The force of law, not the law of force

Why is Ariel Sharon not being tried for crimes against humanity? Nur Farahat* proposes a strategy
When formulating his theory on law, the German philosopher of law Ihering found inspiration in Heinrich von Kleist's Michael Kohlhass. The protagonist of this story was a simple peasant who owned a number of horses from which he earned a living. One day, a local squire happened along, spotted the horses and decided he wanted them. At first he offered to buy the horses but when the peasant proved reluctant the nobleman simply confiscated them. The distraught Kohlhass exhausted all avenues of litigation to get his horses back, or at least a fair price for them, but to no avail. What could a poor peasant expect when justice was so skewed in favor of the nobility? In the end, Kohlhass had only his gift of eloquence to fall back on and he used this to great effect in stirring a throng of downtrodden peasants to rise up against oppression, a revolt that developed into a revolution that succeeded in restoring to the peasants all their usurped rights.
Far from condemning the intrepid peasant leader as a "terrorist" and the peasant uprising as "an act of violence" -- labels that have become common currency these days to describe peoples struggling for their rights -- the German philosopher of law found in von Kleist's novella a paradigm on which to construct his theory on the fight for law and the fight for right. Indeed, the philosopher borrowed some of the protagonist's maxims, among them "Law is the will of power. Law without power is a flame that cannot burn, a light that gives off no light;" and "Citizens must defend their law as soldiers defend the walls of their city."
One wonders: are these notions still applicable to the relationship between law, revolution and power in the age of globalisation?
To answer yes is to expose oneself to the accusation of promoting terrorism, the knee-jerk reaction of those Western intellectuals whose consciences are numb to the meaning of self-determination and the right of peoples under occupation to seek recourse to armed resistance. What I will do, however, is compare two contemporary cases to illustrate the double standards the global order has applied in implementing international codes of justice, an illustration from which we must conclude that the world today is in need of the idealism of von Kleist and the principles of Ihering.
On 24 May 1999, the International War Crimes Tribunal read out the indictment against four Yugoslavian war criminals -- the first time in history officials have been arraigned on such charges while still in positions of power. The accused were Slobodan Milosevic (born in Serbia on 20 August 1941), president of the Federal Republic of Yugoslavia and commander-in-chief of the Yugoslav army; Milan Miotnovic (born in Serbia in 1942), president of Serbia and member of the Supreme Defence Council; Nicolai Sanovic (born in Serbia in 1948), deputy prime minister of Yugoslavia; and Vlagko Stujilkovic (born in Serbia), Serbian minister of interior. From 1 January to the end of May 1999, the court said, these individuals had committed war crimes and crimes against humanity through murder, persecution and mass deportation for political reasons and based on ethnic and religious discrimination.
The indictment against Milosevic and his codefendants was issued in a court established by a 1993 Security Council resolution invoking Chapter 7 of the UN Charter to call for the prosecution of individuals who have perpetrated crimes against international humanitarian law in the former Yugoslavia from 1991 onwards. The jurisdiction of that tribunal was explicitly restricted in terms of time and place.
The charges brought against Milosevic did not state that he personally perpetrated crimes of war and crimes against humanity; rather, he was indicted on the basis of a principle adopted by the tribunal and recognised in national and international jurisprudence: that of the commander's direct responsibility for crimes committed under his orders.
The charges brought against Milosevic also reflect two other established principles of international criminal law. The first is that there can be no immunity in the cases of war crimes and crimes against humanity, a principle brought to bear in other instances, most notably in the trial of Chilean dictator Pinochet, whose position as a state official, in the opinion of both the Spanish and British courts, did not entitle its occupant to immunity against criminal accountability for crimes of such magnitude.
The second principle is that, while ad hoc international courts are competent to adjudicate on cases of war crimes and crimes against humanity that fall under their jurisdiction, the same is true of every signatory nation to the Geneva Convention of 1949, even if the accused committed the offenses outside the national boundaries. This principle is made explicit in Article 146 of the Fourth Geneva Convention Relative to the Protection of Civilians in Time of War, which stipulates: "Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case."
Now, have Israeli officials contravened international law, and specifically the provisions of the Fourth Geneva Convention, pertaining to the protection of civilian populations in areas under occupation? If indeed they have committed war crimes or crimes against humanity, what has been the stance of the international community towards these crimes and their perpetrators? If accused and convicted, will Israelis follow Milosevic and his cohorts, the war criminals in Rwanda and, before that, the defendants in the Nuremberg and Tokyo trials following World War II?
To answer these questions, I will examine the case of Israeli Prime Minister Ariel Sharon.
