The principle of universal jurisdiction, if realized in practice, can play a crucial role in the international campaign against impunity for war crimes and crimes against humanity. Encoded in the four Geneva Conventions of 1949 and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, universal jurisdiction is based on customary law as well as an international consensus, that some crimes are so heinous that they threaten the entire human race. These conventions decree that since the authors of war crimes and crimes against humanity are the enemies of all humankind, the jurisdiction for prosecuting their crimes must be universal, not simply confined to the territories where the crimes were committed or where the perpetrators reside. Universal jurisdiction attempts to remove safe havens by enabling citizens of one state to be tried in the courts of a foreign state. If all states were to honor the principle of universal jurisdiction, a truly universal framework of justice might emerge, preventing perpetrators of the worst offenses from getting away with their crimes. Over the last five years, universal jurisdiction has been invoked in Spanish and Belgian courts to pursue former Chilean dictator and senator for life Gen. Augusto Pinochet, Rwandans accused of aiding and abetting genocide, and former Chadian dictator Hissein Habré for his responsibility in the deaths of nearly 50,000 Chadian nationals by torture.
Universal jurisdiction is one of the only options available to those wishing to prosecute crimes committed before the Rome Statute entered into force on July 1, 2002, establishing the International Criminal Court (ICC). The ICC’s mandate is limited: it lacks retroactive jurisdiction and only its prosecutor can bring cases in its chambers. Unless the UN authorizes an ad hoc tribunal, such as the tribunals for Rwanda and the former Yugoslavia, without universal jurisdiction crimes committed before 2002 cannot be prosecuted. The ICC offers Palestinians, whether refugees or not, even less hope of pursuing justice for crimes suffered prior to July 2002. The 1998 Rome Statute 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, and Palestine is not yet a sovereign state.
Prosecuting war crimes and crimes against humanity through the principle of universal jurisdiction is first and foremost a judicial endeavor. But it is often a profoundly political undertaking as well. Universal jurisdiction cases frequently heighten diplomatic tensions, can alter the course of political events and usually raise troubling questions about state sovereignty. These cases can also engender new forms of political power by consolidating transnational coalitions of activists, parliamentarians, scholars, journalists and legal specialists. The practice of universal jurisdiction can empower survivors of atrocities, often among the weakest and most marginalized of the world’s citizens, to play an important political role on a global stage. For some, this represents a profoundly threatening development.
Both Human Rights Watch and Amnesty International have stressed the necessity of building political will from the ground up in those states willing to undertake extraterritorial prosecutions. Bottom-up processes are crucial for successful prosecutions of international crimes in national courts, given the considerable pressures exerted by political and economic elites who are indifferent to popular opinion and dismissive of international law.
In a Belgian court on June 18, 2001, 28 Lebanese and Palestinian survivors of the Sabra and Shatila massacres charged Ariel Sharon, former Israeli defense minister and Israel’s current prime minister, as well as Brig. Gen. Amos Yaron and other Israelis and Lebanese, with war crimes, crimes against humanity and genocide. The central argument of the case hinged upon Sharon’s command responsibility as general of the Israel Defense Forces, which were in full control of Beirut when the massacres took place from September 16-18, 1982 in the contiguous refugee camps of Sabra and Shatila. Although the killings of over 1,000 unarmed Lebanese citizens and Palestinian refugees were carried out by Lebanese militia affiliated directly or indirectly with the Israeli-backed Lebanese Forces, the plaintiffs argued that legal responsibility ultimately rests with Sharon. After many twists and turns, the case against Sharon was ultimately blocked when, in June 2003, the Belgian parliament rescinded the country’s universal jurisdiction, or “anti-atrocity,” laws passed in 1993 and strengthened in 1999. This top-down annulment of a bottom-up process showed that universal jurisdiction cases in the future will require a different sort of politics rooted in a solidarity that exerts simultaneous pressure from all sides — especially from the places that the victims themselves call home.
