A badly flawed case
By Evelyn Gordon

(July 10) - As the idea of a permanent international war-crimes court gained momentum during the last few years and opponents' concerns were increasingly dismissed as groundless, proponents insisted that the 1998 treaty on the International Criminal Court contained sufficient safeguards to prevent unwarranted or politically motivated prosecutions.

But a Belgian judge's decision last week to open a war-crimes investigation against Prime Minister Ariel Sharon shows just how prescient opponents' concerns were. The case is being pursued under a Belgian law passed in 1993; the ICC does not yet exist. But since this law grants Belgium's judicial system the same powers the ICC would have - namely, the right to try war crimes committed by anyone, anywhere in the world - it offers an excellent indication of how the ICC is likely to operate.

The most serious problem to emerge from the Belgian case to date is one that has attracted little media attention: namely, its ramifications for one of the key purported safeguards in the ICC treaty. This was a clause saying the ICC will not act if "the case has been investigated by a state which has jurisdiction over it and the state has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the state genuinely to prosecute."

Though the decision of whether a state was "unwilling or unable" to prosecute would be up to the ICC, the assumption was that the court would accept any decision reached by any independent, uncorrupted legal system. Thus citizens of countries with such legal systems would be protected against unwarranted prosecutions.

The Belgian case shows just how frail this assumption was. Israel is generally acknowledged to have one of the most independent and uncorrupt legal systems in the world, and Sharon's role in the 1982 Sabra and Shatilla massacres was thoroughly investigated by a blue-ribbon judicial panel (a Supreme Court justice chaired the panel; current Supreme Court President Aharon Barak was also a member).

The Kahan Commission found that Sharon bore no direct - i.e. criminal - responsibility for the killings, though it did accuse him of indirect, or political, responsibility: It said that as defense minister, he should have foreseen that Lebanese Christian militiamen might slaughter Palestinians in the refugee camps outside Beirut and taken steps to forestall such an event. Yet the Belgian judge simply dismissed the commission's conclusions as irrelevant: He decided that Belgium should conduct its own criminal investigation of Sharon.

Like the Belgian court, the ICC will be independent: No one will be able to force it to accept the results of a prior investigation. How likely is it that this court will show more deference to other countries' legal systems than did its Belgian counterpart?

The second troubling lesson of the Sharon case is how easily a war-crimes complaint can be manipulated for political ends. The Sabra and Shatilla massacres were certainly genuine war crimes. Yet for eight years after Belgian law first gave survivors a chance to obtain justice, they did not consider the case worth pursuing - apparently because back then, it would not have served the all-important goal of embarrassing Israel.

The complaint's politicized character is particularly obvious because, while it accuses Sharon of failing to prevent the massacre, it targets neither the Lebanese militia leaders who ordered it nor the militiamen who committed it. Nor is this because they are beyond reach: Elie Hobeika, who allegedly ordered the killings, was a Lebanese cabinet minister from 1990-98 and is now a well-known Beirut businessman. And unlike Sharon, Hobeika has not been previously investigated.

Even some supporters of the proceedings, such as Human Rights Watch, have expressed discomfort over this omission. Yet it appears to have bothered the Belgian judge not at all. And it is hard to believe that a court chosen by a virtual replica of the UN General Assembly - ICC judges are to be elected by a body in which each member state has one vote - would be less politicized.

The Belgian case has also shown that war-crimes trials can have unpredictable effects on foreign policy. The European Union, for instance, is finding it difficult to convince Israel to allow it a greater role in the region while its rotating president is pushing a war crimes probe against Sharon. Indeed, Belgium has been so embarrassed by the proceedings that last week it announced plans to amend the law.

Yet what this case says about how the ICC is likely to function in general is far more important than its specific foreign policy ramifications. It is therefore to be hoped that other nations will begin reevaluating the ICC in light of Belgium's experience. If this badly flawed case can prompt a much-needed rethinking of that court, it may yet do the world a great deal of good.