While President George W. Bush met his friend and contemporary, Israeli Prime Minister Ariel Sharon, with photographs scattered across American newspapers of them shaking hands and sharing a “common vision,” thousands of miles away the families of and the surviving victims of the massacres at Sabra and Shatila have quite a different perspective.

To them, Ariel Sharon is a genocidal megalomaniac who is guilty of war crimes. Indeed, mere mention of the words Sabra and Shatila, particularly among Arabs, conjures up visions of Ariel Sharon, the man deemed “indirectly responsible” by the Israeli government for directing the Phalangists to liquidate the civilian population.

To the families of the victims, justice has remained elusive. The communities of Sabra and Shatila will never be the same; and the massacres that took place in 1982 have left an indelible mark on the psyche of its residents. However, for these families and the communities at large, Ariel Sharon may be forced to face a legal tribunal and answer that tribunal regarding his role in Sabra and Shatila.

On June 18, 2001, twenty three survivors of the massacres filed an accusatory instrument before the Belgian National Court, thus commencing the first potentially successful attempt to hold the former General accountable. To be sure, the path to holding Sharon accountable has been a treacherous one, with the Prosecution encountering pitfalls (which may soon prove to be fatal).

Justice may be in sight, but it may not be within reach. On June 26, 2002 the Belgian Court of Appeals will render a decision as to whether or not the case against Prime Minister Sharon can continue.

The Belgian legislature in 1993 conferred Universal Jurisdiction upon its courts. Universal jurisdiction can be considered “criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the victim, or any connection to the state exercising such jurisdiction.”¹

Also incorporated into Belgian law was the corpus of the Geneva Conventions, to which it is a signatory. This bases for jurisdiction has proven to date to be a major point of contention between the Plaintiff’s and Sharon’s counsel.

The June 18, 2002 Complaint against Sharon asserts three causes of action for: genocide, crimes against humanity and war crimes. According to the plaintiffs, the crime of genocide rises to the level of jus cogens and constitutes a universal wrong.

The Complaint initially points to several United Nations resolutions condemning the actions by the Israeli government. Specifically, United Nations General Assembly Resolution 37/123D classified the events as acts of genocide: “Resolves that the massacre was an act of genocide.” The Complaint proceeds to cite Article II of the December 9, 1948 Convention on Genocide, which states:

The crime of genocide consists of one of the following acts, committed with the intention of destroying, either in whole or in part, a national, ethnic, racial or religious group: 1) The killing of members of the group; 2) A serious attack on the mental or physical integrity of members of the group…² 

The Complaint cites numerous accounts of eyewitness testimonies from the victims as well as bystanders to support the supposition that the civilians were killed because they were Palestinians, including the riveting account of American journalist Thomas Friedman. Friedman wrote that to the Israelis, every man woman and child was a terrorist:

The Israeli soldiers did not see innocent civilians being massacred and they did not hear the screams of innocent children going to their graves. What they saw was a “terrorist infestation” being “mopped up” and “terrorist nurses” scurrying about and “terrorist teenagers” trying to defend them, and what they heard were “terrorist women” screaming. In the Israeli psyche you don’t come to the rescue of “terrorists.”³

The Complaint also relies on transcripts of conversations between Sharon and his underlings, in which Sharon is quoted as saying, among other things: “I don’t want a single one of them left.”⁴

Plaintiff’s have also produced significant documentary evidence, including reports from the Israeli government officials.

Charge Two: Crimes Against Humanity

The second cause of action/charge that the Plaintiff’s have asserted are crimes against humanity. The Complaint relies on the definition for crimes against humanity as set forth in the Rome Statute of the International Criminal Court, which specifies that crimes against humanity are:

a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack (article 7.1)… Attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.

The Plaintiff’s alleged that the elements that constitute crimes against humanity were indeed present: the attack was undoubtedly against a civilian population, committed on multiple fronts, with Israel seeking a political objective (to crush Palestinian dissent and resistance).

