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Pin sharon { October 11 2001 } Subject: Fwd: [awsa_list] PIN 72: Trying to Try Sharon
>
> >MERIP Press Information Note 72
> >
> >Trying to Try Sharon
> >
> >Linda A. Malone
> >
> >October 11, 2001
> >
> >(Linda A. Malone teaches at William and Mary Law School in Williamsburg, Va.
> >She is author of two law review articles on the Sabra and Shatila
> >massacres.)
> >
> >The concept of universal jurisdiction in international law is undergoing a
> >historic test in Belgium. On November 28, a Belgian court will decide
> >whether Israeli Prime Minister Ariel Sharon can be tried for his alleged
> >role in the slaughter by Lebanese militiamen of untold numbers of
> >Palestinian and Lebanese civilians in the Sabra and Shatila refugee camps in
> >West Beirut in 1982. At the time, Sharon was in charge of Israel's invasion
> >and occupation of Lebanon. On October 3, an appellate court grand jury
> >convened in Brussels to begin determining whether Belgium can invoke the
> >mechanisms of international law to prosecute a sitting head of state from
> >another country.
> >
> >HISTORIC SUIT
> >
> >On June 18, survivors of the Sabra and Shatila massacres filed two civil
> >lawsuits against Sharon in a Belgian court. The complaints describe the
> >events leading up to the September 15, 1982 sealing of Sabra and Shatila by
> >the Israeli army during the invasion of Lebanon, followed by authorization
> >from Sharon, then Israeli Defense Minister, for a unit of 150 Phalangists --
> >a right-wing Lebanese Christian militia -- to enter the camps. In what
> >Sharon has termed a "mopping up" of the camps, for the next two days the
> >Phalangists proceeded to rape, kill and injure thousands of unarmed citizens
> >within the camps. The presentation of facts in the complaint is supplemented
> >with testimonials from 22 of the plaintiffs and 12 witnesses who survived
> >the massacres but lost family members and suffered injuries.
> >
> >The complaint alleges Sharon is responsible for crimes against humanity,
> >genocide and war crimes for his role in the massacres. Under Belgian
> >legislation passed in 1993 and amended in 1999, international law has been
> >incorporated into Belgian law to remove restrictions on such suits from
> >statutes of limitations, jurisdictional constraints and sovereign immunity.
> >The complaint invokes universal jurisdiction for violations of international
> >humanitarian law, and relies upon this customary international law as jus
> >cogens -- fundamental international law norms to which there can be no
> >exceptions -- incorporated into the Belgian law to validate the Belgian
> >court's jurisdiction.
> >
> >Since the Israeli Kahan Commission in 1983 found Sharon personally but
> >"indirectly responsible" for the Sabra and Shatila massacres, there has been
> >no legal action against the Israeli leader. The Kahan Commission found that
> >only those who actually committed the killings could be found "directly"
> >responsible. As a result of the commission's report, Sharon resigned from
> >his position as Minister of Defense, although he remained in the cabinet
> >without a portfolio. He has served in subsequent governments, and in
> >February 2001 was elected prime minister of Israel.
> >
> >"INDIRECTLY RESPONSIBLE"
> >
> >The Belgian complaint names Ariel Sharon as the central Israeli figure in
> >the planning, preparation and commission of the Sabra and Shatila massacres.
> >To demonstrate these claims, massacre survivors are relying upon the
> >findings of Israel's Kahan Report.
> >
> >The Kahan Commission was established by the Israeli cabinet on September 26,
> >1982 to investigate state and individual responsibility for the massacres.
> >Israel's Commission of Inquiry Law of 1968 empowers the government to set up
> >a commission of inquiry regarding any matter of "vital public
> >importance...which requires clarification." During its investigation, the
> >commission issued notices of potential harm from the commission's findings
> >to nine people, including Sharon.
> >
> >The Commission of Inquiry Law provides no standards by which a commission is
> >to determine questions of responsibility. The commission devised two levels
> >of responsibility -- direct, for those who actually perpetrated the
> >massacres, and indirect. Based on this delineation, the commission
> >necessarily did not find that Israel or any of the nine Israelis issued
> >notices of harm were "directly" responsible for the massacres. Under
> >international law, however, legal responsibility for international crimes is
> >not limited to the actual perpetrators. Accomplices, co-conspirators and
> >individuals responsible under the law of command responsibility for forces
> >within their control can also be found culpable.
> >
> >Although finding Sharon "indirectly" responsible, the commission reserved
> >its strongest finding of personal responsibility for Sharon, coming very
> >close to saying that he sent in the Phalangists anticipating a massacre: "If
> >in fact the Defense Minister, when he decided that the Phalangists would
> >enter the camps without the IDF taking part in the operation, did not think
> >that that decision could bring about the very disaster that in fact
> >occurred, the only possible explanation for this is that he disregarded any
> >apprehensions about what was to be expected...." In other words, the
> >commission concluded that, at the very least, Sharon acted with extremely
> >reckless disregard of the possibility of a massacre.
> >
> >The Kahan Report also faulted Sharon for having failed to impose any
> >restrictions on the Phalangists before sending them into the camps. These
> >critical findings of failure to act and mens rea (the intentional element)
> >strongly support a legal determination that Sharon was responsible for grave
> >breaches of the laws of war under the law of command responsibility. Under
> >those principles of law, a commander who knows, or should have known, that
> >forces within his control are about to commit war crimes is legally
> >responsible for those crimes if he fails to take steps to prevent those
> >crimes. The commission concluded that Sharon, along with four other high
> >military officials, knew or should have known that extensive killings would
> >result from the entry of the Phalangists. According to the report, numerous
> >Israeli officers and officials, including Sharon, received reports of
> >killings in the camps during the Phalangist occupation. All failed to take
> >any steps to halt the violence.
