14 February 2003
ON BELGIUM, PRIME MINISTER
AND INTERNATIONAL "JUSTICE"
Louis Rene Beres
Professor of International Law, Department of Political Science
The irony is palpable. Belgium, a nation that finessed its long history of colonial brutality by abandoning almost a million defenseless Rwandans to rape and murder, will allow Israel's prime minister to be tried for war crimes in its own courts. Although the case has been blocked until Mr. Sharon is out of office, once the Israeli leader no longer enjoys sovereign immunity he and co-defendant Amos Yaron, former IDF Chief of Staff, will be subject to Belgium's judicial jurisdiction. This was the ruling of Belgium's highest court on February 12th, which further stated that investigation and trial of Sharon could proceed even if the defendant were not physically present in country.
The case against Sharon and Yaron dates back to 2001, when survivors of the 1982 massacres at the Sabra and Shatila refugee camps in Beirut filed a criminal complaint holding the two Israelis responsible for the deaths of their relatives. In essence, this complaint - a blatantly propagandistic use of national and international law - blames Jews for the killing of Muslims by Christians. Fittingly, Belgium, a country with much to atone from the Holocaust period, is entirely comfortable with accepting such a grotesque complaint.
Christian militias, not IDF units, did all of the killing in Lebanon. Ariel Sharon, then Israel's defense minister, does bear some legal command responsibility for the massacres (the relevant principle is known as respondeat superior "Let the master answer") but his failures were all ones of omission, not commission. He did fail to recognize that the Christians would massacre the Muslims, but he was not in any way aware that these killings were actually underway. Nor was he in any way complicit in the murders. So why prosecute Sharon and Yaron, and not those Christians who were directly responsible for the crimes? The answer is unspeakable but incontestable: The proposed prosecution represents a convenient opportunity for Belgium to continue its incessant history of anti-semitism, only this time encouraged by large numbers of Arabs living in country. Naturally the two defendants here are identified juridically as "Israelis," not as "Jews," but everyone in Europe today understands what this really means. Europe today is the same as Europe yesterday, only less overt. Israel is always the individual Jew in macrocosm; Israel-bashing (especially in Europe) is still seldom more than an acceptable cover for "Kill the Jews."
In theory, the idea of using national courts for the prosecution of international crimes is not only reasonable, but essential. This is because our world legal order remains largely decentralized - even after the recent creation of an International Criminal Court. But the principle is perverted, inexcusably, when individual states lend themselves not to justice, but to propaganda. In this case the Belgian perversion of justice is especially hideous, not only because of its broad distortion of responsibility and coincident disregard for Arab terror, but also because it is being undertaken for the benefit of authentic murderers. And while charges were filed in Belgium against Yasser Arafat in November 2001 by relatives of Jewish victims of PLO terrorism, the authorities have yet to act upon this particular complaint.
Belgium's unique tilt toward twisted justice has multiple causes and multiple ironies. Today, large numbers of Arab Muslims in Belgium hold the country hostage to spoken and unspoken threats. The result is that long- latent indigenous anti-semitism - European anti-semitism - is now reinforced and reinvigorated by virulent Islamic hatred of Jews. Belgium, a country that shamelessly identifies its right to prosecute a Jewish leader for crimes committed by Christians against Muslims, is the nation that brought genocide to the Congo Free State and that stood aside as genocide was committed in the former Belgian colony of Rwanda. There, cowardly Belgian troops fled in disgrace before small ragtag bands of Hutu killers, consciously abandoning hundreds of thousands of Tutsi men, women and children to the mercies of Hutu machettes. This is the same "lawful" nation that, with little reluctance, deported 35,000 Jews - fully half of the Belgian Jewish population at the time - to German gas chambers. This is the same "just" nation that currently joins France and Germany (two similarly "just" nations) to prevent NATO protection for member-state Turkey from Iraqi weapons of mass destruction. As for prosecution of Saddam Hussein in Belgian courts, of course, there is nary a murmur. After all, his crimes, like those of the Belgians themselves, are not sufficiently serious.
Crimes of war and crimes against humanity of the sort committed by Saddam Hussein and Yasser Arafat mandate universal cooporation in apprehension and punishment. All countries, as responsible punishers of "Grave Breaches" under international law, are required to search out and prosecute, or extradite, authentic perpetrators. According to Article 146 of the Fourth Geneva Convention, from which this requirement derives, each country "shall bring such persons, regardless of their nationality, before its own courts." Without far-reaching compliance here, all countries of the world would agree that true justice is unimportant.
Belgium, unlike any other state on earth, has taken these sacred principles and manipulated them for reasons of domestic cowardice and deep-seated hatreds. Caving in to Arab threats internally, Belgian authorities have agreed to the most unseemly distortions of fact and law to buy off Islamic terrorists. All this from a country with precious little honor in its history - a country that already has a great deal of genocidal blood on its hands, African blood and Jewish blood.
Unlike the Belgians, in the matter of universal jurisdiction for crimes, a small number of states have in fact acted on behalf of Geneva Convention IV. Significantly, one such state is Israel, a tiny ministate that is vastly more vulnerable than one lying in the heart of Europe with no enemies outside its borders. When Israel abducted Nazi war criminal Adolph Eichmann from Argentina in 1960 and brought him to trial in Jerusalem, it did so in fulfillment of genuine legal and moral obligations. Unable to gain custody of this mass murderer through the usual mechanisms of extradition (Argentina was hardly inclined to extradite Nazi functionaries after they had brought huge amounts of gold into the country, gold extracted from Jewish teeth), Israel's abduction was entirely consistent with basic principles of law and justice. The crimes set forth by Israeli law, namely crimes of war and crimes against humanity, had been established unambiguously as crimes by the Nuremberg Tribunal. All of the crimes set forth under the Israeli indictment had been recognized by the universal conscience of humankind as delicta juris gentium, crimes against the Law of Nations.
An international criminal tribunal that might have judged these terrible crimes had not yet been created. Nuremberg had dealt only with "humanity," and not with the "Jewish People." Israel then invested its legislative and judicial organs of state with lawful power of enforcement. In so doing, it acted CORRECTLY upon the obligation to punish egregious crime under international law, not - in the fashion of the Belgians - as a propaganda agent for true criminals. In undertaking to punish crimes of genocide, Israel acted to secure justice not only for itself and for the Jewish People, but also for the entire community of humankind. By accepting concretely the PROPER principle of "universal jurisdiction," it established beyond any reasonable doubt that the punishment of authentic hostes humani generis - a "common enemy of humankind" - is not an internal question for any one state, but a basic obligation for all.
The difference between the Israeli prosecution of Adolph Eichmann and Belgium's proposed prosecution of Ariel Sharon and Amos Yaron is the difference between justice and injustice. Confronted with the same obligations under international law, Israel chose to meet its obligations with intellect, honor and purpose. Belgium, on the other hand, has willingly sacrificed justice on the altar of ancient prejudice and persistent cowardice. Perhaps, in the months and years ahead, wiser heads may prevail in Brussels, and Belgium could begin a markedly more dignified path to understanding and courage. It would be a good beginning.
LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international relations and international law. Prof. Beres is the academic advisor for the Freeman Center For Strategic Studies.