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The Palestine Yearbook of International Law

THE PALESTINE YEARBOOK OF INTERNATIONAL LAW

Volume XII 2002/2003

Martinus Nijhoff Publishers in Cooperation with Institute of Law, Birzeit University

The Palestine Yearbook of International Law is published in cooperation with the Birzeit University Institute of Law, under whose auspices it is edited. Established in 1993, the Institute of Law is research based and aims to contribute to the modernization of Palestinian legal structures both at the academic and professional levels. All e-mail correspondence concerning the Yearbook should be sent to the Editor-in-Chief at: [email protected]. Posted correspondence may be sent to: Attn: Palestine Yearbook of International Law, BZU Institute of Law, P.O. Box 14, Birzeit, Palestine. Telecommunication may be directed to the Institute of Law, at: Tel: (972) (2) 298-2009; Fax: (972) (2) 298-2137.

A C.I.P. Catalogue record for this book is available from the Library of Congress. Printed on acid-free paper

ISBN: 90-04-14360-2 © Copyright 2005 by Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl

The Palestine Yearbook of International Law is published once a year. Opinions expressed in the Yearbook are solely those of their respective authors. Please cite as PAL. Y.B. INT’L L. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change.

Editor-in-Chief Camille Mansour

Consulting Editor Anis F. Kassim

Assistant Editor Gail J. Boling

Editorial Board Gail J. Boling Anis F. Kassim

Ghassan Faramand Mudar Kassis Camille Mansour

Advisory Board Georges M. Abi-Saab Badriya Al-Awadhi Riad Daoudi Awn Al-Khasawneh Musa Mazzawi Muhammad M. Al-Saleh Moufid M. Shehab George J. Tomeh

Salah El-Din Amer Mohammed Bedjaoui Muhammad H. El-Farra Ismat Kittani Anis M. Al-Qasem Muhammad Y. Olwan Muhammad Aziz Shukri

TABLE OF CONTENTS

INTRODUCTION Camille Mansour IN MEMORIAM Edward W. SAID (1935-2003) ARTICLES International Criminal Justice and Palestine Introduction to Articles ..........................................................................M. Cherif Bassiouni

1

Relevant Lessons from the Ad Hoc Tribunals ............................................................................William A. Schabas

5

Universal Jurisdiction Unrevisited: The International Court of Justice Decision in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ..........................................................................M. Cherif Bassiouni

27

Universal Jurisdiction: How Universal Is It? A Study of Competing Theories ................................................................Steven W. Becker

49

Universal Jurisdiction in Belgian Law ..................................Eric David

77

Israel’s Violent Attacks on Palestinian Arabs in 1948-49: Qualifying Crimes in Light of International Law and Consequences ..........................................................Monique Chemillier-Gendreau

117

The United Nations’ Response to Israel’s Seizure of the Gaza Strip and West Bank ......................................................................................John Quigley

145

Jurisdiction of the International Criminal Court over Human Rights Violations Committed by Israeli Forces in the Occupied Territories after July 1, 2002 ..............................................................................William Bourdon

165

TABLE OF CONTENTS

SPECIAL DOSSIER The “Sabra and Shatila” Case in Belgium Introduction: New Lights on the Sharon Case ..................Chibli Mallat

183

1. Belgium: Act Concerning the Punishment of Grave Breaches of International Humanitarian Law (Promulgated February 10, 1999) ............................................................................

191

2. Act Amending Belgium’s Act of 16 June 1993 Concerning the Punishment of Grave Breaches of International Humanitarian Law (Promulgated April 23, 2003)............................................................

201

3. Act Amending Belgium’s Act Concerning Serious Violations of International Humanitarian Law (Promulgated August 5, 2003) [EXCERPT] ......................................................................................

211

4. Complaint Lodged by Survivors against Israeli Prime Minister Ariel Sharon, Director General of the Defence Ministry Amos Yaron and other Israelis and Lebanese Responsible for the Sabra and Shatila Massacre (June 18, 2001)......................................................

219

5. Conclusion to Pre-Trial Hearings Filed in Belgium before the Brussels Court of Appeals Chambre des Mises en Accusation (January 30, 2002) [EXCERPT]........................................................

259

6. Brussels Court of Cassation Decision on Appeals from a 26 June 2002 Ruling by the Brussels Court of Appeals, Chambre des Mises en Accusation (February 12, 2003) ..................

279

7. Judgment of the Brussels Court of Appeals, Chambre des Mises en Accusation (June 10, 2003) ..........................................................

285

8. Statement by the Lawyers for the Sabra and Shatila Survivors Concerning [the 24 September 2003 ] Ruling by the Belgium Supreme Court (24 September 2003) ................................................

289

LAW REPORTS JUDICIAL DECISIONS I. Israeli Cases 1. The Katzir Case (March 8, 2000) ......................................................

291

2. The Flechettes Case (April 27, 2003)................................................

315

3. The Iqrit Case (June 26, 2003) ..........................................................

319

viii

Vol. XII THE PALESTINE YEARBOOK OF INTERNATIONAL LAW (2002/2003)

II. Cases from Other Jurisdictions 1. The Case of El-Ali and Daraz v. the [U.K.] Secretary of State for the Home Department (Interpretation of Article 1D of the 1951 Convention Relating to the Status of Refugees in the U.K.) (July 26, 2002) [EXCERPT]..............................................................

329

LEGISLATION I. Palestinian Law 1. Law No. (1) of 2002 on the Judicial Authority (Promulgated May 14, 2002) ............................................................

353

2. The Amended Basic Law (Promulgated March 18, 2003)................

377

II. Israeli Law 1. Detention of Unlawful Combatants Law (Promulgated March 4, 2002)............................................................

405

2. Law of Civil Wrongs (Liability of the State), 5712-1952 (Amended July 24, 2002) ................................................................

409

3. Citizenship and Entry into Israel Law (Temporary Order) (Promulgated July 31, 2003)..............................................................

413

INTERNATIONAL LEGAL DOCUMENTS 1. Moratinos’ “NonPaper” on the Taba Negotiations (Summer 2001)..

417

2. “The Beirut Declaration” of the Council of the League of Arab States at the Summit Level, at Its 14th Ordinary Session (March 28, 2002) ..............................................................................

425

3. A Performance-Based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (April 30, 2003) ..........................

427

4. “Declaration” of the Conference of High Contracting Parties to the Fourth Geneva Convention (December 5, 2001) ..............................

433

5. U.N. Security Council Resolution 1397 (March 12, 2002) ..............

437

6. U.N. Security Council Resolution 1402 (March 30, 2002) ..............

439

7. U.N. Security Council Resolution 1403 (April 4, 2002) ..................

441

8. U.N. Security Council Resolution 1405 (April 19, 2002) ................

443

ix

TABLE OF CONTENTS

9. U.N. Security Council Resolution 1435 (September 24, 2002) ........

445

10.Report of the U.N. Secretary-General Prepared Pursuant to General Assembly Resolution ES-10/10 (“Jenin Report”) (July 30, 2002) [EXCERPT] ......................................................................................

447

11.Office of the U.N. High Commissioner for Refugees “Note on the Applicability of Article 1D of the 1951 Convention Relating to the Status of Refugees to Palestinian Refugees” (October 10, 2002) ....

467

12.Mission Report by Ms. Catherine Bertini, Personal Humanitarian Envoy of the U.N. Secretary-General, 11-19 August 2002 (August 19, 2002) ..............................................................................

473

13.Report of the U.N. Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Mr. Miloon Kothari, on His Visit to the Occupied Palestinian Territories, 5-10 January 2002 (June 12, 2002) ................................

501

14. Report of the Special Rapporteur of the U.N. Commission on Human Rights, Mr. John Dugard, on the Situation of Human Rights in the Palestinian Territories Occupied by Israel Since 1967, Submitted in Accordance with Commission Resolutions 1993/2A and 2002/8 (December 17, 2002) ........................................................................

527

15.Concluding Observations of the Committee on the Rights of the Child: Israel (October 9, 2002)..........................................................

543

16.Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel (May 23, 2003) ......................................

555

17.Concluding Observations of the Human Rights Committee: Israel (August 5, 2003) ................................................................................

563

BOOK REVIEWS 1. The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements Geoffrey R. Watson Reviewed by ........................................................Naseer H. Aruri

569

2. The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories David Kretzmer Reviewed by ........................................................Anis F. Kassim

575

3. New Perspectives on Property and Land in the Middle East Edited by Roger Owen Reviewed by ......................................................Anthony Watson

581

x


4. Palestine and International Law: Essays on Politics and Economics Edited by Sanford R. Silverburg Reviewed by ........................................................Nicolas Jacobs

585

5. Palestinian Refugees: The Rights of Return Edited by Naseer Aruri Reviewed by ......................................................Stéphanie David

589

BIBLIOGRAPHY 1. Books ................................................................................................

595

2. Articles ..............................................................................................

598

INDEX VOLUME XII 1. Index ..................................................................................................

605

2. Table of cases ....................................................................................

621

xi

INTRODUCTION

This volume of the Yearbook is devoted to the theme of international criminal justice, a fast-developing area of international law with immediate relevance to Palestine and the Palestinians. From the late 1980s, Palestinian human rights organizations in the Occupied Territories were invoking the duties of High Contracting Parties to the Fourth Geneva Convention 1949 to ‘seek out and prosecute’ perpetrators of grave breaches of the Convention, urging the exercise of universal jurisdiction by third party states in defence of the most basic rights of the civilian population, under attack by the Occupying Power. In 2001, survivors of the Sabra and Shatila massacre lodged complaint against Ariel Sharon and others under domestic Belgian law on the punishment of grave breaches of international humanitarian law. In the meantime, we have seen the establishment of the Ad Hoc International Criminal Tribunals for the former Yugoslavia and for Rwanda, as well as more recently the Special Court for Sierra Leone. The jurisprudence of these tribunals, as well as the Rome Statute and the developing work of the International Criminal Court, provide deep and fertile territory for exploration by those who seek to describe Israeli practices in the Palestinian territories according to international norms and by those who attempt to invoke the sanction of the criminal law against aggressors acting, until now, with impunity in the name of military and political power, and so to deter the commission of the kind of crimes inflicted on so many peoples around the world. In this twelfth volume of the Yearbook we accordingly present a set of seven articles by renowned human rights and international law scholars and legal practitioners. We are honoured this year to publish an introduction to these articles by Cherif Bassiouni, and thank him for his continuing interest in and commitment to the Yearbook. Following the articles comes a Special Dossier of material from the ‘Sabra and Shatila case’ in Belgium, presented by Chibli Mallat, who represented some of the petitioners in the case and who presents insights and findings in his introduction to the documents. Moving away from the theme of international criminal justice, our Law Reports section provides the reader with a selection of Israeli cases and one from the UK regarding British interpretations of the Refugees Convention. English translations of the text of the long-awaited Palestinian Basic Law, as promulgated in March 2003, and the 2002 Law of the Judicial Authority are provided in full in the Legislation Section, along with a number of recent Israeli laws of particular interest from a human rights perspective. Some seventeen international legal documents follow, mostly from UN bodies and agencies from 2002 and 2003, but including also the text of the Road Map, which is notable inter alia for its lack of

INTRODUCTION

reference to the existing framework of international humanitarian law, and the Declaration of High Contracting Parties to the Fourth Geneva Convention from December 2001, when they met in conference, in response to a UN resolution taken in emergency session, to consider the duty of state parties to ‘ensure respect’ by Israel, the Occupying Power, for the terms of the Convention in its treatment of the occupied population. In this section we also include the Beirut declaration of the Council of the Arab League, and the ‘non-paper’ on the Taba talks prepared in the summer of 2001 by Miguel Moratinos, EU Special Representative to the Middle East Peace Process. This last, an informal record of the Taba talks, is published in follow-up to our publication in the last volume of the Yearbook of the ‘non-paper’ presented by the Israeli delegation to the Palestinian negotiating team during the course of the Taba talks. Our final section comprises books reviews on five major publications from 2000-2002 on various aspects of Palestine and the law. This volume is dedicated to the memory of Edward Said, whose loss is felt deeply by all those involved in the Yearbook, but whose work and effort continues to inspire.

Camille Mansour

xiv

IN MEMORIAM

EDWARD W. SAID 1935-2003

“INTERNATIONAL CRIMINAL JUSTICE AND PALESTINE” AN INTRODUCTION M. Cherif Bassiouni*

The Palestine Yearbook of International Law has, since its inception, been a widely-read scholarly journal. The contributions made to its eleven prior volumes, as well as to this twelfth volume, are by highly renowned experts whose works have been published in many countries. The selection of articles in this volume, as well as in prior volumes, evidences the particular interest of the Yearbook in international legal issues relevant to the Palestinian conflict, which tragically and regrettably has been ongoing for over half a century. This volume, in particular, addresses a number of issues relevant to international criminal justice. Professor William Schabas, a world-renowned scholar and Director of the Irish Centre for Human Rights at the National University of Ireland – Galway, who has written extensively on international criminal justice and who is the author of a major book on genocide, has contributed a significant and thoughtful article on crimes against humanity. The subject of crimes against humanity is of interest to the international community, and his article focuses on the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). The article provides a very useful synthesis of the two tribunals’ jurisprudence. It also highlights some of the difficulties that these tribunals faced in identifying the legal elements of “crimes against humanity” (which are defined differently in the two tribunals’ statutes). That jurisprudence also shows the ICTY’s confusion in distinguishing between the “policy” element and the “widespread” or “systematic” nature of the practices directed against the civilian population. Professor Schabas’ article is of great usefulness to students of the subject and of the tribunals’ jurisprudence. I have contributed an article on the February 14, 2002 decision of the International Court of Justice (“ICJ”) in the Case Concerning the Arrest Warrant

*

Professor of Law, President, International Human Rights Law Institute, DePaul University College of Law; President, International Institute for Higher Studies in Criminal Sciences; President, International Association of Penal Law.

The Palestine Yearbook of International Law, Vol. XII, 2002/2003, pp. 1–4. © 2005 Koninklijke Brill NV.

AN INTRODUCTION

of 11 April 2000 (Democratic Republic of the Congo v. Belgium). The decision represents a significant ruling on temporal immunity from prosecution for sitting heads of state, holding that such temporal immunities are recognized by conventional and customary international law. The majority opinion can be viewed as a cautious one, as evidenced by several concurring opinions and more so by the courageous dissenting opinion. At a time when international criminal justice is in search of new ways to combat impunity and to reinforce accountability, the ICJ might have taken this opportunity to contribute to these goals. Mr. Steven Becker is an attorney with the Illinois Public Defender’s program who is also a research fellow at the International Human Rights Law Institute, DePaul University. His article on universal jurisdiction lays an important foundation for understanding the issues raised by several other articles in the volume, namely those by Professor Eric David, Professor Chemillier-Gendreau, and William Bourdon. Mr. Becker is well-placed to write this exposition of the status of universal jurisdiction in international law and practice since he was the rapporteur at the Princeton Conference which produced the Princeton Principles on Universal Jurisdiction, which have received a great deal of international acceptance. In an objective manner, Mr. Becker describes the range of positions on universal jurisdiction. This range extends from strong advocates of human rights on the one hand, who advocate universal jurisdiction for jus cogens international crimes without any restrictions or qualitative legal criteria, to international lawyers and political scientists of the “realist” school on the other hand, who deny altogether that there exists a valid theory of jurisdiction that allows universality. He argues for a wise “middle” position, whereby universal jurisdiction is recognized and applied subject to certain guidelines, much along the lines expressed in the Princeton Principles. He concludes that universal jurisdiction is necessary as an ultima ratio but that it cannot be allowed to operate in a way that causes disruption of world order by allowing for the politically motivated exercise of such jurisdiction. Professor Eric David, a scholar and long-time human rights defender, is a professor at the Free University of Brussels. His article addresses the issue of Belgium’s universal jurisdiction regime. Since 1993, Belgium is the only country in the world to have adopted clear and unambiguous universal jurisdiction for war crimes, crimes against humanity and genocide. One of its early exercises of such jurisdiction, without any connection (“nexus”) between the accused and Belgium, was brought in Belgium against the then incumbent Minister of Foreign Affairs of the Congo. Congo responded by filing an action before the ICJ, which is the Case Concerning the Arrest Warrant of 11 April 2000, discussed above. The ICJ held that Belgium’s arrest warrant against then Minister Yerodia was in violation of international law. As a result of that decision, as well as political pressure by the United States, amendments to Belgium’s 1993/1999 “universal jurisdiction” law were tabled in 2002, two amendments were promulgated in April 2003, and

2


another amendment to further restrict its application is under consideration as of this writing. While the U.S. conducted a major pressure campaign against Belgium’s government to amend its law, it was really the impetus of Israel that brought the most pressure on the Belgium government. The reason for that is the complaint brought under Belgium’s 1993/1999 law against Ariel Sharon, the incumbent Prime Minister of Israel, for his responsibility in the 1982 Sabra and Shatila massacres in Lebanon at the time he was minister of defense. An Israeli commission of inquiry found some responsibility on the part of Mr. Sharon and recommended that he be stripped of his right to command troops in the field. As a result, he was forced to resign as minister of defense. The complaint by the Sabra and Shatila survivors was for charges of international crimes. Professor David’s article takes us through the history and application of Belgium’s “universal jurisdiction” law, clearly evidencing its importance in the enforcement of international criminal law. Professor Monique Chemillier-Gendreau, Professor of International Law at the University of Paris VII, reviews in her article legal violations committed by Israel against the Palestinians, with particular emphasis on the period 1947-1949. This is, indeed, a period on which little has been written from the legal perspective, and few of the facts are well known by the general public, as they do not reflect well upon Israel. More particularly, this article highlights the expulsion of Palestinians during the 1948 war and the creation of conditions rendering it impossible for them to return. The article also sheds light on the tragic events at Deir Yassin, where an extremist Zionist group killed some 256 men, women and children in a pre-dawn raid on the unarmed village. The author applies international legal standards to the facts that occurred at the time and determines that they were in violation of international law, highlighting the nonapplicability of statutes of limitations to such crimes. Professor John Quigley, of Ohio State University College of Law, has been a long-standing advocate in the United States of Palestinian legal rights. He has written many scholarly articles on various aspects of the Palestinian-Israeli and the Arab-Israeli conflict. His article in this volume on the United Nations’ response to Israel’s seizure of the Gaza Strip and the West Bank in 1967 reveal once again the demise of international law when it faces the unbridled power of certain states. Throughout its history, Israel has been successful, as the late Moshe Dayan once said, “in creating facts.” But it has also been successful, essentially due to U.S. support, at avoiding, save for a few occasions, condemnation of its practices of belligerent occupation which violate international law. In short, Israel has historically benefited from a dual legal standard under international law, and the United Nations has historically been unable to unequivocally condemn Israel for its violations of international law. Professor Quigley demonstrates that in connection with his analysis of the occupation of the West Bank and Gaza Strip in the military action of 1967. The article reviews claims of self-defense.

