Al-Ahram Weekly Online
16 - 22 May 2002
Issue No.586
Published in Cairo by AL-AHRAM established in 1875 Current issue | Previous issue | Site map

The battle for a moral world

By mobilising the moral force of world opinion behind the tools of international law, the Palestinians might finally win their rights, argues Fouad Abdel-Moneim Riad. Aziza Sami listens to the prominent Egyptian lawyer and former judge on a war crimes tribunal

'The 1917 Balfour Declaration and the UN's 1947 Partition Decree were both exercises in ultra vires, which means surpassing one's authority, and powers. The purpose of the British Mandate was to improve the condition of the Palestinian population, not to sell it out. As for the Partition, it was a singular act in the history of the UN, which has sown the seeds of conflict and bloodshed in the Middle East'

photos: Randa Shaath

Two incidents during the past three weeks appeared to indicate that the fundamental principle of international law -- the mutual compliance by all nations -- is increasingly being challenged.

In early May, UN Secretary-General Kofi Annan disbanded the Jenin fact-finding committee which had been formed by the UN to investigate allegations that the Israeli army was guilty of war crimes. The committee was formed in response to Palestinian accusations that Israeli forces had violated humanitarian law in the Jenin refugee camp during their recent incursion into the West Bank.

Israel argued, a priori, that the committee's verdict would be biased in favour of the Palestinians. Consequently, the Israeli cabinet refused it entry into occupied Palestinian territory and the committee was disbanded. The rejection of a UN fact-finding committee by a member state of the organisation was unprecedented and led critics to describe Israel as having become "a power, above all superpowers."

Subsequently, the UN Security Council failed to throw its support behind an Arab-backed resolution demanding Israel's acceptance of the Jenin team. Such a decision, it was said, would almost certainly be vetoed by the US. At the last minute, the resolution was withdrawn. "A possible renewed effort," said the architects of the ill-fated resolution, "would be made later."

In another development, on 6 April the US officially revoked its commitment to the 1998 Rome Treaty creating the world's first permanent International Criminal Court (ICC). The treaty is due to go into effect on July first. The court, which is slated to become operational in the year 2003, has a mandate to adjudicate cases of genocide, war crimes, crimes against humanity and aggression.

Commenting on the US's decision, Defence Secretary Donald Rumsfeld said that the US would view as illegitimate "any attempt by the [ICC] or the states party to the Rome treaty to assert [the ICC's] jurisdiction over American citizens." With these comments, the US put an end to five-years of vacillation over whether it would support the International Criminal Court.

Does the US's action signal the demise of international law and, specifically, war crimes jurisprudence, whose tenets have been established over the past 100 years since the signing of the Hague Conventions? I put the question to Fouad Abdel-Moneim Riad, a prominent Egyptian lawyer who is specialised in international and comparative law, and who during the period 1995-2001 was a judge on the Tribunal for War Crimes in the Former Yugoslavia.

Riad has devoted much of his illustrious career to teaching law -- at Cairo University and numerous European institutions. One of his major projects has been advocating the introduction of legislation giving Egyptian women married to foreigners the right to pass their citizenship on to their children.

"The permanent court [ICC] will go ahead, with or without the US," Riad said in his characteristically forthright manner. "Whether it will be effective, though, is another matter."

During recent weeks, Riad has been particularly assertive concerning the necessity of adjudicating the case of Jenin in front of an international criminal court. This, he believes, is possible, despite the apparent odds.

"It seems to me that Jenin and, in fact many instances since [the 1948 massacre of] Deir Yassin, are instances in which Israel has violated international humanitarian law." Riad speaks of the systematic aggression against civilians, policies for the "transfer" of Palestinians from their land and the "cleansing" of the land of its inhabitants to be replaced by "imported Jews from around the world." Riad refers to "cultural genocide, through the destruction of the Palestinians' cultural, religious and historic institutions." In these actions, Riad sees a pattern of practices similar to those exercised in Yugoslavia, "which the world has rallied to condemn."

Addressing the case of Jenin, he says "there are indications of a pattern of violations similar to those that took place in Yugoslavia." Riad cites the indiscriminate killing of civilians, the rounding up of Palestinian men, the mistreatment of prisoners of war. "There are also suspicions that a massacre took place in Jenin."

"It has been proven, beyond reasonable doubt, that grave violations of international humanitarian law took place in Jenin, as well as in other Palestinian cities. This is evident from eyewitness accounts and media reports. Israel's refusal to permit the entrance of the fact-finding committee is itself an admission of guilt."

Riad says that Arab countries currently have little basis through which to exert pressure on either the economic or military fronts. Nonetheless, international legal forums are a venue through which they must take recourse towards winning recognition of Palestinian rights.

He explains, "Chapter seven of the UN Charter gives the Security Council the mandate to establish an ad hoc tribunal, 'whenever there is a threat to world peace or security' -- as in the case of Yugoslavia, and later Rwanda." The fact that war crimes trials were held in these two cases is sufficient precedent to legitimise the creation of a tribunal for Palestine. If this request is met with a US veto, there is an alternative. "This would be to forward a demand to the UN General Assembly, invoking the resolution known as 'Uniting for Peace.' The resolution was first adopted during the 1956 Tripartite Aggression on Egypt and it gives the General Assembly the mandate to act 'in order to preserve world peace in cases where the UN Security Council has failed to live up to its commitment to do so.'"

