No sooner had the dust settled in Gaza following Israel’s July 23 assassination of Hamas leader Salah Shehada—an operation that took the lives of 15 civilians, many of them children—than Palestinian officials began declaring this act the first war crime committed since the inauguration of the International Criminal Court (ICC) on July 1, 2002. Calls to bring Israel to book before the new court multiplied, until legal experts weighed in with deflating news. The 1998 Rome Statute, which established the ICC, specifies that the court can only exercise jurisdiction over crimes occurring on the territory of a state party, or crimes involving an accused who is a national of a state party. Israel is not a signatory to the Rome Statute. Further, as Avril McDonald of Amsterdam’s Asser Institute noted: “Palestine is not a country.” Until a Palestinian state is recognized by the international community, and signs the relevant instruments of international law, Palestinians “cannot pursue justice independently.”
But Palestinians and others do have alternative venues for pursuing justice and halting impunity for war crimes and grave human rights violations not covered by the ICC’s mandate. Spain’s 1998 extradition of Gen. Augusto Pinochet, then in London, to stand trial for human rights abuses committed in Chile from 1973-1990 awakened the world to the possibility of trials in national courts utilizing the principle of universal jurisdiction.
Lately the debate over universal jurisdiction has centered on two cases lodged in Belgium. One charged former Congolese Foreign Minister Yerodia Ndombasi for inciting and abetting crimes against humanity during a rebellion against Congolese President Laurent-Desire Kabila. The other seeks to indict Israeli Prime Minister Ariel Sharon, retired Israeli General Amos Yaron, the late Phalangist leader Elie Hobeika and others with responsibility for the massacre of Palestinians at Sabra and Shatila in 1982, crimes for which no one has ever stood trial. On June 26, a Belgian Court of Appeals ruled that the case against Sharon and others was inadmissible for trial in Belgium on the unexpected grounds that the accused were not found on Belgian soil. But reports of the demise of the Sharon case—repeated at each twist in the Belgian proceedings—are greatly exaggerated.
Universal Jurisdiction: Weapon of the Weak?
The principle of universal jurisdiction, encoded in the Fourth Geneva Conventions, international customary law and the 1984 Convention on Torture, is based on customary law as well as a consensus, strengthened by the horrors of World War II, that some crimes are so heinous that they threaten the entire human race. The jurisdiction for prosecuting these crimes must be universal, not simply territorial. The Geneva Conventions specifically state that all signatories to the convention have not only the right but also the duty to either prosecute or extradite individuals guilty of war crimes, crimes against humanity and genocide.
In 1993, five years before Spain’s dramatic attempt to extradite Pinochet from Britain, the Belgian Parliament had already passed a law formally incorporating universal jurisdiction for war crimes into Belgium’s criminal code. In 1999, the parliament strengthened the initial law by passing additional legislation removing immunity for sitting heads of state accused of genocide and crimes against humanity. The first complete trial and conviction of individuals accused of war crimes under this law took place in 2001, when a Belgian court found four Rwandans — two nuns, a political leader and the owner of a match factory—guilty of complicity in genocidal crimes in Rwanda and sentenced them to prison for 15 years.
Possibly the most controversial case to be pursued under the principle of universal jurisdiction since the Pinochet affair, the case against Sharon and others was lodged in a Belgian court in June 2001 under the 1993 legislation. The plaintiffs were 23 individuals, stateless Palestinian refugees and impoverished Lebanese nationals, usually considered among the least powerful people in the international political system, who had witnessed and survived a massacre two decades ago.
Opponents of the application of universal jurisdiction in national courts argue that such trials will not deter crimes, but will instead create an even more dangerous and volatile international milieu by eroding the necessary comity in relations between sovereign states. Some detractors of universal jurisdiction have gone so far as to warn that these trials could dismantle the Westphalian system of sovereign nation-states itself. Former Secretary of State Henry Kissinger, himself the subject of universal jurisdiction initiatives in Chile, has compared universal jurisdiction to a “witch hunt” and warned that it could quickly devolve into a “new Inquisition.”
But when Belgian magistrate Patrick Collignon ruled that the Sabra and Shatila plaintiffs’ case was admissible in Belgium on the same day that former Serbian President Slobodan Milosevic was transported to a prison cell at The Hague to face an ad hoc international tribunal, the progressive evolution of international criminal prosecution seemed to be accelerating at breathtaking speed.
The case against Sharon, Yaron and others has not lacked in drama and sudden reversals of fortune, including several previous attempts, all averted at the eleventh hour, to abort the effort completely. Three former Lebanese Forces militia officials (one of whom, Elie Hobeika, was named in the case) have been assassinated by parties unknown since January 2002. In February 2002, the International Court of Justice (ICJ) issued a regressive ruling stating that Belgium erred in putting out an arrest warrant for Yerodia Ndombasi because he was a sitting foreign minister at the time. Most recently, the Belgian Appeals Court decision to halt the Sharon case on June 26 has sparked an unprecedented joint initiative by national and international human rights organizations and members of the Belgian Parliament and government to save and strengthen Belgium’s law of universal jurisdiction.
