mercredi 18 novembre 2009

Resort to National Courts: Criminal Prosecutions
Belgium: Ariel Sharon and the Limits of Universal Jurisdiction

Belgium: Ariel Sharon and the Limits of Universal Jurisdiction
On June 18, 2001, a group of twenty-three “survivors” and five “eyewitnesses” to the 1982 Sabra and Shatila massacres filed a complaint with the Belgian Public Prosecutor’s Office. The complaint named as defendants Ariel Sharon, who was Israel’s Defense Minister in 1982;Amos Yaron, a retired Brigadier General who in 1982 was in charge of Israeli troops in Beirut; Rafael Eitan, who was then Chief of Staff of the Israel Defense Forces; and Amir Drori, formerly the head of the Israeli army’s Northern Command. They were accused of grave violations of international humanitarian law including genocide, crimes against humanity, and war crimes.129 The lawsuit was brought pursuant to the Belgian Act concerning Punishment for Grave Breaches of International Humanitarian Law130 (“Grave Breaches Act”) which allows for universal jurisdiction over genocide, war crimes, and crimes against humanity, as well as the Code of Criminal Procedure which allows victims “to initiate a criminal investigation on the basis of universal jurisdiction.”131

Under Belgian law, had the case proceeded to the trial stage, Sharon and the other defendants could have been tried in absentia, a violation of due process rights and Article 14 of the International Covenant on Civil and Political Rights.
While the suit was brought in the name of “survivors” and “eyewitnesses,” local NGOs with the support of international NGO superpowers were largely responsible
for initiating the case. The Sabra and Shatila Committee (SSC) - formed by the Belgian NGO, the Arab-European League - was the main catalyst in the indictment, paying attorneys’ fees, preparing legal documentation, and submitting the complaint.

The SSC also applied pressure to Belgian decision makers and influenced public opinion in support of the case.132 The SSC’s Bethlehem branch, The Palestine Committee for Justice for the Victims of Sabra and Shatila, was headed by Ingrid Jaradat of the Bethlehem-based NGO Badil.133 Badil’s “Indict Sharon Now” campaign
called on supporters to sign a UN petition setting up an “International Investigation Committee” for Sharon’s “crimes against humanity” and to “[o]rganize, facilitate and participate in fact finding missions aimed at examining possible war crimes committed by the Israeli army.”134 From the initiation of the suit against Sharon until the time of its dismissal, Badil issued almost monthly press releases on developments in the case.135 As previously noted, Badil’s funders include Canada (via Mennonite Central Committee), Switzerland, the Norwegian Refugee Council, Denmark (via Mu’assasat and DanChurchAid), Trocaire (a major recipient of Irish government funding), and Norwegian Peoples Aid.