It is here that "the real battle must be waged." The Arab countries can play a major role by mobilising a majority in the General Assembly. "The assembly includes virtually all of the world's countries. The focus must be on gaining the support of small- and medium- sized countries, which form a majority."

Riad is careful to point out that "a fact-finding committee is not, technically speaking, a prerequisite for a war crimes trial." Although Yugoslavia fact-finding committee had spent two years collecting evidence, the tribunal also heard the testimony of numerous witnesses who had been at the scene of violations.

Riad urged that evidence be collected as soon as possible in the Palestinian territories. "This should be done now, before the evidence or even the eyewitnesses, themselves, disappear." For Riad, his tenure on the Yugoslavia tribunal drove home the need to protect witnesses from intimidation and threats to their lives. Many of the witnesses had to go into hiding or conceal their real identities. Consequently, he urges Arab humanitarian organisations and non- governmental organisations (NGOs) to take "an instrumental role" in the documentation of evidence. As in Yugoslavia, and Rwanda, evidence can be photographed, and accounts by survivors recorded by video camera.

To underline his point, Riad brings up the assassination of former Lebanese militia commander Elie Hobeika, who was due to give his testimony to a Belgian court in the case against Israeli Prime Minister Ariel Sharon concerning the 1982 massacres in the Sabra and Shatila refuge camps.

Riad argues in favour of the principle of "universal jurisdiction," invoked by the Belgian court in initiating its action against Sharon. Universal jurisdiction, he says, "was defined in the Fourth Geneva Convention of 1949. It gives all states the right -- and, in fact, urges them -- to prosecute war crimes and violations of international humanitarian law." As Riad explains, countries have recourse to the principle "not only in cases falling with their own territory, but wherever they take place." For the application of this principle to be viable, every country needs to incorporate universal jurisdiction into its laws. "Belgium set an important precedent in adopting universal jurisdiction. The German and Swiss parliaments are now elaborating a similar role." Riad advocates the incorporation of the principle into Egyptian law.

However, if the war crimes in the Palestinian territories are to be prosecuted by invoking this measure, it is preferable that this be done by "a non-Arab country because this will imbue such trials with the necessary impartiality."

Riad is critical of Arab countries' positions on issues related to international humanitarian law and the prosecution of war crimes, calling particular attention to their failure to join the ICC. Jordan is the only country that has ratified the Rome Treaty establishing the ICC.

"Their position here seems paradoxical," he asserts. "On the one hand, they are keen to bring the perpetrators of war crimes in the Palestinian territories to justice. On the other, they reject the jurisdiction of the International Criminal Court." Riad says that Arab states "seem unaware of the importance of participating in this new legal entity. Moreover, they will miss the opportunity to participate in elaborating the new court's rules and electing its judges."

The contradiction is particularly glaring in the case of Egypt. Although it has a long and distinguished involvement in international humanitarian law it has not taken any steps to ratify the Rome Treaty, which it signed in 1998. "In 1947, Egypt participated in delineating the rules of the Convention on Genocide." Riad's father, Abdel-Moneim Riad, was a member of the committee which elaborated the convention's rules. The year before, 1946, the senior Riad had participated in the development of the constitution for the International Court of Justice. The appointment of Egyptian lawyer Sherif Bassiouni to head the Yugoslavia fact-finding commission was another feather in Egypt's cap. And Riad, himself, was the only member of the tribunal representing the Muslim and Arab countries.

How does Riad account for Egypt's apparent lack of enthusiasm for the ICC?

"The official explanation is that this [the ICC] would impinge on national sovereignty. But the ICC takes action only where national courts have failed to do so." So then, is there a "political" explanation? Riad refused to be engaged on this matter, although at a recent discussion organised by the Egyptian Council for Foreign Relations, he alluded to a draft bill to be presented to the US Congress. This, said Riad, proposed cuts in economic assistance to countries joining the ICC. Could this have influenced Egypt's position? He shrugs. "Surely it [the threat to economic assistance] is a factor which any country would take into consideration."

When it is established, the ICC will not be able to look into allegations of war crimes in the Palestinian territories because neither Israel nor the Palestinian Authority (which is not a sovereign state), are members of the court. The ICC is primarily concerned with cases where the alleged act took place on a member state's territory or when an accused is from a member state.

The loss for the Arab countries is twofold. "These states are in a region which, more than any other part of the world, consistently suffers grave violations of international law." Unlike the tribunals formed by the UN such as the Yugoslavia tribunal, the ICC will enjoy considerable autonomy. Its operation will not be contingent on mandates issued by the UN Security Council, or the General Assembly. These, as recent events show, are largely determined by political expediency and Riad concedes that the Yugoslavia tribunal was formed "because the US was politically in favour of such a trial."