3

AN INTRODUCTION

Mr. William Bourdon, a well-known human rights attorney and President of SHERPA NGO, contributes an article raising the question of whether the International Criminal Court (“ICC”) can be seized with any crimes committed in the Occupied Palestinian Territories after July 1, 2002, when the Rome Statute for the ICC entered into force. He addresses the issues of war crimes under the Rome Statute’s Article 8 and crimes against humanity under the Rome Statute’s Article 7. The article describes how a complaint can be brought before the ICC. July 28, 2003

4

RELEVANT LESSONS FROM THE AD HOC TRIBUNALS William A. Schabas*

I. Introduction ................................................................................................. 6 II. Punishable Crimes ....................................................................................... 7 A. Crimes against Humanity........................................................................ 8 B. Genocide ................................................................................................ 12 C. War Crimes ............................................................................................. 17 III. Complicity in International Crimes ............................................................. 19 A. Superior Responsibility .......................................................................... 20 B. Joint Criminal Enterprise ....................................................................... 23 IV. Conclusion ................................................................................................... 26

*

Professor of Human Rights Law, National University of Ireland, Galway and Director, Irish Centre for Human Rights.


RELEVANT LESSONS FROM THE AD HOC TRIBUNALS

I.

Introduction

A troika of ad hoc tribunals, as they have come to be known, currently populate the international criminal law landscape. The first is the International Criminal Tribunal for the former Yugoslavia (“ICTY”), established by the United Nations Security Council in May 1993 to give effect to a recommendation by the United Nations Commission of Experts to Investigate Violations of International Humanitarian Law in the Former Yugoslavia and a number of proposals from states and international organizations.1 The second is the International Criminal Tribunal for Rwanda (“ICTR”), established in the wake of the Rwandan genocide and, at least initially, at the request of Rwanda itself.2 The third is the Special Court for Sierra Leone, set up in 2002 following a plea from the country’s president and pursuant to an agreement reached between the government of Sierra Leone and representatives of the United Nations Secretary-General.3 The ad hoc tribunals are in many respects a continuation of a phenomenon that began with the treaties of Versailles and Sèvres, in 1919, and that was continued at Nuremberg and Tokyo in the aftermath of the Second World War.4 The rich experience of these institutions – or, at any rate, the tribunals for the former Yugoslavia and Rwanda, as the work of the Special Court for Sierra Leone has barely started – with respect both to organizational and jurisprudential issues has helped define the premier international criminal institution of the twenty-first century, the International Criminal Court (“ICC”), which is only now beginning to function.5 But it is also relevant to possible future attempts to create other ad hoc tribunals; a project is currently underway with respect to Cambodia,6 and the Arusha Peace Agreement of August 1999 concerning the civil war in Burundi

1

Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, appended to S.C. Res. 827, U.N. SCOR 48th sess., 3217th mtg. at 1-2 (1993); reprinted in 32 I.L.M. 1159 [hereinafter ICTY Statute].

2

Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. SCOR 49th sess., 3453rd mtg, U.N. Doc. S/Res/955, annex (1994); reprinted in 33 I.L.M. 1598 [hereinafter ICTR Statute].

3

Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, U.N. SCOR, U.N. Doc. S/2002/246, appended to Letter Dated 6 March 2002 from the Secretary-General Addressed to the President of the Security Council, app. II, 30, art. 2 (2002).

4

M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court, 10 HARV. HUM. RTS. J. 11 (1997).

5

On the International Criminal Court generally, see WILLIAM A. SCHABAS, INTRODUCTION INTERNATIONAL CRIMINAL COURT (2001).

6

See G.A. Res. 57/228, U.N. GAOR 3d Comm., 57th Sess., U.N. Doc. A/RES/57/228 (2002).

6

TO THE


contemplates a similar effort.7 Lessons from the ad hoc tribunals are also of con siderable interest with respect to domestic prosecutions for genocide, crimes against humanity and war crimes, including those of recently-created “mixed” tribunals such as those in East Timor and Kosovo,8 and even to alternative accountability mechanisms, such as truth and reconciliation commissions, which may be asked to examine violations of international humanitarian law.9

II.

Punishable Crimes

The definitions and scope of offenses that are punishable as international crimes, as the law has been developed by the ad hoc tribunals, is one area with great potential for the enforcement of international criminal law in the Occupied Palestinian Territories (“OPTs”). Classifying acts as international crimes not only provides them with appropriate stigmatization, it also enlarges the options for prosecution by permitting the exercise of universal jurisdiction.10 On this point, of course, it is the Israeli courts that are both the first and still among the foremost authorities.11 The ad hoc tribunals have jurisdiction over three categories of international crime: genocide, crimes against humanity and war crimes. Beginning with the landmark ruling on jurisdiction of October 2, 1995 by the Appeals Chamber of the ICTY in the Tadic case,12 the jurisprudence has consistently broadened the scope of all three types of crime, transforming them from the relatively conservative and restrictive approaches taken by earlier courts and academic commentators. Before proceeding to consider each of the three categories, it is worth highlighting the interpretative approach to the definitions of crimes taken by the

7

Accord d’Arusha pour la Paix et Réconciliation au Burundi, 28 August 1999, art. 7(10-11), available at: http://129.194.252.80/catfiles/0131.pdf.

8

Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in International Justice, 12 CRIM. L.F. 185 (2001); Suzannah Linton, Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor, 25 MELBOURNE U.L. REV. 122 (2001); Hansjörg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor, 95 AM. J. INT’L L. 46 (2001); Hansjörg Strohmeyer, Building a New Judiciary for East Timor: Challenges of a Fledgling Nation, 11 CRIM. L.F. 259 (2000).

9

See, e.g., Truth and Reconciliation Commission Act 2000 [Sierra Leone], § 6, available at .

10

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14), reprinted in 41 I.L.M. 536 (2002) (joint separate opinion of Judges Higgins, Kooijmans and Buergenthal; dissenting opinion of Judge Van den Wyngaert).

11

Attorney Gen. v. Eichmann, 36 I.L.R. 5 (Isr. D.C., Jerusalem, Dec. 12, 1961) ¶¶ 20-38 [hereinafter Eichmann District Court judgment], aff’d, 36 I.L.R. 277 (Isr. S. Ct. May 29, 1962) ¶ 12.

12

Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1-AR72 (Oct. 2, 1995) [hereinafter Tadic Appeal on Jurisdiction].

7


judges of the tribunals. Rather than follow a rule of strict construction derived from well-accepted principles of interpretation in domestic legal systems – there was plenty of evidence of this at Nuremberg and in the Eichmann case – the ad hoc tribunals have opted for the larger and more liberal approach that results from application of the rules of the Vienna Convention on the Law of Treaties, regarding the construction of international legal texts.13 The Vienna Convention points to a more contextual approach, with an emphasis upon purposive or teleological interpretation. The result, of course, is to facilitate the repression of crime and to stymie the often technical arguments of imaginative defense counsel.

A.

Crimes against Humanity

The category of international infraction with perhaps the most potential in the OPTs is that of “crimes against humanity.” It was christened by the drafters of the Charter of the International Military Tribunal at Nuremberg (“IMT Charter”), where it was intended to fill a gap created by the prevailing view that war crimes law did not apply to persecutions of a state’s own civilian population. This was the position initially taken by the United Kingdom and United States governments in the build-up to Nuremberg,14 and it was only as a result of pressure from mainly Jewish nongovernmental organizations that the negotiators agreed to define an additional type of crime, initially described as “crimes committed against any persons without regard to nationality, stateless persons included, because of race, nationality, religious or political belief, irrespective of where they have been committed.”15 Fear that recognition of the concept of crimes against humanity might extend to human rights violations within their own territories (lynching of African Americans in the deep south appears to have been on the minds of the United States negotiator) led the four powers that set up the Nuremberg tribunal – the United Kingdom, France, the Soviet Union and the United States – to impose a condition whereby crimes against humanity would only be punishable if committed in association with another crime within the jurisdiction of the court.16 Known 13

See, e.g., Prosecutor v. Bagasora et al., Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment against Théoneste Bagasora and 28 Others, No. ICTR 98-37-A, ¶¶ 28-29 (June 8, 1998); Prosecutor v. Erdemovic, Judgment, No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, ¶ 3 (Oct. 7, 1997); Kanyabashi v. Prosecutor, No. ICTR-96-15-A, Dissenting Opinion of Judge Shahabuddeen, 21-22 (June 3, 1999).

14

See, e.g., Correspondence between the War Crimes Commission and H.M. Government in London Regarding the Punishment of Crimes Committed on Religious, Racial or Political Grounds, UNITED NATIONS WAR CRIMES COMMISSION [U.N.W.C.C.] Doc. C.78 (February 15, 1945).

15

UNITED NATIONS WAR CRIMES COMMISSION, HISTORY OF THE UNITED NATIONS WAR CRIMES COMMISSION AND THE DEVELOPMENT OF THE LAWS OF WAR 176 (1948).

16

See Minutes of Conference Session of July 23, 1945, in REPORT OF ROBERT H. JACKSON, UNITED STATES REPRESENTATIVE TO THE INTERNATIONAL CONFERENCE ON MILITARY TRIALS 333 (1949).

8


to specialists as “the nexus,” this restriction ensured that the Nuremberg judgment failed to convict Nazi leaders of crimes committed prior to the outbreak of the second world war in September 1939. It did not exactly help the progressive development of international law when, in 1993, the United Nations Security Council repeated this conservative condition in Article 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia [“ICTY Statute”].17 One of the great achievements of the ICTY Appeals Chamber, in the Tadic jurisdictional decision, was to clarify that the nexus is “no longer”18 required by customary international law (some argue that it never was required).19 Describing it as “obsolescent,” the Appeals Chamber said that “there is no logical or legal basis for this requirement and it has been abandoned in subsequent State practice with respect to crimes against humanity.”20 However, the Tadic judgment left a lingering doubt by stating that “customary international law may not require a connection between crimes against humanity and any conflict at all,”21 and the point was only clarified in Article 7 of the Rome Statute of the International Criminal Court (“Rome Statute”), adopted on July 17, 1998, establishing that there is simply no nexus between crimes against humanity and armed conflict. Since then, the Appeals Chamber has described the nexus with armed conflict set out in Article 5 of the ICTY Statute as being “purely jurisdictional.”22 Such a finding has the effect of enormously broadening the scope of crimes against humanity. On a practical level, they now largely overlap with gross and systematic violations of international human rights. This gives the evolving law of crimes against humanity considerable potential in the OPTs and avoids much of the debate about the application of the law of armed conflict. The judgments of the tribunals have enlarged the coverage of crimes against humanity in other ways that are also of considerable interest. To the extent that crimes against humanity can be committed in time of peace, it becomes particularly important to be able to make the distinction between them and ordinary crimes of domestic law. Traditionally, the authorities have taken the view that an ordinary crime such as murder may become a crime against humanity when it is committed as part of an attack upon a civilian population. There were suggestions

17

ICTY Statute, supra note 1, art. 5 (“The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:…”)

19

Tadic Appeal on Jurisdiction, supra note 12, ¶ 78.

19

This point is discussed in Roger S. Clark, Crimes Against Humanity at Nuremberg, in THE NUREMBERG TRIAL AND INTERNATIONAL LAW 177-212 (G. Ginsburgs & V.N. Kudriavstsev eds., 1990).

20

Tadic Appeal on Jurisdiction, supra note 12, ¶ 140.

21

Id., ¶ 141.

22

Prosecutor v. Kunarac et al., Judgment, Nos. IT-96-23 & IT-96-23/1-A, ¶ 83 (June 12, 2002).

9


that the attack needed to be the result of a state policy driven by motives of discrimination based upon race, religion or political opinion. The report from the Secretary-General of the United Nations, upon which the Security Council based itself in adopting the ICTY Statute, declares that “crimes against humanity refer to inhumane acts of extreme gravity, such as wilful killing, torture or rape, committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.”23 The Security Council confirmed this view explicitly in the definition of crimes against humanity that it adopted in Article 3 of the Statute of the International Criminal Tribunal for Rwanda (“ICTR Statute”): “The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:…”24 This “threshold” for crimes against humanity has been considerably broadened by the judges of the tribunals. It would now appear that crimes against humanity can be applied to a wide range of crimes of violence against the person and other serious human rights abuses as long as they are not merely “isolated or random acts.” In 1999, in its judgment dismissing the appeal of the conviction of Tadic, the ICTY Appeals Chamber established that the discriminatory intent or motive suggested by the Secretary-General’s report and Article 3 of the ICTR Statute was not an element of crimes against humanity from the standpoint of customary international law, although the judges conceded that “in most cases, crimes against humanity are waged against civilian populations which have been specifically targeted for national, political, ethnic, racial or religious reasons.”25 The Appeals Chamber discounted the authority of the Secretary-General’s report,26 and statements along similar lines by permanent members of the Security Council at the time the ICTY Statute was adopted.27 It explained that a discriminatory intent is only required for the crime against humanity of persecution, set out in Article 5(h) of the ICTY Statute. There, the definition expressly requires that the acts be committed “on political, racial and religious grounds.” In Krnojelac, a Trial Chamber noted that the crime against humanity of persecution “derives its unique character from the requirement of a specific discriminatory intent.”28

23

Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808 (1993), ¶ 48, U.N. Doc. S/25704 & Add. 1 (1993).

24

ICTR Statute, supra note 2, art. 3.

25

Prosecutor v. Tadic, Judgment, No. IT-94-1-A, ¶ 297 (July 15, 1999).

26

Id., ¶¶ 293-297.

27

Id., ¶¶ 298-304.

28

Prosecutor v. Krnojelac, Judgment, No. IT-97-25-T, ¶ 435 (March 15, 2002).

10


That crimes against humanity may also be the result of a state plan or policy seems to be implicit in the approach taken at Nuremberg. The Rome Statute of the International Criminal Court broadened this out somewhat to cover so-called “non-State actors,” in allowing that crimes against humanity could also be committed “pursuant to or in furtherance of a State or organizational policy.”29 Yet in the Kunarac Appeals Judgment of July 2002, the Appeals Chamber held that the policy component was not an element of crimes against humanity at all “at the time of the alleged acts.” In support, the Appeals Chamber referred to a number of authorities, including Eichmann.30 Of particular interest is the apparent contradiction between the Appeals Chamber’s view of the requirements of customary international law and the text of the Rome Statute, which in earlier rulings the ad hoc tribunals have cited as an authoritative codification of customary international law.31 Nevertheless, Article 10 of the Rome Statute states it shall not “be interpreted as limiting or prejudicing in any way existing or developing rules of international law…”, and the judges now seem to be taking its drafters at their word. In any event, elimination of the policy requirement further enlarges the scope of crimes against humanity. One may argue on grounds of international criminal law policy that this expansion of crimes against humanity is not a helpful development. It makes it increasingly difficult to distinguish crimes against humanity from ordinary crimes, and blurs the line between the human rights atrocities associated with states or state-like entities and the rather more mundane serial killer. In terms of enhancing the enforcement of international criminal law and enabling the prosecution of violations of the rights of civilians within the OPTs, however, this can only be viewed positively. The judgments have also clarified the scope of some of the specific acts of crimes against humanity, such as imprisonment, torture and deportation. In Krnojelac, an ICTY Trial Chamber held that any form of arbitrary physical deprivation of liberty could constitute the crime against humanity of imprisonment. It said “the deprivation of an individual’s liberty is arbitrary if it is imposed without due process of law.”32 The Trial Chamber noted that the law itself under which imprisonment might be authorized must also not be arbitrary.33 Nonetheless, a proper review of the various acts of crimes against humanity is beyond the scope of this article.

29

Rome Statute of the International Criminal Court, art. 7(2)(a), U.N. Doc. A/CONF.183/9 (1997), reprinted in 37 I.L.M 1002 (1998).

30

Kunarac, supra note 22, ¶ 98.

31

See, e.g., Prosecutor v. Furundzija, Judgment, No. IT-95-17/1-T, ¶ 227 (Dec. 10, 1998).

32

Krnojelac, supra note 28, ¶ 113.

33

Id., ¶ 114 n. 346.

11


B.

Genocide

The very first use of the term “genocide” by any of the principal organs of the United Nations to condemn criminal acts was the resolution on the massacre of Palestinian civilians at the Sabra and Shatila refugee camps in Lebanon that occurred between September 16-18, 1982.34 During debate in the General Assembly, the Soviet Union said: “The word for what Israel is doing on Lebanese soil is genocide. Its purpose is to destroy the Palestinians as a nation.”35 A few days later, the German Democratic Republic claimed the events proved irrefutably that Israel had decided genocide was the answer to the Palestinian question.36 Cuba, on behalf of sixteen sponsors, proposed a General Assembly resolution declaring the massacres to be an “act of genocide.”37 Speaking in support, Nicaragua stated: “[i]t is difficult to believe that a people that suffered so much from the Nazi policy of extermination in the middle of the twentieth century would use the same fascist, genocidal arguments and methods against other peoples.”38 The General Assembly resolution declaring “that the massacre was an act of genocide” was adopted by 123 to none, with twenty-two abstentions.39 Still, many states argued against using the term genocide, and this somewhat adulterates the claim that the resolution constitutes authority for a broad interpretation.40 Recent case law from the ad hoc tribunals provides further support for a broad interpretation. For example, the view that genocide can be committed against a

34

See Linda A. Malone, Sharon v. Time, The Criminal Responsibility Under International Law for Civilian Massacres, 3 Pal. Y.B. Int’l L. 41, 70 n. 169 (1986) (citing the conclusions of four of six members of an international commission chaired by Irish jurist Sean MacBride to investigate the massacre, that the “deliberate destruction of the national and cultural rights and identity of the Palestinian people amount[ed] to genocide.”); W. THOMAS MALLISON & SALLY V. MALLISON, THE PALESTINE PROBLEM IN INTERNATIONAL LAW AND WORLD ORDER 387-440 (1986).

