representatives of ‘quality’ newspapers and magazines, those read by serious people. But it was the tabloids that really began to feature articles and cartoons depicting the law as absurd.
Luc Walleyn: The political will among Belgian civil society for the practice of Universal Jurisdiction was already well built up before…. When the Rwandan victims first filed their case, you had many voices protesting it, particularly within the Catholic Church, since two nuns were among the accused. And you had some people saying ‘It’s impossible to try Africans in Europe; you have no idea about the mentality and the cultural differences over there!’ But despite all of that, the case was a success, and the fact that people in Rwanda were very happy with Belgium for taking this law seriously made Belgians pleased with their law; you saw positive public opinion here for the law…
Michael Verhaeghe: Our case, though, never got past the preliminary stages, due to the lengthy processes of both the Appeals Court ruling and the reinterpretation of the law. Usually in a criminal case, you build up a relationship with your clients right before, but especially during, the trial stage. But we never had the time or opportunity, and Belgians never had the chance, to really get to know these plaintiffs…Our problem until now is that we have not been able to get an investigation kicked off; we’ve been too bogged down in procedures…. But back to the question of grassroots support for the principle and the practice of Universal Jurisdiction. There’s also the question of how the fight for Universal Jurisdiction is considered by the public as something that concerns them, fundamentally. For instance, a newspaper salesman in the vicinity of NATO HQ may well be a fierce defender of the principle of Universal Jurisdiction if you ask him, in an abstract poll. But if you bring in the whole dimension of NATO and economics, then he’ll say ‘Okay, I agree with it in principle, but not if it harms me!’ The problem with everything related to International Humanitarian Law is that we always refer back to opinio juris, which is all about high-level university people thinking about abstract issues and trying to help the world get along. But opinio juris — which is the basis for Universal Jurisdiction — is far from the grassroots. Unless, of course, you are actually concerned, unless you have had actual relatives who have died as a result of war crimes. Now, those people are really interested! Here, principles and interests coincide.
Laurie King-Irani: Sure, but very few people in Belgium are in the socioeconomic or political position to be victims of war crimes, massacres, ethnic cleansing, or disappearances. They can hardly put themselves, viscerally, in the place of someone in a refugee camp or in the Congo. What about the intermediary level above that of Belgium as a nation state? What about transnational and multilateral frameworks, governmental and non-governmental? Since we don’t have effective enforcement mechanisms for International Humanitarian Law, can we appeal to such transnational or global entities on the basis of decency and principles?
Michael Verhaeghe: Look, multilateral frameworks like the EU are based on commerce more than common values, ideals or principles. Originally, the EU was the Union of Coal and Steel, a union based on material interests. And it still is: we have the same currency. We can buy things from each other. But I agree with you that rather than going for the grassroots, we have to focus on transnational and international levels to ensure compliance with the principles of Universal Jurisdiction and IHL. The grassroots of international and European NGOs might seem solid – until a real and rough match is actually played on their field! Then we see that their roots are not so deep and strong after all!
The politics of relationality: The missing element
For all the revolutionary potential of Universal Jurisdiction in Belgium, very little changed for the better for the Sabra and Shatila plaintiffs. In fact, Belgium’s decision to annul its progressive anti-atrocity legislation rendered the massacre survivors victims a second time over. Their attempts to realize justice in a Belgian court revealed not only the implicit political dimensions of Universal Jurisdiction, but also highlighted the fact that abstract, universal principles do not exist a priori. Rather, such principles become universal, in the sense of being shared in common and thus capable of animating values and mobilizing action in multiple sites, only through the mutuality of relationships, struggles, dialogues, and experiences that link people of different nationalities, classes, and ideologies across diverse social fields.
Crucial to the nurturance of such relationships, which is a profoundly political as well as a moral project, is the engendering of spaces and moments of empathy between people. One of the greatest weaknesses of the ICJVSS was the fragmentation of such potentially generative relationships – between the plaintiffs in Beirut and the lawyers in Brussels, between the survivors and the various committees organized to assist their efforts, between the website editor and coordinator in Canada, and the others in Europe and the Middle East; between Belgian citizens and Palestinian and Lebanese massacre survivors, and, perhaps most deleterious of all, the fragmentation of relations between various classes, groups, and strata within Lebanese and Palestinian society.
The failure of the case lodged by the Sabra and Shatila survivors in Belgium demonstrated the political limits of Internet activism, which cannot replace the embodied relationships of empathy, solidarity, and conviction that only real-life encounters can provide and sustain. Such relationships are key to building a transnational and lateral political will from the ground-up and the sides-inward. Working at the level of one nation state alone is not enough to ensure the successful use of Universal Jurisdiction in prosecuting war crimes and crimes against humanity, or any campaign to advance and realize the principles of International Humanitarian Law. People in various countries must be mobilized not only to support such prosecutions, but even more so to perceive the commonalities between people in cities like Brussels and refugee camps like Sabra and Shatila, or people in Tel Aviv and people in Rafah.
The principle of Universal Jurisdiction implicitly poses the question: “Is there an international community?” If that community is to be realized, not merely cited as an occasionally useful abstraction, it must begin in and through embodied relationships between actual people in real, not just virtual, spaces. Such a lateral politics of relationality are especially important in the Middle East.