Impunity Reigns
As one steps over puddles of sewage in the oppressively hot and humid alleys of Shatila, and witnesses the daily injustices that Palestinian refugees suffer in Lebanon, it can seem absurd to pursue justice for victims of a massacre that took place 21 years ago. If anything, conditions are worse now than they were two decades ago, given the demise of the Palestine Liberation Organization, Lebanon’s moribund economy, Lebanese hostility toward refugees after the civil war and the dire financial straits of the UN Relief and Works Agency (UNRWA), which is charged with the refugees’ care. The violence that afflicts camp residents is not just the searing memories of rampaging Lebanese militiamen aided and abetted by Israeli military commanders 21 years ago, but also the structural violence of poverty, dispossession, statelessness and pollution that pummels everyone trapped by circumstances in this miserable corner of greater Beirut.
Mahmoud Kallam, a son of the camps, is author of a recently published book on the Sabra and Shatila massacres. [1] Kallam’s carefully researched book reveals that just over 1,000 people were killed in September 1982 — not 3,000 or more, as many sources have claimed. Of those killed, only a little over half were Palestinian refugees, according to his research. Lebanese nationals, as well as Syrian, Egyptian, Pakistani, African, Tunisian and Iranian migrant laborers clinging to the margins of Beirut’s economy, also perished in significant numbers during the massacres.
“Everywhere, the poor are always the victims,” Kallam sighs, pointing to data offering grim reminders that socio-economic place and positioning matter in the aftermath of a massacre as well. Regardless of whether they were Palestinian refugees or holders of valid passports, the hundreds who died in these camps two decades ago were not advantageously positioned. Nor are the survivors today.
Although hundreds of Lebanese citizens were murdered in the camps — by other Lebanese citizens — to date the Lebanese government has made no attempt to seek accountability for their deaths. Given that approximately 17,000 Lebanese are still missing, having been kidnapped, disappeared and, in all likelihood, murdered during the long war of 1975-1991, the inaction of the Lebanese judicial authorities in the Sabra and Shatila massacres is not surprising. Indeed, one of the first acts of the newly reconstituted Lebanese government in 1991 was to declare a general amnesty law absolving all groups and individuals of any guilt for war crimes and crimes against humanity committed between February 1975 and May 1991. Such amnesties are not recognized by international humanitarian law, which states that there is no statute of limitations for particularly heinous crimes. Clearly, Lebanon suffers from a particularly shaky architecture of justice and a near absence of the rule of law. Popular Lebanese support for the case lodged by the massacre survivors in Belgium was nil. Many people perceived this endeavor, correctly, as a threat to the post-war policy of official amnesia. Since opening the Sabra and Shatila file would risk opening all of the war files, impunity continues to reign in Lebanon.
The Architecture of Justice
Belgium’s immense Palais de Justice underscores the importance of place and positioning in the architecture of justice. “Notice the entrances to this building,” says Luc Walleyn, an attorney for the Sabra and Shatila plaintiffs, at the top of a steep stairway on the east side of a court house that, at the time of its construction in the late nineteenth century, was the most massive public building in all of Europe. “Over there,” he continues, pointing toward a bright entryway on the opposite side, “was the main entrance for the middle and upper classes of the previous century. It faces the nice part of town. The elite could just walk right in at ground level — their ground level — to this floor, which is for civil complaints. The lower floors were, and still are, for criminal complaints.” Turning to the long flight of stairs, Walleyn explains, “This was the entrance for the poor and the workers. It faces what was then the lower-class part of town. Workers had to walk up a steep hill just to reach the foot of this building, and then they had to climb up all these many stairs to seek justice.”
Outside the enormous building stands a modern glass, steel and concrete structure painted in bright colors that clashes with the staid and stately Palais de Justice. It is a recently installed elevator and bridge complex linking the former working-class neighborhoods of Brussels below to the great hall of justice above. The attorneys and activists working to achieve justice for the victims of Sabra and Shatila thought they had found just such a device, metaphorically speaking, on February 12, 2003.