35

U.N. Doc. S/15419 (1982). See also U.N. Doc. S/15406 (1982) (statement of Surinam); U.N. Doc. A/37/489, Annex (1982) (statement of Madagascar); U.N. Doc. A/37/480, Annex (1982) (statement of Mongolia); U.N. Doc. A/37/489, Annex (1982) (statement of Vietnam); U.N. Doc. A/37/502, Annex (1982) (statement of Pakistan).

36

U.N. Doc. A/37/PV.92.

37

U.N. Doc. A/37/L.52 and Add.1; U.N. Doc. A/37/PV.108, ¶ 58.

38

U.N. Doc. A/37/PV.96, ¶ 29. See also U.N. Doc. A/37/PV.96, ¶ 41; U.N. Doc. A/37/PV.92, ¶ 50; U.N. Doc. A/37/PV.92, ¶ 95.

39

G.A. Res. 37/123(D), 37 U.N. GAOR, Resolutions & Decisions 38, U.N. Doc. A/37/51 (1982); U.N. Doc. A/37/PV.108, ¶ 152.

40

See, e.g., U.N. Doc. A/37/PV.108, ¶ 121 (statement of Singapore); id., ¶ 197 (statement of Canada); id., ¶ 164 (statement of the United States); id., ¶ 171 (statement of Finland); id., ¶ 178 (statement of Sweden). See also ANTONIO CASSESE, VIOLENCE AND LAW IN THE MODERN AGE 82-84 (1988); Antonio Cassese, La Communauté internationale et le génocide, in LE DROIT INTERNATIONAL AU SERVICE DE LA PAIX, DE LA JUSTICE ET DU DÉVELOPPEMENT, MÉLANGES MICHEL VIRALLY 191-192 (Michel Virally ed., 1991).

12


relatively small group that is geographically delimited, like the refugee camps in Lebanon, was recently endorsed by an ICTY Trial Chamber: “In view of the par ticular intent requirement, which is the essence of the crime of genocide, the relative proportionate scale of the actual or attempted physical destruction of a group, or a significant section thereof, should be considered in relation to the factual opportunity of the accused to destroy a group in a specific geographic area within the sphere of his control, and not in relation to the entire population of the group in a wider geographic sense.”41 In Jelisic, another Trial Chamber of the same tribunal agreed that genocide could be committed in a “limited geographic zone.”42 Similarly in Krstic, the ICTY held that “the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue.”43 The suggestion that genocide could be committed on this relatively small scale was first advanced by Nehemiah Robinson in his early academic study of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”).44 There has also been a tendency by the ad hoc tribunals to enlarge the scope of punishable acts of genocide so as more effectively to cover campaigns of “ethnic cleansing” that may fall short of full-blown extermination. In Eichmann, the District Court of Jerusalem adopted a narrow interpretation whereby the more or less forced expulsion of Jews from Germany and German-occupied territories, as well as other acts of persecution committed during the 1930s and in the early stages of the war, were not deemed to constitute genocide. The Court concluded that Nazi policy only became genocidal in mid-1941, when emigration ceased and it became clear that European Jews were doomed to physical destruction in Auschwitz and the other extermination camps. Noting this evolution in Nazi policy, the District Court observed that “[t]he implementation of the ‘Final Solution’, in the sense of total extermination, is to a certain extent connected with the cessation of emigration of Jews from territories under German influence.”45 Until mid-1941, when the “final solution” emerged, the Israeli court said “a doubt remains in our minds whether there was here that specific intention to extermi-

41

Prosecutor v. Karadzic & Mladic, Nos. IT-95-18-R61 & IT-95-5-R61, Transcript of Hearing, 25 (June 27, 1996).

42

Prosecutor v. Jelisic, Judgment, No. IT-95-10-T, ¶ 83 (Dec. 14, 1999).

43

Prosecutor v. Krstic, Judgment, No. IT-98-33-T, ¶ 590 (Aug. 2, 2001); accord Prosecutor v. Sikirica et al., Judgment on Defence Motions to Acquit, No. IT-95-8-I, ¶ 68 (Sept. 3, 2001).

44

NEHEMIAH ROBINSON, THE GENOCIDE CONVENTION: A COMMENTARY 63 (1960).

45

Eichmann District Court judgment, supra note 11, ¶ 80.

13


nate,” as required by the definition of genocide. The Court said it would deal with such inhuman acts as being crimes against humanity rather than genocide.46 The travaux préparatoires of the Genocide Convention also confirm a view strictly confining the scope of acts of genocide to physical destruction. In 1948, Syria had proposed an amendment to the draft convention so as to add a sixth act of genocide to those enumeration in article II: “[i]mposing measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment.”47 In support, the Syrian representative said “[t]he problem of refugees and displaced persons to which his delegation’s proposal referred had arisen at the end of the Second World War and remained extremely acute.”48 Yugoslavia supported the amendment, citing Nazi displacement of Slav populations from a part of Yugoslavia in order to establish a German majority. “That action was tantamount to the deliberate destruction of a group,” said the Yugoslav delegate. “Genocide could be committed by forcing members of a group to abandon their homes,” he added.49 However, the United States insisted that the Syrian proposal “deviated too much from the original concept of genocide,”50 and this view was supported by the United Kingdom51 and the Soviet Union.52 The Syrian amendment was resoundingly defeated, by twenty-nine votes to five, with eight abstentions.53 Nevertheless, a literal reading of the Genocide Convention can certainly support a different view, whereby the scope of the term “within intent to destroy” is expanded so as to encompass acts of ethnic cleansing. There is no widely-accepted international instrument defining the term “ethnic cleansing,” but few would quarrel with that proposed by ad hoc Judge Elihu Lauterpacht of the International Court of Justice: “the forced migration of civilians.”54 Similarly, The United Nations Commission on Human Rights has said that “ethnic cleansing … at a minimum entails deportations and forcible mass removal or expulsion of persons

46

Id., ¶ 244(1-3); also, ¶¶ 186-187.

47

U.N. GAOR, 6th Comm., 3rd Sess., 234th mtg., U.N. Doc. A/C.6/234 (1948).

48

U.N. Doc. A/C.6/SR.82 (1948) (Mr. Tarazi, Syria).

49

Id. (Mr. Bartos, Yugoslavia).

50

Id. (Mr. Maktos, U.S.A.).

51

Id. (Mr. Fitzmaurice, U.K.).

52

Id. (Mr. Morozov, Soviet Union).

53

Id.

54

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serbia & Montenegro)), Further Requests for the Indication of Provisional Measures, 1993 I.C.J. 325, 431 ¶ 69 (13 September) (Separate Opinion of Judge ad hoc Lauterpacht).

14


from their homes in flagrant violation of their human rights, and which is aimed at the dislocation or destruction of national, ethnic, racial or religious groups.”55 In a 1998 resolution, the Sub-Commission on Prevention of Discrimination and Protection of Minorities described it as “forcible displacement of populations within a country or across borders.”56 Although the ICTY’s genocide case law is still at an early stage, and this and other issues have yet to be resolved definitively by the Appeals Chamber, there is already much to indicate that the judges tend towards a broadening of the scope of genocide in this area. In the confirmation of the Srebrenica indictment (second indictment) in Karadzic and Mladic, Judge Riad referred to “ethnic cleansing” as a form of genocide: The mass executions described in the indictment were evidently systematic, being organised by the military and political hierarchy of the Serbian administration of Pale, apparently with close support from elements of the army of the Federal Republic of Yugoslavia (SerbiaMontenegro). These executions were committed in the context of a broader policy of “ethnic cleansing” which is directed against the Bosnian Muslim population and which also includes massive deportations. This policy aims at creating new borders by violently changing the national or religious composition of the population. As a result of this policy, the Muslim population of Srebrenica was totally banished from the area. The policy of “ethnic cleansing” referred to above presents, in its ultimate manifestation, genocidal characteristics. Furthermore, in this case, the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, which is specific to genocide, may clearly be inferred from the gravity of the “ethnic cleansing” practised in Srebrenica and its surrounding areas, i.e. principally, the mass killings of Muslims which occurred after the fall of Srebrenica in July 1995, which were committed in circumstances manifesting an almost unparalleled cruelty.57 A similar interpretation was adopted by Trial Chamber I, in a preliminary ruling in the Nikolic case. The judges invited the prosecutor to amend the indictment,

55

The Situation of Human Rights in the Territory of the Former Yugoslavia, Commission Resolution 1992/S-1/1 of 14 August 1992, U.N. Commission on Human Rights, 1st Spec. Sess., Agenda Item 3, P56, U.N. Doc. E/CN.4/1992/S-1/9 (1992), preamble.

56

Forced Population Transfer, Subcomm’n on Prevention of Discrimination & Protection of Minorities Res. 1998/27, U.N. ESCOR, U.N. Comm’n on Hum. Rts., Subcomm’n on Prevention of Discrimination & Protection of Minorities, 50th Sess., 35th mtg., Agenda Item 14(c), U.N. Doc. E/CN.4/SUB.2/1998/L.11/Add.2 (1998).

57

Prosecutor v. Karadzic and Mladic, Confirmation of Indictment, No. IT-95-18-I, 4 (Nov. 16, 1995).

15


“if feasible and advisable,” so as to add counts of complicity in genocide or acts of genocide: It emerged on the basis of the record that the policy of discrimination implemented at Blasenica, of which Dragan Nikolic’s acts formed a part, was specifically aimed at ‘cleansing’ the region of its Muslim Population. In this instance, the policy of ‘ethnic cleansing’ took the form of discriminatory acts of extreme seriousness which tend to show its genocidal character. For instance, the Chamber notes the statements by some witnesses which point, among other crimes, to mass murders being committed in the region…. The Chamber considers that the Tribunal may possibly have jurisdiction in this case under Article 4 of the Statute.58 Rather more recently, this view received some support from an ICTY Trial Chamber in Krstic. The tribunal expressed its sympathy with a recent ruling of the Federal Constitutional Court of Germany holding that the text of the definition of genocide “does not therefore compel the interpretation that the culprit’s intent must be to exterminate physically at least a substantial number of the members of the group.”59 The Trial Chamber seemed to understand that it was necessary to expand the scope of the term “destroy” in the chapeau of the definition in order to cover “acts that involved cultural and other non physical forms of group destruction.”60 Nevertheless, the tribunal was concerned that this progressive view might offend the principle nullum crimen sine lege. It said that “despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to

58

Prosecutor v. Nikolic, Review of Indictment Pursuant to Rule 61, No. IT-95-2-R61, ¶ 34 (Oct. 20, 1995). During the hearing, Judge Jorda asked expert witness James Gow, of King’s College, London, whether “the concept of ethnic cleansing is to be found somewhere, either officially or in documents or proclamations as organized plans?” Professor Gow answered: “The term ethnic cleansing has been widely used. It does have some history, but it has come to prominence and has been used in a widespread way in connection with the war in Bosnia and Herzegovina and, particularly, with the Serbian campaign there. The term is often attributed to one of the Serbian paramilitary leaders, Vojislav Seselj, in the current context. It has also been used by one of the other Serbian paramilitary leaders, Zeljko Raznjatovic (Arkan), and there is some film evidence, I believe, in which Arkan is giving instructions to his troops to be careful in this particular cleansing operation. But to say that there is some official document in which a plan for ethnic cleansing appears, I think, would be to take – would be to make too strong a statement. I have seen no evidence of an official document in which the term ‘ethnic cleansing’ is used, but the term has been used and it has been used by some of the people involved in the activity that they have been carrying out.” Prosecutor v. Nikolic, No. IT-95-2R61, Transcript (Oct. 9, 1995).

59

Nikolai Jorgic, Bundesverfassungsgericht [Federal Constitutional Court], Fourth Chamber, Second Senate, December 12, 2000, 2 BvR 1290/99, ¶ III(4)(a)(aa) (F.R.G.).

60

Krstic, supra note 43, ¶ 577.

16


that group its own identity distinct from the rest of the community would not fall under the definition of genocide.”61 Nevertheless, the Trial Chamber evidently meant to point the way to a progressive and dynamic interpretation, perhaps not applicable to the conflict in Bosnia and Herzegovina but perhaps applicable with respect to future atrocities. This may well have the practical consequence of adding the failed 1948 Syrian amendment to judicial construction of the crime of genocide. Finally, as in the case of crimes against humanity, the ICTY has also determined that there is no requirement that a state or organizational plan or policy be proven in order to obtain a conviction for genocide. In Jelisic, a Trial Chamber said it was even “theoretically possible” that an individual, acting alone, could commit the crime. According to the Trial Chamber: The murders committed by the accused are sufficient to establish the material element of the crime of genocide and it is a priori possible to conceive that the accused harboured the plan to exterminate an entire group without this intent having been supported by any organisation in which other individuals participated. In this respect, the preparatory work of the Convention of 1948 brings out that premeditation was not selected as a legal ingredient of the crime of genocide, after having been mentioned by the ad hoc committee at the draft stage, on the grounds that it seemed superfluous given the special intention already required by the text and that such precision would only make the burden of proof even greater. It ensues from this omission that the drafters of the Convention did not deem the existence of an organisation or a system serving a genocidal objective as a legal ingredient of the crime. In so doing, they did not discount the possibility of a lone individual seeking to destroy a group as such.62 This pronouncement was endorsed upon appeal.63

C.

War Crimes

It was in the area of the law of war crimes that the ICTY made its first astonishing interpretative foray, breaking with what might be called the “conventional wisdom” of most academic commentators64 and recognizing individual criminal

61

Id., ¶ 580.

62

Jelisic, supra note 42, ¶ 100.

63

Prosecutor v. Jelisic, Judgment, No. IT-95-10-A, ¶ 48 (July 5, 2001). The Appeals Chamber’s obiter dictum was followed in Prosecutor v. Sikirica, supra note 43, ¶ 62.

64

See, e.g., Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 AM. J. INT’L L. 78, 80 (1994); Tadic Appeal on Jurisdiction, supra note 12, Separate Opinion of Judge Li, ¶ 9.

17


responsibility for offenses committed during noninternational armed conflict. On the surface, the two war crimes provisions of the ICTY Statute seemed clear enough in their application to international armed conflict. ICTY Article 2 covered “grave breaches” of the 1949 Geneva Conventions relative to the protection of victims of armed conflict. It was well known that when the 1949 Geneva Conventions were revised in 1977, the diplomatic conference quite specifically held to the view that the grave breaches regime only applied in the case of Additional Protocol I, that is, to international armed conflicts. ICTY Article 3, which listed “violations of the laws or customs of war,” was obviously crafted on the model of Article 6(b) of the IMT Charter suggesting, although by implication, that its scope did not extend to civil wars. The judges have subsequently described ICTY Article 3 as an “umbrella rule”65 or “residual clause”66 that extends to a wide range of war crimes, whether committed in international or noninternational armed conflict. Although not a license to invent war crimes, it has empowered the tribunals with the possibility of drawing upon sources of international humanitarian law that were not traditionally thought to be a basis for individual criminal responsibility, such as common Article 3 of the 1949 Geneva Conventions. Citing Nuremberg, the Appeals Chamber recently recalled that the laws of armed conflict “are not static, but by continual adaptation follow the needs of a changing world.”67 The significance of this conclusion for justice in the former Yugoslavia has been the possibility of enlarging the ambit of ICTY Article 3 to the case of internal armed conflict. However, Tadic has another important consequence that, while perhaps not so relevant to the Yugoslav prosecutions, is of great significance to the OPTs. In effect, serious violations of international humanitarian that are committed in occupied territories may also be punishable as international crimes. Article 49 of the fourth 1949 Geneva (Civilians) Convention prohibits “individual or mass forcible transfers,” “deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country,” and transfer of an Occupying Power’s civilian population into an occupied territory. There is, of course, some debate in Israel about the application of the fourth Geneva Convention to the OPTs, though this is hardly controversial outside the country. That serious violations of the fourth Geneva Convention, and specifically of Article 49, are recognized as international crimes is, of course, confirmed by their inclusion in Article 8(2)(b)(viii) of the Rome Statute of the ICC. Nonetheless, Tadic is authority for the proposition that the norm also constitutes part of customary international law, which makes it punishable not only prospectively but also retrospectively.

65

Furundzija, supra note 31, ¶ 133.

66

Kunarac, supra note 22, ¶ 54.

67

Id., ¶ 67.

18


III.

Complicity in International Crimes

The perpetration of serious violations of international human rights and humanitarian law resembles rather more banal forms of organized crime. They are usually physically committed by “foot soldiers,” but in execution of a grand strategy developed far from the battlefield, in offices, private clubs and restaurants, by men and women who rarely bloody their own hands. In both cases, the challenge in prosecutions is to go beyond what domestic criminal law usually describes as the “principal offender” in order to reach those who command and control the violations. Technically, they may be described as “secondary offenders” or accomplices, although in reality they lie at the heart of the problem. In Tadic, the Appeals Chamber warned that describing them “as aiders and abettors might understate the degree of their criminal responsibility.”68 Yet it is not always easy to bring them to justice. Evidence of the involvement of those who ordered and directed the crimes is difficult to establish, often requiring the recruitment of informers or the placement of agents double. As an ICTY Trial Chamber explained in the Celebici case, to be an accomplice there must be some proof that the accused had knowledge of what the principal perpetrator was doing: It is, accordingly, the view of the Trial Chamber that, in order for there to be individual criminal responsibility for degrees of involvement in a crime under the Tribunal’s jurisdiction which do not constitute a direct performance of the acts which make up the offence, a showing must be made of both a physical and a mental element. The requisite actus reus for such responsibility is constituted by an act of participation which in fact contributes to, or has an effect on, the commission of the crime. Hence, this participation must have “a direct and substantial effect on the commission of the illegal act.” The corresponding intent, or mens rea, is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act. Thus, there must be “awareness of the act of participation coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime.”69 In recent years, the ad hoc tribunals have developed techniques to facilitate the prosecution of those at the top of the international criminal pyramid, even where it cannot be shown beyond a reasonable doubt that the perpetrator had full know-

68

Tadic, supra note 25, ¶ 192.

