The judgement of law
Wresting the task of defending justice from politicians and leaving it to courts helps to prevent war crimes and other atrocities, writes Abdallah Al-Ashaal*
The massacres of Sabra and Shatila perpetrated in September 1982 claimed approximately 3,000 Palestinian and Lebanese civilian lives. An Israeli tribunal convened to investigate the incident found Ariel Sharon, then minister of defence and military field command, personally to blame for the killings. Nevertheless, the tribunal held that Sharon was only indirectly responsible. In its report the tribunal argued that he did not personally carry out the massacres; however, he was in a position to have first-hand detailed knowledge of the plans and could have prevented the massacres from occurring in an area that was his duty to protect. In fact, Sharon was directly responsible, as is corroborated in his memoirs, just as he is directly responsible for the massacres of the Palestinians since 2002, which he perpetrated on the grounds -- supported by the US -- that in causing those deaths Israel was exercising its legitimate right of self-defence.
The families of the victims of Sabra and Shatila and other Israeli atrocities have filed suits against Sharon and other Israeli war criminals in numerous countries, such as Belgium, Spain and Britain. In a unique precedent, a Lebanese court pronounced sentences against Sharon. Belgium, on the other hand, succumbed to US- Israeli pressures and modified its criminal procedures regarding the investigation or prosecution of persons accused of war crimes and crimes against humanity present on its territory. It is difficult for the moment to bring Sharon to trial under international jurisdiction, for example, of the International Criminal Court, again because of pressures from Washington, fearful that its soldiers would be liable to mass prosecutions.
In Britain, a warrant went out for the arrest of Major General Doron Almog, former head of Israeli forces in the Gaza Strip, who had ordered an aerial bombardment that killed 15 civilians, most of whom were children. Almog evaded capture by refusing to disembark from the airplane that had brought him to Heathrow where British police were waiting to serve him the warrant. Several days later, former Israeli Chief of Staff Moshe Yaalon cancelled a trip to the UK having learned that a similar warrant had been issued against him too. Israeli Foreign Minister Silvan Shalom vehemently protested against the actions of the British judiciary, which he described as scandalous, and the Israeli government has been pressuring the British government to intervene in the matter.
The Israeli Peace Now group and the Palestinian Centre for Human Rights have filed suits, some of which cited individuals responsible for the demolition of Palestinian homes. Also, according to the Israeli press, residents of East Jerusalem, whose homes were demolished on the grounds that they were constructed without building permits, filed suits in British courts on charges of war crimes, naming the Jerusalem Municipal Authority responsible for issuing building permits. In April 2005, preliminary contacts were made between the London-based Organisation for the Defence of Human Rights and the Israeli Foreign Ministry regarding the issue. The rights organisation holds that the demolition of civilian homes is a violation of international law.
Many Israeli officials are now avoiding travelling to many European destinations, fearful of the prospect of prosecution. Haaretz observed that the failure of the Israeli courts to address the injustices perpetrated against Palestinians left the field open to European courts to side with the Palestinians. As judiciaries in those countries are autonomous, governments of those countries cannot intervene. The non-intervention of European governments in these cases, therefore, should not be regarded as an official position that could stir a diplomatic crisis between them and Israel.
The urgency of bringing Israelis accused of committing crimes of war to justice should not be diminished by the Israeli tactics of scoffing at these procedures, attempting to obstruct the work of the courts of other countries and pushing its claim that it had been engaged in a heroic battle against Palestinian "terrorists". The pursuit of criminals of war is consistent with the spirit of justice and inspires the confidence that the national judiciaries that are investigating such criminals are intent in the performance of their duty to punish offenders and to deter repetitions of their acts.
Hunting down war criminals entails perpetually haunting them with the spectres of their victims, all the more so as such crimes are not subject to statutes of limitation. For this reason, as seemingly impossible as the task may seem, all efforts must be made to document grievances so as to keep the litigation processes in progress. In the short term, the perpetrators will be kept squirming from psychological pressures, the effects on their reputation and the restrictions on their ability to travel. It is a process that Israel has developed into an art, having appointed itself the avenger of all Jews killed in the holocaust.
At one point the Arab world resounded with cries to prosecute Israeli criminals of war and the Arab Lawyers Federation went so far as to organise a series of seminars on the legal alternatives available. This movement derived its impetus from the outrage at the brutality with which Israel responded to the Intifada and which reached its peak when Sharon perpetrated the massacres in Jenin. Since then, however, the zeal gradually dwindled, reaching its lowest ebb when Bush declared Sharon a "man of peace". Then, the tables turned. Arafat was cast as the master of terror and Israel began to cry out to put him and resistance leaders on trial. Thus, even as he was relentlessly continuing to suppress the Intifada, Sharon succeeded in silencing the Arab world. Suddenly, Arab commentators were saying that the focus on prosecuting Israeli war criminals would obstruct the peace process. Indeed, some began to criticise the Intifada and to voice their sympathy for Israeli civilian victims while the Palestinians, whose homes were being demolished, whose fields were being bulldozed, whose wells were poisoned and whose persons were being subject to abuse and degradation, were only receiving their just deserts for supporting "terrorists".
Meanwhile, in January 2005, preliminary hearings on the use of torture in Abu Ghraib commenced in Stuttgart. US Secretary of Defense Donald Rumsfeld and other State Department officials were named as defendants, forcing Rumsfeld to cancel a trip to Germany in order to evade a warrant. The suit was filed by the New York-based Center for Constitutional Rights and four Iraqi citizens in November 2004. The appellants had taken advantage of the fact that Germany applies the principle of global jurisdiction with regard to war crimes and crimes against humanity. This still appears the way to go, in spite of the fact that on 15 September 2005, a state court ruled that the public prosecutor was not required to prosecute Rumsfeld for the human rights violations in Abu Ghraib.
* The writer is former assistant to the Egyptian foreign minister.