Israel's Sharon Faces War Crimes Charges

by Marwaan Macan-Markar

But in this case, the suit is the first of its kind against a sitting head of state.

Last week a group of 28 Palestinians filed suit in a Brussels court against Sharon, accusing him of war crimes committed during the 1982 massacres in the Shatilla and Sabra refugee camps in Lebanon. Sharon had been defense minister when an Israeli-backed Lebanese Christian militia killed some 1,000 unarmed Palestinian civilians in the refugee camps.

Sharon thus has joined six political figures to face charges of crimes against humanity in the Belgian courts since 1988: Former Cambodian heads of state and government Khieu Samphan and Nuon Chea; Ieng Sary, foreign minister in Cambodia's Khmer Rouge regime; Hojjatoleslam Ali Akbar Rafsanjani, the former Iranian president; erstwhile Moroccan interior minister Driss Basri; and Abdoulaye Yerodia, a former foreign minister from the Democratic Republic of Congo.

Criminal complaints against such senior-level officials are being driven by a tenet gaining currency worldwide: "That justice has no borders," says Reed Brody, advocacy director of Human Rights Watch, a New York-based watchdog group. "We are going to see more and more cases like this being filed by victims."

Belgium, he adds, will feature prominently in such efforts because of the European nation's commitment to the principle of universal jurisdiction, which asserts that the alleged perpetrators of genocide, crimes against humanity, and war crimes can be made to account for their actions in a court of law in any country.

"Universal jurisdiction is being used as a new legal instrument to bring to justice people who otherwise were beyond the reach of victims," Brody says.

In that judgement, a 10-member people's court, the equivalent of a U.S. grand jury, found three of the four Rwandan civilians guilty on all counts of war crimes committed in Rwanda in 1994. The fourth defendant was convicted on some, not all, counts. Two of the four were nuns, Consolata Mukangango and Julienne Mukabutera.

"It was the first time that a conviction for war crimes was made in another country," says Corlucci. "The civilian jury's ruling made it clear that such crimes will not be tolerated and perpetrators cannot evade justice."

Equally important to both Corlucci and Brody, the case showed that logistical obstacles -- including the sheer distance between crime scene and courtroom -- could be overcome given sufficient political will.

It also established that national courts with civilian juries can hear cases dealing with international law. Traditionally, such cases have been the province of military courts and international tribunals.

These developments could help national prosecutors and investigating judges currently pursuing cases based on universal jurisdiction in a number of countries, including Austria, Britain, Denmark, France, Germany, Mexico, the Netherlands, Senegal, Spain, Switzerland and the United States.

What's more, according to a draft Amnesty study, some 120 countries have incorporated legislation providing for universal jurisdiction over war crimes or other crimes under international law.

"It means that there are fewer safe havens for perpetrators of crimes against humanity," says Corlucci.

According to Human Rights Watch, the trend received a significant boost with the 1998 London arrest of former Chilean dictator Augusto Pinochet.

The British courts, which acted on an arrest warrant brought against Pinochet by a Spanish judge, declared at that time that the Chilean dictator could be extradited to Spain to stand trial for crimes against humanity, including torture, committed during his 17-year rule.

What made the "Pinochet precedent" possible, according to human rights advocates, was the United Nations Convention against Torture. This 1984 convention, which has been ratified by more than 120 countries, classifies torture as a crime that can be prosecuted in any country.

Since then, others have also had charges filed against them under universal jurisdiction. They include Hissene Habre, the former president of Chad, for committing torture and brutality during his eight-year rule, and Ricardo Miguel Cavallo, a former military official from Argentina who has been implicated for his involvement in genocide, terrorism and torture during that South American nation's so-called "Dirty War." Habre has been called to account for his past in a Senegalese court; Cavallo faces charges in Mexico.

According to Brody, neither Pinochet nor Habre can avoid such charges by invoking claims to immunity as former heads of state.

However, the notion that criminal charges could be filed against a serving government leader, like Sharon, under universal jurisdiction remains extremely controversial, not least because it strikes at the heart of diplomatic immunity, says Brody.

He insists, however, that "you cannot claim diplomatic immunity" for certain crimes and that the decision to prosecute or not rests with national courts. "There is no international law on this," he asserts. "It is a case for the local courts to decide."

And in Belgium, where the case against Sharon has been filed, the national laws are unequivocal: Anyone -- even serving heads of state -- can be arrested if they set foot on Belgian soil.