What Did the Belgian Judges Rule?

Maariv (p. 11) by Sefi Hendler — Belgium’s High Appeals Court ruled yesterday that as long as Ariel Sharon serves as prime minister his immunity is valid, but that at the end of his term in office it will be possible to investigate him for his part in the massacre at Sabra and Shatilla in 1982.

This was an unprecedented decision which overruled that of a lower court and established that it is possible to try any person, even if he is not a Belgian citizen and is not in Belgium, for war crimes, crimes against humanity, and human rights violations. The Belgian judges explained their decision, which allows the trial of a person who is not on Belgian soil, by noting the gravity of the deeds of which the Israeli prime minister is suspected.

The suit against Sharon was filed in 2001 by a group of Palestinian survivors from the massacre at Sabra and Shatila. The claimants accused the prime minister, who was then serving as defense minister, and three other senior IDF officers of being responsible for the massacre that took place in the refugee camps during the Lebanon War. The suit was filed in the framework of the “universal authority” law adopted by Belgium, a law which Belgium claims allows it to try any person anywhere in the world for crimes against humanity.

Last year the Appeals Court issued a clear ruling in Sharon’s favor. But since then there has been a broad public campaign in Belgium, joined by the media, legalists, and members of the Parliament and the Senate, to change the law and allow Sharon to be tried.

The most worrisome significance of the law in the short term is that starting yesterday Belgian judges can issue arrest warrants for the three former officers involved in the case: Raphael Eitan, Amos Yaron, and Amir Drori. Such warrants would require all of the countries which are members of Interpol to arrest the Israelis and turn them over to Belgium.

Scandalous Provocation by Belgium

Maariv (p. 10) by Ilel Shahar et al. — A serious diplomatic crisis erupted yesterday between Israel and Belgium in wake of the decision of the Supreme Court in Brussels to allow the trial of Prime Minister Ariel Sharon on charges of genocide and crimes against humanity.

The Prime Minister’s Office called the decision a “scandalous provocation on the part of the Belgians”. Foreign Minister Binyamin Netanyahu instructed Israel’s ambassador in Brussels, Yehuda Kenar, to return to Israel for consultations. At the same time, Netanyahu invited Belgium’s ambassador in Israel, Wilfred Geens, for an urgent discussion that is expected to take place today.

After Jerusalem heard about the Belgian court ruling, the Prime Minister’s Office and the Foreign Ministry began holding intensive consultations. One proposal raised was to cut off diplomatic ties with Brussels and recall Israel’s ambassador. This step would be difficult to carry out, because Ambassador Kenar, who replaced Shaul Amor, has yet to present his credentials to the Belgian king. No final decision has been made on the subject, and it was decided to recall the ambassador for the purpose of consultations alone.

Diplomatic sources expressed displeasure with the court’s decision to reject Israel’s position that Belgium cannot try people who are not on its soil. The practical significance is that as far as the Belgians are concerned, it is now possible for them to try the three other figures against whom the suit was filed: the chief-of-staff at the time of the Lebanon War, Raphael Eitan, then-OC Northern Command Amir Drori, and the commander of the division that besieged the camps, Amos Yaron, who is currently director-general of the Defense Ministry. Jerusalem is concerned that the precedent-setting ruling will lead to dozens of suits being filed against Israeli army officers.

Prime Minister Binyamin Netanyahu responded with outrage to the Belgian court decision. “This is a scandalous decision that gives legitimacy to terrorism and damages those who are fighting it. This is upside down”. Those who are fighting terror have become the accused and the terrorists have become the victors. Belgium is helping to hurt not only Israel but also the whole free world, and Israel will respond with due gravity,” said Netanyahu.