Elaborating on the latter point, Riad stresses his admiration for the Tribunal for War Crimes in the Former Yugoslavia. Its establishment was "a historic step" he says, which "gave teeth" to international justice. Despite all of the difficulties it encountered, the tribunal succeeded in bringing to account the perpetrators and masterminds of war crimes in Yugoslavia. "For the first time, a head of state was arrested while in office. Those who would have been considered national 'heroes' because of their genocidal practices, will go down in history with the stigma of being war criminals".

The Yugoslavia tribunal, moreover, "represented all of humanity because it was created by the UN Security Council. The same cannot be said for Nuremberg, which was a trial by the victor of the vanquished. True, Nuremberg laid the groundwork for the prosecution of war criminals, but I doubt that history will recognise it as having represented all of humanity."

What is the statue of limitations for adjudicating cases under international law?

"An ad hoc tribunal can fix any period of time. A couple of years back. But it should not be too far back." Otherwise, Riad cautions, century-old cases, for instance, that are considered already 'settled' could be brought to court. He contrasts such cases with that of the Palestinian people which he says "is still very much alive."

Riad says that a significant step which could "pave the way" for the convening of an international tribunal for Palestine would be holding a "moral tribunal." This would be along the lines of that held by the British philosopher Bertrand Russell in the 1960s to condemn the Vietnam War. Another is the recent tribunal which "morally" indicted the late Japanese emperor for war crimes committed during World War II. "This time, though, it is not states or governments that must rally... Mobilisation must be by NGOs and civil society, in the Arab world and internationally." Such a tribunal, says Riad, would be most effective if it were formed of great thinkers from outside of the Arab world. Some intellectuals have "already exhibited moral courage in standing up for humanity and denouncing Israel's violation of Palestinian rights," says Riad, citing statements by Portuguese Nobel Laureate Jose Saramago and South African Archbishop Desmond Tutu. From his files, he pulls out the French newspaper Le Figaro and reads from an open letter to Ariel Sharon signed by former French Prime Minister and current European MP Michel Rocard. In the letter, Rocard denounces the aggression against the Palestinians.

Did the partition of Palestine, legitimised by a vote in the plenary session of the UN General Assembly in November 1947, contravene international law? The argument has been made time and again.

"I have to make something very clear," Riad says, "There is no point in going back. Israel is now recognised by the world, and by Egypt." However, he asserts that the 1917 Balfour Declaration, "by which Britain approved 'the establishment in Palestine, of a national home for the Jewish people' was, from every standpoint, totally irregular, unjustified and illegitimate." A country "which has a mandate for another, cannot dispose of the latter's territory, even if this is for a 'home' -- and not a state -- for another people. The purpose of the British mandate in Palestine was to have improved the condition of its population, not to sell it out."

Riad regards the decree for the partition of Palestine into an Arab state and a Jewish state as "a singular act in the history of the UN which has never happened, either before, or after... It exceeded the authority and powers of the UN." He underscores the fact that "the UN was created after World War II to ensure international peace. When it issued the resolution for partition, it planted the seeds of continuing conflict and bloodshed in the Middle East.

It is only a "consistent and unabated course of action which will bring home to the world the justice of the Palestinian cause. This is possible -- even in the US." Consequently, what is required is not only a battle waged in the courts, but one which will "win public opinion and appeal to peoples' consciences. This will ultimately reflect as pressure on the US, in whose hands lies the resolution of the crisis." He believes that it is possible to win over public opinion despite the current stranglehold wielded on the American media and politics by an alliance between the Zionist lobby and the far right. "The US is a democratic country. Public opinion is paramount and, in the end, determines government policies." Arab states and civil society should, accordingly, make a concerted effort to "make known to the American public the facts of which it still knows so little."

He also had comments directed at the Israeli public.

"The people of Israel have, for the most part, supported those who have committed war crimes against the Palestinians. They elected Sharon to lead their country with a strong majority because of his record of war crimes in Sabra and Shatila, which was documented by an official Israeli body, the Kahane commission." This situation, Riad says, subverts the principle upon which war crimes trials are based.

"International trials of alleged war criminals are based on directing accusations at specific persons -- not groups or peoples. The premise here, is that war criminals do not represent their people. Like Hitler, Stalin, or Milosevic, they are despots who have committed violations of which their people were ignorant." One of the purposes of such trials, then, is to exonerate a people from their leaders' guilt. This, Riad says, "breaks the cycle of vengeance."

However, this principle, says Riad, does not hold for Israel's violations of Palestinian rights. "Even if an indictment is made of Israeli leaders who masterminded these crimes, this would not morally exonerate the people of Israel. The facts are clear." He urges all thinkers, "Jewish, Arab, or in any part of the world, to take a stand and follow those who have shown moral courage in openly denouncing Israel's violations of Palestinian rights."

He appeals to them "not as a lawyer, or judge, but as a human being. I appeal to their intellectual honesty, and ask them to raise their voices against the conspiracy of silence against the Palestinians. I admonish them to speak out against policies which consider certain human beings -- because they belong to a certain culture, or region of the world -- as having less value than others."

While the legal precedents support the case, the moral battle has yet to be won.

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