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
The case
In an interview with Al-Ahram Weekly, Sherif Bassiouni, who helped bring Milosevic to justice, explains some of the legal aspects of the case against Sharon
Technically, there are three international legal channels for indicting perpetrators of war crimes or crimes against humanity. The United Nations Security Council has the right to form ad hoc war tribunals; the International Criminal Court (ICC), which will enter into effect with 60 ratifications; and countries -- such as Belgium -- which have laws that provide for Universal Jurisdiction (UJ) with respect to genocide, crimes against humanity and war crimes. In the case of the ICC, jurisdiction will only apply prospectively, and therefore will not cover war crimes committed before the Treaty entered into effect.
Sherif Bassiouni
According to Sherif Bassiouni, professor of law and president of the International Human Rights Law Institute at DePaul University, Chicago, only Belgium, and possibly Switzerland, could offer the possibility of bringing criminal action under the theory of UJ. Many states provide some form of conditional UJ, but most, however, require that either the victim or the perpetrator be a citizen of the enforcing state, says Bassiouni, who served as chairman of the UN Commission to Investigate International Humanitarian Law Violations in the former Yugoslavia. He was also elected vice-chairman of the UN General Assembly's Committee for the Establishment of an International Criminal Court (ICC).
In an interview with Al-Ahram Weekly, Bassiouni noted that the Geneva Conventions of 1949 and Protocol I of 1977 permitted the exercise of UJ "by any state for war crimes." But so far, no state has availed itself of that prerogative.
Belgium has extended its jurisdiction on the basis of UJ to prosecute four Rwandan Hutus, including two Roman Catholic nuns, for involvement in the genocide against Rwanda's Tutsi minority in 1994. All four were convicted. But in another case, where Belgium applied the same law to the former minister of foreign affairs of the Congo, who was never physically present in Belgium, for allegedly inciting genocide in the Congo, the case was referred to the International Court of Justice (ICJ).
Congo, says Bassiouni, claims that the extraterritorial criminal jurisdiction of Belgium without any contacts with the enforcing state is a violation of customary international law. It also claims that, in the case in question, it is a violation of the Vienna Convention on Diplomatic Immunity, since the defendant was minister of foreign affairs. "It is expected that the ICJ will rule on the merits of that case in November of this year," Bassiouni says. He added, however: "If it rules that the extension of extraterritorial criminal jurisdiction via the theory of UJ is in violation of customary international law, then it will be a significant setback with respect to the Sharon matter in Belgium."
"However, the ICJ may find that a state may exercise UJ on a person when that person is physically present in the state." In this case, he argued, "an indictment in Belgium would have no extraterritorial effect, but if Sharon steps in Belgium, he could be arrested there."
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