Belgium’s Challenge to War’s Ancient Calculus

For millennia, the stark calculus of war, eloquently expressed by Thucydides, has held that “the strong do as they will, while the weak suffer as they must.” As the world tensely awaits the start of a US-led war on Iraq, an unexpected challenge to this ancient adage emerged in Belgium last week, offering a reminder of the important — though neglected — role of international humanitarian law for resolving conflicts and punishing war crimes non-violently.

On Wednesday, Belgium’s Supreme Court overturned an earlier lower appeals court ruling that a war crimes case lodged against Israeli Prime Minister Ariel Sharon and other Israelis and Lebanese could not go forward because the accused “were not present on Belgian soil.” That ruling, rendered last June, had cast into doubt the viability and future of Belgium’s universal jurisdiction laws of 1993 and 1999, thus hindering popular struggles to bring a number of war criminals before the bar of justice in Brussels.

In 1993, the Belgian legislature formally incorporated the principle of Universal Jurisdiction for war crimes and crimes against humanity, encoded in the Geneva Conventions and the International Convention against Torture, into its criminal code. In 1999, this law was expanded to include the crime of genocide. Belgian courts are thus empowered to hear cases of war crimes, crimes against humanity, and genocide regardless of where the crimes were committed or the nationalities of the victims and perpetrators.

The first successful trial in Belgium under this law saw four Rwandans tried and sentenced in Brussels for their role in the 1994 genocide of Tutsis. Since the newly established International Criminal Court lacks jurisdiction over war crimes committed prior to July 1, 2002, the Belgian courts provide a much-needed venue for addressing cases of impunity that have festered for decades, poisoning hearts and minds and fueling new rounds of vengeance and suffering. In the context of the Bush Administration’s decision to pull out of the Rome Treaty establishing an International Criminal Court, the June 2002 Belgian appeals court’s unexpected decision in the case against Sharon and others delivered a body blow to a growing but diffuse international campaign against impunity for war crimes and crimes against humanity.

A key principle of the international campaign against impunity is “one yardstick for human rights.” Attempts to hold war criminals accountable multiplied after Spain requested the extradition of former Chilean dictator General Augusto Pinochet in 1998. Since then, the impunity of other infamous human rights violators —Hissein Habre of Chad, and Saddam Hussein and his associates—has been challenged or proposed to be challenged in various judicial venues, most notably Belgium.

The most high-profile case yet to be brought before the Belgian courts was the complaint lodged in June 2001 by 23 survivors of the 1982 Sabra and Shatila massacre against Ariel Sharon, then-Israel’s minister of defense, and other Israelis and Lebanese. The complaint charged Sharon with ultimate responsibility for the massacres of up to 2,500 civilians (for which no one has ever stood trial), based on the legal principle of Command Responsibility. As General of the Israeli Defense Forces (IDF), which had occupied Beirut that summer of 1982, Sharon is culpable, under the Geneva Conventions, for any harm that befell civilians in areas occupied by the IDF. The Kahan Commission, an Israeli commission of inquiry, investigated the IDF’s role in the massacres in 1983 and concluded that Sharon was “personally and indirectly responsible” for the killings.

A 14 February 2002 ruling by the International Court of Justice at The Hague grants temporary immunity from prosecution to heads of states and foreign ministers, so Prime Minister Sharon cannot be brought before the bar of justice as long as he remains in office. But last week’s ruling by Belgium’s highest court paved the way for the opening of legal proceedings against Amos Yaron, Amir Drori, Rafael (“Raful”) Eitan, along with other Israeli military officers and Lebanese militia leaders for their roles in the massacres and the associated disappearances of hundreds of Palestinian men and boys, whose whereabouts remain unknown.

After nearly two years of reversals of fortune and near-death moments, the landmark case lodged by survivors of the Sabra and Shatila massacres was resurrected and revitalized last Wenesday, offering renewed hope to human rights activists and victims of state crimes throughout the world and posing challenges to those who have enjoyed impunity for far too long. The case represents an instructive example of the aims and workings of international justice; it also offers moving testimony to the power of average people to comprehend and use international humanitarian law to rectify wrongs.

This lesson will be especially welcomed at a time when democratic political processes and frameworks of justice are endangered — nationally and internationally — by the US government’s rush to launch a dangerous war of dubious legality.

Dr. Laurie King-Irani is North American Coordinator of the International Campaign for Justice for the Victims of Sabra and Shatila (