Outline and Explanation of Court Hearings during the Pre-trial Procedure, June 2001 - January 2002

Compiled by Michael Verhaeghe and Laurie King-Irani

Updated 7 February 2002.

Belgian criminal procedure law, as modified in 1998, allows pre-trial discussions on any legal issues that might have a bearing on the admissibility of a case. The purpose of such discussions is to foresee and thus to avoid any obstacles that might otherwise only become apparent during an actual trial. The initiative to submit cases to this pre-trial phase is, in principle, a prerogative of the Belgian Attorney-General at the competent Court of Appeals. (Belgium has five such Courts of Appeals, under the umbrella of a single Supreme Court.) Such an initiative does not necessarily reflect doubt on the part of the Attorney-General concerning a case's admissibility. On the contrary: in practice, the primary objective of pre-trial discussions is to free an investigation from any legal discussions that might otherwise slow or complicate the judicial process once a trial has begun. Consequently, decisions taken following pre-trial hearings are considered final; they close subsequent debate over a case's admissibility.

The Indictment Chamber at the Court of Appeals is ordinarily the appellate court for all matters concerning the various stages of criminal investigation (provisional arrest warrants, search warrants, seizures, etc.). This is also the chamber that decides whether or not to refer a case to the Court of Assises (for felony cases).

The Indictment Chamber is composed of three magistrates at the Court of Appeals. In principle, all hearings are conducted behind closed doors, since criminal investigations are still governed by the principle of secrecy.

The Attorney-General of Brussels took the initiative to conduct pre-trial hearings before the Indictment Chamber in the case of the Complaint lodged against Ariel Sharon and others by survivors of the Sabra and Shatila massacre. As was clearly demonstrated by the Attorney-General's written submission to the court, the aim of this initiative was to declare ill-founded the opposing arguments put forward by the State of Israel (which is not a party in the investigation; the case is lodged against Ariel Sharon and other Israeli and Lebanese individuals, not against any state party) and to ensure that the investigation would not be hampered by further objections.

At the time the Plaintiffs' legal team learned of this initiative, they immediately filed a petition on 18 June 2001 to the Attorney-General, insisting that Mr. Sharon, Mr. Yaron and Mr. Hobeika be formally invited, as suspects, to participate in the pre-trial procedure. This would have foreclosed all discussions concerning their rights of defence.

When the case was introduced at the hearing of 3 October 2001, Mr. Sharon was represented by his lawyer, Mr. Masset (who shortly afterwards also represented Mr. Yaron). The first hearing was -- as had been announced earlier by the Attorney General -- merely a formality, undertaken to coordinate the mutual and timely sharing of all written submissions. The legal team representing the massacre survivors (henceforth "the Plaintiffs") had prepared an initial draft of its written submission, a copy of which had already been delivered to Mr. Sharons lawyer prior to the October hearing. It was subsequently agreed that Attorney General Pierre Morlet would present his oral arguments on the 28 November hearing, and that Mr. Sharon would file the first draft of his written submission before that day. Further pre-trial hearing dates were set for 26 December 2001 and 23 January 2002.

At the pre-trial hearing on 28 November 2001, Attorney General Morlet outlined his arguments against each of the obstacles cited by Ariel Sharon's legal team in a very convincing and thorough verbal presentation that lasted for nearly three hours. He concluded that none of the arguments against the jurisdiction of Belgian courts (i.e., the issue of Sharon's immunity as a head of state, the issue of "double jeopardy," given the results of the Kahan Commission enquiry; the issue of the principle of retro-activity, and the issue of the absence of any links between the commission of the alleged crimes and the State of Belgium) was valid. Attorney General Morlet indicated that the criminal investigation should continue. At the same time, however, Morlet did agree with Mr. Sharons lawyer on one point: that some ambiguity remained concerning possible discrimination between Belgian ministers and ministers of other states. (Sharon was Israel's minister of defence at the time of the massacres at Sabra and Shatila, but his legal team had argued that his current status as the incumbent prime minister of Israel should render him immune from prosecution.) Accordingly, Morlet stated that the Court of Appeals could bring this question before the Belgian Constitutional Court (Court of Arbitration).

At that same hearing on 28 November 2001, Lebanese attorney Chibli Mallat presented the Plaintiffs' position, stressing that it was crucial that a neutral country such as Belgium should host, in accordance with the principle of universal jurisdiction, an international trial such as this one. Mr. Mallat also refuted, in detail, the awkward arguments presented by Mr. Sharons legal representatives concerning Lebanon's 1991 Amnesty Law (inapplicable in the case of any crime against humanity, and furthermore designed to protect Lebanese, not Israeli, suspects from prosecution), and the Kahan Commission's final report. (Mr. Sharon is now using the Kahan Commission report in an attempt to avoid justice. Yet in 1982-1983, he strongly objected to the establishment of that Commission. Furthermore, he was the only person in the Israeli cabinet at the time to vote against the report's conclusions and recommendations.)

At the hearing on 26 December 2001, Belgian attorneys Luc Walleyn and Michael Verhaeghe presented the remainder of the arguments on behalf of the Plaintiffs. Beginning with a more general overview of the background of the Complaint of 18 June 2001, the two lawyers emphasised that their clients' actions were not inspired by ulterior political motives or an anti-Semitic conspiracy. The first and most important objective of the case lodged in their names is to ascertain, after all these years, precisely who bears criminal responsibility for the September 1982 massacres, and who must therefore be punished accordingly.

