War Crimes

War Crimes

International Criminal Court (ICC):
 On 1 July 2002, the International Criminal Court (ICC), located in The Hague, Netherlands, will officially come into force following ratification by more than 60 states. The ICC will be a permanent international tribunal that will try individuals accused of genocide, war crimes, and crimes against humanity. The ICC will have jurisdiction over crimes committed by the nationals of governments that ratify the treaty, or in the territories of governments that ratify.

 Under the treaty, states have the primary responsibility and duty to prosecute, with the ICC stepping in only if states fail to implement their duty. The ICC does not have a mandate to try crimes committed prior to 1 July 2002. The United States, one of the original 120 signatories to the 1998 ICC Statute, has already announced its decision (6 May 2002) to withdraw its signature from the Treaty. The US has also sought to exempt all US peacekeepers from the jurisdiction of the ICC even though US troops in Bosnia and Kosovo have been subject to the jurisdiction of the Yugoslav war crimes tribunal (ICTY) for the past seven years, the US only has around 35 troops and 677 police currently serving under the UN flag, and the fact that the ICC Treaty includes extensive provisions to weed out politically based cases.

 "The real reason behind Washington's blackmail," states Human Rights Watch, "is the most troubling. An increasingly influential faction in the Bush administration believes that US military and economic power is so dominant that the US is no longer served by international law." The same analysis also applies to Israel, which has not ratified the Treaty and is also considering withdrawing its signature.

The Case Against Sharon (Update): On 26 June2002, a Belgian Court of Appeals ruled on narrow procedural grounds that Belgium did not have jurisdiction to prosecute Ariel Sharon on charges of genocide, war crimes, and crimes against humanity due to the fact that he was not present on Belgian soil. The ruling eviscerated the intention and significance of the 1993 and 1999 Belgian legislation on universal jurisdiction and came after the legal team representing  the plaintiffs made a request to the court for a reopening of the debate about the admissibility of the case following the International Court of Justice (ICJ) decision (14 February 2002) that a Belgian arrest warrant for the acting Foreign Minister of the Democratic Republic of Congo violated international law because it failed to respect the Minister's "immunity from prosecution.

" The lawyers for the plaintiffs, witnesses and survivors of the Sabra and Shatila massacre, insisted that immunities cannot be recognised for the crime of genocide, since the 1948 Genocide Convention expressly rules out such immunities. This issue was not raised in the Congo v. Belgium case, and therefore immunity could not be deemed relevant for the case lodged against Sharon and others in the matter of the 1982 Sabra and Shatila massacre. The lawyers also insisted on the need to restrict immunity to the simple issuance and delivery of an arrest warrant, in accordance with the actual decision of the International Court of Justice in the Congo v.

Statement by the lawyers of the victims of Sabra and Shatila on the decision of the Court of Appeals in Brussels, 26 June 2002, Excerpts
 The course of justice has been interrupted today, but efforts to halt impunity for war crimes committed in Beirut 20 years ago continue in Belgium and elsewhere. The hopes of the victims in the massacres of Sabra and Shatila to end the impunity of those responsible for their suffering, raised last year under Belgium's law of universal jurisdiction, will not be dashed. Today's decision represents a setback both for international humanitarian law and for all victims who seek justice for large-scale killings, acts of torture and rape, and disappearances committed against them and their families. Impunity in this case continues notably for Mr.

Ariel Sharon who, as the commander of the operation which was carried out ''under his supervision," was found ''personally responsible'' for these massacres by an Israeli commission of enquiry. This decision is also a setback for the course of justice and the attainment of peace in the Middle East. Pursuing a judicial course, far removed from violence, is interrupted on the grounds of narrow procedure at a time when the law was clear and the preparatory works had confirmed that narrow grounds should not prevent the exercise of universal jurisdiction for particularly heinous crimes as defined by international humanitarian law: war crimes, crimes against humanity, and genocide. 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.

Belgium case.
 The Attorney-General of Belgium, moreover, had confirmed his support on the full jurisdiction of the Belgian courts under the Belgian 1993 Statute Law and rejected the interpretation of other judges in the Congo v. Belgium (Yerodia) case in Brussels. On the question of immunity, the Attorney-General, while recognising personal and temporal immunity for Mr. Sharon as a sitting prime minister, confirmed the need for the investigation to proceed.

Chibli Mallat, one of the lawyers representing the plaintiffs, stated that he was "afraid that the decision came as a result of the extreme pressure, which was clearly exerted against the government of Belgium by the political authorities in Israel. They even accused Belgium of anti-Semitism." At the same time, however, Mallat stated that "A new road was opened and this road should continue in Belgium and elsewhere. The road of justice is the one that is feared by Israeli leaders. [The] methods of justice have not been all consumed yet, not in Belgium and not in other states and therefore we should knock on all the doors." (Daily Star, 27 June 2002)

