Immanuel Kant: ”Law should never be modified according to politics, but rather politics must always be modified according to law.’

Confronting Impunity for War Crimes:
The Choice before Belgium -- and All of Us

Laurie King-Irani
North American Coordinator
International Campaign for Justice for the Victims of Sabra and Shatila
27 June 2003

Before us is a choice. Behind us are searing landscapes of impunity: Beirut, 1982; Manhattan, 2001; Netanya and Jenin, 2002. Scenes of mass death and measureless destruction in which the cries of the bereaved and odors of death erase local particularities, reminding us of humanity's infinite capacity for cruelty and violence. But human beings are also capable of creating a worldwide landscape of social and political justice.

The foundations of this alternative landscape are not hidden, unattainable, or imaginary, but clearly encoded in the Universal Declaration of Human Rights, international human rights law, and International Humanitarian Law, particularly the Fourth Geneva Convention adopted after World War II to halt grave violations of civilians' rights. Last year's establishment of the International Criminal Court (ICC) brings us another step closer to realizing landscapes of hope, despite the alarming US decision to withdraw from this important attempt at ensuring global justice.

Methods for holding war criminals accountable have multiplied in the last decade, particularly after Spain requested the extradition of former Chilean dictator General Augusto Pinochet from the UK in 1998. Since then, the impunity of other infamous human rights violators -- Hissein Habre of Chad and Iraq's Saddam Hussein -- has been challenged or proposed to be challenged in national judicial venues, particularly in Belgium, a country unique in the world for having offered up its courts for the investigation and prosecution of atrocities committed elsewhere.

In 1993, the Belgian legislature formally incorporated the principle of universal jurisdiction for war crimes and crimes against humanity into its national criminal code, expanding this law further in 1999 to cover the crime of genocide. These laws enabled Belgian courts 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.

Since the ICC lacks retroactive jurisdiction over war crimes committed prior to July 1, 2002, and will never be able to hear or handle all the cases that might be sent to it, the Belgian courts could provide a much-needed venue for addressing impunity for war crimes that have festered for decades, poisoning hearts and minds and fueling new rounds of vengeance and suffering.

Two months ago, the Belgian parliament voted to re-interpret and limit its ground-breaking universal jurisdiction law, adding filters to prevent abuses while also specifying which cases might be better handled by the ICC or sent back to the state courts of the alleged perpetrators for trial. Although some observers expressed concern that narrowing the law's scope might render the law considerably less universal, most human rights scholars had deemed the new filters acceptable and unobstructive of the search for justice for the most serious violations of human rights.

Suddenly, however, Belgium's universal jurisdiction legislation is under threat of cancellation, not just modification. The threat comes not from Belgian civil society or Belgium's parliamentarians, but from US Secretary of Defense Donald Rumsfeld. The US government fears that even a modified law with clearly delimited scope and powers might be abused to arrest and prosecute US governmental and military officials when they arrive in Belgium to attend NATO meetings.

Desiring to preserve what is left of its universal jurisdiction legislation, the Belgian government proposed solutions and compromises, such as granting diplomatic immunity to all leaders attending NATO meetings. But this was not enough to satisfy the US government, which then threatened to relocate NATO to Poland if the universal jurisdiction law is not sufficiently defanged. Such a move would put a very big dent in Belgians' pocketbooks.

Seasoned and objective analysts have been surprised and alarmed at American officials' extreme reactions to Belgium's recently modified universal jurisdiction law. Rumsfeld's threats seem excessive and hysterical, especially since the new law successfully filtered out two cases lodged in the Belgian courts against US officials for alleged war crimes committed in Iraq in 1991 and 2003. Could there be any unspoken reasons for the unprecedented and impolitic arm-twisting of the Belgian government by US officials in recent weeks?

Perhaps the highest-profile case ever brought before the Belgian courts was a 2001 complaint lodged by 23 survivors of the 1982 Sabra and Shatila massacre. They accused Ariel Sharon, then-Israel's defense minister, along with other Israelis and Lebanese, of responsibility for the deaths of over 2,000 Lebanese and Palestinian civilians. The complaint charges Sharon with ultimate responsibility for the massacres (for which no one has ever stood trial), based on the principle of Command Responsibility. As the commanding general of the Israeli Defence Forces, which had occupied Beirut that summer of 1982, Sharon is culpable, under the Geneva Conventions, for any harm that befell civilians in the Lebanese capital.

The Sabra and Shatila case has been a legal roller coaster ride of sudden changes, deep disappointments, and last-minute recoveries. A complex series of pre-trial hearings and appeals court rulings over the past two years finally culminated in a landmark supreme court decision in the massacre survivors' favor last February. Just two weeks ago, a Belgian appeals court green-lighted an investigation and trial to determine the culpability of a
number of Israelis and Lebanese in the massacres. (Ariel Sharon is no longer named among the accused because he enjoys immunity from prosecution as long as he is the sitting prime minister of the state of Israel.)

