2003: A year of US and Israeli defiance of International Law (1/2)

Israeli Prime Minister Ariel Sharon and US President George W. Bush at the White House. (White House/Paul Morse)

In 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.

This Palestinian woman from Rafah, occupied Gaza, shows bullets and shell shrapnel she collected in her own home. (Ronald de Hommel)

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 prime minister Ariel Sharon in December 2003.

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.

Principles postponed

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.