69

Prosecutor v. Delalic et al., Judgment, No. IT-96-21-T, ¶ 326 (Nov. 16, 1998) (reference omitted).

19


ledge of the crimes committed by others. One of these, known as “command or superior responsibility,” is actually set out in the statutes, although its development has been the work of the tribunals’ jurisprudence. The second is purely judgemade. Known as “joint criminal enterprise” (or simply “JCE” to the initiated), it holds the participant in a criminal activity responsible not only for the acts that he or she commits but also for all acts that are a natural and foreseeable consequence of the collective venture. Both approaches to complicity are of immense interest to prosecutions for international crimes, whatever the jurisdiction where the trial may take place. They send chills down the spines of both military and civilian officials who are involved in regimes associated with charges of serious violations of human rights committed by soldiers, police and governmental officials against citizens and others subject to their jurisdiction.

A.

Superior Responsibility

Article 7(3) of the ICTY Statute sets out the principle of superior responsibility, by which someone may be convicted of a crime committed by a subordinate when that person “knew or had reason to know that the subordinate was about to commit such acts” (emphasis added). An identical text appears in Article 6(3) of the ICTR Statute. Command, or superior, responsibility is a form of criminal participation by which a person in a hierarchically responsible position may be held liable for the acts of subordinates. It differs from ordinary complicity, which exists upon proof that the commander ordered the act or otherwise aided and abetted its performance. A commander who actually knows that troops under his or her command are about to commit an atrocity or are in the course of committing one, and who fails to intervene, can be prosecuted as an ordinary accomplice. It is often said that a prosecution of General Ariel Sharon for the atrocities at Sabra and Shatila in 1982 would rely upon the doctrine of superior responsibility in order to establish guilt. Superior, or command, responsibility initially developed in a military context and was applied, at least historically, to war crimes committed in international armed conflicts.70 It was later codified with respect to grave breaches of the 1949 Geneva Conventions in Additional Protocol I thereto of 1977, relating to the pro

70

See, e.g., L.C. Green, Command Responsibility in International Humanitarian Law, 5 TRANSNAT’L L. & CONTEMP. PROBS. 319 (1995); L.C. Green, Superior Orders and Command Responsibility, 27 CAN. Y.B. INT’L L. 167 (1989); W. Hays Parks, Command Responsibility for War Crimes, 62 MIL. L. REV. 1 (1973).

20


tection of victims of international armed conflicts.71 Command responsibility in the case of war crimes is closely related to issues of military discipline and the fact that a commander had specific duties that he or she failed to fulfill. In the leading post-Second World War case, a United States military commission noted that General Yamashita “was an officer of long years of experience, broad in its scope, who has had extensive command and staff duty.”72 Although acknowledging it would be absurd to condemn a commander merely because one of his or her soldiers committed a crime, the commission held that “where murder and rape and vicious, revengeful actions are widespread offences, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops.…”73 When Yamashita’s habeas corpus petition was heard by the United States Supreme Court, dissenting Justice Rutledge voted to quash the conviction, believing it was impossible to determine whether the crime was a “wilful, informed and intentional omission to restrain and control troops known by petitioner to be committing crimes or was only a negligent failure on his part to discover this and take whatever measures he then could to stop the conduct.”74 Nevertheless, the conviction stood and Yamashita was executed. The statutes of the tribunals allow conviction of a commander or superior who “had reason to know” of crimes being committed by subordinates. These words clearly indicate the possibility that a commander can be found guilty who did not, as a matter of fact, have such knowledge.75 The whole concept of superior responsibility is built upon the premise that those who assume command positions must conduct themselves diligently and with proper respect for the dangerous and life-

71

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1) of 8 June 1977, 1125 U.N.T.S. 3, art. 86(2): “The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”

72

United States of America v. Yamashita, 4 L. REP. TRIALS WAR CRIM. [L.R.T.W.C.] 1, 36-37 (U.N. War Crimes Comm’n 1948) (U.S. Milit. Comm’n, Manila, Oct. 8-Dec. 7, 1945); In re Yamashita, 327 U.S. 1 (1946). The other major post-Second World War command responsibility case is Canada v. Meyer, 4 L.R.T.W.C. 98 (1948) (Can. Mil. Ct. 1945).

73

U.S. v. Yamashita, supra note 72, at 35.

74

In re Yamashita, supra note 72, at 52 (emphasis in original).

75

On superior, or command, responsibility as applied by the ICTY, see Daryl Mundis, Crimes of the Commander: Superior Responsibility under Article 7(3) of the ICTY Statute, in CASE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (Gideon Boas & William A. Schabas eds., forthcoming); Sonja Boelaert-Suominen, Prosecuting Superiors for Crimes Committed by Subordinates: A Discussion of the First Significant Case Law Since the Second World War, 41 VA. J. INT’L. L. 747 (2001); Kirsten M.F. Keith, The Mens Rea of Superior Responsibility as Developed by ICTY Jurisprudence, 14 LEIDEN J. INT’L L. 617 (2001).

21


threatened individuals and weapons over which they have control. Formerly, the culpable act of a commander under such a scenario might only have amounted to negligent or irresponsible command. Command responsibility takes this a significant step further, implicating the commander as an accomplice in the acts perpetrated by subordinates but in the absence of proof of such knowledge. The Secretary-General of the United Nations, in the report submitted prior to establishment of the ICTY by the Security Council, described superior responsibility as “imputed responsibility or criminal negligence.”76 Although the judges have not balked at applying the concept to civilian superiors as well as military commanders, they have been wary of extending the doctrine to cases of what might be deemed pure negligence. In Celebici, the Appeals Chamber dismissed an argument by the prosecutor aimed at expanding the concept, noting that “a superior will be criminally responsible through the principles of superior responsibility only if information was available to him which would have put him on notice of offences committed by subordinates. This is consistent with the customary law standard of mens rea as existing at the time of the offences charged in the Indictment.”77 Obviously sensitive to the charges of abuse that could result from an overly large construction, the Appeals Chamber said it “would not describe superior responsibility as a vicarious liability doctrine, insofar as vicarious liability may suggest a form of strict imputed liability.”78 Several of the judgments testify to this judicial discomfort with respect to the outer limits of superior responsibility and reveal concerns among the judges that a liberal interpretation may offend the nullum crimen sine lege principle.79 According to the Appeals Chamber, the information available to the superior “does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.”80 This certainly falls short of the con-

76

Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), ¶ 56, U.N. Doc. S/25704 & Add. 1 (1993). See also M. CHERIF BASSIOUNI & PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 345374 (1996); Edward M. Wise, Part 3. General Principles of Criminal Law, 13TER NOUVELLES ÉTUDES PÉNALES 39, 46-47 (1998).

77

Prosecutor v. Delalic, Judgment, No. IT-96-21-A, ¶ 241 (Feb. 20, 2001) (reference omitted). Accord Prosecutor v. Galic, Appeals Judgment, No. IT-98-29-AR73.2 (June 7, 2002).

78

Delalic, supra note 77, ¶ 239.

79

See, e.g., Prosecutor v. Krajisnik, No. IT-00-39, Separate Opinion of Judge Bennouna (Sept. 22, 2000); Prosecutor v. Stakic, Decision on Rules 98bis Motion for Judgment of Acquittal, No. IT-97-24-T, ¶ 116 (Oct. 31, 2002). But cf. Prosecutor v. Had?ihasanovi? et al., Decision on Joint Challenge to Jurisdiction, No. IT-01-47-PT (Nov. 12, 2002) (containing a recent discussion of superior responsibility).

80

Delalic, supra note 77, ¶ 238.

22


cept of “willful blindness,” by which an offender in effect wishes to remain ignorant of the facts. In a contempt prosecution, the Appeals Chamber said “proof of knowledge of the existence of the relevant fact is accepted in such cases where it is established that the defendant suspected that the fact existed (or was aware that its existence was highly probable) but refrained from finding out whether it did exist because he wanted to be able to deny knowledge of it (or he just did not want to find out that it did exist).” In the view of the Appeals Chamber, willful blindness is “equally culpable” as actual knowledge.81 Superior responsibility is believed by many to offer the most effective way of convicting leaders when evidence is lacking that they have actually ordered the commission of atrocities. Nevertheless, recent judgments suggest that it may not be the panacea for which many had hoped, and that “joint criminal enterprise” provides an even more effective mechanism.

B.

Joint Criminal Enterprise

Under the “joint criminal enterprise” concept of criminal liability, an accused can be convicted not only for the crimes that he or she actually committed, with intent, but for those committed by others that he or she did not specifically intend but that were a natural and foreseeable consequence of executing the crime that formed part of the collective or common purpose or enterprise.82 The Appeals Chamber first developed the theory in Tadic, building upon a discussion of complicity in the Furundzija trial judgment.83 The Appeals Chamber conceded that “common purpose” or “joint criminal enterprise” liability is not included within the enumeration of the forms of participation in Article 7(1) of the ICTY Statute or Article 6(1) of the ICTR Statute but said that a purposive approach to construction of the provisions indicates that “it is fair to conclude that the Statute does not confine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning, preparation or execution.”84 The Appeals Chamber considered the case where perpetrators share a common design to pursue a criminal course of conduct but where one of them com-

81

Prosecutor v. Aleksovski, Judgment on Appeal by Anto Nobilo against Finding of Contempt, No. IT-95-14/1-AR77 (May 30, 2001).

82

Tadic, supra note 25. See also, Prosecutor v. Krnojelac, Decision on Form of Second Amended Indictment, No. IT-97-25-PT (May 11, 2000); Prosecutor v. Brdjanin & Talic, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, No. IT-99-36-PT (June 26, 2001); Krnojelac, supra note 28.

83

Furundzija, supra note 31, especially ¶¶ 199-216.

84

Tadic, supra note 25, ¶ 190.

23


mits an act that was outside the common design that nevertheless constitutes “a natural and foreseeable consequence of the effecting of that common purpose.” According to the Appeals Chamber, An example of this would be a common, shared intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region (to effect “ethnic cleansing”) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common design, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians. Criminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk. Another example is that of a common plan to forcibly evict civilians belonging to a particular ethnic group by burning their houses; if some of the participants in the plan, in carrying out this plan, kill civilians by setting their houses on fire, all the other participants in the plan are criminally responsible for the killing if these deaths were predictable.85 The Appeals Chamber found support for this type of accomplice liability in some of the post-Second World War jurisprudence of British, United States and Italian courts and military tribunals. It concluded with respect to such cases: [I]t is appropriate to apply the notion of “common purpose” only where the following requirements concerning mens rea are fulfilled: (i) the intention to take part in a joint criminal enterprise and to further – individually and jointly – the criminal purposes of that enterprise; and (ii) the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose. Hence, the participants must have had in mind the intent, for instance, to ill-treat prisoners of war (even if such a plan arose extemporaneously) and one or some members of the group must have actually killed them. In order for responsibility for the deaths to be imputable to the others, however, everyone in the group must have been able to predict this result. It should be noted that more than negligence is required. What is required is a state of mind in which a person, although he did not intend to bring about a certain result, was aware that the actions of the group were most likely to lead to that result but

85

Id., ¶ 204.

24


nevertheless willingly took that risk. In other words, the so-called dolus eventualis is required (also called “advertent recklessness” in some national legal systems).86 The Appeals Chamber referred to national practice as well, conceding, but only obliquely and in a footnote, that common purpose or joint criminal enterprise liability has in some countries been declared unconstitutional in the case of serious offences such as murder because conviction of a person for an offense that was not truly intended offends principles of fundamental justice.87 Thus, as with superior responsibility, in the case of joint criminal enterprise the Tribunal recognizes a form of liability or responsibility for acts where, as the Appeals Chamber says, the perpetrator “did not intend to bring about” the result. Since the theory of “joint criminal enterprise” was first mooted by the Tribunal in Tadic in July 1999, it has become the magic bullet of the office of the prosecutor. For example, the May 1999 indictment of Slobodan Milosevic for crimes against humanity and war crimes committed in Kosovo was amended in 2001 so as to allege his participation in a joint criminal enterprise with Bosnian Serb military and civilian leaders.88 In August 2001, Bosnian Serb leader General Radislav Krstic was convicted as part of a “joint criminal enterprise” to commit genocide with respect to the Srebrenica massacre of July 1995. The Trial Chamber was not prepared to find that there was an operational genocidal plan until the days immediately preceding the killings, when it said that “ethnic cleansing” had become transformed into a full-blown plan to destroy physically the Bosnian Muslims in Srebrenica. It stated that “General Krstic could only surmise that the original objective of ethnic cleansing by forcible transfer had turned into a lethal plan to destroy the male population of Srebrenica once and for all.”89

86

Id., ¶ 220, ¶ 228.

87

Id., ¶ 224 n. 288, citing R. v. Logan, 2 S.C.R. 731, 735 (1990) (Can.); R. v. Rodney, 2 S.C.R. 687 (1990) (Can.).

88

Compare Prosecutor v. Milosevic et al., Indictment, No. IT-99-37-I (May 22, 1999) with Prosecutor v. Milosevic et al., Amended Indictment, No. IT-99-37-I (June 29, 2001) and Prosecutor v. Milosevic et al., Second Amended Indictment, No. IT-99-37-PT (Oct. 16, 2001).

89

Krstic, supra note 43, ¶ 622 (emphasis added).

25


IV.

Conclusion

This overview of the contributions of the ad hoc tribunals to international criminal prosecution is necessarily incomplete. It has not, for example, dealt with many of the procedural and evidentiary developments that constitute so much of the legacy of these institutions. In focusing upon the definitions of crimes and the innovations with respect to the law of complicity, an attempt has been made to emphasize legal issues that may help to enhance the protection of human rights in the OPTs. Even where criminal prosecution is not immediately a viable option, the ability to characterize acts as international crimes and to impute liability to individuals is an important dimension of human rights advocacy. It may be impossible to bring a particular individual to justice – sometimes for jurisdictional reasons and sometimes because the perpetrator is no longer alive – and yet it remains important and meaningful to be able to charge that person with responsibility for what the Rome Statute names “the most serious crimes of concern to the international community as a whole.” There can be no doubt that in enlarging the recognized definitions of crimes against humanity, genocide and war crimes, and in their approach to participation by superiors and commanders in the atrocities whose physical commission is the work of subordinates, the tribunals have provided human rights advocates in the OPTs with valuable new instruments for this purpose.

26

UNIVERSAL JURISDICTION UNREVISITED: THE INTERNATIONAL COURT OF JUSTICE DECISION IN CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF THE CONGO V. BELGIUM) M. Cherif Bassiouni*

I.

Nature of the Case ....................................................................................... 28

II. The Judgment .............................................................................................. 30 III. Analysis of the Judgment ............................................................................ 35 IV. Framing the Issue in Order to Avoid the Issue ............................................ 44 V. Conclusion ................................................................................................... 48

*

Professor of Law, President, International Human Rights Law Institute, DePaul University College of Law; President, International Institute for Higher Studies in Criminal Sciences; President, International Association of Penal Law.


UNIVERSAL JURISDICTION UNREVISITED

I.

Nature of the Case

On October 17, 2000, the Democratic Republic of the Congo (“DRC”) instituted proceedings before the International Court of Justice (“ICJ”) against the Kingdom of Belgium (“Belgium”) in connection with a dispute arising between the two countries concerning an international arrest warrant issued on April 11, 2000 by a Belgian investigating magistrate, Mr. Vandermeersch, against the then incumbent Minister of Foreign Affairs of the DRC, Mr. Abdulaye Yerodia Ndombasi.1 The warrant was issued pursuant to Belgium’s law of June 16, 1993 (as amended by the law of February 1999), which gives that state universal jurisdiction to enforce violations of genocide, crimes against humanity and war crimes, irrespective of the existence of any contacts a defendant or a victim may have with Belgium.2 The investigating judge charged Mr. Yerodia with inciting Hutus to commit against Tutsi residents in Kinshasa genocide, crimes against humanity and “grave breaches” of the four Geneva Conventions of August 12, 1949 and Additional Protocols I and II thereto of June 8, 1977. Mr. Yerodia allegedly made several racist and inflammatory speeches in August 1998 when he did not hold a public office to which an international immunity attached. However, at the time of the charges brought by Belgium, on April 15, 2001, he was the incumbent minister of foreign affairs, a position entitling him to diplomatic immunity under the Vienna Convention on Diplomatic Relations.3 But, after the DRC’s application was filed with the ICJ, he was no longer minister of foreign affairs, and at no time during the proceedings did he assume a position entitling him to any form of international immunity. The acts charged did not occur in Belgium and none of the victims were Belgian, though some resided in Belgium (after fleeing the DRC) when the arrest warrant was issued. None of the perpetrators of the acts charged and presumably incited by Mr. Yerodia were Belgian, nor were any of them residents of Belgium at the time of the warrant’s issue; Mr. Yerodia himself was not present in Belgium when the arrest warrant was issued.

1

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14), reprinted in 41 I.L.M. 536 (2002).

2

See M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 VA. J. INT’L L. 81 (2001) [hereinafter Bassiouni, Universal Jurisdiction].

3

Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 [hereinafter Vienna Diplomatic Convention]. See also Optional Protocol to the Convention on Diplomatic Relations of 18 April 1961 concerning the Compulsory Settlement of Disputes, 23 U.S.T. 3374, 500 U.N.T.S. 241.

