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- Prime Minister Ariel Sharon,
A War Criminal
by Linda
Malone
Overview:
In 1996, the Human Rights Law Institute embarked on a
project to address the growing problem of impunity of individuals
guilty of crimes that should be prosecuted under international law.
The project culminated in the publication of "Guiding Principles
for Combating Impunity for International Crimes." The principles
require criminal prosecution for grave breaches, torture, and genocide
(among other crimes), and they direct all states to prosecute crimes
against humanity. The principles also require the removal of
individuals responsible for such crimes from public office and the
military, after according the individual due process in evaluating
responsibility. Nonetheless, Ariel Sharon was elected Israel's prime
minister despite being convicted of war crimes in 1982.
Impunity:
In September 1982, the Israeli cabinet resolved to
establish a commission led by then-Supreme Court Chief Justice Yitzhak
Kahan to examine the facts of the massacre committed by the Lebanese
Forces in the Sabra and Shatila refugee camps, areas in Beirut then
under the control of Israeli authorities. As many as 2,000 Palestinian
civilians were killed in the camps. This year, one of the individuals
judged complicit by the Kahan Commission, then-Minister of Defense
Ariel Sharon, was elected to the highest political post in Israel
after having provoked a violent confrontation by his visit to the
Haram al-Sharif. In 1982, he was found to have created the situation
which he knew, or should have known, made the massacres a probability.
The need has now arisen to bring serious attention to the moral and
legal responsibility of Sharon for gross human rights violations and
the impunity, and even worse the power, which he has received.
The Kahan Commission's report states that when word of
Lebanon's President-elect Bashir Jemayel's assassination reached
Israel on the night of 14 September 1982, then-Prime Minister Menachem
Begin, Sharon, and then-Chief of Staff Rafael Eitan decided that the
Israel Defense Forces (IDF) would enter West Beirut without seeking a
Cabinet resolution to that effect. Although Sharon and Eitan
purportedly discussed including Phalangists in the operation, the
Commission determined it was not mentioned to Begin. Eitan testified
that earlier that same evening, he and Sharon agreed that Phalangists
would enter the Sabra and Shatila camps. On 15 September 1982, the
entry into West Beirut began. Sharon met at the forward command post
with Eitan who reported his agreement with the Phalangists for their
entry into the camps. Sharon approved the agreement and phoned Begin
from the roof of the command post. Yet, according to the report,
Sharon only informed Begin that there was no resistance in Beirut and
that the operations were going well. On 16 September, the Defense
Minister's office issued a document summarizing in two crucial
controversial sentences Sharon's instructions in this meeting
regarding the entry into West Beirut: "Only one element, and that
is the IDF, shall command the forces in the area. For the operation in
the camps, the Phalangists should be sent in." That day, the
massacre began. At 10:00 a.m., Sharon met in his office with Eitan and
others. Eitan announced, "the whole city is in our hands, . . .
the camps are surrounded, the Phalangists are to go at
11:00-12:00." Eitan said that Israeli forces surrounded the Sabra
and Shatila camps, and that it was agreed the Phalangists would go in
at their discretion, after a coordinating session with the Israeli
officials. At approximately 6:00 p.m. on 16 September, the Phalangists
entered the camps, initially entering the Shatila camp from the west
and southwest, as directed.
Findings:
The Commission determined two levels of
responsibility-direct and indirect. According to the Commission, those
directly responsible were only those who "actually
perpetrated" the massacre itself. The Commission's report
concluded that Israel was indirectly responsible for the massacres:
"[T]he decision on the entry of the Phalangists into the refugee
camps was taken without consideration of the danger-which the makers
and executors of the decision were obligated to foresee as
probable-that the Phalangists would commit massacres and pogroms
against the inhabitants of the camps, and without an examination of
the means for preventing this danger." Israel was also held
responsible for not stopping the massacre once reports came out that
it had begun.
Based on the Commission's conclusions at least seven
of nine individuals, including Sharon, should have known of the
likelihood of a massacre before the Phalangists' entry, knew or should
have known a massacre was going on, and yet failed to take appropriate
steps to protect the civilian population. Under the customary
international law of command responsibility and the Nuremberg
Principles, those individuals could be charged with war crimes. The
Kahan report, no matter how well intentioned, failed to result in any
meaningful sanctions, however. The Commission criticized Begin,
Sharon, and Shamir, yet Begin stayed in office until he retired,
Shamir became the new prime minister, and Sharon remained in the
Cabinet (although without his portfolio).
Sharon said that as long as he continues to have
"some influence," he would continue to serve in the
government, according to the Jerusalem Post. To quote Jonathan Randal,
senior foreign correspondent of The Washington Post: "The main
culprit, Ariel Sharon, neatly dodges the spirit if not the letter of
the 108-page report enjoining him to resign. Resign he did as Defense
Minister, only to stay on as minister without portfolio and to join
two key parliamentary commissions on defense and Lebanese affairs.
Sharon made clear this was his, and Begin's, way of rejecting the
commission's verdict of Israel's 'indirect responsibility' for the
slaughter." Sharon was reported to have "lashed out" at
his colleagues in the governing Herut party for denying him a
portfolio in the newly formed Shamir government.
A New Day for Consequences:
At the very least, Sharon acted with reckless
disregard of the likelihood of a massacre, according to the
Commission's findings, but the mens rea element-or the mental state
required to commit a certain crime-for genocide may necessitate a
finding of purpose or knowledge for that particular liability.
Nevertheless, Sharon's clear responsibility for war crimes
constituting grave breaches obligates every state to initiate
prosecution for these offenses. Although some courts still cling to
the position that sovereign immunity may be available as a defense to
war crimes and crimes against humanity, landmark decisions to the
contrary-such as the Pinochet decision, the Statutes of the
International Tribunal for the Former Yugoslavia, the International
Tribunal for Rwanda, and the Treaty of Rome establishing the
International Criminal Court-have unequivocally rejected immunity as a
defense. International law in this area now carries with it the once
missing element often cited to question its nature as "law":
the mandatory imposition of sanctions.
Sharon's prosecution is required by international law
and is not subject to the defenses of sovereign immunity. The Siracusa
Principles do not recognize the defenses of sovereign immunity and the
statutes of limitations, or the defense of superior orders under the
circumstances as found by the Kahan Commission with respect to Sharon.
Israel demands punishment for crimes committed against
Israelis even after the state elevated one of its most notorious human
rights violators to its highest post. The successful reconstruction of
civil society depends upon both Palestinians and Israelis restoring
public confidence in governmental institutions and, in this case,
establishing new confidence in the Israeli administration. What is
desperately needed, in this worldwide epidemic of "choiceless
democracies" headed by leaders no one seems to want and who
represent only their own political aspirations, are morally
responsible leaders who believe in the rule of law and human rights in
reconciliation and reconstruction.
Linda Malone is
Professor of Law at William and Mary's Marshall-Wythe School of Law.
Source:
by courtesy & © 2001
CPAP & Linda Malone
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