Immunity or impunity

Why is the International Court of Justice's (ICJ) decision to annul an arrest warrant for a former Congolese minister viewed as a political pretext to end the case against Sharon's pending trial in Belgium? Amira Howeidy finds out
Just hours after the International Court of Justice (ICJ) issued a decision on 14 February annulling a Belgian arrest warrant for former Congolese Foreign Minister Aboulaye Yerodia Ndombasi on charges of committing crimes against humanity, the loudest cheers came from Belgium and Israel. Belgian officials were happy to capitalise on the decision to save Brussels from months of political embarrassment caused by its courts' acceptance of a complaint filed against Israeli Prime Minister Ariel Sharon and others for genocide, war crimes and crimes against humanity committed in the 1982 Sabra and Shatila camp massacres in Lebanon. These resulted in the killing of over 2,000 Palestinian refugees and Lebanese citizens.
The Belgian Foreign Ministry's legal adviser was quick to tell reporters that "the Sharon case, in my opinion, is closed."
Israel, understandably welcomed the ruling and argued that the legal proceedings against Sharon "should be halted forthwith," in the words of an Israeli foreign ministry spokeswoman.
Initial reactions from both the lawyers and plaintiffs who filed the complaint against Sharon as well as experts on international humanitarian law were to refute the ruling's political interpretation. There is no legal link between the ruling, they argued, and the case pending in Belgium. The ICJ, explained a statement issued by a group of the lawyers handling the case, rejected the "issuance" and "circulation" of the international arrest warrant against Yeorida in April 2000. In the Sabra and Shatila case, however, no arrest warrant was requested.
The ICJ based its decision on the fact that, given that Yerodia enjoyed diplomatic immunity at the time the arrest warrant was issued, Belgium had no right to seek his indictment as long as he remained in office.
The Democratic Republic of Congo had filed a case against Belgium with the ICJ.
"Although it's a setback," said a statement issued by the Arab European League (AEL), a Belgian NGO that comprises one of the bodies handling the case against Sharon, "the court's decision by no means represents the end of the case against Sharon." For one thing, the AEL argued, the ruling was not relevant to the principle of 'universal jurisdiction' enshrined in Belgian law. Furthermore, it explained that annulling Yerodia's arrest warrant does not mean "that the criminal investigation brought against him cannot be pursued by the examining magistrate." On the other hand, a new arrest warrant "would be legal as Yerodia is no longer in office and thus does not enjoy immunity any more," AEL claimed.
The statement drew a distinction between the diplomatic immunity granted to foreign ministers, which the world court upheld, and the status of "other ministers or prime ministers" who have no immunity. However, even should Belgium consider Sharon to be immune, the AEL suggested, "it will only mean he will not be arrested as long as he is in office and that the investigation and the charges brought against him... should be pursued." The status of another defendant in the Sabra and Shatila complaint, Israeli General Amos Yaron, will not be affected by the ICJ ruling because he enjoys no immunity.
Another group of lawyers handling the same case also issued a legal statement, explaining that the Congo-Belgium dispute at the ICJ "concerns only the parties to the litigation." Israel, unlike the Congo, "does not accept the jurisdiction of the ICJ," it argued.
The legal adviser to the Belgian foreign ministry, Jan Devadder, said that in his opinion the case against Sharon is closed. He remained silent despite the legal rebuttals made by the lawyers handling the case. But his silence might only be interpreted as reflecting Belgium's political will on the affair. The case itself was frozen last summer and referred to another court to decide on Belgium's competence to look into it. The court will pronounce its decision on 6 March. Although legal experts argue that the law is clear on that matter and that Belgium is indeed competent, the kingdom's political class has been debating for some time now the options facing its country's legal system. "We are aware of the existence of a political will among certain Belgian politicians to use the ICJ's decision as an excuse in order to prevent the victims of the genocide at Sabra and Shatila from seeking justice in Belgium," AEL said. It also took issue with the ongoing debate over modifying law NO 93 of 1999 which allows for universal jurisdiction. "The project of amending the law and the hostile signals coming from the Belgian foreign ministry towards the Sharon case are all to be understood as attempts to protect a war criminal just because he is the prime minister of the state of Israel," it added.
But this is a case where politics may triumph over law. The sixth of March will decide if political pressure is stronger than international justice. Whatever the outcome, it remains that, for the first time, a European court was prepared, even for a brief moment, to indict an Israeli head of government.
Recommend this page
© Copyright Al-Ahram Weekly. All rights reserved
Send a letter to the Editor