Top-down pressures: A narrowing of options
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 Rumsfeld threatened that the US would relocate NATO headquarters to Warsaw unless Belgium’s newly elected Parliament rescinded the country’s progressive anti-atrocity legislation.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.