On that day, the Belgian Supreme Court issued a landmark ruling on the implementation of universal jurisdiction in response to an appeal filed by the survivors of the massacres. The plaintiffs had petitioned the Supreme Court to reverse a June 26, 2002 Appeals Court ruling that threatened to halt their search for justice in Brussels by stipulating that the accused had to be “present on Belgian soil” for an investigation and trial to proceed. The Supreme Court sided with the plaintiffs on the clear strength and intent of Belgium’s 1993 and 1999 universal jurisdiction legislation. This dramatic ruling cleared the way not only for the continuation of the Sabra and Shatila case, but other cases brought by victims against perpetrators lacking any nexus with Belgium as well.
Those who had followed the trajectory of universal jurisdiction for the last decade viewed the February 12 ruling as comparable in its implications to a Spanish court’s attempt to extradite Pinochet from Britain in 1998. It appeared that the global campaign against impunity had turned another corner, and that another precedent had been set in the tumultuous body of laws, court decisions and commentaries that constitute the dynamic field of international criminal prosecution. But the ruling handed down by the Supreme Court was not to be the last word.
Top-Down Pressures
The June 26 Appeals Court ruling had alarmed not only the Sabra and Shatila plaintiffs and their lawyers, but those who had filed similar cases as well. The ruling that accused parties had to be present on Belgian soil endangered these efforts and sparked an unprecedented joint initiative by local and international human rights organizations, in concert with members of the Belgian parliament and government, to save and strengthen Belgium’s universal jurisdiction law.
Responding to a strong lobbying campaign initiated by this NGO coalition, a group of Belgian senators drafted a proposal for an “interpretative law” to clarify and reconfirm the intent and meaning of the 1993 and 1999 laws. All were encouraged when the Belgian government, especially the prime minister, decided to back this initiative, linking it to a second, more general proposal. The first proposal confirmed the interpretation of the law intended by parliament at the time of the 1993 and 1999 legislation, contrary to the June 2002 ruling of the Brussels Appeals Court. The second proposal aimed to bring Belgium’s universal jurisdiction law into line with two important recent developments in international law: a February 2002 ruling by the International Court of Justice affirming immunity for sitting state officials in Congo vs. Belgium, and the Rome Statutes of the International Criminal Court. Under the interpretative law passed in early April 2003, the public prosecutor would have been given discretion to reject a case if the accused lived in a democratic country with an impartial judiciary capable of rendering a just ruling to the victims in a fair trial. In that event, Belgium would have referred the criminal complaint back to that country, or to the International Criminal Court if the crimes occurred after July 1, 2002 in a country that had ratified the ICC. Both of these proposals benefited from the input of European and international human rights NGOs and broad public support within Belgium.
The Belgian Senate adopted both proposals on January 29, 2003, despite growing protests from Israel and the US, as well as increasing pressures from the Federation of Belgian Enterprises, a group keenly aware of the potential impact of international criminal prosecution on Belgian commercial interests abroad, particularly in southeast Asia and Africa. Although the efforts of human rights NGOs and activists were well-suited to the task of building political will from the ground up in Belgium, such bottom-up efforts were no match for the considerable top-down pressures soon exerted from outside Belgium, notably from Washington.
The primary catalyst for external pressures came in March 2003, when Iraqis filed a case in Brussels accusing former President George Bush and members of his administration of war crimes stemming from the deaths of dozens of Iraqi civilians incinerated when a US missile penetrated a Baghdad bomb shelter in January 1991. US officials, past and present, began panicking over the possibility that they could be in the dock in Belgium. Suddenly, Belgium’s universal jurisdiction legislation was threatened not simply with modification, but with cancellation. The threat came not from Belgium, but from another state, one that proceeded, paradoxically, to interfere in Belgium’s sovereignty on the pretext of protecting its own. The US feared that even a modified law with filtering mechanisms to weed out spurious and politically motivated cases might lead to the arrest and prosecution of US military officials attending NATO meetings in Brussels.
