Compiled by Laurie King-Irani, Coordinator, North American Committee of the International Campaign for Justice for the Victims of Sabra and Shatila. Page last updated 7 February 2002.

Q: What is the nature of this case?

A: The case lodged in Belgium on 18 June 2001 by 23 survivors of the 1982 Sabra and Shatila massacres charges Ariel Sharon, former Israeli defense minister and Israel's current prime minister, as well as other Israelis and Lebanese with war crimes, crimes against humanity, and genocide related to the massacres committed between 16-18 September 1982 in two refugee camps in Beirut. The central argument of the case hinges upon Ariel Sharon's Command Responsibility as General of the Israeli Defense Forces (IDF), which were in full control of Beirut when the massacres took place in the contiguous refugee camps of Sabra and Shatila. Although the killings of between 1000-2000 unarmed Lebanese and Palestinian civilians were carried out by Lebanese militia units directly or indirectly affiliated with the Israeli-allied Christian Lebanese Forces (the Phalange), the legal, military, and decision-making responsibility for the massacre ultimately rests with Ariel Sharon under established and recognized principles of International Law. The case attempts to realize and implement the principle of Universal Jurisdiction for war crimes, crimes against humanity, and genocide, a principle which is enshrined in the Fourth Geneva Convention and International Customary Law. As such, this case represents just one of many recent attempts to challenge impunity for war crimes and crimes against humanity. Other similar cases have seen war crimes charges brought against Rwandan officials, Chile's ex-president General Augusto Pinochet; Chad's former president Hissein Habre; and former Serbian President Slobodan Milosevic.

Q: Why was this case lodged in Belgium?

A: In 1993, the Belgian legislature passed a Universal Jurisdiction Law incorporating the Geneva Conventions into Belgian criminal law. The Belgian legislature passed a subsequent law in 1999 that incorporated other elements of international criminal law and removed the immunity from prosecution usually reserved for sitting heads of state, thus strengthening the 1993 legislation. These two laws authorize Belgian courts to try cases of war crimes, crimes against humanity, and genocide, regardless of the venue of the crimes, the nationalities of the victims and perpetrators, or the political status of the perpetrators. The principle of universal jurisdiction, effectively implemented in the context of Belgium's judicial system by the laws of 1993 and 1999, is enshrined in International Humanitarian Law, most notably in the Geneva Conventions. Shortly before this case was lodged in Belgium in June 2001, the first complete trial held under the laws of 1993 and 1999 led to the conviction and sentencing of four Rwandan nuns found guilty of facilitating a massacre in 1994. Under international law, all humankind is legally implicated in the necessity to halt crimes against humanity, war crimes, and genocide. All High Contracting Parties (i.e., signatories) to the Geneva Convention are legally required to cooperate in the apprehension, investigation, trial, and punishment of any party guilty of such heinous crimes. International law does not recognize any amnesties or statutes of limitations for war crimes and crimes against humanity. Belgium's recent legal innovations in this vein cannot be considered extraordinary when one recalls that Article 146 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War specifies that each High Contracting Party (i.e., each signatory to the Convention),

"shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, grave breaches of the Convention, and shall bring such persons, regardless of nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party...".

Q: Why don't the plaintiffs who have lodged this case simply wait until the International Criminal Court (ICC) is established to bring the charges against the accused in that venue?

A: The proposed International Criminal Court will not have retroactive jurisdiction to investigate war crimes preceding its establishment. The charges in this case are based on events that took place twenty years ago.^[1]

Q: Are other EU countries supportive of Belgium's initiative to try war crimes cases under the principle of Universal Jurisdiction in its own courts?

A: Some other European countries also have Universal Jurisdiction capabilities, with nuances in each case. On 16 January 2002, Germany's Council of Ministers moved to adopt legislation that will empower German courts to prosecute any persons presumed to be responsible for war crimes or crimes against humanity, regardless of the venue of such crimes. The text of this proposed legislation will be presented before the German parliament soon.

Q: Has the case charging Sharon and other Israelis and Lebanese with responsibility for the Sabra and Shatila massacres had any repercussions upon Belgium's domestic politics, particularly public attitudes about the 1993 and 1999 laws enabling Belgian courts to conduct war crimes trials under the principle of Universal Jurisdiction?

