|Al-Ahram Weekly Online
16 - 22 August 2001
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photo: Randa Shaath
A law for all nations
Collective responsibility and universal jurisdiction: diplomat and lawyer, he charts such choppy international waters with assurance
Profile by Aziza Sami
His voice is courteous, responsive and a bit hurried over the phone. The appointment is set, but although I arrive at his office on Qasr Al-Nil Street some 15 minutes early, any hope of using the extra moments to prepare for the anticipated encounter is quickly dampened.
Without ceremony the affable young assistant ushers me into Nabil Elaraby's office. He is just finishing a phone call. "It's good you're early -- I have another appointment in half an hour." Another quick telephone call. He is of slight yet athletic build, dressed in cool blue hues, clean- shaven; the face appears younger than its 65 years. One of his generation's most distinguished diplomats and international lawyers, he is now poised for yet another crowning: his nomination, announced last week, to serve as a judge at the International Court of Justice in The Hague. If elected to the post on 12 October (a unanimous vote by both the UN's Security Council and its General Assembly is necessary), he will become the third Egyptian to sit on the world's highest international tribunal, after Abdel-Hamid Badawi in the '50s and Abdallah El-Erian in the '70s. "They both ended their days holding a seat on the ICJ -- not a very propitious position," he smiles wryly.
This is in fact Elaraby's second nomination to the ICJ. In 1996, "it was thought more appropriate to concentrate efforts on getting [then UN Secretary-General] Boutros Ghali reelected, so the nomination was withdrawn, which I appreciated and understood."
The ICJ is comprised of 15 judges. Elaraby is a candidate for the North African regional seat, which comprises "the Arab-Islamic civilisation and legal systems."
Like any busy individual with much on his mind, he does not seem inclined to dwell on his recent nomination, but the question has to be asked. What does it mean, to him and for Egypt?
He will say only that he hopes he will be able to do something in that position. His 40 years with the Foreign Ministry and at the UN have prepared him well for the task, should he be called upon to perform it.
GLOBAL CONCERNS: from far top, multi-tasking (photo: Randa Shaath); as president of the Security Council in 1996, during discussion of the resolution demanding unconditional access to sites in Iraq; signing the Taba agreement; sealed with a handshake
(photos: Al-Ahram archives)
He has been a member of the International Law Commission of the UN since 1994, and still holds the position. He has been a judge on the judicial tribunal of the Organisation of Arab Petroleum-Exporting Countries (OAPEC) since 1990, and commissioner at the UN's Compensation Commission (UNCC) since 1999. He is also a member of the governing board of the Stockholm International Research Institute (SIPRI).
After retiring from the Foreign Ministry in 1999, he turned to commercial law, as a senior partner at the international law firm Zaki Hashem and Partners. Prior to that, from 1991 to 1999, he was Egypt's permanent representative to the UN, and worked in a number of capacities on other UN-related committees, serving, for instance, as president of the Security Council. His legal experience has been extensive: among many other positions, he represented the Egyptian government at the Egyptian- Israeli Arbitration Tribunal in the Taba dispute from 1986 to '88, and headed the Egyptian delegation to the Taba negotiations from 1985 to 1989. This arduous process culminated in Egypt regaining the Israeli-occupied territory of Taba through international arbitration. In 1994, Elaraby was elected member of the UN's International Law Commission, the body responsible for the drafting of treaties, generally considered a "stepping-stone" to the ICJ.
He is aware, though, that his continuing work coincides with "a crisis in international law," for the Middle East and indeed worldwide. He speaks of the new global order and the exclusive position it has created for "the supreme power;" this exclusivity, he maintains, has allowed the US, "by opposing treaties, getting out of them, and going beyond the proper interpretation of international law, to subvert the tenets upon which the law is based, the balance of power and deterrence." He does not foresee a change in the immediate future.
There is, he says, a glimmer of hope, however: developing countries are coming to realise the importance of resorting to international arbitration. "At one point, only the Western states went to the ICJ. But lately the Arab and African countries have also resorted to it. They tried to take Israel to The Hague in 1986, but the Western countries refused to support this position. Now, we see Libya taking the US and the UK to court on Lockerbie. Eritrea and Yemen had a case, and for nine years, Qatar and Bahrain also contested a dispute before the court, which was adjudicated two months ago."
Especially significant -- although not at all novel, since it is rooted in the tenets of international law -- is the Belgian judiciary's recent decision to move forward with an indictment claim victims of the 1982 Sabra and Shatila massacres have filed against Israeli Prime Minister Ariel Sharon. This crucial development in international law did not start with the Belgian case. Since the '70s, the international community has concluded humanitarian law treaties that considered certain gross violations as matters concerning the international community as a whole, and not only the country involved. "Take the highest crime, which is genocide," notes Elaraby. "It is a crime not only against the victim, but against the international community at large. And so a new concept was introduced in international law: that of 'universal jurisdiction.' Genocide, war crimes, aggression, hijacking: all these crimes are considered as conferring this jurisdiction on all states. Any country can start procedures [against alleged perpetrators]. It was, in fact, a very important treaty, the 1949 Geneva Convention, that laid the ground for the concept of collective responsibility by stating clearly that all contracting states are obliged to respect and ensure respect for the provisions of the treaty. This was the point of departure for the development of the concept of universal jurisdiction as applied in Belgium."