> >
> >THE CASE
> >
> >On September 19, 1982, the UN Security Council condemned the massacres. A
> >December 16, 1982 General Assembly resolution characterized the massacres as
> >an act of genocide. The Belgian complaint relies upon the definition of
> >genocide in the 1948 Convention on Genocide, reproduced in Article 6 of the
> >International Criminal Court (ICC) Statute and in the Belgian law of June
> >16, 1993. Utilizing survivor testimony, journalists' accounts and Sharon's
> >autobiography, the plaintiffs contend that the massacre deliberately
> >targeted Palestinians living in Sabra and Shatila because of their national
> >origin.
> >
> >The plaintiffs cite the Rome Statute of the ICC, international customary law
> >and jus cogens as for their definition of crimes against humanity. Following
> >the definition of the ICC, the complaint sets forth the criteria as "a
> >widespread or systematic attack directed against any civilian population,
> >with knowledge of the attack." According to the complaint, the massacres
> >involved the rape, murder and abduction of hundreds of civilians with
> >"highly efficient cooperation" between the Phalangist forces and the Israeli
> >army, with the Israeli commander's full knowledge that the camps contained
> >civilians. The complaint states that recognition of the massacres as
> >genocide automatically satisfies the criteria for crimes against humanity in
> >these factual circumstances.
> >
> >Relying on the provisions of the Fourth Geneva Convention as well as Article
> >8 of the ICC Statute to define grave breaches of the laws of war, the
> >complaint specifically notes "intentional homicide, torture or other
> >inhumane treatment; destruction of property without military necessity;"
> >attacks on civilians; and attacks on undefended locations. All of these
> >crimes are alleged to have been committed in Sabra and Shatila by the
> >Phalangist militia, with the full support and aid of the Israeli army.
> >
> >The findings of the Kahan Report would appear to give the plaintiffs a
> >strong case for the war crimes charge. Sharon's responsibility for genocide
> >will depend in large part upon proof that he intended to destroy the
> >Palestinians as a group. His responsibility for a crime against humanity, on
> >the other hand, will be dependent upon demonstrating that the massacres were
> >part of a larger policy or systematic course of conduct against the
> >Palestinians.
> >
> >UNIVERSAL JURISDICTION?
> >
> >In September, Sharon's attorneys postponed the court's ruling by challenging
> >the concept that Israel's prime minister is subject to investigation by a
> >Belgian court. The validity of the Belgian law's invocation of universal
> >jurisdiction for genocide is supported in the complaint by reference to jus
> >cogens and the 1948 Convention on Genocide. The plaintiffs cite decisions
> >from the International Court of Justice and the UN Tribunal for Yugoslovia
> >Appeals Chamber, which held that all parties to the Convention on Genocide
> >assume the obligation to punish the crime and that such obligation includes
> >the power to "extradite the persons presumed responsible for grave
> >violations of international humanitarian law."
> >
> >Crimes against humanity are similarly premised jurisdictionally on jus
> >cogens. Citing the Pinochet and the Demjanjuk decisions, the complaint
> >states that under the universality principle "any nation which has custody
> >of the perpetrators may punish them according to its law applicable to such
> >offenses." Based on jus cogens drawn from the Geneva conventions, the
> >Belgian law and the complaint assert universal jurisdiction for the
> >punishment of war crimes which constitute grave breaches of the conventions.
> >
> >OUTLOOK
> >
> >Sharon can be tried in the civil suit in absentia. If the Belgian government
> >issues an indictment, he can also be arrested upon his arrival in the
> >country, or extradition can be sought.
> >
> >The most critical amendment in the 1999 Belgian law is the removal of
> >official immunity for the commission of the crimes enumerated under the law.
> >This provision states that sovereign immunity does not prevent "application
> >of the present law." Broadly stated, this provision can be read to preclude
> >sovereign immunity as a defense, regardless of whether the individual was
> >acting in an official capacity at the time of commission of the acts, or is
> >acting in an official capacity at the time of the suit, or both. However
> >difficult it might be to overcome a defense of immunity for a sitting head
> >of state in most domestic courts, the Belgian law and a growing body of
> >international law indicate that there should be no sovereign immunity from
> >grievous crimes such as genocide, crimes against humanity and grave breaches
> >of the laws of war. At the very least, given the prospects of similar suits
> >in Great Britain, Spain and the US, Ariel Sharon may find himself
> >increasingly isolated and cut off from travel to several major world powers
> >and centers of diplomacy.
> >
> >Sharon may be the worst enemy of his own image. While the appellate court
> >grand jury was convening in Brussels, the Israeli leader gave a speech
> >berating the US government for pressuring him to engage in talks with the
> >Palestinian leadership. In it, he compared George W. Bush to Neville
> >Chamberlain, who tried to appease Nazi Germany by allowing it to seize parts
> >of Eastern Europe. The US response was quick and sharp. Already criticized
> >by Secretary of State Colin Powell for taking advantage of the September 11
> >tragedies in the US to engage in more offensive operations against the
> >Palestinians, Ariel Sharon may have alienated the one government -- other
> >than his own -- most likely to defend him in his Belgian troubles.
> >
> >(When quoting from this PIN, please cite MERIP Press Information Note 72,
> >"Trying to Try Sharon," by Linda A. Malone, October 11, 2001. The author can
> >be reached at lamalo@wm.edu.)
> >
> >-----
> >
> >Press Information Notes are a free service of the Middle East Research and
> >Information Project (MERIP). To subscribe to the MERIP PIN distribution
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