A: The case brought by the Sabra and Shatila massacre survivors constitutes one of the most high-profile cases to come before the Belgian courts since World War II. An attempt by Belgium's Minister of Justice (encouraged by the Minister of Foreign Affairs) to modify the laws on the issue of immunity was rejected by the Council of Ministers in July 2001, a month after this case was lodged. Deputy Fred Erdman, president of the Belgian-Israeli Parliamentary Association, along with three other members of the Belgian Parliament recently submitted a proposal that, if accepted, would make prosecutions based on the 1993 law much more difficult. So far, all attempts to change the law have been fruitless. A number of prominent Belgian senators, among them Dubié, van Quickenborne, and Cornil, have joined the Belgian Committee of the International Campaign for Justice for the Victims of Sabra and Shatila, and are firmly defending the laws that enable Belgian courts to conduct war crimes trials under the principle of Universal Jurisdiction. The fact that these laws were passed unanimously in 1993 and 1999 demonstrates Belgian citizens' wide and avid support for this initiative.

Q: What, if any, reason or precedent might the Belgian court cite for halting the case before it can go to trial?

A: While the law could be rendered inoperative in this case due to any number of procedural glitches, it would not be halted based upon the arguments raised by Prime Minister Sharon's lawyers, all of which were refuted by Belgian Attorney General Pierre Morlet at the 28 November pre-trial hearing, with the exception of one point: Belgian ministers, judges, and other high-ranking officials enjoy a "privilege of jurisdiction," i.e., they cannot be judged by ordinary Belgian courts, but only by higher courts, if they are charged with criminal wrong-doing or negligence. But neither the Belgian Constitution nor the 1993 law grants such privileges to officials of other governments facing trial in Belgium. Attorney General Morlet indicated that it would be useful to ask the Court of Arbitration (Constitutional Court) whether or not this constitutes a discriminatory practice. This issue, however, would be more likely to prolong the pre-trial stage of the case rather than to halt it outright. In addition, this point would not halt the prosecution of Yaron, Eitan, Drori, or Lebanese Phalangist officers and other Israeli Defense Forces personnel charged with war crimes and crimes against humanity.

Q: Should the Belgian court decide that the case will go forward, will Prime Minister Sharon, Amos Yaron, and the others named in the Complaint be required to come to Brussels to stand trial?

A: If the court decides to proceed with the case, the investigating judge will continue his inquiry and the case could be submitted to a jury (Court d'Assises) once the pre-trial investigation is closed. The investigating judge can issue a warrant of arrest against some of the accused, as can the preliminary chamber of the High Court as soon as it decides to send the case to the Court d'Assises. Such a warrant can provide a basis for an extradition request and/or an international search warrant. Belgian law, however, does not require the presence of the accused to mount a trial, so Sharon, Yaron, and all the other Israeli and Lebanese individuals charged in the case can stand trial in absentia. Former Phalangist militia leader Elias Hobeika, it must be noted, had indicated before his assassination on 24 January 2002 that he was ready and willing to travel to Belgium to give testimony.

Q: Were the accused to be found guilty of the charges laid against them in the Complaint, what would be their likely sentences? Would they serve prison time in Belgium?

A: Maximum punishment for war crimes and genocide in Belgium is life imprisonment. In the recent Rwandan case, the accused were given sentences of up to 15 years in prison. In principle, the accused individuals in this case, if found guilty, would serve their prison time in Belgium.

Q: What are the implications of this case for other attempts to end impunity for war crimes in Iraq, Kosovo, or Chechnya? Do these legal developments in Belgium herald a new era for international humanitarian law?

A: The case lodged against Sharon and others in June 2001 is an important test case for impunity for the most severe crimes under International Law. In a recent interview with a Belgian newspaper, Carla Del Ponte, a prosecutor at The Hague who is involved in the International Criminal Tribunals for Rwanda and the Former Yugoslavia (ICTR and ICTY), called the Belgian laws of 1993 and 1999 a "great initiative."^[2] A 14 June 2001 analysis of current mechanisms for trying war crimes in The Economist lauded the Belgian courts for being speedier and more efficient in prosecuting war crimes cases than the ICTR or the ICTY. Several other criminal complaints have now been lodged in Belgium against former Chilean President Augusto Pinochet, former Moroccan Minister of Information Driss Basri, President Saddam Hussein of Iraq, and Palestinian leader Yasser Arafat.

Q: Have any other states considered adopting legislation similar to the 1993 and 1999 Belgian legislation? What will such initiatives do to the role of the International Criminal Court? If such a court is established, will Belgium cease trying such war crimes cases?