28


The arrest warrant was issued in absentia, and Belgium submitted the warrant to INTERPOL, which then circulated it to all of its member states. The DRC argued that, in accordance with the principle of sovereign equality among all members of the United Nations, as provided for in Article 2, paragraph 1 of the Charter of the United Nations, and in accordance with the Vienna Convention on Diplomatic Relations,4 Belgium had violated customary and conventional international law by issuing such an international arrest warrant against its minister of foreign affairs. It asked the ICJ to declare that Belgium had violated international law by the issuance of such a warrant and that it should be ordered to withdraw it. Belgium argued that the legal issue was moot since Mr. Yerodia was no longer minister of foreign affairs when the application was filed, and that the case as it stood before the Court was materially different from what it was at the time of the DRC’s application. Belgium further argued that Mr. Yerodia did not exhaust his local remedies under Belgian law before submitting his application to the Court. The Court held oral arguments between October 15-19, 2001 and decided the case on February 14, 2002.5 This was the first case on a dispute over criminal jurisdiction submitted to the ICJ since the Lotus case6 decided by the Permanent Court of International Justice (“PCIJ”) in 1927, involving a conflict between territorial and passive personality jurisdiction in criminal matters.7 The instant case presented a novel question of universal jurisdiction, which neither the PCIJ nor the ICJ had previously addressed. In its judgment, however, the ICJ skirted the underlying issue of universal jurisdiction and focused, instead, on the narrower procedural question of diplomatic immunity under international law.

4

Vienna Diplomatic Convention, supra note 3, art. 41(2).

5

Arrest Warrant of 11 April 2000, 2002 I.C.J. 121.

6

S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J (ser. A) No. 10, at 20 (Sept. 7).

7

See M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION IN U.S. LAW AND PRACTICE ch. 6 (4th rev. ed., 2002); Christopher Blakesley, Extraterritorial Jurisdiction, in 2 INTERNATIONAL CRIMINAL LAW 43 (M. Cherif Bassiouni ed., 2d rev. ed. 1999).

29


II.

The Judgment

In its judgment the ICJ held, notwithstanding the Nuremberg8 (“IMT”) and Tokyo9 (“IMTFE”) charters and judgments,10 and the statutes of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”),11 the International Criminal Tribunal for Rwanda (“ICTR”),12 and the International Criminal Court (“ICC”),13 that customary international law creates no exception to the procedural immunity of persons having an official capacity under international law. Consequently, the ICJ concluded: 58. The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity. The Court has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and

8

Charter of the International Military Tribunal, Aug. 8, 1945, 82 U.N.T.S. 284, 59 Stat. 1546 [hereinafter Nuremberg Charter], annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279, 59 Stat. 1544.

9

Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, T.I.A.S. No. 1589 at 3, amended Apr. 26, 1946, art. 6., T.I.A.S. No. 1589 at 11 [hereinafter IMTFE Amended Charter].

10

The International Military Tribunal at Nuremberg, in TRIAL OF THE MAJOR WAR CRIMINALS BEFORE MILITARY TRIBUNAL (1949) (the “Blue Series”); TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL NO. 10 (1949) (“Green Series”). THE TOKYO WAR CRIMES TRIAL: THE COMPREHENSIVE INDEX AND GUIDE TO THE PROCEEDINGS OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST IN FIVE VOLUMES (R. John Pritchard & Sonia Magbanua Zaide eds., 1981).

THE INTERNATIONAL

11

Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 7(2), S.C. Res. 808, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/808 (1993), annexed to Report of the Secretary-General Pursuant to Paragraph 2 of U.N. Security Council Resolution 808 (1993), U.N. Doc. S/2-5704 & Add. 1 (1993) [hereinafter ICTY Statute]. See M. CHERIF BASSIOUNI & PETER MANIKAS, THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1996).

12

Statute of the International Criminal Tribunal for Rwanda, art. 6(2), S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., Annex, U.N. Doc. S/RES/955 (1994) [hereinafter ICTR Statute]. See VIRGINIA MORRIS & MICHAEL P. SCHARF, THE INTENATIONAL CRIMINAL TRIBUNAL FOR RWANDA (2 vols. 1998).

13

Rome Statute of the International Criminal Court, Jul. 17, 1998, art. 27, U.N. Doc. A/CONF.183/9 [hereinafter ICC Statute], reprinted in 37 I.L.M. 999 (1998).

30


which are specifically applicable to the latter (see Charter of the International Military Tribunal of Nuremberg, Art. 7; Charter of the International Military Tribunal of Tokyo, Art. 6; Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 7, para. 2; Statute of the International Criminal Tribunal for Rwanda, Art. 6, para. 2; Statute of the International Criminal Court, Art. 27). It finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts. Finally, none of the decisions of the Nuremberg and Tokyo international military tribunals, or of the International Criminal Tribunal for the former Yugoslavia, cited by Belgium deal with the question of the immunities of incumbent Ministers for Foreign Affairs before national courts where they are accused of having committed war crimes or crimes against humanity. The Court accordingly notes that those decisions are in no way at variance with the findings it has reached above. In view of the foregoing, the Court accordingly cannot accept Belgium’s argument in this regard.14 The ICJ further noted that national criminal jurisdiction must respect these immunities. Thus, by implication, one can conclude that the Court upheld the doctrine of temporal immunity with respect to national criminal jurisdictions but not so with respect to certain international criminal courts like the ICTY, the ICTR and the ICC.15 Thus, the judgment held: 59. It should further be noted that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction. Thus, although various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs. These remain opposable before the courts of a foreign State, even where those courts exercise such a jurisdiction under these conventions. 60.The Court emphasizes, however, that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that

14

Arrest Warrant of 11 April 2000, 2002 I.C.J. 121, 142.

15

Id. at 143.

31


they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility. 61. Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances. First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries’ courts in accordance with the relevant rules of domestic law. Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will not longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity. Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter’s Statute expressly provides, in Article 27, paragraph 2, that “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.”16

16

Id.

32


The Court then addressed the issue of Belgium’s international circulation of the arrest warrant and found that such action violated international law under the facts of the case. It held that: Accordingly, the Court concludes that the circulation of the warrant, whether or not it significantly interfered with Mr. Yerodia’s diplomatic activity, constituted a violation of an obligation of Belgium towards the Congo, in that it failed to respect the immunity of the incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law.17 The Court thus ruled that: In the present case, “the situation which would, in all probability, have existed if [the illegal act] had not been committed” cannot be re-established merely by a finding by the Court that the arrest warrant was unlawful under international law. The warrant is still extant, and remains unlawful, notwithstanding the fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs. The Court accordingly considers that Belgium must, by means of its own choosing, cancel the warrant in question and so inform the authorities to whom it was circulated.18 The Judges’ votes on these issues were as follows: … [1] (D) By fifteen votes to one, Finds that the Application of the Democratic Republic of the Congo is admissible; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula, Van den Wyngaert; AGAINST: Judge Oda; (2) By thirteen votes to three, Finds that the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest warrant of 11 April 2000, and its international circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo, in that they failed to respect the immunity from criminal jurisdiction and the inviolability

17

Id. at 147.

18

Id. at 149.

33


which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Buergenthal; Judge ad hoc BulaBula; AGAINST: Judges Oda, Al-Khasawneh; Judge ad hoc Van den Wyngaert; (3) By ten votes to six, Finds that the Kingdom of Belgium must, by means of its own choosing, cancel the arrest warrant of 11 April 2000 and so inform the authorities to whom that warrant was circulated; IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, ParraAranguren, Rezek, Judge ad hoc Bula-Bula; AGAINST: Judges Oda, Higgins, Kooijmans, Al-Khasawneh, Buergenthal, Judge ad hoc Van den Wyngaert. ... President GUILLAUME appends a separate opinion to the Judgment of the Court; Judge ODA appends a dissenting opinion to the Judgment of the Court; Judge RANJEVA appends a declaration to the Judgment of the Court; Judge KOROMA appends a separate opinion to the Judgment of the Court; Judges HIGGINS, KOOIJMANS and BUERGENTHAL append a joint separate opinion to the Judgment of the Court; Judge REZEK appends a separate opinion to the Judgment of the Court; Judge ALKHASAWNEH appends a dissenting opinion to the Judgment of the Court, Judge ad hoc BULA-BULA appends a separate opinion to the Judgment of the Court; Judge ad hoc VAN DEN WYNGAERT appends a dissenting opinion to the Judgment of the Court.19 The Court reached these findings after having found, by fifteen votes to one, that it had jurisdiction, that the application of the DRC was not without object (and the case accordingly not moot) and that the application was admissible, thus rejecting the objections that Belgium had raised on those questions.

19

Id. at 150-51.

34


III.

Analysis of the Judgment

The Court’s decision can be better characterized by what it implies than by what it specifically addresses. There are eleven conclusions that can be drawn: 1. Diplomatic and other forms of international immunities are binding upon states and prevent them from exercising their national criminal jurisdiction over such persons while incumbents, thus recognizing temporal diplomatic and head of state immunity. By implication, one would also have to conclude that this does not in any way affect substantive immunity, which international law does not recognize with respect to certain international crimes, even those protected by temporal immunity. 2. Temporal immunity, however, can be derogated by international tribunals, as provided in the statutes of the ICTY,20 ICTR,21 and ICC,22 thus implicitly recognizing that the Security Council can establish special judicial organs that can alter the customary rules of international law on immunity, and that states can also accomplish this by treaty. 3. Since the ICC statute does not provide for universal jurisdiction except when a “situation” is referred to it by the Security Council,23 the ICJ avoided the contradiction, if not conflict, between international law norms that require prosecution for certain international crimes, like war crimes, and temporal diplomatic and other international immunities. 4. The Court did, however, address one of the consequences of Belgium’s universal jurisdiction law of 199324 by ordering it to nullify the international effect of its arrest warrant. But it did so without addressing the predicate issue of universal jurisdiction. 5. The unarticulated premise of this case is a world order consideration, upon which an unbridled or unregulated application of universal jurisdiction would negatively impact. But surely the Court could have recognized the validity, if not the binding obligation, to enforce certain international crimes through universal jurisdiction and established guidelines or parameters for its application to avoid disruption of world order.25

20

See ICTY Statute, supra note 11.

21

See ICTR Statute, supra note 12.

22

See ICC Statte, supra note 13.

23

Id. art. 13(b).

24

Act of 16 June1993 on the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977, art. 7, MONITEUR BELGE, Aug. 5, 1993 (Belgium) [hereinafter Belgian 1993 Universal Jurisdiction Law].

25

See, e.g., Princeton Principles on Universal Jurisdiction (Princeton University Program in Law and Public Affairs, 2001), reprinted in Bassiouni, Universal Jurisdiction, supra note 2, at 157.

35


6. More significantly, however, the Court left open the right of Belgium or, for that matter, of any other country to seek to exercise universal jurisdiction for certain international crimes over persons who are charged with such crimes whenever the temporal immunity lapses or, in other words, when the incumbent no longer holds office. 7. The Court did not address the issue of who is specifically entitled to such temporal immunity under the Vienna Convention on Diplomatic Relations,26 the Vienna Convention on Consular Relations,27 and the customary international law immunity of heads of state. In this case, the Vienna Convention on Diplomatic Relations28 was held to apply to an incumbent minister of foreign affairs. It can therefore be assumed that other government officials who do not fall within the meaning of the Vienna Convention on Diplomatic Relations are not immune from a state’s exercise of universal jurisdiction. However, this leaves open the question of a head of government who exercises diplomatic functions and cabinet officers who are sent on diplomatic missions. Thus, even though the Court did not have to address that issue, it could have addressed it in dicta to avoid international uncertainty. 8. In its judgment, which is final and binding upon the parties, the Court found, by thirteen votes to three: [t]hat the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest warrant of 11 April 2000, and its international circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo, in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law.29 9. The Court first rejected certain objections of Belgium concerning jurisdiction and admissibility based upon the fact that Mr. Yerodia was no longer the minister for foreign affairs or even a member of the government of the DRC at the time the Court was dealing with the case. Belgium argued that there no longer existed a “legal dispute” between the parties within the meaning of the declarations filed by them pursuant to Article 36 (2) of the ICJ Statute and that, therefore, the Court lacked jurisdiction. On this point, the Court recalled that its jurisdiction must be

26

See Vienna Diplomatic Convention, supra note 3.

27

Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter Vienna Consular Convention].

28

See Vienna Diplomatic Convention, supra note 3.

29

As stated in the ICJ’s Press Release 2002/04bis, available at http://www.icj-cij.org/icjwww/ipresscom/ipress2002/ipresscom2002-04bis_cobe_20020214.htm [hereinafter ICJ Press Release].

36


determined at the time of the institution of the proceedings and that at that time, there was clearly “a legal dispute between ... [the parties] concerning the international lawfulness of the arrest warrant of 11 April 2000 and the consequences to be drawn if the warrant was unlawful.”30 The Court accordingly rejected the first Belgian objection. The Court also rejected the second Belgian objection, namely that because of the abovementioned change in Mr. Yerodia’s situation, the case was without object. The Court found that this change had not deprived the application of its object. It pointed out that the DRC argued that the arrest warrant was unlawful and asked the Court so to declare, while continuing to seek cancellation of the warrant; for its part, Belgium continued to dispute the DRC’s submissions. The Court also rejected Belgium’s third objection, that the DRC’s claims were inadmissible because the facts underlying the application had changed in such a way as to produce a transformation of the dispute before the Court into another dispute. The DRC’s final submissions, the Court observed, arose “directly out of the question which is the subject-matter of that Application.”31 Belgium’s fourth objection, that because of the change of Mr. Yerodia’s situation, “the case has assumed the character of an action of diplomatic protection but one in which the individual being protected has failed to exhaust local remedies,”32 was also rejected by the Court. The Court noted that the DRC never invoked the individual rights of Mr. Yerodia and recalled that, in any event, the admissibility of the application must be determined as at the time of its filing. The Court eventually held, in response to a subsidiary argument of Belgium, that, while in accordance with a well-established principle the Court is “not entitled to decide upon questions not asked of it, [that] non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning.”33 The Court observed that in the present case, it thus could not rule in the operative part of its judgment upon the question of whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his asserted universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts because that question was not contained in the final submissions of the parties. 10. On the merits, the Court held that in this case it was only the immunity from criminal jurisdiction and the inviolability of an incumbent minister for foreign affairs that had to be considered. Having referred to certain treaties cited by the parties in this regard, and having concluded that they do not define the immuni-

30

Id.

31

Id.

32

Id.

33


37


ties of ministers for foreign affairs, the Court found that it had to decide the questions relating to these immunities on the basis of customary international law. The Court stated that in customary international law, the immunities accorded to ministers for foreign affairs are not granted for their personal benefit but to ensure the effective performance of their functions on behalf of their respective states. In order to determine the extent of these immunities, the Court first considered the nature of the functions exercised by a minister for foreign affairs. After an examination of the nature of those functions, the Court concluded that they are such that throughout the duration of office, a minister for foreign affairs, when abroad, enjoys full immunity from criminal jurisdiction and inviolability. That immunity and inviolability protect the individual concerned against any act of authority of another state which would hinder him or her in the performance of his or her duties. In this respect, no distinction can be drawn between acts performed by a minister for foreign affairs in an “official” capacity and those claimed to have been performed in a “private capacity” or, for that matter, between acts performed before the person concerned assumed office as minister for foreign affairs and acts committed during the period of office. Thus, if a minister for foreign affairs is arrested in another state on a criminal charge, he or she is clearly thereby prevented from exercising the functions of his or her office. The Court also addressed Belgium’s arguments that ministers for foreign affairs do not enjoy such immunity when they are suspected of having committed war crimes or crimes against humanity. The Court pointed out that, after having carefully examined state practice, including national legislation and those few existing decisions of national higher courts, such as the House of Lords or the French Court of Cassation, it was unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent ministers for foreign affairs during the exercise of these functions. Thus, it concluded that temporal immunity existed in international law.34 The Court further found that the rules governing the jurisdiction of national courts must be carefully distinguished from those governing international jurisdictional immunities. The immunities under customary international law, including those of ministers for foreign affairs, remain opposable before the courts of a foreign state, even where those courts exercise an extended criminal jurisdiction on the basis of various international conventions on the prevention and punishment of certain serious crimes.

34

See Bassiouni, Universal Jurisdiction, supra note 2, at 84. Such immunity is not available under Article 27 of the ICC Statute; see supra note 13. However, the ICC statute is part of a treaty, and states may thereby alter customary international law.

38


The Court emphasized, however, that the immunity from jurisdiction enjoyed by incumbent ministers for foreign affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, regardless of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period of time or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility. The Court then spelled out the circumstances in which the immunities enjoyed under international law by an incumbent or former minister for foreign affairs do not represent a bar to criminal prosecution. After examination of the terms of the arrest warrant of 11 April 2000, the Court stated that the issuance, as such, of the disputed arrest warrant represented an act by the Belgian judicial authorities intended to enable the arrest on Belgian territory of an incumbent minister for foreign affairs on charges of war crimes and crimes against humanity. It found that, given the nature and purpose of the warrant, its mere issuance constituted a violation of an obligation of Belgium towards the DRC in that it failed to respect the immunity that Mr. Yerodia enjoyed as the DRC’s incumbent minister for foreign affairs; more particularly, the issuance of said arrest warrant infringed the immunity from criminal jurisdiction and inviolability then enjoyed by him under international law. The Court also noted that Belgium admitted that the purpose of the international circulation of the disputed arrest warrant was “to establish a legal basis for the arrest of Mr. Yerodia ... abroad and his subsequent extradition to Belgium.”35 It found that, as in the case of the warrant’s issue, its international circulation since June 2000 by the Belgian authorities, given the nature and purpose of the warrant, constituted a violation of an obligation of Belgium towards the DRC, in that it failed to respect the immunity of the incumbent minister for foreign affairs of the DRC and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by him under international law. 11. Judge Van den Wyngaert, Belgium’s designated ad hoc judge, dissented from the Court’s decision on the merits. Her position, as reported below, is excerpted from the ICJ’s official press release:36 Judge Van den Wyngaert disagreed with the Court’s conclusion that there is a rule of customary international law granting immunity to incumbent foreign ministers. She viewed Belgium as not having violated a legal obligation owed in this respect to the DRC. Even assuming, arguendo, that there was such a rule, there had been no violation in the present case as the warrant could not be, and was not,

35


36

ICJ Press Release, supra note 29.