Recent US strong-arming of the Belgian government may well be a covert attempt to protect Israelis from a serious judicial inquiry in Brussels. The full story of what happened at Sabra and Shatila, and the extent of Israeli culpability in the planning, conduct, and aftermath of the atrocities that took place between 16-18 September 1982, as well as Israeli officers' roles in the disappearances of hundreds of men and boys immediately after the massacres, has yet to be told. It is likely that the US wishes to gut Belgium's universal jurisdiction law not only to protect its own citizens from prosecution, but even more so to prevent Ariel Sharon from being tried in the court of world public opinion as a result of the damning revelations that will most certainly emerge during a formal legal inquiry into the Sabra and Shatila killings.

It is no secret that Israel has violated international law with impunity for decades in the West Bank and Gaza. As an occupying power, Israel has seriously breached the Geneva Conventions by building settlements, diverting water, and undertaking extra-judicial killings, torture, arbitrary detention, collective punishment, and the imposition of sieges on a largely unarmed civilian population. Violations of International Humanitarian Law and disregard for UN resolutions have become part and parcel of Israeli practices n the West Bank and Gaza Strip. Daily infractions of international law and UN
resolutions are woven into the very sinew of the institutionalized system of inequality and repression that is the occupation. Any judicial investigation into past Israeli violations of International Law could run the risk of focusing renewed legal attention on Israel's ongoing crimes in the Occupied territories.

From the perspective of Israel's key ally, the United States, future "stability" in the Middle East hinges upon maintaining the status quo in the Israeli-Palestinian conflict by wringing maximum concessions from the Palestinans while demanding minimal sacrifices or behavioral changes from Israel. The current "Road Map to Peace" implicitly grants Israel permission to continue violating international laws and UN resolutions, which the Road Map, just like the Oslo Accords before it, sidelines in a rush to hammer together a dubious
peace based on pressure tactics and expediency, rather than one built upon the sturdier foundations of global justice. As international legal scholar Kathleen Cavanaugh has noted:

"Alarmingly, this flawed political agreement [the Oslo Accords] has assumed a de facto legal status and has replaced international law in practice. As a result, compliance with international human rights and humanitarian law has been rendered negotiable. The deftly woven ambiguity of the Accords may have secured the initial Israeli-Palestinian agreement, but this ambiguity has also enabled Israel to claim compliance with the Accords while clearly violating international law." [1]

Continuing Israeli violations of International Humanitarian Law are not just a problem for Palestinians suffering under a brutal occupation. Israeli impunity is the primary catalyst for the criminal suicide bombings that have brought violence, death, and suffering to the very heart of Israeli cities. When victims of long-standing and serious rights violations do not have recourse through proper channels, when they cannot obtain restitution and closure through the courts, the state, the international community, the UN, or the Hague, they may take matters into their own hands, as some Palestinian factions have done.

In the absence of an international criminal tribunal or a truth and reconciliation commission to resolve the Israeli-Palestinian conflict, Belgium's universal jurisdiction legislation offers a more constructive approach than the wearisome, ugly, and painful round of "eye-for-eye, child-for-child, corpse-for-corpse" that now plagues Israelis and Palestinians alike. It is clearly a path
worth pursuing.

US and Israeli hostility to international law will only lead to more deaths of Israelis and Palestinians -- and possibly even Americans. Thus, US efforts to strangle Belgium's universal jurisdiction law, thereby possibly halting the Sabra and Shatila case before it has even begun, can only send a dangerous message to Palestinians and others that legal and non-violent attempts to police the past and seek restitution through the courts are impossible. It requires no stretch of the imagination to see how this could drive some people to settle scores through violent and extra-legal means.

Since we have a choice between crime or justice, violence or peace, murder or life, let's put teeth into International Law and build landscapes of hope upon the charred landscapes of impunity spreading rapidly in the Middle East. Let us urge the Belgian people and parliament not to bow before unprecedented, unprincipled, and unjust US pressure tactics and economic blackmail; let us support democratic processes in Belgium by allowing the Belgian people to continue blazing trails in the field of international criminal prosecution, trails that may lead to landscapes of hope.

Note:

[1] "The Cost of Peace: Assessing the Palestinian-Israeli Accords," in Middle East Report #211, Summer 1999, pp. 11-12.
Laurie King-Irani is North American Coordinator for the International
Campaign for Justice for the Victims of Sabra and Shatila <
www.indictsharon.net>. She teaches social anthropology in British Columbia.