25 April - 1 May 2002
Issue No.583
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Al-Ahram Weekly Online 25 April - 1 May 2002 Issue No.583 |
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A tribunal of conscience
Can international law be used to bring recent Israeli war criminals to book? Prominent Egyptian lawyers are meeting on the case, reports Aziza Sami
Days before the devastation in Jenin came under the public eye, when journalists and rescue teams were finally allowed by Israel to enter the beleaguered town, lawyers' associations in several Arab countries had been calling for litigation. They want to file cases against Israeli Prime Minister Ariel Sharon and the Israeli army for perpetrating war crimes in the Palestinian territories.
The view from within: as Palestinians watch the funeral of a member of the militant Al-Aqsa Martyrs Brigades on Sunday, international leaders and think tanks are trying to look toward a settlement
(photo: AFP )
The Cairo-based Egyptian Council for Foreign Relations held a meeting last week in a bid to rally support for a campaign to establish an international tribunal. They want a court established specifically to look into allegations of war crimes committed against the Palestinians.
The Palestinian Ambassador to Cairo, Mohamed Sobeih, and two international lawyers -- Salah Amer, an expert on the Geneva Conventions, and Fouad Abdel-Moneim Riad, a former judge who sat on the International Criminal Tribunal for the Former Yugoslavia -- gave an overview of Israeli war crimes at the meeting. Present as well was Ambassador Omran el- Shafei who has worked extensively with the International Red Cross.They enumerated acts which violate the Geneva Conventions and their protocols committed by Israeli forces in an extensive and systematic manner, not only in Jenin but across the West Bank and Gaza.
The charges include the destruction of Palestinian historic, religious and cultural institutions, which Israel is committed to preserve within the framework of the Oslo accords. Execution of civilians and members of the Palestinian police without trial was another major charge. The Palestinian police, established by virtue of the Oslo accords, are meant to be accorded the status of prisoners of war.
Moreover, for the first time in its history, the International Red Cross has been, deliberately and for a sustained length of time, denied access to the wounded and casualties of war. Other medical rescue teams were also kept out. The Israeli army blocked the Red Cross despite the fact that the Geneva Conventions stipulate that the Red Cross is to be treated as an auxiliary to both sides in a combat, and as such is to have its movement facilitated by either party.
Palestinian Ambassador Sobeih spoke of eyewitness accounts of ambulances being shot at and the wounded being left to bleed to death. The list also included the mass-burial of victims without identification, leaving no recourse to such identification in the future. This happened in Jenin. "What has happened in Jenin, follows the same pattern (of war crimes) which happened in Srebrenica (during the civil war in Yugoslavia)," Riad said. The Israeli army's practice of "targeting a whole category of the civilian population -- in this case, Palestinian men aged 14 to 45 -- for arrest and possibly execution, followed the (same) pattern of genocidal practice," he added.
Amer said that the Geneva Conventions stipulate that there is a universal jurisdiction which gives all countries signatory to the Conventions the right to undertake legal procedures and steps necessary to ensure that the perpetrators of war crimes are punished. A country can either try an alleged war criminal from any other country, or hand him to another quarter which would put him on trial.
So what are the obstacles to be overcome? According to Sobeih, the Palestinian National Authority (PNA) -- currently under siege with its institutions and infrastructure in tatters -- is not in the best position to start the process of documentation, which is an important prerequisite before taking action in international forums.
According to Riad and Amer, however, the documentation process can start. Ever since the Israeli incursion began, televised images of human rights abuses inside the Palestinian territories have been beamed across much of the world. The eye- witness accounts by journalists and international rescue teams, as well as stories from the survivors themselves, all constitute live documentation which can be used to prepare the groundwork for a future prosecution, the lawyers said.
But Riad cautioned that the Arab countries which want to initiate litigation would not have recourse to the long-awaited International Criminal Court, which was established by virtue of the Rome statute and ratified two weeks ago. That is because, apart from Jordan, none of the Arab countries is signatory to this agreement. Their position is similar to that of the US, which fought against the establishment of such a court and threatened, in the words of Senator Jesse Helmes, to withhold financial assistance from any country which did sign up.
The Court will start functioning next July, with the jurisdiction to look into cases arising from claims related to any events which fall after that date.
Riad says that this situation will deprive the Arab countries, "who are most in need of such universal justice," from having recourse to the court, should war crimes in Palestine continue to be perpetuated until then.
The one remaining alternative left is to address the UN Security Council with a resolution asking for the quick establishment of an ad hoc war crimes tribunal. "The court would find everything ready, and the case made, in addition to the previous ruling by the Kahane committee which indicted Sharon as a war criminal after the Sabra and Shatila massacres." Riad also spoke of the need to file a case of collective "criminal enterprise," where all of those who shared in the current operations, from the top command "to the cook who prepared food for the army," would be prosecuted.
Yet in a political atmosphere where "(the Israeli) war criminals are supported by (the superpowers)," in the words of Ambassador Omran El-Shafie, the likelihood that a resolution calling for an ad hoc tribunal through the Security Council would be vetoed by the US is a near-certainty.
During his latest visit to Israel, US Secretary of State Colin Powell refrained from visiting Jenin or any other of the besieged Palestinian cities, even as reports flowed of a humanitarian crisis and suspicions of a massacre there. In the face of increasing international criticism, the US has accepted, at best, a UN resolution to send a "fact- finding committee" to investigate the alleged massacres in the Palestinian territories.
There may, however, be a third option. Should the expected US veto be used in the face of attempts to initiate litigation at the level of an international court through the UN Security Council, then recourse may be had to the General Assembly through the mechanism known as the Unity for Peace. This system was initiated by former President Dwight Eisenhower during the 1956 Tripartite Aggression on Egypt. Eisenhower used it to overturn the exercise of veto by France and Britain. When Unity for Peace is used, the General Assembly can issue a resolution which is as binding as that of the UN Security Council.
Riad also evoked the "Princeton rules" devised by a group of Americans and Palestinians, which formulated the rules for trying a war criminal in any country. The case against Israeli Prime Minister Sharon made in Brussels relied on the Princeton rules. Such a trial, though, cannot take place in absentia -- Sharon would have physically to be in the court trying him.
So the question remains one of winning international support for a legal channel which will undertake litigation. The current balance of power within the formal institutions of the UN makes the formation of a war crimes tribunal for Palestine along the lines of the International War Crimes Tribunal for the former Yugoslavia highly unlikely. The rising tide of international public opinion -- which is growing increasingly aware of the plight of the Palestinians -- can be capitalised upon, however. Arab legal associations must try and raise demand for an international tribunal, said Riad. This can be done through civil society as well as human rights advocacy groups, he said, "so that we won't be addressing only ourselves, and not the world."
Riad said that should the convening of a tribunal by means of the General Assembly fail, there is a measure of last resort -- moral condemnation at the international level. He gave a poignant example: "The British philosopher Bertrand Russell succeeded in his campaign to hold an international tribunal which prosecuted the emperor of Japan -- after his death," Riad said. "The importance of such a court is that it will make its prosecution public to the world, as well as its sentence of moral indictment."
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