Daniel Shek, the Foreign Ministry’s representative in the delegation that was sent to Belgium this week for the hearing, said in response: “Though the ruling stops the legal proceeding against Sharon, it is problematic because it gives the Belgian legal system the power to try foreign citizens with no connection to Belgian territory. We intend to study the decision and in the next few days we will decide how to respond”. The director of the international department in the State Attorney’s Office, Irit Kahan, emphasized that Israel would provide legal protection to all of the people against whom suits are filed. She admitted that she was surprised by the ruling, which contradicted the position of Belgium’s Prosecutor General. “They apparently think that they have all the authority in the world”, she said, “and they will be responsible for the results”. Kahan believes that the Palestinians did not win the case: “I did not see any expression of happiness in their legal team, because their goal was to hurt Prime Minister Sharon and to make it difficult for him to function”. She added, “This subject is not connected only to Israel, but to all of the countries in the world. I believe that the responses will not be long in coming” It should be noted that in Belgium there are currently 22 investigations underway against serving and past heads of state. Israel will try to coordinate its positions with Britain and the US. The State Attorney’s Office will be holding a series of consultations over the next few days regarding the significance of the decision and on ways of dealing with it legally.

Dr. Ruby Sobel, an expert on international law who served in the past as the Foreign Ministry’s legal adviser, told Maariv yesterday, “The State of Israel’ practical response should be to encourage the filing of suits against figures who committed war crimes in the Arab world, so that Belgium understands that the court’s decision yesterday opened up a Pandora’s box.” In the opinion of Dr. Sibel, “If dozens of suits are filed against Arafat and other Palestinian and Arab leaders, it is likely that the Belgian court will change its position on the matter”.

Twisted and Outrageous

Maariv (p. 11) by Attorney Yehiel Gutman (legal analysis) — The Belgian Supreme Court ruling is impudent and a legal and political scandal, not free of anti-Semitic considerations. It exposes each and every one of us, citizens of the State of Israel who have served in the army, to the risk of investigation, arrest and trial in Belgian, for acts or omissions we are supposed to have made in the course of our army service.

The world order, since time immemorial, has determined that law is territorial. In other words: every country is entitled to judge acts committed in its territory, and sometimes, it is entitled to judge its citizens for acts committed in other countries. International courts were established only by UN institutions, and with general world consent.

The injudicious idea whereby a country legislates a law allowing it to judge the citizens of another country for acts committed in another country against people who are citizens of another country, is a twisted and outrageous idea, that calls for organizing an international effort to eliminate it while it is still new.

After all, with the greatest of ease, any country in the world can pass a similar twisted law, and the result would be international chaos. Legal piracy would prevail in the world, and any country could abduct, arrest, investigate and put on trial citizens from any other country.

The solution is not legal, but political. It should be hoped that the Americans will also enlist in the effort, or perhaps Belgium will decide to put President Bush and his officers on trials for offenses attributed to them in the war in Afghanistan, and perhaps also the coming war in Iraq.

Belgian Ruling Puts Mainly Top Security Officials at Risk

Yedioth Ahronoth (p. 9) by Tova Tzimuki (legal analysis) — The Belgian Supreme Court’s ruling is the nightmare that all the political and legal officials in Israel feared the last two years. Israel is very aware of the dangers inherent in the trend expressed by the Belgian court, and is doing the best it can to prepare for them.

For some time Israel has been warning against the trend in Europe today, to apply international charters against war crimes in its internal laws. In regard to Israel, this fear is very concrete. If European countries take on this authority, citizens or human rights organizations abroad can file a suit against well known politicians or against senior officers for their ostensible “crimes” in an occupied area.

Defense Minister Shaul Mofaz was “smuggled” three months ago from Britain due to concern that he would be arrested for his actions as chief of staff during the Intifada. Shimon Peres was advised not to go to England at a certain time due to concern that he would be arrested because of a suit against him for his responsibility for the mass deaths in Kafr Kana. A similar and embarrassing incident also happened to Carmi Gillon, the ambassador to Denmark, who was forced to avoid visiting Germany. This authority is wielded differently in every country, and in any case, it is only directed against senior officers and the average Israeli soldier from the ranks has no reason to fear anything.

Attorney General Elyakim Rubinstein has already announced that any officer or Israeli envoy who is the subject of litigation, will be given the best legal defense. One thing is certain, and that is that we will be seeing more and more IDF officers being interviewed on television with their backs to the camera.