11 - 17 July 2002
Issue No. 594
|Published in Cairo by AL-AHRAM established in 1875||Recommend this page|
Untried, untestedAs the Belgian case against Sharon collapses, Frederick Bowie, in Brussels, goes in search of international justice
On 26 June, a Belgian appeal court dismissed the civil suit brought by survivors of the 1982 Sabra and Shatilla massacres against Israeli Prime Minister Ariel Sharon. The decision was received with relief by the Israeli establishment, and with a combination of resignation and disgust throughout much of the Arab world.
Yet the judgement was hardly a surprise to anyone who had been following either this particular case, or Belgium's recent attempts to act as judge and jury on behalf of the world's oppressed peoples. Only three months ago, a similar attempt to try Abdoulaye Yerodia Ndombasi, the former foreign minister of the Democratic Republic of the Congo, for allegedly inciting ethnic attacks which led to the death of hundreds of people in 1998, was dropped, after the International Court of Justice in The Hague upheld Yerodia's claim of diplomatic immunity. Whether any of the outstanding international suits -- whose targets include Fidel Castro, Saddam Hussein and Yasser Arafat -- will ever be heard is now a moot point.
This flurry of judicial activity was made possible by a law passed in 1993, enacting universal jurisdiction for Belgian courts in cases of war crimes, genocide and crimes against humanity. In theory, it is now possible for anyone to be tried for these crimes in Belgium, irrespective of where they may reside, or where the alleged crime was committed.
However, to date, there has been only one successful prosecution, when last year four Rwandans were found guilty of crimes relating to the 1994 genocide.
In the cases of both Yerodia and Sharon, the court's main argument rested on an obscure legislative provision of the Belgian Criminal Code dating from 1878, under which proceedings can only be brought against persons who either were on Belgian territory when the crime in question was committed, or are there now, and are thus susceptible of arrest. (In the case of the four Rwandans, the case was initiated after they were spotted in the streets of Brussels by relatives of the victims).
Few would contest that this decision is essentially a political decision. But there is considerable disagreement among those involved on the Palestinian side as to the nature of the politics involved.
Senator Vincent Van Quickenborne has been one of the main promoters of the case from the start. The youngest ever member of the Belgian senate when he was elected in 1999 at the age of 25, his interest in the region was kindled by a visit to Iraq last year. Since then he has been active on behalf of both the Kurds and the Palestinians. He was a member of the delegation which met with Lebanese Phalangist leader Elie Hobeika in February to persuade him to testify, just two days before he was murdered.
A lawyer by training, Van Quickenborne had initially thought of representing the Sabra and Shatilla victims himself. For him, the appeal to Article 12 of the Criminal Code is archaic. "The article was devised at a time when there was no television and no newspapers," he told Al-Ahram Weekly. "The reasoning behind it was that as long as a Belgian national was living abroad, and was not bothering our society, we had no reason to prosecute him. Now we live in a world where people take airplanes and surf the Internet, and the same law is being used in the context of international justice, where we need to be able to prosecute people who do not live here. It is ridiculous."
Dyab Abu Jahjah is president of the Arab European League, based in Antwerp, and has also been a prime mover in the Sharon trial from the outset. "We continued to hope," he told the Weekly, "even after the decision in the Yerodia case. Technically, the court was not obliged to take the same position. So it was still a blow when it came, even though we had been expecting it."
For Abu Jahjah, the appeal to Article 12 was simply "surreal": "The Geneva Convention places every state under an obligation to pursue war crimes, wherever they are committed, and the 1993 law states explicitly that the Courts have universal jurisdiction in such cases. In that context, Article 12 looks very weak."
As a result, it is only a short step to conclude that there must have been some form of political manipulation. Abu Jahjah calls the court's decision a 'scandal'. "It's one thing when politicians seek to influence the parquet," he observes, "but this decision came from the judge himself."
Certainly, there have been many political attempts to derail the law -- most notably those orchestrated late last year by the deputy Fred Erdman, who as well as being president of the Justice Commission of the Chamber of Deputies, is also president of the Belgian-Israeli Friendship Association. Yet Erdman's attempt to emasculate the law failed to garner much support, suggesting as much the capacity of Belgian government for self- paralysing internal hesitation and contradiction, as a US-style powerful pro-Israeli lobby.
Van Quickenborne agrees the decision was political, but interprets it in a narrower, more self- interested sense. "I think people thought: if we go ahead, we will have all these cases coming to Belgium. Do we really want to operate as a kind of international criminal court? I'm sure that if Article 12 had not existed, they would have found another argument. But to insinuate that this is the work of the Zionist lobby, is just absurd."
In 1982, Israel colluded in the massacre of Palestinian refugees at the Sabra and Shatilla camps on the outskirts of Beirut
(file photo: Reuters)
Abu Jahjah, however, sees things in a more complex light. "All the political and diplomatic tension over the law began with Sharon," he told the Weekly. "When it was Pinochet, everyone was proud of Belgium. The same when it was Rwanda. But with the Sharon case, a crescendo started. Then, it was the pro-Israel lobby which began to spread the criticism of the law, using the argument that this was too big a burden for a little country."
Both Van Quickenborne and Abu Jahjah are equally pessimistic about the outlook for further prosecutions under the 1993 law. "The court's judgement in effect says that this law is too difficult to implement," said Van Quickenborne. For Abu Jahjah, "The decision represents a political will to empty this law of any substance. If they do it once, they can do it again. This was a historic opportunity, and clearly, Belgium did not want to take it."