Human rights organizations condemned thedecision of the Appeals Court. "This decision is a great disappointment not only to the victims of the massacres of Sabra and Shatila," stated Human Rights Watch, "but to atrocity victims everywhere who have placed their hopes for justice in the Belgium courts." "This restrictive interpretation of Belgian national law is inconsistent with international law," stated Amnesty International. "The massacres of Sabra and Shatila refugee camps were war crimes and need to be fully and impartially investigated. International law to combat impunity must not be undermined, especially as the International Criminal Court will enter into force on 1 July."
The legal team for the plaintiffs plans to appeal the decision

War Crimes in Jenin and the Occupied Territories:
 While the UN Security Council investigation into the events in Jenin refugee camp and in the 1967 occupied territories was disbanded, efforts to uncover the facts and bring to trial those responsible for serious breaches of international law, including war crimes, continue. Following Kofi Annan's decision to disband the Security Council mission, the UN General Assembly adopted a special resolution (A/ES-10/L.9/Rev.1) instructing the Secretary General to continue to develop accurate information on the events in Jenin. Additionally, there is currently at least one legal case in Europe (Sweden) concerning the events in Jenin and the occupied territories.

 The question remains, if Israel had nothing to hide, why did it obstruct the Security Council investigation? The shift in Israel's stance from initial agreement to suspension of its cooperation with the UN Fact Finding Mission was apparently prompted by the intervention of Daniel Bethlehem, an expert in international law at Cambridge University and Israel's external legal advisor on the UN inquiry. (Ha'aretz, 25 April 2002) Bethlehem was alarmed by the terms of reference of the UN mission. "Unlike the Mitchell inquiry," he writes, "this exercise is not focused on finding a pathway back to negotiations. It is an exercise inquiring into allegations of war crimes."

War Crimes and Israel's March-April Invasion
 Based on the categories defined by the 1949 Fourth Geneva Convention and the 1998 Rome Statute of the International Criminal Court, and based on evidence documented by numerous local and international human rights organizations and humanitarian agencies, war crimes committed during Israel's military assaults in the 1967 occupied Palestinian territories in
March and April 2002 include:
 

  1.  Willful killing or killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
  2.  Extensive destruction and appropriation of property not justified by military necessity andcarried out unlawfully and wantonly;
  3.  The use of protected persons as human shields;
  4.  Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment, which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
  5.  Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
  6.  Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
  7.  Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic  monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; and,  Pillage.

Israel's March-April Military Campaign in the 1967 Occupied Palestinian Territories and the Destruction of the Oslo Framework. International Law, Protection of Fundamental Rights and Freedoms, and a Comprehensive, Just, and Durable Solution to the Israeli-Palestinian Conflict. An Agenda for Action. BADIL Resource Center (April 2002)
He goes on to warn, "If the committee's findings uphold the allegations against Israel - even on poor reasoning - this will fundamentally alter the dynamics of the Israeli- Palestinian leadership and may make it impossible for Israel to resist calls for an international force, the immediate establishment of a Palestinian state and the prosecution of individuals said to have committed the alleged acts."

An Earlier Case Revisited - The 1996 UN Investigation into Israel's War Crime at Qana,South Lebanon: On 18 April 1996, during a massive Israeli military offensive on Lebanon codenamed "Operation Grapes of Wrath," approximately 800 civilians were sheltering in a United Nations Interim Forces in Lebanon (UNIFIL) base in the village of Qana, South Lebanon. They had assumed - incorrectly - that since international law strictly prohibits the targeting of civilian structures and UN facilities they would be safe under UNIFIL's protection. Just after 2 PM on April 18, a barrage of proximity-fuse shells crashed directly into the pre-fabricated building.

Minutes later 106 people lay dead, many burned and dismembered beyond recognition. On 25 April 1996 the UN General Assembly adopted a resolution (UNGA Res. A/ RES/50/22 C) characterizing Israel's actions in the "Grapes of Wrath" offensive as "grave violations of international laws relating to the protection of civilians during war." Then UN Secretary General Boutros Boutros Ghali appointed a team to investigate Israel's bombing of the UNIFIL compound. The team conducted an official on-site investigation of the Qana incident, interviewed all available witnesses, including UNIFIL staff and Israeli officials, and obtained maps and ballistic evidence.

According to experts familiar with this UN investigation, the initial report concluded that the shelling and killing of 106 civilians inside the UNIFIL compound by Israel was deliberate and that there was no possibility of an accident. When former UN Secretary General Boutros Ghali wanted to publish the report, he was threatened that this would cost him his job and he was forced to publish a revised report. This report concluded that "while the possibility cannot be ruled out completely, it is unlikely that the shelling of the UNIFIL compound was the result of gross technical and/or procedural error."

The Van Knappen report, named after the Dutch head of the team, also indicated that IDF officials of "some seniority" were involved in orders to fire upon the base, which they knew was sheltering hundreds of civilians. International human rights organizations also conducted investigations and concluded that the shelling of the UNIFIL compound was most likely deliberate, not mistaken. The United States and Israel vigorously contended that the attack had been an unfortunate mistake. No further action was taken by the United Nations. Moreover, the United Nations has yet to act upon a petition filed by families of the victims of Qana with the UN Human Rights Commission. The families' petition requests the UN to re-open its investigation.