Universal Jurisdiction and the Dilemmas of International Criminal Justice: The Sabra and Shatila Case in Belgium

The duty of states to prosecute serious international crimes, that is, genocide, war crimes and crimes against humanity, is generally considered a matter of customary international law and jus cogens. In recent years, two trends have developed in tandem that aim to fulfill this duty: the cooperative creation of international courts and tribunals to directly hold individuals to account for international crimes, and the implementation and enforcement by states of statutes criminalizing serious crimes of international law through domestic criminal processes. Many of these domestic statutes are based on the principle of universal jurisdiction, which holds that any state may try an individual for a small set of particularly heinous international crimes. This principle has been broadly championed by human rights advocates and scholars but resisted by some states. The Spanish indictment of General Pinochet, and the Pinochet litigation in the U.K. House of Lords highlighted the debates over this principle and its crucial importance to the human rights movement. Today, domestic criminal statutes in many countries provide a jurisdictional basis for the prosecution of serious international crimes in their courts. Conscious of its own history in Africa, Belgium became one of the first states to enact a universal jurisdiction statute for grave crimes against international law in 1993. The law was used to prosecute abuses in Rwanda and the Democratic Republic of the Congo before it was applied in 2001 against a more politically controversial incident: Israel's role in the 1982 massacres of Palestinians in the Beirut refugee camps of Sabra and Shatila. The 2001 complaint alleged war crimes, crimes against humanity, and command responsibility by Ariel Sharon and others. Two years of intense legal and political maneuvers ensued, including a series of Belgian legal and legislative "clarifications" concerning the scope of the law. In addition, the case was impacted by the assassination of Elias Hobeika, a Phalangist leader involved in the massacres as he prepared to meet with Belgian parliamentarians about the Israeli role. Ultimately, U.S. Defense Secretary Donald Rumsfeld threatened that Belgium could lose its status as host to NATO's headquarters if it did not rescind the law. Although the Belgian Supreme Court upheld the jurisdictional basis of the statute in February 2003, the Belgian parliament responded shortly thereafter by passing a new law, effectively eliminating the universal jurisdiction provision by requiring that victims or alleged perpetrators have some nexus with Belgium. The politics of the Sharon case notwithstanding, the fate of the statute was surely impacted by several even more contentious complaints filed against former President Bush and Colin Powell for crimes arising from the first Gulf War, and against U.S. General Tommy Franks for war crimes allegedly committed in Iraq in March/April 2003. The dilemma of universal jurisdiction lies in the tension between law and politics in the pursuit of international criminal justice. Insofar as international criminal law depends on the political will of nation-states, for example in bringing prosecutions, extradition and other matters of trans-border cooperation, politics are inevitable. Given the nature of the litigants, the case of Ariel Sharon et al in Belgium provides an interesting opportunity to examine how law and politics may become inextricably intertwined in human rights cases.