Other observers however, take a more nuanced view. For John Sigler, co-founder of Jewish Friends of Palestine, who has written extensively on the case, there were also tactical errors in the way the trial was approached. "From a humanitarian perspective, few people in the world deserve to face justice as much as Sharon -- for the Qibya massacre, the Gaza City massacre, for Sabra and Shatilla, and now for Jenin and Nablus," he told the Weekly. "But from a legal perspective, it was always going to be virtually impossible. Many heads of state and heads of government have been convicted of war crimes -- but only after they were removed from office and power, usually by force."
While arguments within the defence team centered largely on whether or not to cite Hobeika and other Phalangist leaders by name, alongside Sharon and Brigadier General Amos Yaron, Sigler believes the mistake was going after Sharon himself. "What sank the case, ultimately, was the principle of immunity. Whether the case was heard or not, he is sitting prime minister of Israel, and he was never going to stand trial. It would have made more sense from a legal perspective to go after some of the smaller fish first, people like Yaron, for whom no immunity arguments could have been made. Once they had been indicted, then the courts would have been more sympathetic to assaults on the immunity of Sharon, because his role in the same actions could not be denied."
Sigler believes that Belgium will continue to exercise universal jurisdiction, though heads of state and senior ministers will probably be beyond its reach. Van Quickenborne, with the support of his party, intends to introduce an amendment to the 1993 law to address the issue of Article 12, so that the requirement of presence on Belgian soil would be waived for citizens of countries which had not ratified the Rome Statute of the International Criminal Court. He believes it is possible that, at some time in the future, the case against Sharon could be filed again.
Meanwhile, both men place more hope in the International Criminal Court, which officially came into existence five days after the Sharon decision, on 1 July. The ICC has had a rocky ride to date. Both the US and its acolyte Israel deferred signing the Convention until the 11th hour, and neither has yet ratified it. Previous attempts at international justice, in particular the International Criminal Tribunal for the former Yugoslavia, have been subject to considerable political manipulation. Yet Sigler still believes that the ICC may represent a decisive break with the past.
"The Rome Statute goes to enormous pains to make it virtually impossible for the court to be manipulated by anyone," he told the Weekly. "The problem with UN instruments is enforcement. The General Assembly is essentially powerless, and the veto of the five permanent members of the Security Council complicates the passing of binding resolutions. But assuming the Rome Statute is implemented, the ICC will not have this problem. It will represent the very first completely independent international entity not subject to the whims of the powers that be. Which is, of course, why those powers don't like it."
Abu Jahjah is more circumspect. "The ICC should give us new hope. But when you see how the US and Israel are reacting, you begin to lose some of that hope. We still live in a world where the balance of power dictates the framework of international law -- who you can indict, who you can put behind bars. I am afraid the Court will remain inoperative, as long as the US doesn't want to see it operate."
And the US and Israel have some pretty powerful motives to want to see the ICC paralysed. As Sigler himself wrote recently: "United States opposition to the ICC is quite justified, but not from fear of political or spurious investigations or prosecutions. The problem is the fact that, at least since the Gulf War, the US has routinely engaged in war crimes, and to a lesser extent crimes against humanity, as standard operating policy". As for Israel, they don't have to invade the West Bank or reduce Jenin to rubble to be liable for such action: their Ministry of Housing does it all for them. Israeli settlements in the West Bank and Gaza are a straightforward contravention of the Geneva Conventions. As Attorney General Elyakim Rubinstein remarked: "Israel cannot sign a convention which turns every settler into a war criminal and lumps together the mayor of the [West Bank] town of Ariel with a fighter-rapist from Bosnia."
Faced with such recalcitrance, the temptation to abandon legal process altogether must be great. Yet despite his disappointment, Abu Jahjah does not view the Sharon trial as a complete waste of time. "We didn't put him behind bars, but we did expose him," he told the Weekly, "and a lot of people now associate his name with war crimes." He adds, not at all as an afterthought: "And we also learned that the separation of powers is a fiction, even in Belgium."
The AEL have not entirely given up on the Western legal system. In particular, they are working to set up a documentation centre for Israeli war crimes, on the model of the Simon Wiesenthal Centre, with a view to preserving precious documents which might otherwise be destroyed. Abu Jahjah does not exclude the possibility that they might take some of these cases to the ICC.
Nevertheless, the lesson he takes away is a sobering one. "Arabs placed a lot of hope in the Sharon case, and some people took some wrong decisions based on that hope. We have to realise that people in the West may make gestures of solidarity, but we can't count on them. If we want justice, we will have to get it for ourselves -- whether through legal action, or through other forms of resistance."
Sigler concurs that legal action can never in itself be the solution to the Palestinians' plight. "Such cases do help. Look at how seriously the Israelis took the Belgian case, even though they must have realised that it would probably never succeed." Yet he agrees with Abu Jahjah about the limits to the West's role. "The last 35 years of occupation should have made it obvious -- the West can help, but it can also hurt. No matter what happens, the end result is in the hand of the Arabs."
Van Quickenborne for his part remains defiant, and determined that Belgium will continue to play its part. "I feel ashamed that we have a law and we cannot use it," he told the Weekly. "I feel especially ashamed for all those people who were gambling their hopes on us. But this is just one step. Maybe we have lost the first battle, but we will win the war."
Sigler is more direct. "Demographic realities make Palestinian freedom inevitable. The only question is how many people the Israelis will slaughter in the process."
John Sigler's essays on the Sharon trial and other related issues can be found at Essays and Commentary on Contemporary Middle East Issues:
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