Born in 1928, Ariel Sharon was 14 when he joined the Haganah, the underground Zionist terrorist group whose paramilitary off-shoots destroyed Palestinian villages and murdered their inhabitants as part of a campaign to terrorise the local populace. In 1953, Sharon founded and led Unit 101, the objective of which was to drive Palestinians out of their native villages through acts of genocide. It was as commander of Unit 101 that Sharon committed his first documented war crime, when he ordered a raid on Al-Burayj refugee camp in Gaza in August 1953. According to the available sources, between 15 and 50 defenceless Palestinians were killed during this raid. In his report on this brutal attack, United Nations envoy Major- General Vagn Bennike wrote that Sharon's men threw bombs through the windows of huts in which the refugees were sleeping; as the victims fled, they were attacked by small arms and automatic weapons.
It was also as commander of Unit 101 that Sharon committed his second atrocity, one that shook world public opinion at the time. The Qibya massacre, as it came to be known, took place shortly after the Burayj attack. On 14 October 1953, Sharon's forces invaded the small West Bank village of Qibya, blew up 45 homes and murdered 69 Palestinian civilians, at least half of them women and children. On 18 October the US secretary of state issued a statement in which he expressed the deepest sympathy for the families of those who lost their lives in the Qibya attack as well as the conviction that those responsible should be brought to account.
Needless to say, those responsible, foremost among them Sharon, were not brought to account; nor were measures taken to prevent the recurrence of such tragedies. On the contrary; graver atrocities followed, in the absence of international humanitarian conscience or justice.
In 1956, Sharon became commander of a paratroop brigade that took part in the tripartite invasion of Egypt. Forty years after this French- British-Israeli aggression against Egypt, information began to surface about one of the most repulsive acts of mass murder ever perpetrated by a military commander on the battlefield. Ariel Sharon is alleged to have committed this crime. His accusers are neither Arabs nor UN representatives but eyewitnesses from within the Israeli military establishment. Beneath the headline, "Israelis admit massacre" in the Daily Telegraph of 16 August 1995, Ohad Gozan, writing from Tel Aviv, reported:
"Reports of how Israeli paratroopers killed about 270 Egyptian prisoners of war 40 years ago are straining relations between the two countries. Egypt has demanded an investigation into the alleged atrocities, which date back to Israel's involvement in the 1956 Anglo-French campaign to take the Suez Canal. The killings were revealed in a paper on the Sinai campaign commissioned by the army's military history division. They were described in graphic detail in newspaper and television interviews."
In 1967, Sharon was appointed IDF Head of the Southern Command Staff. In August 1971, the forces under his command blew up 2,000 houses in Gaza; 12,000 Palestinians were made homeless. Hundreds of Palestinian youths were arbitrarily arrested and deported to Jordan and Lebanon, and 600 relatives of Palestinian freedom fighters were deported to Sinai. In the second half of 1971, 101 Palestinian resistance fighters were executed without trial.
In 1982, as minister of defence in the government of Menachem Begin, Sharon masterminded the invasion of Lebanon. Israeli forces, acting on his orders, killed thousands of civilians and drove half a million more from their homes. By the end of July, the government of Lebanon announced a toll of 14,000 dead, 90 per cent of whom were unarmed civilians. The number of seriously wounded was double that figure (i.e. approximately 28,000).
Shortly before the end of the invasion, Sharon colluded with the Lebanese Phalangist Party in the Sabra and Shatila massacre. Israeli forces surrounded these refugee camps to prevent their inhabitants from fleeing, while the Lebanese militiamen inside tortured and executed some 2,000 Palestinians, raping the women before killing them. The massacre, reminiscent of the Nazi atrocities perpetrated during World War II, so appalled international public opinion that Israel was forced to form a commission of inquiry into the incident. As might have been expected, the Kahan Commission, so named because the chief magistrate of the Israeli Supreme Court headed it, issued a very watered- down condemnation of Sharon's involvement. The commission did not find him directly accountable for the massacre, despite considerable evidence of his responsibility. Rather, it found him guilty of not having foreseen that a massacre would occur. Remember, though, that the Kahan Commission only announced its conclusions. Annex B of its findings, which contains many details of the inquiry, has yet to be released to the public. Any impartial international investigation would have found Sharon guilty of genocide.
Numerous international reports have documented the crimes committed by the Israeli army since 28 September 2000 in their attempt to crush an uprising triggered by Sharon personally through his highly provocative visit to Al-Aqsa Mosque, and by the Israeli troops' brutal repression of the protests that followed. The report submitted by UN High Commissioner on Human Rights Mary Robinson following her visit to the occupied territories several months ago is the most important such document. Following Sharon's election, the horrors perpetrated in the name of putting down the Intifada dramatically increased in scale. A report from the Palestinian Council for Peace and Justice reveals that by April 2001, Israelis had killed 492 Palestinians, of which 172 were under the age of 18, and wounded 231,740. Many of the victims were doctors and nurses killed on the job because the IDF randomly shells hospitals and ambulances. During the Intifada, 1,850 Palestinians have been detained, 41 schools have been closed down, 108 artesian wells and 3,802m of water pipes have been destroyed, some 1,000 heads of livestock have been killed, 280,000 olive and citrus trees have been uprooted, and approximately a million square metres of land in Gaza have been confiscated for settlement expansion and road construction to link the settlements. Israeli forces have also razed 400 homes, 30 mosques and 12 churches, and forcibly removed 4,000 families from their homes.