As all of the lawyers for the Sabra and Shatila plaintiffs noted, there was scarcely a word of support expressed for the Sabra and Shatila plaintiffs’ efforts at the official level in the Arab world. If Lebanese and Palestinians are not supportive of struggles for justice that concern them so profoundly, if they are not willing to take the risk of confronting impunity in a region deeply scarred by mass graves, vicious rulers, and torture facilities, then why should Europeans or North Americans take on their burdens? (5) To do so is to sanction a new form of moral colonialism and to exacerbate the problems of dependency among human rights organizations in the Arab world, eloquently described by law professor Abdullahi an-Na’im:
What I call dependency is the idea of generating pressures in the North to persuade governments in the South to protect the rights of their people, because that is not how human rights are protected in the North itself. There, human rights are protected by local constituencies organizing around their own priorities, enlisting political support within the own communities, and pressuring the own governments, legally and otherwise…. The problem is that this approach disregards the fact that human rights dependency is possible because of other dependencies…. Human rights dependency legitimizes other dependencies and perpetuates dependent relationships…. The problem is our failure to appropriate the human rights paradigm for our own objectives. (6)
The goal of the international campaign against impunity for war crimes and crimes against humanity was never to bring more and more cases to Belgium, but rather, to increase and expand the venues for prosecuting war crimes, crimes against humanity and genocide, either by incorporating the principle of Universal Jurisdiction formally into more states’ national criminal codes, or by urging more states to become signatories to the Rome Treaty establishing the ICC.
People throughout the Middle East have an especially profound stake in the future of international criminal prosecution, since they have suffered enormously from various forms of impunity, imported as well as home-grown, for decades. An autonomous and effective human rights framework responsive to the multiple problems of impunity in this region must be built from the ground up in places like Beirut, Cairo, Jerusalem, Tel Aviv, Tehran, Baghdad, and Algiers if International Justice is to have local addresses in countries where it is particularly needed. The momentous experiment in Belgium’s courts taught us this lesson, but what we do with it remains to be seen.
Laurie King-Irani, a co-founder of The Electronic Intifada, is an American anthropologist living in Canada. She served as North American Coordinator for the International Campaign for Justice for the Victims of Sabra and Shatila (www.indictsharon.net), and is writing a book about anthropological approaches to emerging institutions and ideologies of international criminal prosecution.
(1) International Humanitarian Law (IHL) refers to a body of laws and international conventions intended to provide clear codes of conduct in times of armed conflict. IHL criminalizes the worst offenses known to human experience. The laws define and attempt to prevent war crimes, crimes against humanity, and genocide. Central to IHL are the Hague Regulations on Land Warfare of 1907, which cover means and methods of warfare; the Genocide Convention of 1948 and the Geneva Conventions of 1949, and the two additional protocols of 1977. Collectively, these instruments stipulate the differences between legal and illegal conduct in times of military hostilities and military occupation. The Genocide Convention of 1948 defines genocide as certain acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such.” The Rome Statutes of the International Criminal Court, adopted in 1998, represent a further refinement and clarification of IHL. Of additional importance is the Nuremberg jurisprudence, which is the closest analogue to treaties on war crimes and genocide, and which has, in effect, established the law on crimes against humanity. At the heart of IHL is the stipulation that civilians and civilian infrastructure are not to be directly and intentionally harmed in times of war or at times of armed conflict and occupation.
(2) Encoded in the Fourth Geneva Convention of 1949 and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Universal Jurisdiction is based on customary law as well as an international consensus, strengthened by the horrors of World War II, that some crimes are so heinous that they threaten the entire human race. The jurisdiction for prosecuting these crimes must thus be universal, not simply territorial.
(3) The International Criminal Court lacks retroactive jurisdiction to judge crimes against humanity, war crimes, and genocide committed before the date of its founding. Further jurisdictional limitations stem from the fact that only the ICC’s prosecutor can bring cases before the court, and jurisdiction is linked not to the nationality of the victims, but rather, to that of perpetrators, or to the state on whose territory the crimes occurred.
(4) The case lodged in Belgium on 18 June 2001 by 28 survivors of the 1982 Sabra and Shatila massacres charged Ariel Sharon, former Israeli defense minister and Israel’s current prime minister, as well as Brigadier General Amos Yaron and 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 hinged upon Ariel Sharon’s Command Responsibility as General of the Israeli Defense Forces (IDF), which was in full control of Beirut when the massacres took place in the contiguous refugee camps of Sabra and Shatila. Although the killings of over 1000 unarmed Lebanese citizens and Palestinian refugees were carried out by Lebanese militia units affiliated directly or indirectly with the Israeli-backed Christian Lebanese Forces (the Phalange), the legal, military, and decision-making responsibility ultimately rests with Ariel Sharon under established and recognized principles of International Humanitarian Law.
(5) It is interesting to note that, despite the loud and frequently hostile public pronouncements emanating from Israeli officialdom decrying the case lodged by the Sabra and Shatila survivors, the ICJVSS received considerable – and very valuable – support and encouragement from Israeli individuals, often at great risk to themselves. For instance, shortly after the case was filed in June 2001, confidential Israeli sources delivered a large number of Hebrew documents, assumed to be parts of the sealed annex to the Kahan Commission Report of 1983, that provide a damning record of communications and coordination between top Israeli military officials and leaders of the Lebanese Phalangist militia. Most of the documents are Mossad (Israeli intelligence) documents and minutes of meetings. These materials strengthened the grounds for indicting the Israelis and Lebanese named in the criminal complaint. Some of the documents provide details about the planning and execution of the IDF’s 1982 invasion of Lebanon; others clearly indicate that top Israeli officials were fully cognizant of the likely fate of Palestinians in the Sabra and Shatila refugee camps were the Lebanese Christian militias to be sent in to “mop up” after the withdrawal of the Palestine Liberation Organization (PLO) from the camps.
(6) “Problems of Dependency: Human Rights Organizations in the Arab World.” An interview with Abdullahi An-Na`im conducted by Dr. Lisa Hajjar. Middle East Report (Spring 2000) 214: 20-23, 46-47.