Following the ICJ ruling, few expected the Court of Appeals to render a decision in favor of prosecuting Sharon, who was defense minister at the time of the Sabra and Shatila massacres. But most informed observers assumed, given Belgian Attorney General Pierre Morlet’s consistent support of the plaintiffs’ arguments during a series of pre-trial hearings, that the Appeals Court would rule that a case could proceed against Yaron and other Israeli officials, as well as surviving Lebanese Forces militia members, none of whom enjoy immunity from prosecution. The Appeals Court’s decision to forestall indictment of anyone in the case caught observers by surprise.
Expressing “extreme dismay” with the June 26 ruling, Amnesty International noted that: “This restrictive interpretation of Belgian national law is inconsistent with international law… The organization believes that the Belgian Parliament, in enacting the 1993 law providing for universal jurisdiction over war crimes, as well as in its 1999 amendment to that law extending its scope to crimes against humanity and genocide, intended to provide Belgian courts with the full extent of universal jurisdiction over these crimes permitted under international law.”
Explanations for the Appeals Court’s ruling range from speculation that Belgian judges feared an onset of universal jurisdiction fatigue to conspiratorial whispers that US-Israeli pressure had shaped the judges’ thinking.
Regardless of the reason for the Appeals Court’s surprising ruling, it has galvanized a broad-based coalition of human rights organizations, victims of war crimes from a variety of countries and politicians from across Belgium’s political spectrum. While lawyers for the Sabra and Shatila plaintiffs were busy drafting an appeal to Belgium’s Supreme Court arguing that the June 26 ruling violated the spirit and the letter of the 1993 and 1999 laws, human rights activists and Belgian parliamentarians were busy drafting new provisions aimed at sharpening universal jurisdiction legislation as a weapon of the weak. Legislators feared that the Appeals Court decision could render the laws of 1993 and 1999 obsolete.
Their unprecedented legislative initiative has provided an opportunity to bring the 1993 and 1999 legislation into line with the most recent developments in international criminal prosecution. For instance, the proposed interpretive law recognizes that sitting foreign and prime ministers are immune from prosecution until they complete their terms and return to civilian life, bringing Belgium’s universal jurisdiction law into conformity with the ICJ ruling in February. The law clarifies the judicial “division of labor” between the ICC and Belgian courts, which limits victims’ invocation of universal jurisdiction to the following case: those in which the alleged crimes have not been committed on Belgian territory and the plaintiffs are neither Belgian nor resident on Belgian territory for one year or more, and the accused is not on Belgian territory. Hence the interpretive law clarifies that accused parties need not live in Belgium or be found on Belgian soil in order to be prosecuted.
The new law has a good chance of passing the Senate in October before being sent to the Chamber of Deputies. Should it pass, the Sabra and Shatila plaintiffs’ appeal of the Court of Appeals decision will be rendered redundant, since the Supreme Court will be bound by the decisions of Parliament. The proposed interpretive law has the public support of the president of the Senate’s Commission of Justice. Lawyers for the Sabra and Shatila plaintiffs noted that the June 26 ruling threatened not only their case, but many others besides. Even conservative newspapers in Belgium were calling for the defense of the 1993 and 1999 law of universal jurisdiction. Crucial to the parliamentary effort are politicians, some from the right, who hope to prosecute the murderers of Belgian peacekeepers in Rwanda in 1994.
A Bellweather Case
In their analyses of the strengths and weaknesses of universal jurisdiction, both Amnesty International and Human Rights Watch have stressed that the political will of governments can make or break the successful prosecution of international crimes in national courts. With the current grassroots, multi-party legislative initiative underway in Belgium, we may be witnessing the collaborative construction of the necessary political will from the ground up.
For the Sabra and Shatila survivors who filed the complaint, no less than all Palestinians subject to grave breaches of international humanitarian law, developments in Belgium’s parliament will be scrutinized closely over the coming months. As Luc Walleyn, one of the lawyers for the Sabra and Shatila plaintiffs, noted: “Today, the Palestinian people lack effective courts of law and have no means of defending and vindicating their rights as defined by international humanitarian law and the Geneva Conventions. This absence of judicial recourse cannot continue. The effort to end impunity will not cease.”
The jury is still out on the effort to indict those responsible for the Sabra and Shatila massacres, but it is clear that the Sharon case has highlighted the question at the heart of the debate on international criminal prosecution: are the needs, interests and rights of states to be given priority in deciding whether to investigate and prosecute war crimes and crimes against humanity? Or will international law prioritize the needs, interests and rights of victims of states and state officials? The fate of the case against Sharon will be a bellwether for the future trajectory of universal jurisdiction in national courts.