Once again, numerous accounts and reports from eyewitnesses provide oral and documentary evidence that such crimes were committed. Many witnesses and victims had similarly accounted that IDF and Phalangist forces lured people to surrender by telling them that their lives would be saved; however, once the surrender took place there would be summary executions.⁵

Charge Three: War Crimes

The final charge lodged against Ariel Sharon and co-conspirators is that they committed war crimes in contravention of the 1948 Geneva Convention (which is embodied in the Belgian Criminal Code). As protected persons pursuant to Article 147 of the Convention, the civilians of Sabra and Shatila should have been shielded from intimidation and physical force. Additionally, as an occupying power pursuant to Article IV of the convention, Israel has specific affirmative and negative duties in an armed conflict to protect unarmed civilians. The Complaint alleges that many civilians were found dead with their identification cards in hand, indicating that they relied on protections assuming that being unarmed, they would be safe from harm.

What legal impediments stand in the way of "Bring Sharon to Justice"?

As emotionally persuasive and heartfelt as the case against Ariel Sharon is, it has a wide range of impediments. A major hurdle will be addressed on June 26, 2002 before the Belgian Court of Appeals. That three-justice tribunal will decide if the case against Ariel Sharon can go forward. If the court renders an adverse decision to the Plaintiff’s, hope for justice will fade to black.

This hearing will take into account a potentially devastating opinion rendered by the International Court of Justice in the case Congo v. Belgium. That decision held that a Belgian arrest warrant for the acting Foreign Minister of the Democratic Republic of the Congo violated international law. Prime Minister Ariel Sharon, through counsel, has asserted that he is immune from the jurisdiction of the Belgian Court by virtue of his political position in Israel. Reed Body, the Advocacy Director of Human Rights noted:

This decision effectively shields some state officials from prosecution for atrocities. Government ministers who commit serious crimes are not likely to be prosecuted at home, and this ruling means they will enjoy impunity abroad as well, at least while they are in office. This decision goes against the international trend towards accountability for the worst abuses, but it should not stop Belgium from pursuing cases against perpetrators no longer covered by immunity.⁶ 

It should be noted however that the Belgian Attorney General has expressed his distaste of the ruling, and has publicly noted that the instant case is not applicable and could be distinguished. Hence, it is not a forgone conclusion that the Court of Appeals will throw the case out, but it is indeed a possibility. One can certainly imagine the Court of Appeals not being willing to acquiesce to a ruling that fundamentally affects how it can prosecute those who violate established principles of international law.

If the case against Sharon survives however, what then? The case will proceed, and surely once again encounter motion and motion seeking dismissal. Once the case arrives at the merits stage (when the legal claims are actually set forth), the Plaintiff’s are certain to encounter more obstacles. Ariel Sharon’s main defense is that he did not commit the acts of genocide, crimes against humanity and war crimes, but the Lebanese Christian Phalangists. Even though this defense can be refuted through thousands of pages of documentary evidence and testimony.

If the Plaintiff’s receive a judgment against Sharon, what do they do with it? Will Sharon respect it? Most certainly not. Sharon can and will evade incarceration and penalties, by simply not entering Belgian territory. Israel will certainly ignore requests for his extradition.

It would appear that regardless of the outcome, justice will evade the victims of Sabra and Shatila. Unfortunately, international law does not accord adequate relief for these retroactive acts of genocide, crimes against humanity and war crimes. The International Criminal Court will not apply to retroactive acts, as the court will not have competence over instances prior to its inception.

At least however, a judgment could give the victims some peace of mind that the person responsible has been held accountable, although only symbolically. (There is certainly a degree of evident hypocrisy here. Israelis have been proponents of bringing war criminals to justice; even going so far as to physically kidnap an individual (former Nazi) from South America to bring that person under its jurisdiction).

Thomas J. Haidon is an American attorney and activist residing in Wellington, New Zealand. He received a Jurisdoctorate (J.D.) with a certificate of international law from the University at Buffalo School of Law and a Bachelor of Arts in Political Science from Niagara University. He has studied at the American University in Cairo and Birzeit University, Palestine. He is currently pursuing an L.L.M. in international law. You can reach him at thaidon@justice.com