(June 26) - Despite the furor over the BBC program charging Ariel
Sharon with war crimes, the real danger
to Israel in the international legal arena lies elsewhere, reports Eetta
Prince-Gibson
Despite the furor over the BBC's recently-broadcast program, Panorama,
it is highly unlikely that Prime Minister Ariel Sharon will ever
actually face international criminal prosecution for war crimes, or
crimes against humanity, for his part in the massacre of more than 800
men, women, and child civilians in the Sabra and Shatilla refugee camps
in Beirut during Israel's 1982 invasion of Lebanon.
Spokespersons for the Foreign Ministry called the program
"unfair" and "biased," and "distorted and
intentionally hostile," contending that it provided "only
partial and distorted information."
They have argued that the program deliberately ignored the conclusions
of both the Israeli Kahan Commission (which investigated the Sabra and
Shatilla massacre in Israel and found that Sharon bore "indirect
personal responsibility" for the massacre) and the US Court of
Appeals decision in Sharon's suit against Time magazine.
(Although the 1983 Kahan Commission absolved all Israeli officials of
any direct responsibility for the massacre, it did determine that
Sharon, then defense minister, bore "indirect personal
responsibility" - and not merely the more general
"ministerial" responsibility - for the atrocities. When he
allowed the Lebanese Phalangists, then under Israeli patronage, into the
camps, the Commission said, he should have known that the Phalangists
were likely to commit a massacre and took no steps to prevent it. As a
result, Sharon was forced to resign as defense minister, although he
continued as minister without portfolio.)
Israeli officials have accused the BBC and Panorama's producers of a
"lack of good faith and an attempt to tarnish Israel and its
leader." They have cited the BBC's "well-known anti-Semitism
and anti-Israel bias."
But the real problem, both they and outside experts agree, has nothing
to do with the BBC. The real danger is that Israel's, and Israelis'
international criminal status, could become seriously precarious in the
very near future.
"Public attention has been focused almost exclusively on the BBC's
Panorama television show," cautions Frances Raday, Hebrew
University professor of law and independent consultant to Israel's
delegation to the UN Convention on the Elimination of All Forms of
Discrimination Against Women. "That single television show is
meaningless, but Israel has much to be concerned about in the
international arena."
Attorney Alan Baker, legal adviser to the Foreign Ministry, admits
"We are very, very worried about these developments."
Sharon cannot face prosecution in an international criminal court
because no such court exists. In 1993, the UN Security Council
established the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law,
located in The Hague, but its jurisdiction is specifically limited to
crimes committed in the former Yugoslavia since 1991.
Similarly, the International Criminal Tribunal for Rwanda (ICTR), which
was established in Tanzania in November 1994, has the power to prosecute
individuals for crimes committed in Rwanda.
AN INTERNATIONAL convention calling for the establishment of a permanent
International Criminal Court (ICC) to try suspected war criminals and
perpetrators of genocide has been signed by 139 nations, including
Israel. But in order to take effect, at least 60 countries must ratify
the convention, that is they must take up the responsibilities dictated
by the convention into their own domestic legal systems. So far, only 33
nations have done so, and Israel is not one of them.
Furthermore, the provisions of the convention clearly state that the
ICC's jurisdiction will not be retroactive. Therefore, even if the Court
were already in place, it could not judge Sharon's alleged crimes during
the 1982 invasion of Lebanon.
But the fact that Sharon and other Israeli leaders cannot be tried in
the international arena does not mean that they cannot be tried
according to domestic legislation. Europeans, says Baker, are outraged
at what they view as "war crimes" and "crimes against
humanity" throughout the world, and there is a growing movement to
use domestic legislation against international crimes.
The trend is particularly strong in Belgium, where domestic legislation,
passed in 1993, empowers Belgian criminal courts to prosecute cases of
alleged human rights violations regardless of where the acts were
committed. Most recently, a Belgian criminal court convicted two
Benedictine (Roman Catholic) nuns and sentenced them to up to 15 years
in prison for their complicity in the 1994 Rwandan genocide, in which an
estimated 800,000 Tutsis and moderate Hutus were massacred by Hutu
extremists.
It is under this same legislation that two indictments against Sharon
are currently under consideration by the Belgian legal authorities. The
first case relates to the current intifada. In the second case,
presented this week, Souad Srour al-Mere'eh, representing 28 plaintiffs,
is attempting to instigate a war crimes indictment against Sharon for
his part in the Sabra and Shatilla massacres. According to press
reports, al-Mere'eh, then 14, was raped and wounded by the Phalange's
soldiers whom Sharon allowed to enter the camps.