On June 13, Secretary of Defense Donald Rumsfeld traveled to Brussels to “teach Belgium a lesson,” as he put it. Even though the cases against US officials had already been filtered out by a reinterpretation of the law passed in April, Rumsfeld threatened that the US would relocate NATO headquarters to Warsaw unless Belgium’s newly elected Parliament rescinded the country’s anti-atrocity legislation. Combined with back-channel pressures exerted by the US Chamber of Commerce and major US corporations involved with NATO, Rumsfeld’s threat produced immediate results: the parliament, as its first order of business, annulled laws. Belgium’s outgoing government had asked its European Union partners if they would support its attempt to preserve the universal jurisdiction law, but Belgium received no support, as EU tensions over the US-British war in Iraq and EU-US-Israeli relations hindered concerted action. At the end of the day, Belgium had no choice but to give in.
Necessary, but Not Sufficient
The efforts of the International Campaign for Justice for the Victims of Sabra and Shatila (ICJVSS), undertaken by loosely organized local committees in Brussels, Beirut, Australia and New York City, and linked through the campaign’s website, were also impotent before the challenges posed by US pressure. The ICJVSS, as well as the lawyers representing the Sabra and Shatila plaintiffs, had made a strategic error by assuming that Belgian public support for universal jurisdiction constituted sufficient and necessary political will for continuing with universal jurisdiction prosecutions. Hence, the ICJVSS focused on educating the general public elsewhere, largely in Europe and North America. According to attorneys Walleyn and Michael Verhaeghe, US and Belgian corporate pressures coincided with “a very well-planned campaign to make the universal jurisdiction law appear ridiculous” in the Belgian media. In Belgium and abroad, the ICJVSS was often bogged down in efforts to deny accusations that the case was motivated by anti-Semitism or to explain over and over again that the Belgian government had not arrogated to itself the right to “sit in judgment on the entire world.” Lacking resources, infrastructure and a full-time staff, the campaign was often on the defensive and reactive rather than proactive.
Belgian opinion regarding the universal jurisdiction law had already been tested when several Rwandans (including two nuns) were tried for complicity in the 1994-1995 genocide against ethnic Tutsis. Then, as during the early summer of 2003, the law was subjected to ridicule in the press. Yet, as Verhaeghe emphasizes, the Rwandan case was never threatened with warnings that Belgium’s economy could pay a price for proceeding with the prosecution. “A newspaper salesman in the vicinity of NATO headquarters may well be a fierce defender of the principle of universal jurisdiction if you ask him, in an abstract poll,” he says. “But if you bring in the whole dimension of NATO and economics, then he’ll say, ‘Okay, I agree with it in principle, but not if it harms me!’ The problem with everything related to international humanitarian law is that we always refer back to opinio juris, which is all about high-level university people thinking about abstract issues. But opinio juris…is far from the grassroots.”
Perhaps a larger problem is that very few people in Belgium are in the socio-economic or political position to be victims of war crimes, massacres, ethnic cleansing or disappearances. They can hardly put themselves, viscerally, in the place of someone in a refugee camp or a war-torn country. Networks of human rights activists, powerful as their appeals to decency may be, cannot take the place of widespread support in the broader public. Concludes Verhaeghe: “The grassroots of international and European NGOs might seem solid — until a real and rough match is actually played on their field. Then we see that their roots are not so deep and strong after all.”
The Missing Element
For all the revolutionary potential of universal jurisdiction in Belgium, very little changed for the better for the Sabra and Shatila plaintiffs. In fact, Belgium’s decision to gut its progressive legislation rendered the massacre survivors victims a second time. Their attempts to realize justice in a Belgian court revealed not only the implicit political dimensions of universal jurisdiction, but also highlighted the fact that abstract, universal principles do not exist a priori. Rather, they become universal, in the sense of being shared in common and thus capable of animating values and mobilizing action, only through relationships based on mutual struggles and experiences.