A: Some EU states, such as Germany (see above), are considering the adoption of legislation similar to that adopted by Belgium in the 1990s. In October 2001, The Netherlands submitted a proposal to the European Council of Ministers to try to reach a consensus on this issue. An international convention on Universal Jurisdiction would not diminish the role of the future International Criminal Court (ICC). In fact, proceedings related to war crimes in national courts will still be possible as well as necessary since the ICC's competence will be limited geographically as well as temporally. The existence of an International Criminal Tribunal for Rwanda did not prevent Belgium from prosecuting, sentencing, and jailing four persons responsible for the 1994 genocide in that Central African country.

Q: What is the feeling of the majority of Belgian citizens about the 1993 and 1999 laws and the various war crimes charges being lodged in Belgian courts?

A: A national opinion poll conducted in Belgium shortly before the Sabra and Shatila plaintiffs lodged their case in June showed overwhelming support, which was reiterated when the Rwandan sentence was issued. Although some express concerns that the flood-gates will be opened to all sorts of trivial and politicized cases being lodged in Belgium, experience thus far has shown that the Belgian judiciary is coping quite well with all the cases that have been lodged under the 1993 and 1999 Universal Jurisdiction laws.

Q: What sort of compensation will the Sabra and Shatila victims and survivors receive?

A: It is still too early to discuss this aspect of the case, but the plaintiffs would be entitled to monetary compensation and the Belgian court could command the accused to pay such compensation to the survivors of the massacres. A formal court trial of the accused would also be the first step in a long overdue process of accountability to bring justice to the victims and their families.

Q: Have the lawyers or plaintiffs in this case been threatened or harassed in any way since publicly lodging the case last summer?

A: The lawyers, as well as the Belgian Government, have been accused of base and ulterior political motives and anti-Semitism. One of the plaintiffs claims to have received threatening phone calls. One of the individuals named in the Complaint, former Lebanese Phalangist leader Elias Hobeika, was assassinated in Beirut by persons unknown the day after the final pre-trial hearing in the case. It is not yet clear whether his death was directly related to the case lodged in Belgium.

Q: Since most, if not all, of the individuals who actually committed the massacres were Lebanese nationals, what are the potential repercussions of this case on internal Lebanese politics, particularly Lebanon's 1991 General Amnesty Law?

A: If the case goes forward, Lebanon's General Amnesty Law of 1991, which granted immunity from prosecution to anyone accused of committing war crimes in Lebanon between the years of 1975 and 1990, would be considered entirely inoperative and inapplicable in Belgium. International Humanitarian Law does not recognize immunity for war crimes or crimes against humanity. This fact troubles many among the political elite in Lebanon. Some observers feel that opening the Sabra and Shatila files could lead to the opening of all of Lebanon's war time files to scrutiny.

Q: Have the Hebrew documents delivered to the Belgian lawyers by a confidential Israeli source been authenticated? If so, what is the nature of their contents?

A: The Hebrew documents delivered to Belgium last June might include parts of the sealed annex to the Kahan Commission Report of 1983, which is believed to be a record of communications and coordination between top Israeli military officials and leaders of the Lebanese Phalangist militia. Most of the documents translated thus far are Mossad (Israeli intelligence) documents and minutes of meetings. Their authenticity has yet to be completely ascertained, but after some of these documents were translated and published in 2001 in the British and Belgian press, no Israeli authorities came forward to state that these documents are false. The Hebrew materials strengthen the grounds for indicting the Israelis and Lebanese named in the Complaint filed in Belgium in June 2001. Some of the documents provide details about the planning and execution of the IDF's 1982 invasion of Lebanon; others clearly indicate that top Israeli officials were fully cognizant of the likely fate of Palestinians in the Sabra and Shatila refugee camps were the Lebanese Christian militias to be sent in to "mop up" after the withdrawal of the Palestine Liberation Organization (PLO) from the camps.

Q: To what use are donations to this case being put? Are the lawyers serving in a pro bono capacity?

A: Donations to the International Committee for Justice for the Victims of Sabra and Shatila are used to cover legal fees, transportation expenses for witnesses, plaintiffs, and the lawyers, as well as other costs related to research for the case and the creation and maintenance of this website. The legal team worked in a pro bono capacity for several months before they were modestly compensated, thanks to donations gathered by various committees formed in Europe, Lebanon, and North America. Many people who have assisted at key stages in the development of this case have worked in a pro bono capacity, including the members of the Yale Law School's Human Rights Clinic, directed by Deena Hurwitz and Jim Silk.

[The Case Against The Accused]

Footnotes

[The Case Against The Accused]