According to Aeyal Gross, Tel Aviv University Law School expert in
International Law and Human Rights, the Belgian law is the most
far-reaching and comprehensive of any such domestic legislation.
"It may be that the legislation is a way for the Belgians, who were
the primary colonial power in central Africa, to accept responsibility
for their part in the events in Rwanda," Gross suggests.
But other countries have similar legislation. In the late 1998, Spanish
judge Baltazar Garzon demanded that England extradite former Chilean
dictator Augusto Pinochet to Spain, where domestic law would have
permitted criminal proceedings for crimes against humanity, including
murder, torture, conspiracy torture and hostage taking. Pinochet claimed
that, as a former head of state, he was entitled to full immunity, but
the British courts dismissed this claim.
Although Pinochet was not extradited to Spain, due to health reasons,
the most striking feature of the Pinochet case was that a Spanish judge
had the authority to order Pinochet's arrest for crimes committed mostly
in Chile and mostly against Chileans. Pinochet has since returned to
Chile, where he is currently facing criminal prosecution.
The situation in the United Kingdom is similar. According to Professor
David Kretzmer, an expert in human rights law from the Hebrew
University, the 1957 Geneva Conventions Act gave jurisdiction to all
United Kingdom courts to try people suspected of committing war crimes,
no matter where these crimes took place. The 1991 War Crimes Act has
similar implications.
Under these legislations, British legal authorities attempted to indict
and try the few remaining suspected Nazi collaborators. But it is also
under these same legislations that, two years ago, according to Baker, a
British citizen attempted to have Shimon Peres arrested and indicted for
his part in the 1996 Kafr Kana bombing in Lebanon in which more than 100
civilians were killed. And it is these same provisions which could, in
theory, grant jurisdiction to the British courts to try Sharon.
IRONICALLY, says Gross, "The seeds of these domestic legislations
were sown in the Eichmann trial. When Israel prosecuted Eichmann, it was
seen not only as a Jewish statement. The trial was a statement that some
crimes are universal and that they can, and must, be prosecuted, no
matter where they were committed."
Section 16 of the Israeli Criminal Code still upholds this principle and
stipulates that Israel is allowed to try individuals for war crimes
committed abroad.
Despite these cases, it is not likely that Sharon, or any other Israeli,
will be prosecuted in the near future for alleged war crimes, whether
during the past or even the current intifada, says Kretzmer. The laws
require complex accommodations and combinations of international and
domestic criminal law, and criminal liability demands a particularly
high level of proof.
Despite domestic pressures in countries such as Belgium and England,
where public opinion is currently strongly anti-Israel, few governments
will want to instigate these procedures, and geo-political and global
considerations will probably prevail over the public's current
"sense of justice," whatever that is at a given time.
But, cautions Kretzmer, not likely does not mean impossible. First of
all, in some countries, individuals can institute criminal proceedings,
and thus they may over-ride a particular administration's diplomatic
agenda. And some individuals may choose to pursue redress under civil
law, where the standards of proof are less demanding.
There are numerous precedents for such use of civil law, including a
civil suit brought against Amos Yaron in 1987 when he was the Israeli
military attache to the United States and Canada. Yaron had been a
division commander in Beirut in the 1982 invasion, and several
Palestinian women who had lived in Lebanon during the invasion and had
relocated to the United States attempted to sue for damages they believe
they had suffered. The US State Department and courts determined that
Yaron had diplomatic immunity, so the case was not heard.
But now, based on the Pinochet case, the issues of immunity are no
longer clear-cut. The appointment of Carmi Gillon, current head of the
Peres Center for Peace and former head of the General Security Service,
as ambassador to Denmark for example, has sparked protests from some
human rights groups in that country.
A highly placed official at the Danish Embassy indicated that while his
country's judicial system is much more conservative than that of
Belgium, Denmark has been very active in promoting the ICC. Therefore,
if a Palestianian or Lebanese who holds Danish citizenship were to
attempt to instigate criminal proceedings against Gillon for alleged
crimes of torture, deportation and house demolition, the case
theoretically might have legal merit.
WAR CRIMES is a new concept. Until World War II, it was generally
accepted that armies wage war in a brutal fashion. But the genocidal
horror of the Holocaust changed world opinion. Nazi war leaders were
brought to trial at Nuremberg and some were sentenced to die. Several
Japanese commanders were also hanged.
After Nuremberg, human rights activists hoped to see the establishment
of a permanent international court, but such a court was never
established. With the rise of East-West tensions and the Cold War, each
side feared that such a court could be manipulated for political ends.
For nearly 40 years, the United States refused to ratify the UN's
anti-genocide convention, and, in 1985, in order to prevent prosecution
for the mining of Nicaragua's harbors, president Ronald Reagan even
withdrew the US from the compulsory jurisdiction of the World Court.
