[ XITIANS CO.) : - THE CYNICISM OF THE BELGIANS
SAraf
By Dr. Robbie Sabel
The indictment handed down against Prime Minister Ariel Sharon makes
improper political use of the principle of universal jurisdiction.
The Israeli public feels that in the matter of the indictment brought
against Ariel Sharon, the Belgian government has acted out of improper
political motives, and that Belgium's act of appropriating to itself
authority over universal jurisdiction constitutes a deviation from
judicial norms.
It is offensive that those who carried out the Sabra and Chatila massacre
and their commanders live in peace and quiet in Lebanon and the Belgian
judicial system takes no action against them, while it chooses to act
against the Israelis, who perhaps could have been able to predict and
prevent the act. Equally jarring is the fact that the Belgian government
is showing no great interest in putting others on trial, such as the leader
of Libya for the Lockerbie affair, or the leaders of Syria for the attempt
to shoot down the El Al airliner in London.
At the same time, barely any debate has taken place in Israel on the
principle of universal jurisdiction. This principle was first implemented in
past centuries, with pirates and slave traders. The principle determines
that every country is authorized to place such people on
trial even if the crime was committed outside its territory, and even in the
absence of any relationship with the country holding the criminals, the
criminals themselves or the victims of the crime.
After World War II, the principle of universal jurisdiction was extended at
the Nuremberg and Tokyo trials to include war crimes and crimes against
humanity. The principle was sanctioned in four Geneva Conventions, beginning
in 1949, which determine that every country must put on trial or extradite
an individual who commits a serious violation of the Conventions. Still,
there is no precedent for a country putting on trial a foreign citizen for a
violation of the Geneva Convention when the country in question had no
connection to the crime.
Other countries then passed laws that grant their courts universal
jurisdiction. Such laws exist, among other places, in Belgium, Canada,
Australia, Austria, Denmark, Britain - insofar as the Geneva Convention is
concerned - and in Israel. In Israel, universal jurisdiction was
granted in 1994 to Israeli courts through an amendment of the Penal Code
that granted universal jurisdiction to courts in Israel for those crimes
that according to international conventions to which Israel is signed, there
is an obligation to put their perpetrators on trial.
This category also includes violations of the Geneva Conventions and the
Convention against Torture. The Justice Ministry's explanatory introduction
that accompanied the proposed legislation stated that, "The proposed section
regulates the universal incidence, due to the
relevance of the crime against international law and the international
community, and through it to the State of Israel, as well, as a member of
this community." The amendment was unreservedly approved by the Knesset.
If Israel has a law providing for universal jurisdiction, then, what
complaint do we have against the government of Belgium? First, the Belgian
law grants authority even for those persons not on Belgian soil; this
directive strays from the norm. But beyond that, the principle of universal
jurisdiction is intended for those instances in which the accused is from a
country that does not have a judicial system capable or willing to place him
on trial.
In the more than 50 years since the principle of universal jurisdiction was
first applied, countries have avoided using this authority over citizens of
countries that have a regulated judicial system. The exception was Britain,
which agreed on the basis of universal
jurisdiction to extradite Augusto Pinochet to Spain (in actual practice, he
was not extradited).
Interestingly, the minority verdict in the House of Lords cautioned, "One
should not rule out the possibility that in the future, a country that
supports the Irish underground, the Irish Republican Army, will seek to
extradite from a third country a British minister or public servant arguing
that so and so did not act to prevent an isolated act of physical or mental
torture in northern Ireland."
Demands have already been voiced in Europe to put Henry Kissinger on trial,
as well, and it is obvious that a situation in which countries wish to put
on trial leaders and military commanders from other countries mixes politics
with jurisprudence and is liable to do damage to the entire international
relationship.
Israel has a moral and judicial right to complain, not about the existence
of a Belgian law that grants universal jurisdiction, but that political and
selective use is made of this law against citizens of a country that has a
regulated independent judicial system, which investigated the events and
found that the defect in behavior does not require a criminal procedure.
This is cynical use of the law, and Belgium does great damage to the
principle of universal judicial authority and the normal system of
international relations.
Dr. Sabel teaches international law at Hebrew University and is past legal
counsel of the Ministry of Foreign Affairs.
sic
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