39


executed, either in the country where it was issued (Belgium) or in the countries to which it was circulated. The warrant was not an “international arrest warrant” in a legal sense: it could and did not have this effect, either in Belgium or in third countries. Judge Van den Wyngaert found that these were the only objective elements to which the Court should have looked. The subjective elements, i.e., whether the warrant had a psychological effect on Mr. Yerodia or whether it was perceived as offensive by the DRC (cf. the terms iniuria and capitis diminutio used by counsel for the DRC), were irrelevant to the dispute. On the subject of immunities, Judge Van den Wyngaert found no legal basis under international law for granting immunity to an incumbent minister for foreign affairs. There is no conventional international law on the subject; nor is there any customary international law on the subject. Before reaching the conclusion that ministers for foreign affairs enjoy full immunity from foreign jurisdiction under customary international law, the ICJ should have satisfied itself of the existence of state practice (usus) and opinio juris establishing an international custom to this effect. A “negative” practice, consisting of states abstaining from instituting criminal proceedings, cannot, in itself, be seen as evidence for an opinio juris,37 and abstinence may be attributed to many other factors, including practical and political considerations. Legal opinion does not support the Court’s proposition that ministers for foreign affairs are immune from the jurisdiction of other states under customary international law. Moreover, the Court reached this conclusion without regard to the general tendency toward the restriction of immunity of state officials (including even heads of state), not only in the field of private and commercial law but also in the field of criminal law, particularly where there are allegations of war crimes and crimes against humanity. Belgium may have acted contrary to international comity but it did not infringe international law. Judge Van den Wyngaert therefore viewed the whole judgment as based upon flawed reasoning. On the subject of universal jurisdiction, on which the Court did not pronounce itself in the present judgment, Judge Van den Wyngaert viewed Belgium as being perfectly entitled to apply its legislation to the war crimes and crimes against humanity allegedly committed by Mr. Yerodia in the DRC. Belgium’s Act of 16 June 1993 on the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977 (“War Crimes Act”), giving effect to the principle of universal jurisdiction regarding war crimes and crimes against humanity, is not contrary to international law. On the contrary, international law permits and even encourages states to assert this form of jurisdiction in order to ensure that suspects of war crimes and crimes against humanity do not find safe havens. Universal jurisdiction is not contrary to the

37

S.S. Lotus, supra note 6, at 28.

40


principle of complementarity in the Rome Statute of the ICC. The ICC will only be able to act if states that have jurisdiction are unwilling or genuinely unable to carry out investigation or prosecution (Art. 17). Furthermore, even where such willingness exists, the ICC, like the ad hoc international criminal tribunals, will not be able to deal with all the crimes that come under its jurisdiction; the ICC will not have the capacity to do so. Thus there will always be a need for states to investigate and prosecute core crimes. These states include, but are not limited to, national and territorial states. Especially in the case of sham trials, there will still be a need for third states to investigate and prosecute. Judge Van den Wyngaert viewed this case as a test case, presenting the first opportunity for the ICJ to address a number of questions that have not been considered since the PCIJ decided the Lotus case in 1927. In technical terms, the dispute was about an arrest warrant against an incumbent foreign minister. The warrant was, however, based upon charges of war crimes and crimes against humanity, which the Court failed even to mention in the dispositif. In a more principled way, then, the case was about how far states can or must go when implementing modern international criminal law. It was about the question of what international law requires or allows states to do as “agents” of the international community when they are confronted with complaints of victims of such crimes, given the fact that international criminal courts will not be able to judge all international crimes. It was about balancing two divergent interests in modern international criminal law: the need for international accountability for such crimes as torture, terrorism, war crimes and crimes against humanity and the principle of the sovereign equality of states, which presupposes a system of immunities. Judge Van den Wyngaert expressed regret that the Court did not address the dispute from this perspective and instead focused on the very narrow technical question of immunities for incumbent foreign ministers. In failing to address the dispute from a more principled perspective, Judge Van den Wyngaert regards the ICJ as having missed an excellent opportunity to contribute to the development of modern international criminal law. In legal doctrine, there is a plethora of recent scholarly writings on the subject. Major scholarly institutions and nongovernmental organizations have taken clear positions on the subject of international accountability. The latter may be seen as the opinion of civil society, an opinion that cannot be completely discounted in the formation of customary international law today. Judge Van den Wyngaert highly regrets that the Court failed to acknowledge this development and instead adopted formalistic reasoning, examining whether there is, under customary international law, an international crimes exception to the wrongly postulated rule of immunity for incumbent ministers under customary international law. By adopting this approach, the Court implicitly established a hierarchy between the rules on immunity (protecting incumbent former ministers) and the rules on international accountability (calling for the investigation of charges 41


against incumbent foreign ministers suspected of war crimes and crimes against humanity). By elevating the former rules to the level of customary international law in the first part of its reasoning, and finding that the latter have failed to reach the same status in the second part of its reasoning, the Court is relieved of giving further consideration to the legal status of the principle of international accountability under international law. Other courts, for example the House of Lords in the Pinochet38 case and the European Court of Human Rights in the Al-Adsani39 case, have given more thought and consideration to the balancing of the relative normative status of international ius cogens crimes and immunities. Judge Van den Wyngaert disagreed with the Court’s proposition that immunity does not lead to impunity for incumbent foreign ministers. This may be true in theory but not in practice. It is, in theory, true that an incumbent or former foreign minister can always be prosecuted in his own country or in other states if the state whom he represents waves immunity, as the Court asserts. However, this is precisely the core of the problem of impunity: where national authorities are not willing or able to investigate or prosecute, the crime goes unpunished. This is precisely what happened in the present case. The DRC accused Belgium of exercising universal jurisdiction in absentia against an incumbent foreign minister, but it itself had failed to exercise its jurisdiction in presentia in the case of Mr. Yerodia, thus violating the 1949 Geneva Conventions relative to the protection of war victims as well as failing to comply with a host of United Nations resolutions to this effect. The DRC did not come to the Court with clean hands: it blamed Belgium for investigating and prosecuting allegations of international crimes that it itself was obliged to investigate and prosecute. In addition, Judge Van den Wyngaert found the judgment highly unsatisfactory in stating that immunity does not lead to impunity of former foreign ministers. According to the Court, the lifting of full immunity in this case is only for acts committed prior or subsequent to the period of office and for acts committed during the period of office in a private capacity. Whether war crimes and crimes against humanity fall into this category, the Court failed to say. Judge Van den Wyngaert found it extremely regrettable that the ICJ did not, like the House of Lords in the Pinochet case, qualify its statement. It could, and indeed should, have added that war crimes and crimes against humanity can never fall into this category. Some crimes under international law (e.g., certain acts of genocide and of aggression) can, for practical purposes, only be committed with the means and mechanisms of a state and as part of a state policy. They cannot, from that perspec-

38

Regina v. Bartle & Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet Ugarte (Amnesty International et al. intervening) (No. 3), 2 All E.R. 97 (H.L. 1999).

39

Al-Adsani v. United Kingdom, Eur. Ct. H.R., App. No. 35763/97 (Nov. 21, 2001), available at .

42


tive, be anything other than “official” acts. Immunity should never apply to crimes under international law, whether before international courts or national courts. Victims of such violations bringing legal action against such persons in third states would face a hurdle in immunity from jurisdiction. Today, they may, by virtue of the application of the 1969 Convention on Special Missions, face the obstacle of immunity from execution while the minister is on an official visit, but they would not be barred from bringing an action altogether. Judge Van den Wyngaert regards that broadening immunities wider than this may lead to conflict with international human rights rules and particularly the right of access to court, as was raised in the recent Al-Adsani case in the European Court of Human Rights. According to Judge Van den Wyngaert, an implicit consideration behind this judgment may have been a concern for abuse and chaos arising from the risk of states asserting unbridled universal jurisdiction and engaging in abusive prosecutions against incumbent foreign ministers of other states, thus paralyzing the functioning of such states. In the present dispute, however, there was no allegation of abuse of process on the part of Belgium. The criminal proceedings against Mr. Yerodia were not frivolous or abusive. The warrant was issued after two years of criminal investigations, and there were no allegations that the investigating judge who issued it acted on false factual evidence. The accusation that Belgium applied its War Crimes Act in an offensive and discriminatory manner against a foreign minister of the DRC was manifestly ill-founded. Belgium, rightly or wrongly, wishes to act as an agent of the world community by allowing complaints to be brought by foreign victims of serious human rights abuses committed abroad. Since the infamous Dutroux case (a case of child molestation attracting great media attention in the late 1990s), Belgium has amended its laws in order to improve victims’ procedural rights, without discriminating between Belgian and foreign victims. In doing so, Belgium has also opened its courts to victims bringing charges based upon war crimes and crimes against humanity committed abroad. This new legislation has been applied not only in the case against Mr. Yerodia but also in cases against Mr. Pinochet, Mr. Sharon, Mr. Rafzanjani, Mr. Hissen Habre, Mr. Fidel Castro, and others. It would therefore be wrong to say that the War Crimes Act has been applied against a national of the DRC in a discriminatory manner. In the abstract, the chaos argument may be pertinent. This risk may exist, and the Court could have legitimately warned against it in its judgment without necessarily reaching the conclusion that a rule of customary international law exists to the effect of granting immunity to foreign ministers. Judge Van den Wyngaert observes that granting immunity to incumbent foreign ministers may open the door to other sorts of abuse. It dramatically increases the number of persons who enjoy international immunity from jurisdiction. Recognizing immunity for other members of government is just one step further: in present day society, all cabinet members represent their countries in various meetings. If foreign ministers need 43


immunity to perform their functions, why not grant immunity to other cabinet members as well? The ICJ does not state this proposition but it appears to flow from the reasoning leading to the conclusion that foreign ministers are immune from prosecution. The rationale for treating foreign ministers the same as diplomatic agents and heads of state, which lies at the center of the Court’s reasoning, could potentially be extended to other ministers who represent the state officially, for example ministers of education who must attend UNESCO conferences in New York or other ministers receiving honorary doctorates abroad. Male fide governments could abuse such an extension by appointing persons to cabinet posts in order to shelter them from prosecutions on charges of international crimes. Judge Van den Wyngaert concludes from this analysis that the ICJ, in its effort to close one Pandora’s box, fearing chaos and abuse, may have opened another: the granting of immunity, and thus de facto impunity, to an increasing number of government officials.40

IV.

Framing the Issue in Order to Avoid the Issue

In every case, the framing of the legal issue predetermines its possible outcomes. Here, the ICJ framed the issue in a manner that allowed it to avoid the ultimate substantive issue of universal jurisdiction. There is no better way to demonstrate the legal technique of framing an issue than with the following illustration from the New Testament. Jesus of Nazareth was confronted by the Jewish Pharisees with the purposefully difficult question of how he would reconcile the judgment of stoning to death of an adulteress with his teachings. Jesus did not want the woman stoned, but how was he to achieve this result without challenging the validity of Jewish law, questioning the judgment rendered against her, or arguing the facts upon which her conviction was based? Thus, he framed the issue in such a way as to avoid these thorny questions and yet obtain his desired outcome. He posited his answer in the most masterful manner, whose compelling logic would inevitably produce the intended result: “Let he among you who is without sin cast the first stone.”41 Far be it from me to compare the ICJ’s framing of the issues in the instant case in the way that Jesus Christ handled the situation described in the Bible. Nevertheless, that great lesson informs us that outcomes are determined by the manner in which issues are framed. Consequently, when the ICJ posited the substantive issue in this case in terms of whether diplomatic immunity applied temporarily to an incumbent minister of foreign affairs pursuant to the Vienna

40

See ICJ Press Release, supra note 29.

41

John 8: 3-7.

44


Convention on Diplomatic Relations, which, according to the Court, also reflects customary international law on this issue,42 there was only one possible outcome: the procedural aspects of immunity under international law are as unambiguous as they are without exception, so long as the beneficiaries occupy the positions or functions covered by that immunity.43 Consequently, the Belgian arrest warrant of April 11, 2000 was held invalid.44 The ICJ did not ask, for example, whether the Belgian law on universal jurisdiction45 was valid or invalid, whether its application without a nexus to the enforcing state was an overreach, whether the facts raised questions about the status of the person in question, or whether the facts warranted the conclusion that the international crimes committed were subject to arrest pursuant to an exercise of universal jurisdiction because they were jus cogens crimes.46 None of these questions of law and fact had to be reached because of the artful manner in which the issue presented was framed by the Court. With some poetic license, it was: “Let he who benefits from diplomatic immunity go free so long as he enjoys such immunity.” The Court nevertheless did not want this outcome to produce other effects beyond that narrow ruling. More particularly, it did not want temporal immunity to result in long-term impunity, let alone in a back-door substantive immunity for jus cogens crimes.47 However, once having framed the issue of the case as it did, it could only address the limitations of its consequences by way of dicta, and so it did. The principle of nonapplicability of substantive immunity for jus cogens crimes was enunciated by the Court in dicta.48 The Court’s views on that matter are evident in references made in the judgment to the jurisprudence of Nuremberg, Tokyo and the ICTY, ICTR and ICC.49 As to the ICTY, ICTR and

42

Arrest Warrant of 11 April 2000, 2002 I.C.J. 121, 140 para. 52.

43

Id. para. 53. Unfortunately, the ICJ decision here may have the unintended consequence of encouraging states to invent various cabinet positions, functional or fictitious, in order to shelter alleged human rights violators from being prosecuted in other states.

44

Id. at 146 para. 70.

45

Belgian 1993 Universal Jurisdiction Law, supra note 24.

46

See M. Cherif Bassiouni, The Need for International Accountability, in 3 INTERNATIONAL CRIMINAL LAW 11 (M. Cherif Bassiouni ed., 2d rev. ed. 1999) [hereinafter Bassiouni, The Need for Accountability].

47

But see the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind (1996), 51 UN GAOR Supp. (No. 10) at 14, U.N. Doc. A/CN.4/L.532, corr.1, corr.3 (1996) (commentary to article 7 noting that “[t]he absence of any procedural immunity … is an essential corollary of the absence of any substantive immunity or defence.”).

48

Arrest Warrant of 11 April 2000, 2002 I.C.J. 121, 143 paras. 60-61.

49

Id. at 142, para. 58. See also M. CHERIF BASSIOUNI, THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A DOCUMENTARY HISTORY (1998); M. Cherif Bassiouni, International Criminal Court Ratification and National Implementing Legislation, 71 REV. INT’L DE DROIT PÉNAL (2000).

45


ICC statutes, the judgment underscored that the first two are the product of Security Council resolutions while the third is a treaty-based institution.50 Thus, the Court affirmed, although it did not explicitly so hold, that these tribunals’ statutes and those of its two predecessors, the IMT and IMTFE, embodied the customary international law principle of no impunity for jus cogens crimes. Paradoxically, the expansive nature of the Court’s dicta was made possible by the de jure limited scope of ICJ judgments in accordance with Article 59 of the ICJ Statute. That provision limits the effects of judgments to the parties and to the facts submitted for adjudication by the parties. Thus, since dicta is neither binding upon the parties to a given dispute nor is it binding as a precedent, the Court frequently resorts to it for other reasons. The great merit of some dicta is that it can send subliminal legal messages to the international legal community without any binding legal consequences. These messages are expected to be received wisely by governmental lawyers who can then steer their advisees in higher governmental spheres from making decisions contrary to the contents of the legal message. If the message is not met with opposition by governmental lawyers and international law experts, a subliminal response is effectively given to the initial message that the legal norm referenced in the dicta will be deemed applicable in futuro. Thus, the Court can be bolder in future cases and can posit in explicit terms the legal proposition to which it had previously referred only in dicta. This incremental process is common in ICJ practice and reveals the elasticity of Article 59 of the ICJ Statute.51 What concerns might have influenced the ICJ to have taken this route? Since unarticulated political considerations usually lie beneath the surface of most ICJ cases, the inquiry should start there; in this writer’s opinion, they consists essentially of the following. The international community has clearly moved closer in the direction of curtailing impunity and enhancing accountability for international crimes,52 a goal that the ICJ apparently shares, as expressed in its judgment. Yet how can this be achieved? Effective enforcement of international criminal accountability depends upon a state’s willingness to exercise its national criminal jurisdiction on the basis of one of the thexories of jurisdiction that connects the enforcing state with the crime (territoriality), the perpetrator (active personality), or the victim (passive personality).53 In the absence of any such applicable theory, states can rely upon

50

Arrest Warrant of 11 April 2000, 2002 I.C.J. 121, 142 para. 61.

51

In other words, if judgments only apply to the parties and to the facts of a given case, they can have no precedential effect. However, the reference to prior ICJ judgments creates de facto jurisprudential case law.

52

This is plainly seen in the establishment of the ICTY, the ICTR and the ICC.

53

See authorities cited supra note 7.

46


universal jurisdiction and assume the function designated by the Roman law of actio popularis.54 However, there is no existing conventional or customary international law regulating the conditions for exercising universal jurisdiction.55 Belgium’s law provides for unbridled universal jurisdiction, which means that its enforcement jurisdiction can reach anywhere in the world and over anyone, no matter who.56 Thus, it can reach heads of state and governments, ministers, and senior governmental and military officials. The prospect of several states engaging in such a form of enforcement jurisdiction is certain to create friction, if not conflict, between governments and could even cause disruption of world order.57 Thus, the real unstated issue before the Court was how to preserve the goal of accountability and its enforcement mechanism of universal jurisdiction while minimizing abuses of judicial power, potential interstate conflicts and possible disruptions of world order. Why the ICJ did not forthrightly acknowledge the issue with which it was faced is more a reflection of its cautious style than its ambivalence about the substantive issues. Nevertheless, excessive caution in the face of such value-laden principles is perplexing; in fact, it aroused strong criticism from three judges for the Court’s failure to confront the issue of universal jurisdiction at all: 3. In our opinion it was not only desirable, but indeed necessary, that the Court should have stated its position on this issue of jurisdiction. The reasons are various. “Immunity” is the common shorthand phrase for “immunity from jurisdiction.” If there is no jurisdiction en principe, then the question of an immunity from a jurisdiction which would otherwise exist simply does not arise. The Court, in passing over the question of jurisdiction, has given the impression that “immunity” is a freestanding topic of international law. It is not. “Immunity” and “jurisdiction” are inextricably linked. Whether there is “immunity” in any given instance will depend not only upon the status of Mr. Yerodia but also

54

Actio popularis means to act on behalf of the community; in this case, the community would be the international community. See, e.g., MARC HENZELIN, LE PRINCIPE DE L’UNIVERSALITÉ EN DROIT PÉNAL INTERNATIONAL: DROIT ET OBLIGATION POUR LES ETATS DE POURSUIVRE ET JUGER SELON LE PRINCIPE DE L’UNIVERSALITÉ (2000).