Even Cambodia - where, under the brutal reign of Khmer Rouge in the
1970s, more than one million Cambodians were tortured, starved and
murdered - has never been able to agree with the United Nations on a
mechanism or institution to try surviving Khmer leaders.
But by the mid-1990s, the world had begun to change. Activists
throughout the world became convinced that the international sanctions
and ostracism had contributed significantly to the breakdown of the
apartheid regime in South Africa. The end of the Cold War contributed to
the sense that an international consensus could be reached, and the Gulf
War proved that even the US and the former Soviet Union could cooperate
against a third-party aggressor.
While genocide hasn't stopped, it is being filmed and televised, and
human rights activists have been able to mobilize public opinion against
the atrocities committed in far-away places such as the Balkans and the
former Yugoslavia and Rwanda.
With a new sense of globalized empowerment, reinforced by CNN and MTV,
individual citizens began to demand that individuals and organizations
be held responsible for the atrocities committed against civilians and
enemy soldiers during periods of war.
Of course, notes Raday, it is much easier for the Western world to
prosecute crimes against humanity and war crimes in marginal countries
such as the Balkans, Chile and Rwanda.
"Most of the cases of international tribunals involve the
situations in which the victors prosecute the vanquished or most
victimized gain international support to prosecute the
just-a-little-less victimized."
At the Nuremberg trials, she notes, the vanquished Nazis were tried, but
there was never any discussion of trying Britain for the firebombing of
Dresden. Nor has there even been any discussion of trying prime minister
Margaret Thatcher for her actions against the Irish Republican Army and
Northern Ireland. Or NATO, England, or the US for their military
interventions in Iraq and Kosovo. Or Russia for crimes in Chechnya.
Of course there is a double standard, she notes, colored by narrow
domestic and regional diplomatic interests.
"This international movement for 'justice' against the committers
of war crimes will continue only as long as the leading nations of the
world are not threatened," she notes sardonically.
THIS climate is highly unfavorable to Israel, warns Baker. World images
are stark, mythic and simplistic, and since the 1967 war, Israel has
been playing the role of Goliath to the Palestinians' David.
Earlier this year, for example, an Amnesty International report
contended that Israeli troops were using excessive force in battles with
Palestinians, and that violations of human rights during recent weeks
could constitute war crimes. In March, eight national American Muslim
groups called on UN Secretary-General Kofi Annan to establish an
International Criminal Tribunal for Israel similar to those established
to deal with crimes against humanity in the former Yugoslavia and in
Rwanda, contending that the suffering of the Palestinians is little
different than that of Kosovars under Serbian oppression.
"A majority of the world," says Gross, "simply does not
accept Israel's interpretation of its situation, and this could have
serious implications in the future."
In fact, he says, the wording of the convention establishing the
permanent ICC was specifically adjusted to cover Israel's various legal
explanations for the establishment of settlements in the territories it
has occupied since 1967. The Geneva Convention specifically prohibits
the "transfer of population" into occupied territories, but
Israel has always insisted that the settlers have not been transferred
but, rather, have moved to the territories of their own free will. In
order to negate this argument, the convention to establish the ICC
specifically added the terms, "direct or indirect transfer."
And while the court's authority will not be retroactive, international
law does recognize a doctrine of "continuing effects" which
could be applied against Israel's behavior in the territories, Kretzmer
warns, particularly with regard to house demolitions, torture,
deportations and the taking of hostages.
Aware of the potential legal implications, Israeli officials respond
cautiously to questions regarding war crimes and crimes against
humanity.
Sharon and his spokespersons declined to comment for this report, as did
his lawyer, Attorney Dov Weissglass. According to transcripts of the
Panorama program provided by the BBC, Weissglass stated, "Never
have I heard that anyone even suggested that this kind of - let's call
it a professional mistake - a professional military mistake or a
professional political mistake even be mentioned in the same token with
international crime, or with war crime. When you take the word 'war
crimes' or 'punishment of war crimes' or 'international trial' and you
try to apply it to this case, it is an abuse of these important values,
and it's simply totally baseless."
Yet Gross warns, "Sabra and Shatilla is just the tip of the
iceberg. In particular, I am concerned about what this could mean for
individuals such as the prime minister, the chief of staff, high-ranking
individuals in the military and security establishment, and even for
individual soldiers and settlers.
"Even without the permanent ICC, domestic legislation could make
life miserable for [Israeli] politicians and for private citizens,"
he says. "What if individuals in every country in Europe launch
suits against Israeli officials or individuals?"
