The decision of the Belgian Supreme Court that Israeli prime minister Ariel Sharon can stand trial under that country’s “universal jurisdiction” law for war crimes, once he is no longer in office, has caused a storm of outrage in Israel. The case was brought by survivors of the 1982 massacre of thousands of unarmed Palestinian refugees in Israeli-occupied Beirut, carried out by Israeli-armed and trained gangs, under Israeli army protection, and in which Sharon is deeply and personally implicated.
Israeli foreign minister Benjamin Netanyahu’s disgusting slur against the survivors of the massacres, that they are “terrorists” was predictable enough. The comment of Israel’s “justice” minister Meir Shetreet that Belgium, which has twice the population of Israel and is one of the founding members of the European Union, is a “small and insignificant country,” is merely comical. Israel, apparently failing to understand the difference between the decision of an independent court and a government, recalled its ambassador ‘in protest.’
But even Israel’s ostensibly liberal Ha’aretz newspaper bitterly condemned the decision in an editorial, huffily asking, “What is the connection between Belgium and the atrocities committed by Phalangists in Beirut, in terrority [sic] for which the IDF - acting on behalf of the Israeli government - was responsible?” (“Belgium and world order,” Ha’aretz, 14 February 2003)
The paper asserts that, “Belgium’s status is no different from that of any other sovereign state, and it is entitled to enact laws and judge its own citizens, or anyone who commits crimes against them. But the Belgian legislature has elevated its country’s justice system above those of every other nation, and is trying to impose its rule on the citizens of countries with no connection to Belgium.”
The newspaper concluded that the court decision is “political” and warned that the “arrogance that prompted Belgium’s assumption of the right to judge Israeli politicians and officers will in the end come back to haunt it.”
In fact the decisions of Belgium’s independent judiciary in the Sharon matter are neither political nor arrogant, but based solidly in law and morality. Belgium, like Israel, is a signatory to the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Belgium, one of the original signatories, is a “High Contracting Party.” Article 1 of this Convention states that:
“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”Article 146 elaborates further, and in no uncertain terms that:
“The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.”These provisions flow from the world’s consensus after the Second World War that matters of crimes against humanity, war crimes, and genocide are not internal affairs of sovereign states, but a matter of the highest concern to humanity and the international community. If these provisions were not invoked for many decades, its does not make them any less valid today, nor Belgium’s effort to assume its treaty obligations less welcome or significant.
Israel set the precedent for what the Belgian judiciary is doing now. In 1961, Israel kidnapped, and later tried and executed Nazi Adolf Eichman, for crimes against humanity committed in Europe against nationals of other countries, before Israel even existed. The fact that a large part of his victims were Jews has no bearing whatsoever in international law, even though Israel claims to be the sole legitimate representative of Jews all over the world.
It should also be recalled that the Sabra and Shatila massacres happened during an international conflict sparked when Israel invaded Lebanon, a member state of the United Nations. The Israeli army that then defense minister Sharon commanded was occupying the capital of a sovereign nation, a multi-national “peacekeeping force” was on the ground supposedly to guarantee the safety of civilians, and the victims of the atrocities were stateless Palestinian refugees (as well as Lebanese civilians) denied by Israel’s seizure of their land of the right to a nationality and sovereign government to which they could have recourse for protection.
While Israeli liberals condemn Belgium’s effort to bring to justice the perpetrators of these crimes, they are apparently entirely comfortable with Israel’s courts assuming jurisdiction over the Palestinians, a subject people living under a brutal Israeli military dictatorship which every day perpetrates new, grave violations of the Fourth Geneva Conventions. Recently, for example, an Israeli court “fined” Palestinian Authority Chairman Yasser Arafat ten million dollars for damage to Israeli property allegedly caused by Palestinian attacks.
From which Israeli court can Palestinians have any serious hope of recovering the tens of billions of dollars in damage that has been done by Israel to their farms, countryside, towns and cities by decades of occupation and the past two years of methodical, premeditated devastation? In which Israeli court can Palestinians seek effective relief from the ongoing systematic extrajudicial killings, wanton killings of unarmed civilians and children, torture, arbitrary imprisonment, destruction of homes, and the panoply of measures of collective punishment they suffer every day? All of these Israeli measures are being carried out not by nebulous sub-state groups like Fatah or Hamas, operating in the context of a foreign military occupation, but by a sovereign state whose prime minister and government bear direct personal responsibility through a specific chain of command. There would be no need to go digging in the rubble of the Israeli prime minister’s office to find documents linking Sharon to these crimes, as Israel has attempted to do to link Arafat with groups over which he exercises no control, because the responsibility is explicit and undeniable.
And due to resume within months is the trial in a Tel Aviv criminal court of Palestinian militia leader Marwan Barghouti, allegedly for “terrorism.” Can there be any greater political show trial than the military occupier hauling its victims before its kangaroo courts?
What Ha’aretz is arguing is for a return to a world where butchery of any order can be carried out freely, and murderers can hide behind the cloak of “national sovereignty.” Resorting to such a defense, which would warm the hearts of recent history’s worst tyrants, exposes the moral bankruptcy of those who continue to demand that Israel be unlike any other state. What Ha’aretz wants is not justice or international order, but for Israel to continue to enjoy total impunity for crimes which are not merely past but ongoing.