12 - 18 July 2001
Issue No.542
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Al-Ahram Weekly Online 12 - 18 July 2001 Issue No.542 |
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International humanitarian law seems to be "growing teeth." But are these real cracks that we see in Israel's long-entrenched immunity? Amira Howeidy sheds light on the unprecedented prosecution of Israeli Prime Minister Ariel Sharon before a Belgian court, and explores the limits of international justice where Israeli crimes of war are concerned
Crime and punishment
Al-Ahram Weekly sounds out the legal eagles
Six years ago, when Amir Salem, an Egyptian lawyer and human rights activist, called for a Nuremberg-style tribunal to indict Israeli officers for killing Egyptian POWs in the 1956 and 1967 wars, he was met with sympathy, but his suggestions was considered far-fetched, not to say impossible. What a difference six years make.
IMAGES OF DEHUMANISATION: (above) Childhood, Jewish as well as Palestinian, is shattered by the gun
photo: Randa Shaath
17 June: The BBC airs a documentary titled The Accused, about the 1982 massacre of over 3,000 Palestinians (according to an International Red Cross estimate) in the Sabra and Shatila refugee camps in Lebanon. The documentary features evidence and eyewitness accounts, and includes opinions from experts in international law holding the then Israeli defence minister, Ariel Sharon, responsible for the massacre. The programme also gave prominence to the shocking testimony of Soad Surour, one of the survivors, who was shot and raped, whose family was killed before her eyes, and who is paralysed today as a result. International justice, the documentary concluded, must take its course.
18 June: Soad Surour arrives in Belgium to file a lawsuit unprecedented in the history of the Arab-Israeli conflict. Surour's lawyers present Belgian Judge Sophie Huguet with a 53-page complaint presented by 23 survivors of the massacre against Israeli Prime Minister Ariel Sharon, Amos Yaron and other Israeli and Lebanese citizens for acts of genocide, crimes against humanity and war crimes. The judge accepts the complaint and begins an inquiry into the massacre.
Indicting Sharon: that's what everyone is talking about. This may be the first time in living memory the West has condemned an Israeli head of state so loudly. Almost immediately, the call for justice echoed elsewhere: the US-based group Human Rights Watch (HRW) released a strongly worded statement demanding "a criminal investigation" into Sharon's role in the massacre; the Egyptian Bar Association held a "people's trial" of "war criminal" Sharon attended by hundreds in Cairo; Arab TV channels aired numerous programmes on the legal possibility of indicting Sharon; embarrassed Belgian officials announced that the law allowing Sharon's indictment would be changed; and in Beirut, Elie Hobeika, a top Phalange official at the time of Sabra and Shatila, also singled out for responsibility by the BBC documentary, held a press conference and announced he was willing to cooperate with the Belgian inquiry. Hobeika also vowed he would present evidence of his innocence that is bound to challenge "the Israeli version" of what really happened.
Although the frenzy was fueled by the Belgian judge's acceptance of the complaint, and the fact that an actual inquiry has begun, the very notion of indicting heads of state, whether current or former, has so shaken the international scene that images of a disgraced Sharon in the dock are already dancing before our eyes. These fantasies are not realistic. It may well prove impossible -- at least for the time being -- to place an Israeli head of state, current or former, in Slobodan Milosevic or Augusto Pinochet's shoes. Israel is not the former Yugoslavia. And just because the international community is adopting a virtuous posture these days, observers argue, that doesn't mean double standards are out of style.
For one thing, Belgium is seriously considering changing the law it passed in 1993 and which provides for universal jurisdiction with respect to genocide, crimes against humanity and war crimes without the need for a connection to Belgium by reason of territoriality or the nationality of the perpetrator of the crime or even the actual physical presence of the defendant in Belgium. It was this law that enabled Luc Walleyn, the Belgian lawyer leading the Sabra and Shatila survivors' case, to take legal action in the first place.
