By Nitzan Horowitz
 

THE HAGUE - The simultaneity between the two events, one in Brussels and the other in The Hague, wasn't overlooked by the international media, or by diplomats from the Middle East. On the very day when Slobodan Milosevic was brought - or "kidnapped," as the former Yugoslav president would have it - to the UN war crimes tribunal in The Hague, the public prosecutor's office in Brussels announced that complaints brought against Ariel Sharon relating to the Sabra and Chatila massacre were admissible in local courts.What once seemed like a far-fetched scenario - prosecuting sitting heads of states, incumbent leaders who presumably enjoy immunity under international law - has now turned into a possibility that requires serious response. "One thing has already become clear," says an Arab public figure who has closely monitored recent turns of the screw in international law, "there is no way to belittle the significance of the direction to which the international legal system is headed."
 

Palestinians who submitted their claim against Sharon were overjoyed by the Belgian decision. Chibli Mallat, the Lebanese lawyer who represents the plaintiffs in the case, praised the Belgian move: "This is an important day for the Sabra and Chatila victims," he announced. "We are confident that justice will be fully served, despite rumors about attempts to alter the Belgian law. We will do everything we can to help with evidence and witnesses. This is a very big case."
 

But not all Arab officials were gleeful about the recent upsurge in overseas prosecution of alleged war crimes. On the same day when the claim against Sharon was relayed to judge-investigator Patrice Colignon (who is to review whether sufficient evidence exists to warrant an indictment), another complaint was filed with

Colignon's colleague, Damien Vandermeersch, who works in the same Brussels prosecutors' office. This second claim was also ruled admissible for review in Belgian courts. Six Kurds, former residents of northern Iraq, submitted the claim against Saddam Hussein, charging the Iraqi leader with wrongdoing in the attack of Kurds after the Persian Gulf War.

Similar complaints have been filed in the past against other public figures from the Middle East, including Mohammed Basri, former interior minister of Morocco, and former Iranian president Ali Akbar Hashemi Rafsanjani. Kurdish residents of Turkey are currently contemplating the submission of claims against the political regime in Ankara, and right-wing Israelis are at work on a suit against Palestinian Authority Chairman Yasser Arafat.

The growing wave of war crime prosecutions hasn't just sent a shiver down the spine of leaders in the Middle East. The process that has picked up steam in Belgium has brought some sweat to the brow of public figures in many countries, including places where it seems highly unlikely that leaders might suddenly find themselves facing an extradition-arrest warrant on war crimes charges. Holland is one such country.

Officials in Israel's embassy at The Hague were surprised to come across an article published by the Dutch newspaper Trouw, in which a comparison was drawn between Ariel Sharon, Israel's defense minister at the time of the Sabra and Chatila massacre, and Joris Voorhoeve, the Dutch defense minister at the time of the killings in Srebenica in the summer of 1995, the worst massacre of the Bosnian war.

Srebenica, in southern Bosnia, was at the time designated a UN Safe Area. Most of the peacekeeper soldiers deployed in the city were Dutch. Despite the international Safe Area designation, Srebenica fell to the Serbs, and thousands of its Muslim residents were slaughtered. The Srebenica atrocities sparked an international outcry. The Dutch did little to prevent the mass murder, apparently ignoring advance warnings that a massacre was pending.

Though classifying Voorhoeve as a war criminal might appear to stretch the meaning of the designation, commentators in the Netherlands do not rule out the possibility of charges being filed in Belgium against the former defense minister. Nobody claims that this Dutch official murdered Srebenica victims, or provided Serbs with a green light to perpetrate the mass murder. Yet, it can be argued that in his position, Voorhoeve had the wherewithal to take precautionary steps to stop the atrocity from unfolding, or at least to reduce its tragic scale.

Voorhoeve's responsibility - assuming it can be proven that he bears responsibility for the Srebenica events - is, at most, indirect. But precedents for indicting public figures on charges of indirect responsibility for war crimes are already embedded in international law. For example, the UN war crimes tribunal in The Hague, where Milosevic currently stands trial, has sent Croatian and Serbian military commanders to prison, deeming them responsible for actions perpetrated by others who were under their command.
 

As the American organization Human Rights Watch sees it, valid interpretations of indirect responsibility could be involved in the Ariel Sharon case. "The government of Israel also has a responsibility to conduct an investigation of acts undertaken by its senior officials, those who knew that atrocities were liable to occur and who didn't take suitable steps to stop them when they knew that the murdering had started," says Hanny Megally, director of Human Rights Watch's North Africa and Middle East division.

Yet the Belgian legal initiative against Sharon has stirred some misgivings among human rights professionals. They argue that since the massacre at the refugee camps was perpetrated by Lebanese Christian Phalangists, then Sharon should not be the sole focus of the war crimes investigation. Megally commented that the Lebanese government should investigate responsibility borne by leaders of the Phalangist militia, including Elie Hobeika, who today lives securely in Beirut.
Against American wishes
On December 31, 2000, the final date for signing the Rome statute for the establishment of the International Criminal Court, Israel decided to put its name to the document, and thus gain status as one of the war crimes court's "founding states." Yehuda Lankri, Israel's ambassador to the UN, signed the Rome statute for Israel. The decision reversed a position originally adopted by then prime minister Ehud Barak; Israel made its move after U.S. President Clinton decided to sign the document as his second term wound down.

By signing the Rome statute, Israel does not assume new legal or practical responsibilities, and the signature triggers a lengthy, complex ratification process. Hence Israel's signature is a symbolic declaration affirming general support for the establishment of the International Criminal Court. Meantime, Israeli officials are perturbed by the Rome statute's "settlement clause" whereby certain policies imposed on a population in a conquered territory are defined as possible war crimes amenable to prosecution at the ICC.

The statute authorizing the establishment of the ICC must be ratified by at least 60 countries. Meeting this quota appears to be a distant goal; on the other hand, in view of current rapid developments in war crime prosecution under international law, the ICC's establishment may not be as far off as many commentators have assumed. Some 139 countries, including Israel, signed the Rome statute; last week, Sweden became the 36th country to ratify it.

Swedish ratification was announced on the day when Milosevic was brought to The Hague. William Pace, head of the coalition for the International Criminal Court, commented in response about "the historic, unstoppable progress of international law and justice." Despite his buoyant mood, Pace is troubled by U.S. opposition to the ICC ratification process. The Bush administration has announced that it won't ratify the Rome statute. The U.S. government is worried that ICC prosecutors might file charges against American soldiers deployed around the globe. Some Bush administration officials are even demanding that the U.S. retract its signature from the ICC statute. Some insist that the government take strong action to stop the ICC from coming into being - in the absence of a strong campaign, the international court's establishment is a foregone conclusion, these American officials say.

Elsewhere, leaders are already counting the days, expecting the ICC to be established relatively soon. For its part, the Dutch government is acting on the assumption that the international court could begin work very soon; last week, the government even allotted a permanent site for the ICC. Until construction at this site is completed, the court is to hold session at Zeist, a former U.S. Air Force base in central Holland at which Libyan defendants were tried for the explosion of the Pan-Am airliner over Lockerbie.

Judging by sentiment in Europe, President Bush had better make haste, if he wants to do something to stop the ICC from becoming a reality. After Sweden, the next country that seems likely to ratify the court's founding statute is Great Britain. William Pace believes that the quota of 60 ratifying nations will be met this year. Leaders in the Middle East should be advised: If, and when, the ICC comes into being, it will have authority to prosecute defendants from countries that chose not to ratify its founding statute

    

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