Ariel Sharon is indisputably a dangerous war criminal and should be brought to justice, and every signatory to the Geneva Convention has the obligation to arrest him, should he enter its territory, and bring him to trial. That he is currently prime minister does not entitle him to immunity against prosecution for crimes of war and crimes against humanity.
Why has Sharon not met the same fate as Milosevic, although Sharon's crimes continue? Why did the Security Council create an ad hoc war crimes tribunal for the former Yugoslavia and not for the Palestinian occupied territories? Is it because Arab blood is cheaper to spill than European blood, or because Israel's butchers are above the law? Was one element of the Milosevic trial a final settling of accounts with the former Eastern bloc? Are the Arabs simply too insignificant for the international community to ensure they obtain justice and the defence of their human rights?
Although Mary Robinson considered international protection necessary for the Palestinian against what she determined were gross violations of their rights, and despite the resolutions adopted by the UN Commission on Human Rights, Israeli war criminals, and especially Ariel Sharon, remain at large, and the crimes they continue to perpetrate barely merit passing mention in the international media. The long arm of international justice, here, cannot be bothered to stretch out.
The notion of an international war crimes tribunal dates back to the end of World War I. The Treaty of Versailles demanded that Wilhelm II be put on trial, an effort frustrated by Holland's refusal to hand over the deposed German emperor. The principle, however, was given concrete form following World War II in the Nuremberg and Tokyo trials of German and Japanese war criminals. If scholars have been correct in pointing out that these trials were manifestations of the justice the victors imposed upon the vanquished, they succeeded nevertheless in establishing a set of universal principles.
Foremost among these is that war crimes and crimes against humanity are among the gravest crimes in international law; this properly overrides any domestic legal provisions or regulations that condone such acts or minimise their criminal nature. Secondly, they are crimes that cannot be subject to any statutory limitations; thirdly, the international community has both the right and the obligation to take all necessary measures towards the apprehension, prosecution and punishment of criminals of war. These principles have been set down and elaborated upon in a number of international human rights instruments, most notably the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the UN General Assembly in 1948, the four Geneva Conventions of 1949, and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.
This legislation has also been accompanied by ongoing efforts to establish a permanent international criminal court, efforts that began in 1950 with the creation of a General Assembly committee charged with drafting the charter for such a tribunal, and which eventually bore fruit in the Rome Statute of the International Criminal Court of 1998. According to Article 1 of that statute, the tribunal is to serve as a permanent institution for trying individuals accused of committing genocide, war crimes and crimes against humanity. It further states that the ICC will be established formally after 60 countries have ratified its Rome Statute. Currently the statute has 139 signatories, but only 33 ratifications.
Now, since recourse to the ICC is not currently available, could nations and groups concerned with promoting peace, justice and human rights obtain a UN resolution to establish an international war crime tribunal for Palestine such as that which was created for former Yugoslavia?
One strongly suspects that any such efforts will be thwarted by the US veto, which was used recently merely to block the creation of a mechanism providing the Palestinians with international protection. Perhaps the only way to circumvent this is through the UN General Assembly, especially since the non-permanent members of the Security Council recently argued that the Yugoslav war crimes tribunal should have been established not by a Security Council but by a General Assembly resolution. A General Assembly resolution to create a war crimes tribunal for Palestine therefore seems like a distinct possibility. Also encouraging is the UN General Assembly resolution of 1950, known as the Resolution for the Federation for Peace, which grants the General Assembly the right to assume the Security Council's powers and take the necessary measures to safeguard international peace if the Security Council proves incapable of fulfilling this function because one of its permanent members is abusing its right to veto.
In short, it is theoretically possible to bring Israeli war criminals such as Sharon to justice before an international tribunal. But to turn theory into practice will require sustained and concerted efforts at both the official and grassroots levels. Above all, it will be important to raise the issue of Israeli war crimes, with accompanying documentation, in all possible international forums, and it will be necessary to mount an intensive, carefully thought-out and sustained media campaign. Finally, all national, regional and international human rights groups will have to do their utmost to sensitise the international community, which appears to have succumbed to the logic of the law of power rather than the power of law.
"Law is the will of power. Law without power is a flame that cannot burn, a light that gives off no light," said Michael Kohlhass. This maxim expresses the universal moral value of the stone in hand of the Palestinian child, who has taken on the burden of the world's idle conscience and heralds its redemption. Tomorrow the light of justice will prevail, for the stone in the Palestinian child's hand is not the stone of Sisyphus.
* The writer is professor of the philosophy and history of law at Zaqaziq University and a former UN consultant on human rights in Central Asia.
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