55

See Bassiouni, Universal Jurisdiction, supra note 2.

56

See Belgian 1993 Universal Jurisdiction Law, supra note 24.

57

Surely the Court was mindful that the investigating judge of Brussels who issued the arrest warrant in this case was also considering a criminal complaint against Israeli Prime Minister Ariel Sharon. However, the Court must also have considered other potentialities of charges being brought in some countries against former heads of state and governments, former ministers of defense and foreign officials, and retired generals. One such famous name is that of former U.S. Secretary of State Henry Kissinger. See CHRISTOPHER HITCHENS, THE TRIAL OF HENRY KISSINGER (2001).

47


upon what type of jurisdiction, and on what basis, the Belgian authorities were seeking to assert it.58 Indeed, an affirmation by the ICJ of the principle of accountability for jus cogens crimes59 would have been an expression of only modest intellectual and moral courage.

V.

Conclusion

The ICJ’s ruling was patently cautious, as evidenced by several concurring opinions and more so by the courageous dissenting opinion. At a time when international criminal justice is in search of new ways to combat impunity and to reinforce accountability, the ICJ should have risen to the challenge and made its contribution to these goals. The concurring opinions of Judges Higgins, Kooijmans and Buergenthal and the dissenting opinion of Judge ad hoc Van den Wyngaert are to that extent more enlightening than the majority opinion.

58

Arrest Warrant of 11 April 2000, 2002 I.C.J. 121 (Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal). This very issue is probably what prompted Judges Higgins, Kooijmans and Buergenthal to formulate their separate opinion. Their opinion notes an evolving principle of international law towards the exercise of universal jurisdiction for crimes against humanity.

59

See Bassiouni, The Need for Accountability, supra note 46.

48

UNIVERSAL JURISDICTION: HOW UNIVERSAL IS IT? A STUDY OF COMPETING THEORIES Steven W. Becker*

“There is no generally accepted definition of universal jurisdiction in conventional or customary international law.” – Judge Van den Wyngaert, from her dissent in Case Concerning the Arrest Warrant of 11 April 20001 I.

Introduction ................................................................................................. 50

II. Defining Universal Jurisdiction .................................................................. 50 III. Distinguishing What Universal Jurisdiction Is Not: Attorney General v. Eichmann ................................................................................................. 61 A. District Court Judgment......................................................................... 63 B. Supreme Court Judgment....................................................................... 66 IV. Competing Theories of Universal Jurisdiction............................................ 68 A. Maximalist View .................................................................................... 68 B. Minimalist View ..................................................................................... 71 C. Median View .......................................................................................... 73 V. Conclusion ................................................................................................... 75

*

Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, Illinois; Adjunct Professor, DePaul University College of Law, Chicago, Illinois; Senior Fellow, International Human Rights Law Institute, DePaul University College of Law. Mr. Becker served as the rapporteur to the Drafting Committee for the Princeton Project on Universal Jurisdiction and prepared the COMMENTARY ON THE PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION (Princeton Univ. Press 2001). The author gratefully acknowledges the encouragement and valuable suggestions of Professor M. Cherif Bassiouni, DePaul University College of Law, in the preparation of this article. The views expressed herein are solely the author’s.

1

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14) at ¶ 44 (Van den Wyngaert, J., dissenting), reprinted in 41 I.L.M. 536, 634.


UNIVERSAL JURISDICTION: HOW UNIVERSAL IS IT?

I.

Introduction

During the past decade, there has been a meteoric rise in efforts to utilize the theory of universal jurisdiction to prevent impunity and require criminal accountability for the perpetrators of serious crimes under international law. The intellectual climate produced by this movement has led to the development of three distinct schools of thought on universality. These competing theories not only define the scope of the present debate but also identify the respective goals and dangers inherent in the application of this controversial theory of extraterritorial criminal jurisdiction. The present article seeks: (1) to outline the many doctrinal controversies surrounding attempts to define universal jurisdiction, with particular emphasis being placed on identifying the rationale underlying the exercise of universality; (2) to distinguish, in an effort to avoid continued confusion, what universal jurisdiction is not; and (3) to give an overview of the three prevailing theories of universality with the hope of bringing clarity to the present controversy, which is currently one of the most dynamic and divisive subjects in international law.

II.

Defining Universal Jurisdiction

The terminology of “universal” jurisdiction can be traced back to 1945.2 Universal jurisdiction, however, has no universally accepted definition.3 In Professor Randall’s seminal work on the subject, he opined that the theory of universal jurisdiction “provides every state with jurisdiction over a limited category of offenses generally recognized as of universal concern, regardless of the situs of the offense and the nationalities of the offender and the offended.”4 Recent scholarly efforts to bring clarity to the meaning of universal jurisdiction have resulted in similar definitions. For example, the Princeton Principles on Universal Jurisdiction (hereinafter the “Princeton Principles”) define universal jurisdiction as “criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or the convicted perpetrator, the nationality of the victim, or any other connection to the state exer-

2

See Willard B. Cowles, Universality of Jurisdiction Over War Crimes, 33 CAL. L. REV. 177, 178 (1945); see also COMM. ON INT’L HUM. RTS. LAW AND PRACTICE, INT’L LAW ASS’N, FINAL REPORT ON THE EXERCISE OF UNIVERSAL JURISDICTION IN RESPECT OF GROSS HUMAN RIGHTS OFFENCES 3 (2000) [hereinafter KAMMINGA REPORT] (“The term ‘universal jurisdiction’ appears to have been coined by Cowles in 1945.”).

3

Arrest Warrant of 11 April 2000, 2002 I.C.J. 121 at ¶ 44 (Van den Wyngaert, J., dissenting), reprinted in 41 I.L.M. 536, 634.

4

Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785, 788 (1988).

50


cising such jurisdiction.”5 Likewise, the International Law Association’s Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences (hereinafter the “Kamminga Report”) provides that “[u]nder the principle of universal jurisdiction a state is entitled or even required to bring proceedings in respect of certain serious crimes, irrespective of the location of the crime, and irrespective of the nationality of the perpetrator or the victim.”6 Despite general agreement on this overall framework, however, debate continues on significant issues, such as whether the presence of the accused in the state exercising universality is required and whether some “connecting link” with the state seeking to utilize such jurisdiction is mandated. With regard to the presence of the defendant, the Comment to the early Harvard Draft Convention on Jurisdiction with Respect to Crime (1935) was unequivocal in declaring that Article 10, which, in its draft, addressed universality for crimes other than piracy, “provides for jurisdiction of crimes committed by aliens outside the territory on the principle of universality, that is to say, on the sole basis of the presence of the alien within the territory of the State assuming jurisdiction ... .”7 In like manner, in the Kamminga Report, the Committee concluded that, under the theory of universal jurisdiction, “[t]he only connection between the crime and the prosecuting state that may be required is the physical presence of the alleged offender within the jurisdiction of that state.”8 Most recently, President Guillaume of the International Court of Justice wrote that states may exercise jurisdiction “in cases of piracy and in the situations of subsidiary universal jurisdiction provided for by various conventions if the offender is present on their territory.”9 In contrast, in her dissenting opinion from the International Court of Justice’s recent judgment in the Case Concerning the Arrest Warrant of 11 April 2000, Judge Christine Van den Wyngaert contended that the exercise of universal jurisdiction in absentia was not contrary to international law.10 In this regard, Judge Van den Wyngaert stated, “The term ‘universal jurisdiction’ does not necessarily mean that the suspect should be present on the territory of the prosecuting State.

5

PRINCETON PROJECT ON UNIVERSAL JURISDICTION, PRINCETON PRINCIPLES JURISDICTION, Principle 1(1), at 28 (2001) [hereinafter PRINCETON PRINCIPLES].

6

KAMMINGA REPORT, supra note 2, at 2.

7

HARVARD RESEARCH IN INTERNATIONAL LAW, DRAFT CONVENTION ON JURISDICTION WITH RESPECT TO CRIME, 29 AM. J. INT’L L. 435, 573, art. 10, comment (Supp. 1935) [hereinafter HARVARD DRAFT CONVENTION] (emphasis added).

8

KAMMINGA REPORT, supra note 2, at 2.

9

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14) at ¶ 16 (separate opinion of President Guillaume), reprinted in 41 I.L.M. 536, 563.

10

Id. at ¶¶ 52-58 (Van den Wyngaert, J., dissenting), reprinted in 41 I.L.M. 536, 636-37.

51

ON

UNIVERSAL


Assuming the presence of the accused, as some authors do, does not necessarily mean that it is a legal requirement.”11 She concluded that “there is no conventional or customary international law or legal doctrine in support of the proposition that (universal) jurisdiction for war crimes and crimes against humanity can only be exercised if the defendant is present on the territory of the prosecuting State.”12 On the other hand, the Princeton Principles provide for a unique integration of these seemingly irreconcilable concepts. Although requiring that the defendant be present for trial,13 the language of the pertinent principle “does not prevent a state from initiating the criminal process, conducting an investigation, issuing an indictment, or requesting extradition, when the accused is not present.”14 In this manner, the drafters attempted to incorporate into the Principles one of the valuable functions of in absentia proceedings, viz., the preservation of evidence.15 In addition, issues have arisen in national prosecutions regarding whether there must be some “connecting link” between the accused and the enforcing state to justify the latter’s exercise of universal jurisdiction over the former. The 1999 decision of the German Supreme Court requiring such a link under Section 6 of the German Criminal Code is probably the best-known example: On 26 September 1997, Nikola Jorgic, a former leader of a Serb paramilitary group, was found guilty by a court in Düsseldorf on 11 counts of genocide and sentenced to life imprisonment. The evidence against him consisted of a television interview in which he confirmed his leadership role and a long series of eyewitness testimonies. On 30 April 1999, the Bundesgerichtshof (Supreme Court) upheld the conviction and confirmed that German courts had jurisdiction on the basis of the Genocide Convention and because there were sufficient links with

11

Id. at ¶ 53, reprinted in 41 I.L.M. 536, 636.

12

Id. at ¶ 58, reprinted in 41 I.L.M. 536, 637.

13

PRINCETON PRINCIPLES, supra note 5, Principle 1(2), at 28 (“Universal jurisdiction may be exercised by a competent and ordinary judicial body of any state in order to try a person duly accused of committing serious crimes under international law ... provided the person is present before such judicial body.”).

14

STEVEN W. BECKER, COMMENTARY ON THE PRINCETON PRINCIPLES 43-44 (2001) [hereinafter PRINCETON COMMENTARY].

15

See id. at 54 (“There was also some discussion about whether to include a provision on trials in absentia in the Principles. Although generally considered anathema in common law countries, such trials are traditional in certain civil law nations, such as France, and serve a valuable function with respect to the preservation of evidence. In the end it was decided not to refer to such trials in the Principles.”).

52

ON

UNIVERSAL JURISDICTION 39,


Germany, inter alia because the defendant had been residing in Germany for a long time.16 Interestingly, the Belgian law that formed the basis for the recent dispute between the Democratic Republic of the Congo and Belgium before the International Court of Justice will soon be amended to require a “connecting link” to Belgium.17 Belgium’s 1993 Act Concerning the Punishment of Grave Breaches of International Humanitarian Law, as amended in February 1999,18 which has been described as “one of the most progressive of its kind” in the world,19 provides for jurisdiction over the crimes of genocide, crimes against humanity, and grave breaches of the Geneva Conventions of 194920 and Additional Protocols I21 and II22 “irrespective of where such breaches have been committed.”23 Yet now, due to intense pressure from the United States to change the law, coupled with a threat to relocate NATO’s headquarters out of Brussels, the act will be changed, thereby “limiting the reach of Belgian courts to cases with a direct link to the country, for example when victims or suspects are Belgian citizens or residents.”24

16

KAMMINGA REPORT, supra note 2, at 27. See Bundesgerichtshof, Urteil vom. 30 Apr. 1999, 3 StR 215/98; see also Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14) at ¶ 12 (separate opinion of President Guillaume), reprinted in 41 I.L.M. 536, 561 (examining Germany’s requirement of a legitimizing “link”); M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 VA. J. INT’L L. 81, 143 (2001) (discussing Section 6 of the German Criminal Code).

17

See Paul Ames, Belgian Government Agrees to Restrict Use of War Crime Law, CHIC. DAILY L. BULL., June 23, 2003, at 2.

18

Act of 16 June 1993, as modified by the Act of 10 Feb. 1999 (Belg.) [hereinafter Belgian Act], 38 I.L.M. 921.

19

Stefaan Smis & Kim Van der Borght, Introductory Note, Belgium: Act Concerning the Punishment of Grave Breaches of International Humanitarian Law, February 10, 1999, 38 I.L.M. 918, 920.

20

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

21

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3.

22

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.

23

Belgian Act, supra note 18, art. 7, 38 I.L.M. at 924.

24

Belgium to Limit War Crimes Law Used to Go after President Bush, CHIC. SUN-TIMES, June 23, 2003, at 34. See Douglass W. Cassel, Jr., Genocidal Generals Safe for Now, CHIC. DAILY L. BULL., July 17, 2003, at 6 (“[T]he Bush administration has all but declared war on universal jurisdiction over human rights crimes. It has now pummeled the leading universal jurisdiction country— Belgium – into abandoning its law.”).

53


There has also been much disagreement over the extent to which universal jurisdiction has been applied in practice. Views on this topic range from the position that the exercise of universal jurisdiction is virtually non-existent25 to the assertion that evidence of the application of universality is plentiful not only in judicial pronouncements but in national legislation, as well.26 Unfortunately, some of those who advocate the latter position have, in support of their claims, erroneously cited to judicial decisions that were not based upon universal jurisdiction but were, in fact, predicated upon other theories of extraterritorial jurisdiction.27 Similarly, some of these advocates have characterized certain national enactments as representing an invocation of universality when they do not.28 In this same vein, there is also no consensus as to which international crimes universal jurisdiction may be applied. Although war crimes, crimes against humanity, and genocide are most often cited,29 other crimes have also been suggested due to their historical links to universality or because of the perceived heinousness of their character. For example, in addition to the three crimes listed above, the drafters of the Princeton Principles added piracy, slavery, torture, and

25

See, e.g., Bassiouni, supra note 16, at 106 (“The judicial practice of states is also limited. To the knowledge of this writer, no state practice presently exists whereby states have resorted to universal jurisdiction without the existence of national legislation, even when international treaties provide for such a jurisdictional basis.”); Anthony Sammons, The “Under-Theorization” of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts, 21 BERKELEY J. INT’L L. 111, 143 (2003) (“Unquestionably, the concept of universal jurisdiction remains in its theoretical and practical infancy.”); David Scheffer, Opening Address, 35 NEW ENG. L. REV. 233, 233 (2001) (“Everyone talks about universal jurisdiction, but almost no one practices it. It has been a mostly rhetorical exercise since World War II. Few prosecutors pro-actively seek out opportunities to use it. The evidence of state practice on universal jurisdiction is sparse ... .”).

26

See, e.g., AMNESTY INTERNATIONAL, UNIVERSAL JURISDICTION: THE DUTY OF STATES TO ENACT AND IMPLEMENT LEGISLATION (Sept. 2001); AMNESTY INTERNATIONAL, UNITED KINGDOM: UNIVERSAL JURISDICTION AND ABSENCE OF IMMUNITY FOR CRIMES AGAINST HUMANITY (n.d.), http://www.amnesty.org.uk/news/pinochet/report.html; REDRESS, UNIVERSAL JURISDICTION IN EUROPE: CRIMINAL PROSECUTIONS IN EUROPE SINCE 1990 FOR WAR CRIMES, CRIMES AGAINST HUMANITY, TORTURE AND GENOCIDE (30 June 1999); see also HUMAN RIGHTS WATCH, THE PINOCHET PRECEDENT: HOW VICTIMS CAN PURSUE HUMAN RIGHTS CRIMINALS ABROAD (Sept. 2000) [hereinafter THE PINOCHET PRECEDENT].

27

See infra notes 62-92 and accompanying text.

28

See Bassiouni, supra note 16, at 83. Universal jurisdiction is not as well established in conventional and customary international law as its ardent proponents, including major human rights organizations, profess it to be. These organizations have listed countries, which they claim rely on universal jurisdiction; in fact, the legal provisions they cite do not stand for that proposition, or at least not as unequivocally as represented.

29

See id. at 82. The Kamminga Report adds torture to this list. See KAMMINGA REPORT, supra note 2, at 5-8.

54


crimes against peace.30 On the other hand, human rights advocates assert that the range of crimes to which universal jurisdiction may be applied is much more expansive, extending even to such domestic crimes as murder, abduction, assault, and rape.31 With respect to the theoretical foundations of universal jurisdiction, Professor Bassiouni provides the following explanation: The theory of universal jurisdiction is extraneous to the concept of national sovereignty, which is the historical basis for national criminal jurisdiction. Universal jurisdiction transcends national sovereignty. In addition, the exercise of universal jurisdiction displaces the right of the accused to be tried by the “natural judge,” a hallmark of the traditional exercise of territorial jurisdiction. The rationale behind the exercise of such jurisdiction is: (1) no other state can exercise jurisdiction on the basis of the traditional doctrines; (2) no other state has a direct interest; and (3) there is an interest of the international community to enforce. Thus, states exercise universal jurisdiction not only as national jurisdiction, but also as a surrogate for the international community. In other words, a state exercising universal jurisdiction carries out an actio popularis against persons who are hostis humani generis.32 Professor Bassiouni further notes that “a state acts on behalf of the international community in a manner equivalent to the Roman concept of actio popularis. The exercising state acts on behalf of the international community because it has an interest in the preservation of world order as a member of that community.”33 There is not universal agreement among scholars, however, as to whether the ancient doctrine of actio popularis can justify the exercise of universal jurisdiction as presently conceived.34 A similar debate persists over whether an independent theory of universality may be founded in jus cogens international

30

PRINCETON PRINCIPLES, supra note 5, Principle 2(1), at 29 (enumerating “serious crimes under international law”).

31

Christopher Keith Hall, Universal Jurisdiction: Challenges to Implementation Since Pinochet I, 14 INTERIGHTS BULL. 3, 3 (2002).