But Belgium, which has headed the European Union since 1 July, is already bowing to diplomatic pressure; its foreign minister recently explained that although the Belgian street is sympathetic with the indictment, the "government feels otherwise."
Still, Walleyn thinks, "we have a very strong case." A warrant of arrest, he told Al-Ahram Weekly, "[even] before a ruling is passed, is possible." Such a warrant, Walleyn argued, "should also be respected by other countries linked to Belgium by a convention for international legal cooperation. And in that case, a situation could occur similar to that in which Spain requested that General Pinochet be extradited from the UK."
The legal aspect of the case, on the other hand, is complicated, and could take several years. "Right now the investigating judge is pursuing the inquiry. He has no limits in the way he organises the investigation. He can start gathering information that is already available, like reports from commissions of inquiry, written statements from witnesses... He can question people who want to come here; if he wants someone to be questioned but refuses to come, he can send a police officer to the country were the person is living to question him... It may not be a matter of weeks, but of years" -- unless, Walleyn explained, "an arrest warrant is issued: then things will move faster. But only after the inquiry is complete will the judge decide who is responsible for the massacre."
One obvious difficult point, argues Walleyn, is the fact that the massacre occurred 19 years ago. But, he adds, "that problem had to be solved in recent procedures concerning crimes committed during World War II, for instance, where sometimes people had to face trial 40 or 50 years later. It's still possible, because a lot of the witnesses are still alive and remember quite well what happened. Even if there wasn't a judicial inquiry, much investigation has been done by investigative commissions such as the Kahan Commission in Israel. So there is quite a lot of material available."
Until the investigation is complete, the political aspect of the indictment and the apparent sympathy shown by international public opinion for criminalising Sharon, supported by human rights groups and calls for international justice, could signal a change.
Hani Megally, executive director of the Middle East and North Africa division of Human Rights Watch (HRW), believes the new situation reflects "the evolution of a real international justice system, which has teeth and can bring to justice perpetrators of crimes against humanity or war crimes." With high-profile cases such as those of Pinochet and Milosevic, he told the Weekly, "we have seen that past or sitting heads of state are not above the law. The message here is that those in power today should clearly understand that they can no longer [commit crimes] with impunity. They will be brought to justice. If this makes us stop and think, then the world will be a better place for it."
Even before the tide turned against Sharon, a significant development had occurred. Last May, Rene Kosirnik, the International Committee of the Red Cross's regional chief for Israel, was quoted as saying that Israeli settlements on occupied Palestinian land are a violation of the Fourth Geneva Convention and, consequently, constitute a war crime. Following an uproar that extended to the US Congress, ICRC President Jacob Kellenberger responded with an apology. The event may not have shaken the ICRC, but it opened the door to an internal debate on the issue, especially with respect to the committee's declared position on international humanitarian law. Kosirnik, furthermore, has stuck to his guns. "The settlement policy is a violation of article 49 of the Fourth Geneva Convention. This has always been the official position of ICRC," he told Al-Ahram Weekly.
Is the 10-month-old Al-Aqsa Intifada the reason why international public opinion is coming to view the Palestinian-Israeli conflict with less of an Israeli bias? Gasser Abdel-Razeq, director of the Hisham Mubarak law centre in Cairo, sees a "positive change" in the "attitude of international rights groups regarding the Intifada." But this is not due to the gravity of the situation in the occupied territories; rather, Abdel-Razeq attributes it to the fact that Arab rights activists are getting more involved in the international scene, with several prominent Arab activists on the boards of international rights groups such as the Euro-Med Human Rights Network, the International Federation for Human Rights (FIDH) and Habitat International.
Justice? Amir Salem, the first to wave the indictment pennant six years ago, still believes he should pursue his case on Egyptian POWs, although he does not feel the international community genuinely intends to treat Israel objectively -- not even when it comes to indicting Sharon. Nevertheless, an Israeli head of state is in danger of indictment. To those who have suffered in silence for almost 20 years, and who remember that he stood by while their families were massacred, that means a lot.
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