Crucial to the nurturance of such relationships, which is a profoundly political as well as moral project, is the engendering of empathy between people. One of the greatest weaknesses of the ICJVSS was the literal and figurative distance between the plaintiffs in Beirut and the lawyers in Brussels, between the survivors and the various committees organized to assist their efforts, and between Belgian citizens and Palestinians and Lebanese. Perhaps most deleterious of all was the fragmentation of relations between atomized strata within Lebanese and Palestinian society.
The failure of the case lodged by the Sabra and Shatila survivors in Belgium demonstrated the limits of Internet activism, which cannot replace the empathy, solidarity and conviction that only real-life encounters can provide and sustain. Such relationships are key to building a transnational political will from the ground up and the sides inward. Working at the level of one state alone is not enough to ensure the successful use of universal jurisdiction in prosecuting war crimes and crimes against humanity. Since the perpetrators are known as “enemies of all humankind,” all humankind must be mobilized not only to support such prosecutions, but even more so to perceive the commonalities between people in cities like Brussels and refugee camps like Sabra and Shatila.
The principle and practice of universal jurisdiction implicitly pose the question: “Is there an international community?” If that community is to be realized, not merely cited as an occasionally useful abstraction, it must begin in relationships between actual people in real, not just virtual, spaces. Building such relationships is especially important in the Middle East. As the lawyers for the Sabra and Shatila plaintiffs have noted, there was scarcely a word of support expressed for the plaintiffs’ efforts at the official level in the Arab world. If Lebanese and Palestinians are not supportive of struggles for justice that concern them so profoundly, then why should Europeans or North Americans take on their burdens? [2] To do so is to sanction a new form of moral colonialism and to exacerbate the chronic forms of dependency described by law professor Abdullahi An-Na‘im: “What I call dependency is the idea of generating pressures in the North to persuade governments in the South to protect the rights of their people, because that is not how human rights are protected in the North itself. There, human rights are protected by local constituencies organizing around their own priorities, enlisting political support within their own communities and pressuring their own governments, legally and otherwise.” [3] The goal of the campaign against impunity for war crimes and crimes against humanity was never to bring more and more cases to Belgium, but rather, to increase and expand the venues for prosecuting war crimes, crimes against humanity and genocide, whether by incorporating the principle of universal jurisdiction formally into more national criminal codes, or by urging more states to become signatories to the Rome Treaty establishing the ICC.
People throughout the Middle East have an especially profound stake in the future of international criminal prosecution, since they have suffered enormously from various forms of impunity, imported as well as homegrown, for decades. An autonomous and effective human rights framework targeting impunity must be built from the ground up in places like Beirut, Cairo, Jerusalem, Tel Aviv, Tehran, Baghdad and Algiers if international justice is to have local addresses in this region. In the meantime, despite numerous recent advances in international criminal prosecution, justice is not yet universal, neither in principle nor in practice.
Endnotes
[1] Sabra wa Shatila, dhakirat al-damm [Sabra and Shatila: Memory of Blood] (Beirut: Beisan Press, 2003).
[2] Despite the hostility of Israeli officialdom to the case lodged by the Sabra and Shatila survivors, the ICJVSS received considerable support from Israeli individuals, often at great risk to themselves. Shortly after the case was filed, confidential Israeli sources delivered a large number of Hebrew documents, mostly from Mossad files, constituting a record of communications between top Israeli military officials and leaders of the Lebanese Forces. Some of these documents clearly indicate that top Israeli officials were fully cognizant of the likely fate of Palestinians in Sabra and Shatila were the Lebanese militias to be sent in to “mop up” after the withdrawal of PLO. Following the assassination of former Lebanese Forces militia leader Elie Hobeika in January 2002, the author received helpful information from an Israeli lawyer that enabled those involved in Sabra and Shatila case to exercise greater caution.
[3] Abdullahi An-Na‘im, interviewed by Lisa Hajjar, Middle East Report 214 (Spring 2000).