In view of the political pressure to which individual countries can be subjected as they try to apply collective responsibility, the best guarantee that the principle can be implemented lies in "a most important development -- the creation of an international criminal court in 1998, established by the Rome treaty." He believes the court is viable, although it is still the subject of an intense international debate spurred by fear of the political ramifications that will occur once the door is opened to the prosecution of individuals who may still hold office. "Only 30 states have ratified [the decision to establish the court], and we need 60 countries to do that. But I think that prosecution by an international criminal court remains the way out."
Elaraby's faith in the law is hardly sui generis. His background is steeped in the legal tradition: his father, Mohamed Abdallah Elaraby, was a prominent lawyer who, like Abdel-Razeq El- Sanhouri, was dean of the Iraqi law school. Thereafter, the academic tradition of the "Egyptian school" spread to Sudan, Yemen, the Maghreb, Saudi Arabia and the Gulf states. Following in his father's footsteps, Elaraby graduated from Cairo University in 1955. He obtained his master's degree in international law in the US, and went on to complete a doctorate in judicial science at New York University's school of law in 1971.
He gestures towards the cup of Turkish coffee that sits, still untouched, on the table. "Your coffee -- please." He does not like things half done. He speaks quickly when he is not providing careful details on a complex point. He demands equally quick responses from those who work with him, but he is always courteous, proffering thanks for every answer to his requests.
For almost 15 years he was involved in negotiations with Israel -- as legal adviser to the Egyptian delegation at the UN Geneva Middle East peace conference, between 1973 and '75, then to the Egyptian delegation at the Camp David meeting of 1978. He had reservations, as the negotiations took their course, to what he described in a published interview as "political considerations taking precedence over the proper application of international law." In the peace process, he explains now, "we did not get all we wanted, but it was still easy, because, history, law and geography were on our side. UN jurisprudence, in fact, has always been on the Arab side. Israel avoids the UN because it means that a third party will always be looking at the facts."
Today, he is concerned about a tendency to play into Israel's hands, and thus to marginalise the crux of the Arab Israeli conflict, which is the illegitimate occupation of territory. "It has long been very clear that Israel, to gain time, has consistently followed the policy known as 'establishing new facts.' This time factor, with respect to any country, is a tactical element [in negotiations], but for the Israelis it is a strategy." New facts and new problems are created on the ground in this manner, he explains, and the older, essential problems are forgotten. Grave violations of humanitarian law ensue: the atrocities perpetrated on Palestinian civilian populations, for instance, but also such acts as the recent occupation of the PNA's headquarters. "I hate to say it," Elaraby continues, "but you do not see the Palestinians, or any other Arab country today, presenting the issue thus when addressing the international community: Israel is occupying Palestinian territory, and the occupation itself is against international law. Israel has twice, in writing, with the whole world as witness, committed itself to the implementation of UN Security Council Resolution 242 on the occupied territories: once at Camp David with Egypt [in 1978], and once in Oslo with the Palestinians [in 1993]." Very recently, he adds, the Sharon government launched a new strategy, wreaking confusion and gaining time by describing territories Israel has already recognised as occupied as "disputed." All these, explains Elaraby, "are attempts to confuse the issues and complicate any serious attempt to get Israel out of the occupied territories. You can negotiate security, which will be mutual for both parties, but you cannot negotiate whether to leave or not."
The man who has described Resolution 242 as "the building block of peace-making" feels strongly that peace can only begin with ending the occupation. This, he believes, should be the concern of the international community as a whole, as well as the Arab countries and the Palestinians. "If you get into peripheral matters," he warns, "you are going to fall into a trap."
Is he pessimistic, then? "I don't use those words -- pessimist, optimist. It is very depressing. I'd say I'm depressed."
This depression is not the variety that breeds inertia. His itinerary is full. He is, as it happens, just back from Paris, where he was adjudicating a case on behalf of an Egyptian company as part of his work at Zaki Hashem and Partners. If elected to the ICJ, he will have to spend eight months of the year in Holland. Adding to his already frenetic schedule, his work on the UNCC takes him to Geneva every six weeks.
He has always been a sportsman, "very involved" in squash, swimming and tennis. Over the past six months, though, he has not played tennis because of a knee problem, which required two operations. He will not give in to indolence, though, and so goes to the gym and walks every morning or, if he has no time, in the evening. On weekends he swims in the Mediterranean "three times a day," at Sidi Abdel-Rahman on the northern coast, where his family (he and his wife, Nadia Taymour, have three children and four grandchildren) are spending the summer. Even there, he must be up at seven.
He moves quickly from one task to next, and tries to maintain his equilibrium by sticking to his routine. When he was ambassador to India in the '80s, "a wise man I met there told me that a busy person must not put one day in the next. I have been trying to follow that advice ever since." Yet he will keep trying to do as much as can be done in each compact day -- and not to lose the feeling that "I am involved, and contributing."
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