Several other NGOs assisted SSC with the case by providing fundraising and translating services. These NGOs included the Belgian NGO CODIP (Centre for Development, Documentation and Information Palestinians)136 and the
Jerusalem-based Palestinian Society for the Protection of
Human Rights and the Environment (LAW), the latter of
which received funding from the Ford Foundation and
was a major participant at the Durban Conference.137
In July 2001, a Belgian juge d’instruction (investigating
magistrate) began a criminal investigation into the
allegations of the complaint. An attorney intervening on
Israel’s behalf raised several legal concerns regarding the
investigation: that as a sitting Prime Minister Sharon was
immune from prosecution, that prosecution pursuant to
the 1993 law would violate the concept of retroactivity
given that the events alleged in the complaint occurred in
1982,138 and that there were no links between Sharon and
Belgium. The acting Attorney General of Brussels referred
these issues to the Chambre des Mises en Accusation (the
Indictment Chamber) of the Belgian Cour d’Appel de
Bruxelles (Court of Appeals of Brussels).
NGO superpowers Human Rights Watch and Amnesty
International played a critical role in publicizing the case
at every stage. On September 7, 2001, the investigating
magistrate suspended his work pending court review
of the investigation’s legality. HRW and Amnesty used
this development to demand that the court reinstate
the criminal investigation against Sharon. In HRW’s
press release, Executive Director for the Middle East
and North Africa Division, Hanny Megally, claimed that
“there is abundant evidence that war crimes and crimes
132 Arab–European League, “Against the Gray: An Arab Lobby in the Heart of Europe? Yes, and it’s Working,” available at www.
133 International Campaign for Justice for the Victims of Sabra & Shatila, “Solidarity Committees,” available at http://www.
134 Badil, “Proposals for Action Towards A Global Campaign Against Israel’s Brand of Apartheid,” April 10, 2002, available at; “Public Invitation Issued by: the Popular Steering Committee
for the Right of Return, Bethlehem, Palestine,” September 18, 2003, available at
135 Badil’s press releases are available on its website chronologically at
136 International Campaign for Justice for the Victims of Sabra & Shatila, “Contributions,” available at
137 “The Complaint Against Ariel Sharon for his Involvement in the Massacres at Sabra and Shatila,” (Official Translation from the
French), available at After auditors found financial misappropriations and
other fraudulent activity at the NGO, international funding for LAW ceased. For more information on LAW see
138 The prohibition against retroactive application of the law is overwhelmingly accepted as a standard of international law. Article
15.1 of the ICCPR for example states that “[n]o one shall be held guilty of any criminal offence . . . which did not constitute a
criminal offence, under national international law, at the time it was committed.” Notably, the ICC only has jurisdiction over
crimes occurring after the date of its seating – July 1, 2002.
NGO Lawfare » page 25
against humanity were committed on a wide scale,”
detailing Sharon’s alleged role and essentially placing
full responsibility on Israel and the IDF rather than on
the actual Lebanese perpetrators.139 Additional HRW
statements carried forth this theme. Amnesty issued
its statement on the day the court was scheduled to
hear arguments, pressing for Sharon’s investigation and
further lobbying for widespread institution of universal
jurisdiction laws. (During this same time period,
these NGOs also unsuccessfully lobbied for a Danish
criminal investigation against the former head of Israel’s
Security Service, Carmi Gillon, when he was appointed
Ambassador to Denmark.)140
While the case was under deliberation in the Belgian
court, the ICJ ruled in the “Arrest Warrant Case” on a
related legal issue. The February 14, 2002 decision held
that sitting high ranking government officials are immune
from prosecution in foreign countries.141 Following
this decision, the Belgian Attorney General and the
complainants asked the Belgian court to consider the
impact of the ICJ decision on the Sharon case. Prior to
oral argument over this issue, Amnesty released a pseudolegal
brief calling the ICJ decision “flawed” and urging the
Belgian court to find it inapplicable.142
On June 26, 2002 the Belgian court held that the
complaints against Sharon were “inadmissible” because
“no investigation can be opened in Belgium for war crimes,
crimes against humanity, or genocide unless the suspect is
found in the country.” In a press release issued the same
day, Amnesty expressed its “dismay” at the ruling, claiming
that “the restrictive interpretation of Belgian national law
is inconsistent with international law,” and further declared
that if the decision was upheld on appeal, it would “seek
an amendment of the Belgian law.”143 Amnesty issued yet
another press release on September 26, 2002, on the eve
of appellate court arguments, urging the court to reopen
the case and repeating statements about changing Belgian
law.144 Another pseudo brief was released by Amnesty in
February 2003, again on the same day as oral arguments