The case against Sharon is emerging as an historical trial. In just six months, it has triggered a series of revelations that may facilitate the legal determination of what happened at Sabra and Shatila nearly 20 years ago. For instance, the Plaintiffs' lawyers in Belgium have received from a confidential Israeli source a substantial file of documents, including Mossad reports and notes from meetings between the IDF and the Phalangist leadership during the summer of 1982. Although Israeli officials have not yet confirmed their authenticity, neither have they denied it. The legal team has significant reason to believe that these documents are genuine. The materials evidence a far greater individual responsibility for Mr. Sharon than he has thus far acknowledged.

Further revelations have also emerged as a result of re-examinations of the events of 1982 in light of the case lodged in Belgium. Journalists such as Robert Fisk of The Independent and Julie Flint of The Guardian, who reported on the massacres at the time they were committed, have uncovered new and troubling findings about the large number of individuals (some speak of 1300) who were abducted from a sports stadium near the camps, a venue that was clearly under the supervision and control of the Israeli Defence Forces on the last day of the massacre. The individuals interrogated at the stadium were "disappeared" and have never again been seen alive since 18 September 1982.

On 26 December, the Plaintiffs' lawyers further elucidated their positions on the issues of immunity, the temporal application of the Belgian Statute on Universal Jurisdiction (1993, amended in 1999, whereas the facts of this case date from 1982), as well as the above-mentioned question concerning the disparity of legal status of Belgian officials and foreign officials in such cases, which Ariel Sharon's legal team posed to the Constitutional Court (a question which is, in fact, irrelevant for many reasons, the most important of which being that the 1993 law on universal jurisdiction clearly excludes all possible discrimination by virtue of its unequivocal exclusion of any type of immunity as a defence).

Walleyn and Verhaeghe cited numerous precedents, both national and international, to illustrate the Plaintiffs' arguments, including precedents drawn from the body of comparative law. One of these precedents was especially interesting (and, on a legal level, perfectly comparable): the 1961 Eichmann case, which clearly indicates that Israeli jurisprudence had already adopted, as early as 1961-1962, some of the very same principles that constitute the foundations of the Plaintiffs' legal position.

At the final pre-trial hearing on 23 January 2002, Mr. Sharon's lawyer, Mr. Masset, presented his arguments to the Court in a pleading that lasted two-and-a-half hours. He contended that the plaintiffs' motivation in lodging this case was political and thus constituted an exploitation of the Belgian legal system. With respect to the actual debate before the court, Mr. Masset repeated the arguments developed in a written submission that had been communicated to the plaintiffs' lawyers two days earlier. He gave special emphasis, however, to the following three points:

• immunity: Sharon's lawyer held that the statute law of 1999 is contrary to international law in its removal of immunity from sitting heads of state in cases of crimes against humanity and war crimes.
• double jeopardy: arguing that Mr. Sharon has already stood "trial" before the 1983 Kahan commission, Masset shifted the argument slightly during the pleadings to focus not only on the Kahan commission, but even more so on the subsequent implicit decision, taken by the Israeli Attorney-General in 1983, not to prosecute anyone for criminal action resulting from the crimes committed in the Sabra and Shatila camps in September 1982.
• universal jurisdiction: Sharon's lawyer argued that jurisdiction always requires some sort of "link" with the country exercising it.

Following up on the last of these three points, and in an attempt to pursue all possible legal arguments in order to oppose Belgium's jurisdiction in this case, Mr. Masset presented a very startling argument: that the whole case should be transferred from Belgium to Lebanon. This argument, predicated on an assumption that no trial will ever take place in Lebanon, does not accord with Belgian law in such procedures.

The plaintiffs' lawyers had already encountered and addressed each of these arguments before, with the exception of suggested change of venue, most notably during the 28 November 2001 pre-trial hearing. Furthermore, Brussels Attorney-General Morlet verbally reiterated his views in an additional pleading of one hour's duration on 23 January 2002, in which he firmly refuted all the additional elements and arguments advanced by Mr. Masset.

Following the statements of Sharon's lawyer and Attorney-General Morlet, the three lawyers representing the plaintiffs each replied verbally to the foregoing, and even cited an important new precedent in the massacre survivors' favour: the decision of the Belgian Supreme Court in the case of the four Rwandan nuns who were convicted by the Court of Assises in June 2001. The Supreme Court's decision, dated 9 January 2002, but first available to the plaintiffs' lawyers on the morning of 23 January, clearly confirms the validity of the 1993 and 1999 Belgian statute law on universal jurisdiction. Specifically, the Supreme Court ruling refutes the argument of Mr. Sharon's lawyers concerning the issue of double jeopardy, since the Court refused to take into account a similar and much more convincing argument by one of the convicted Rwandans (against whom Belgian prosecution had restarted after his indictment had not been confirmed by the International Criminal Tribunal for Rwanda). In this case, the Belgian Supreme Court acted despite an earlier and explicit decision by a recognised judicial body, the ICTR, which has priority over Belgium's national legal system.

Following Mr. Masset's brief replies to all these arguments, the President of the Court decreed that all written submissions, notes, and evidence must be handed in at a final hearing on 30 January 2002. (The final conclusion filed by the Sabra and Shatila plaintiffs' lawyers is available in French on this website as a PDF in the documents listed in The Case Against The Accused section of this site.)

The case against Sharon and others will be reviewed and considered further by the three Appeal Court judges, who will render their ruling on the admissibility of the case on 6 March 2002.

See also Frequently Asked Questions on this site.

[The Case Against The Accused]