were heard.145 HRW issued a document on February 1,
2003 (revised in June 2003), “Belgium: Questions and
Answers on the ‘Anti-Atrocity’ Law,” calling the law “an
essential part of the emerging system of international
justice” which helps “to break down the wall of immunity
with which tyrants and torturers protect themselves in
their own countries.”146
On February 13, 2003, the court ruled that the
investigation could continue but excluded the case against
Sharon because “international custom bars acting heads
of state and government … from becoming the object of
proceedings before criminal tribunals in foreign states”
and that consequently, “the contested ruling is not legally
supported.”147 HRW issued a press release on the day of
the ruling calling it a “landmark step for international law
. . . . This decision is a huge victory not only for the victims
of the Sabra and Shatila massacres but for all atrocity
victims who have put their hopes in the Belgian justice
system.”148 A week later, HRW’s Reed Brody wrote an oped
in the International Herald Tribune saying that Israel
139 Human Rights Watch, “Israel: Sharon Investigation Urged,” June 23, 2001, available at
140 Amnesty, “Amnesty International Urges Investigation of Ariel Sharon,” October 3, 2001, available at http://web.amnesty.
org/library/index/engmde150892001. See also Human Rights Watch, “Denmark: Letter to Danish Minister of Foreign Affairs
Mogens Lykketoft,” July 18, 2001; Amnesty International, “Israel/Denmark: Amnesty International calls on Denmark to fulfill its
obligations under the UN Convention against Torture,” August 14, 2001.
141 “Press Release: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium).” International Court of Justice.
February 14, 2002, available at
142 Id.
143 Amnesty, “Belgium/Israel: Dismay at Sharon Case Decision,” June 26, 2002, available at
ENGMDE151012002?open&of=ENG-BEL; Anthony Dworkin, “Belgian Court Rules that Sharon Cannot be Tried in Absentia,”
Crimes of War Project, July 1, 2002, available at
144 Amnesty, “Israel: International Justice for Sabra and Shatila victims,” September 26, 2002, available at http://www.amnesty.
145 Amnesty, “Universal Jurisdiction, Belgian Prosecutors Can Investigate Crimes Under International Law Committed Abroad,”
February 12, 2003, available at
146 HRW, available at
147 Belgian Court of Cassation, “Ruling,” February 12, 2003, at 6, available at
148 Human Rights Watch, “Belgian Ruling Key Precedent for Human Rights,” February 12, 2003, available at
NGO Lawfare » page 26
was “fuming” because the Belgian court was just “enforcing
the most basic norms of humanity” and comparing the
case against Sharon to that against Adolf Eichmann.149
Following the Sharon case as well as cases initiated against
President George H.W. Bush, Dick Cheney, Norman
Schwarzkopf, and Colin Powell over the 1991 Gulf War;
a case against US General Tommy Franks over the 2003
invasion of Iraq; and a suit against Chinese President
Jiang Zemin over alleged persecution of Falungong
practitioners, the Belgian government and parliament
began to question the efficacy of the law and sought
its amendment. In response to this initiative, several
international human rights groups including HRW,
Amnesty, and FIDH formed a coalition to lobby the
Belgian parliament to “defend the law.”150
In April 2003, the Grave Breaches Act was amended,
“removing the right of victims to initiate a universal
jurisdiction prosecution, and introducing immunity
provisions ‘in accordance with international law.’”151
Continuing its campaign, HRW issued a statement
criticizing the amendments.152 An article authored by
HRW’s Reed Brody, a strong proponent of the old law,
claimed that the amendments “went far beyond what
the NGOs had agreed to.”153 Brody does not say on
what basis the NGO coalition had the power to bind the
Belgian legislature to the coalition’s demands. On June 10,
2003, the Brussels Appeals Court affirmed the February
decision,154 but three days later the Belgian Ministry of
Justice initiated the transfer of the case to Israel.155 The
law incorporating international crimes into the Belgian
Criminal Code was repealed in August 2003, effectively
putting an end to the case against Sharon.156

128 See, e.g., Andrew Friedman, “Lawsuits PR opportunity for Israel,” Ynet News, February 27, 2006, available at http://www.,7340,L-3221542,00.html; Guardian Unlimited, “Israeli ex-military chief cancels trip to UK over threat of
war crimes arrest,” September 16, 2005, available at
129 “The Complaint Against Ariel Sharon: Lodged in Belgium on 18 June 2001,” June 18, 2001, available at
cmptENft.pdf; See also Irit Kohn, “The Suit Against Sharon in Belgium: A Case Analysis,” European-Israeli Relations: Between
Confusion & Change (Manfred Gerstenfeld ed., 2007), for the perspective of the former head of the International Department of the
Israeli Ministry of Justice on the case.
130 September 16, 1993. The law was amended in 1999 to include universal jurisdiction genocide, crimes against humanity, and
war crimes.
131 HRW, Universal Jurisdiction in Europe: The State of the Art: VI. Belgium, June 28, 2006 (hereinafter “State of the Art,”
available at

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