32

Bassiouni, supra note 16, at 96.

33

Id. at 88. See Sammons, supra note 25, at 137 (“When an individual state undertakes the prosecution of a perpetrator pursuant to an assertion of universal jurisdiction, that state acts as the de facto agent for the international community.”).

34

See Alfred P. Rubin, Actio Popularis, Jus Cogens and Offenses Erga Omnes?, 35 NEW ENG. L. REV. 265, 268 (2001) (rejecting the notion that the invocation of universal jurisdiction may be justified as an actio popularis).

55


crimes35 or justified as an obligation erga omnes.36 In any event, it has been suggested that the theory of universal jurisdiction may serve a valuable function in fulfilling the maxim aut dedere aut judicare.37 Another question that has yet to be definitively answered is what is the specific rationale behind universal jurisdiction; in other words, what makes it unique and distinguishes it from all other forms of extraterritorial criminal jurisdiction? Most authorities agree that the origins of universal jurisdiction can be found in efforts to combat piracy on the high seas.38 Even this notion, however, has been

35

Compare Bassiouni, supra note 16, at 153 (“The combination of international and national sources of law has produced a cumulative effect sufficient to warrant the recognition of universal jurisdiction for jus cogens crimes.”), and M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 LAW & CONTEMP. PROBS. 63, 63 (Autumn 1996) (“International crimes that rise to the level of jus cogens constitute obligatio erga omnes which are inderogable. Legal obligations which arise from the higher status of such crimes include the duty to prosecute or extradite, ... and universal jurisdiction over perpetrators of such crimes.”), with Rubin, supra note 34, at 271-77 (rejecting jus cogens formulation for universal jurisdiction).

36

Compare Bassiouni, supra note 16, at 148-49 (pointing out that, due to the jus cogens nature of specified international crimes, certain duties arise that create “an obligation erga omnes that is binding even upon states that refuse to recognize such an obligation”), with Rubin, supra note 34, at 278. [T]here thus seems to be no support for the doctrine of offenses erga omnes or any other form of universal jurisdiction-to-adjudicate either in treaty law ..., customary law based on state practice, or even any clear and wide-spread municipal law applicable by analogy to the international legal order. The only support for what seems to be an argument for universal jurisdiction-to-adjudicate seems to come from publicists, not even courts. And the logic of the publicists supporting universal jurisdiction-to-adjudicate or any other implication of attaching the phrase erga omnes to any known facts seems remarkably elusive.

37

See Bassiouni, supra note 16, at 152-53. What truly advanced the recognition and application of universal jurisdiction has been the acceptance of the maxim aut dedere aut judicare as an international civitas maxima. The duty to prosecute or extradite and, where appropriate, to punish persons accused of or convicted of international crimes, particularly jus cogens crimes because of their heinous nature and disruptive impact on peace and security, necessarily leads to the recognition of universal jurisdiction as a means of achieving the goals of aut dedere aut judicare.

38

See, e.g., HARVARD DRAFT CONVENTION, supra note 7, art. 9, comment, at 563; Bassiouni, supra note 16, at 108-12; id. at 108 (“Piracy is deemed the basis of universal criminal jurisdiction for jus cogens crimes, but that was not always the case.”); Randall, supra note 4, at 791 (“Piracy is the oldest offense that invokes universal jurisdiction.”); Sammons, supra note 25, at 125 (“The historical roots of universal jurisdiction originated with the construction of legal norms designed to further the pursuit and punishment of pirates.”).

56


forcefully challenged.39 Yet, assuming for the sake of argument that the birth of universality is inextricably linked with piracy, on what basis was such a radical departure from the traditional principle of territoriality justified? Many scholars and jurists take the position that the rise of universal jurisdiction vis-à-vis piracy can be explained in terms of the especially heinous nature of piratical acts and the corresponding designation of pirates as hostis humani generis,40 for which such marauders were subject to capture and punishment by any nation into whose hands they fell.41 For example, one commentator stated that “[a] more accurate rationale for not limiting jurisdiction over pirates to their state of nationality relies on the fundamental nature of piratical offenses. Piracy may comprise particularly heinous and wicked acts of violence or depredation, which are often committed indiscriminately against the vessels and nations of numerous states.”42 Such reasoning, however, is flawed.43 If the exercise of universal jurisdiction were based upon a determination of “heinousness,” it would open up the application of this most extreme form of jurisdiction to all the vagaries that come with such subjective interpretations. For

39

See ALFRED P. RUBIN, ETHICS AND AUTHORITY IN INTERNATIONAL LAW 82-130 (1997); Rubin, supra note 34, at 267. Appeals to supposed precedents, like “piracy” and the international traffic in slaves foundered on the rocks of fact; on closer examination, although judicial and scholarly dicta were common, real cases supporting universal conscience simply did not exist. Worse, assertions of “universal jurisdiction,” the notion that any state’s tribunal could try any foreigner for his or her acts outside the normal legal reach of the tribunal’s state’s legal process, foundered on the same rocks.

40

Randall, supra note 4, at 794; United States v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 232 (1844). Where the act uses the word “piratical,” it does so in a general sense; importing that the aggression is unauthorized by the law of nations, hostile in its character, wanton and criminal in its commission, and utterly without any sanction from any public authority or sovereign power. In short, it means that the act belongs to the class of offenses which pirates are in the habit of perpetrating, whether they do it for purpose of plunder, or for purposes of hatred, revenge, or wanton abuse of power. A pirate is deemed, and properly deemed, hostis humani generis. But why is he so deemed? Because he commits hostilities upon the subjects and property of any or all nations, without any regard to right or duty, or any pretense of public authority.

41

See Randall, supra note 4, at 791.

42

Id. at 794.

43

See Sammons, supra note 25, at 128. Establishment of jurisdiction over a category of crimes simply because of their “heinous” nature reflects an inadequate appreciation of universal jurisdiction’s conceptual foundation. Doing so is comparable to a state answering the question, “Why do we have jurisdiction over this crime?,” by responding “well, because the crime is so bad.” This reasoning is flawed and lacks a sound foundational basis for the assertion of jurisdiction. Inevitably, such a lack of foundation will result in inconsistent application that could undermine the credibility, and thus the legitimacy, of the theory of universal jurisdiction.

57


example, presently, global terrorism would most likely be considered just as random, heinous, and disruptive of world order as piracy was during its height. In fact, even prior to the events of September 11, 2001, terrorism was already being considered by scholars as a crime to which universal jurisdiction could be applicable.44 Yet, would any reasonable jurist propose to open up a Pandora’s box by allowing states to exercise universal jurisdiction for “terrorism,” which remains, and for political reasons will most likely in the future remain,45 undefined?46 One need only view the dismal record of the United States in attempting to define terms such as “terrorist activities,” “terrorist organization,” and “material support” in the post-September 11th hysteria47 to appreciate the dangers inherent in defining a jurisdictional theory based on the assessment of the heinous nature of a particular international crime.48 In addition, a review of the recognized principles and various theories of international criminal jurisdiction indicates that none of them is divorced from the state seeking to exercise jurisdiction. The rationale for territorial jurisdiction is, of course, self evident. “Active personality” is based upon the nationality of the perpetrator, “passive personality” is founded on the nationality of the victim, and the “protective principle” is grounded in a concern for preservation of the vital security interests of the nation. Although the common link to the state expressed in these constructs does not, ipso facto, theoretically preclude universality from being predicated solely on the nature of the crime, it would seem to follow as a

44

See PRINCETON COMMENTARY, supra note 14, at 48.

45

Cf. Tom Hundley, Muslim Anger Toward U.S. Intensifies in Post-9/11 Era, CHI. TRIB., Sept. 13, 2002, at 16 (“What has soured many Muslims on the U.S. over the past year is the way the Bush administration has realigned American foreign policy in a manner that appears deliberately to scapegoat Muslims. In such a view, allowing Israel to define its dispute with the Palestinians as a war on terrorism is the most notable example, but hardly the only one.”).

46

See William C. Smith, Legal Arsenal: International Law Can Be an Important Element in the United States’ Campaign Against Terrorism, 87 A.B.A. J. 43, 44 (Dec. 2001) (citing the opinion of Professor M. Cherif Bassiouni).

47

See generally Steven W. Becker, “Mirror, Mirror on the Wall ...”: Assessing the Aftermath of September 11th, 37 VAL. U. L. REV. 563, 571-611 (2003).

48

Cf. Madeline H. Morris, Universal Jurisdiction in a Divided World: Conference Remarks, 35 NEW ENG. L. REV. 337, 352 (2001). One form of due process failing will occur if states exercise universal jurisdiction to conduct prosecutions for acts that do not clearly constitute an international crime under established international law. Not all states share a common view of the content of international law. Some states, for example, take the view that using cluster bombs or damaging water supplies or electrical grids (as was done by NATO in Kosovo) is a war crime, a view that the NATO states do not share. If a prosecuting state applies law that, in its view, is valid international law, but that is not universally accepted as established international law, then that prosecution would fail to fulfil the due process requirements that the criminal law be non-vague, specific, and prospective in its application.

58


matter of historical consistency that universal jurisdiction, like its sister theories of extraterritorial jurisdiction, would have been similarly founded on considerations of sovereignty.49 This, in fact, is precisely the case. The actual rationale for universal jurisdiction, as it arose in the context of piracy, was that pirates, “[t]hrough their utilization of international waters, ... thus operated beyond the territorial reach of any single nation. For this reason, nations predicated their formulation of universal jurisdiction over piracy on the notion that the crime usually was committed in terra nullius, such as on the high seas where no nation exercised territorial control.”50 Stated another way, “[i]n its classic statement, ... the universality theory encompasses acts committed beyond any country’s territorial jurisdiction, the paradigm offense being piracy on the high seas.”51 The justification for the theory of universal jurisdiction thus “lies in the fact that without such jurisdiction, no country could prosecute the offender.”52 This is what makes universal jurisdiction unique and distinguishes it from all other forms of extraterritorial criminal jurisdiction.53 As one commentator has very recently explained: The basis for the assertion of universal jurisdiction does not rest on the criminal per se, whether pirate or genocidaire, the “heinous” nature of

49

Cf. Sammons, supra note 25, at 127 (“Many commentators and jurists incorrectly seek to divorce the assertion of universal jurisdiction from principles of state sovereignty.”).

50

Id. at 126 (first emphasis added). See HARVARD DRAFT CONVENTION, supra note 7, art. 9, comment, at 566 (“The competence is perhaps better justified at the present time upon the ground that the punishable acts are committed upon the seas where all have an interest in the safety of commerce and where no State has territorial jurisdiction.”). This rationale has been carried forward to the present day in both the 1958 Geneva Convention on the High Seas and the 1982 Montego Bay Convention, which employ identical language, to wit: “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft ... and arrest the persons and seize the property on board.” Convention on the High Seas, Apr. 29, 1958, art. 19, 13 U.S.T. 2312, 450 U.N.T.S. 82; United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 105, 1833 U.N.T.S. 3, 397, U.N. Doc. A/CONF. 62/122.

51

Rena Hozore Reiss, The Extradition of John Demjanjuk: War Crimes, Universality Jurisdiction, and the Political Offense Doctrine, 20 CORNELL INT’L L.J. 281, 303 (1987) (citing 1 M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION, UNITED STATES LAW AND PRACTICE ch. 6, § 6 (1983)).

52

Id. at 303 n.161.

53

See Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14) at ¶ 5 (separate opinion of President Guillaume), reprinted in 41 I.L.M. 536, 559 (emphasis added). [U]niversal jurisdiction is accepted in cases of piracy because piracy is carried out on the high seas, outside all State territory. However, even on the high seas, classic international law is highly restrictive, for it recognizes universal jurisdiction only in cases of piracy and not of other comparable crimes which might also be committed outside the jurisdiction of coastal States, such as trafficking in slaves or in narcotic drugs or psychotropic substances.

59


the crimes committed, or even with the perpetrator’s subjective feeling of impunity in the absence of potential domestic prosecution. Rather, it rests on an assessment of sovereignty. Many commentators ... assert that the basis for universal jurisdiction arises from the “heinous” nature of the crime itself. The basis for this reasoning is that every state has condemned certain violations of international law and may punish the perpetrators for their commission. Though appealing in its vindication of the interests of justice, this rationale does not acknowledge the original justification for asserting jurisdiction over pirates, i.e., states prosecuted them wherever found because they operated in terra nullius... . The core reason that states may prescribe certain crimes as being subject of universal jurisdiction arises from the nature of the crimes being beyond any single state’s capacity to punish the perpetrators. In other words, universal jurisdiction arises not because the crimes are “heinous” but because they are committed in terra nullius.54 Modern efforts to extend universal jurisdiction to encompass serious international crimes such as genocide and crimes against humanity fail not because these crimes are not sufficiently heinous but because the rationale justifying the exercise of universality is predicated upon the crime being committed outside the territorial reach of any nation. Universality, in its pure form, is simply not applicable to crimes committed within a state’s territorial boundaries. Cowles, for example, in the very article in which he first coined the phrase “universal” jurisdiction, asserted that because war crimes, like piracy and brigandage, violated the law of nations and every nation had an important interest in their punishment, “every independent State has jurisdiction to punish war criminals in its custody regardless of the nationality of the victim, the time it entered the war, or the place where the offense was committed.”55 This same erroneous reasoning was recently iterated by a commentator at a symposium on universal jurisdiction: “The rationale for universal jurisdiction is that crimes such as genocide, war crimes, and crimes against humanity are an affront to humanity and, therefore, are of concern to all states.”56 In like manner, in its proposal of principles for the effective exercise of universality, Amnesty International wrote that “[b]eginning with piracy committed on the high seas, international law began to recognize that courts of a state could exercise jurisdiction on behalf of the entire international community over

54

Sammons, supra note 25, at 127-28.

55

Cowles, supra note 2, at 217-18. This same reasoning was followed in the Kamminga Report. See KAMMINGA REPORT, supra note 2, at 3 (declaring that the justification presented by Cowles is “still valid”).

56

Morris, supra note 48, at 337.

60


certain grave crimes under international law which were matters of international concern. Since such crimes threatened the entire international framework of law, any state where persons suspected of such crimes were found could bring them to justice.”57 Simply stated, such formulations miss the mark because they fail to consider the true rationale underlying universality. In sum, it appears that any legitimate justification for the exercise of universal jurisdiction must be predicated upon the fact that the alleged crimes were perpetrated outside the territory of any state and that, without the exercise of such jurisdiction, no state could prosecute the alleged offenders. Whether the term “outside the territory” should be construed in its literal geographic sense or more figuratively, as when a state in which a serious crime is committed is unable or unwilling to prosecute, is left for future consideration. Accordingly, it is suggested that those who seek to invoke universality for the salutary purpose of ending impunity should concentrate their efforts on this latter question rather than continuing to champion the expansion of this rather limited jurisdictional theory in a manner inconsistent with its historic rationale.

III.

Distinguishing What Universal Jurisdiction Is Not: Attorney General v. Eichmann

In order to dispel the confusion already prevalent in this complex subject,58 it is important to further clarify, in addition to the distinctions detailed above, what universal jurisdiction is not. In this regard, there are two fundamental misconceptions that should be addressed. First of all, “the universal reach of extraterritorial national jurisdiction does not equate with universal jurisdiction.”59 For example, just because a state has enacted national legislation permitting it to exercise extraterritorial jurisdiction anywhere in the world over a criminal perpetrator who is a national does not mean that it can exercise universal jurisdiction. In such a situation, the state would be

57

AMNESTY INTERNATIONAL, UNIVERSAL JURISDICTION: 14 PRINCIPLES ON THE EFFECTIVE EXERCISE OF UNIVERSAL JURISDICTION 1 (May 1999).

58

Bassiouni, supra note 16, at 152 (cataloguing the confusion that has resulted from the diverse meanings attributed to universality).

59

Id. at 94.

61


asserting jurisdiction under the “active personality” theory, not the theory of universality.60 Secondly, “universal condemnation” does not equate with universal jurisdiction.61 This is because the rationale underlying the theory of universal jurisdiction is not predicated upon whether the world community has come to a consensus as to the decidedly heinous nature of a particular crime but, instead, is based on the situs of the commission of the crime and the fact that, without such a jurisdictional theory, no state could prosecute the offender. A perfect example of this confusion is the erroneous representation that the decisions in the well-known case of Attorney General v. Eichmann62 were predicated upon universal jurisdiction and, therefore, stand as the significant postWorld War II precedents for the exercise of universal jurisdiction today. Because this misconception is so widespread and persistent,63 an analysis of the Eichmann decisions is required. Adolf Eichmann was kidnapped in Argentina by a group of Israelis in May 1960.64 Shortly thereafter, he was brought to Israel and charged under the Nazis

60

See Christopher L. Blakesley, Extraterritorial Jurisdiction, in 2 INTERNATIONAL CRIMINAL LAW 33, 62 (M. Cherif Bassiouni ed., 2d ed. 1999). Continental countries insist on the active personality principle. For many, the rule is constitutional. They maintain that nationality is a link so strong that the national state may prosecute any of its nationals for offenses they commit anywhere in the world... . They feel that jurisdiction is required to maintain their sovereignty over their nationals and in maintaining their respect around the world by punishing their own wrongdoers.

61

Bassiouni, supra note 16, at 94 (“The indiscriminate use of the term ‘universal’ ... in connection with moral concepts and expressions of condemnation caused terminological confusion evident in the writings of some jurists and in some judicial opinions.”); cf. Scheffer, supra note 25, at 233 (“I hope to dispel the notion that the mere existence of a crime of universal jurisdiction means that in fact it can be prosecuted universally, in any court and under any circumstance and in accordance with globally accepted principles of international criminal law.”).

62

Attorney Gen. v. Eichmann, 36 I.L.R. 5 (Isr. D.C., Jerusalem, Dec. 12, 1961), aff’d, 36 I.L.R. 277 (Isr. S. Ct. May 29, 1962).

63

See, e.g., Michael P. Scharf, Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 NEW ENG. L. REV. 363, 370 (2001) (“Thus, on the basis of universal jurisdiction, Israel tried Adolph Eichmann in 1961, and John Demjanjuk in 1988 for crimes committed before Israel even existed as a State.”); Kenneth Roth, The Case for Universal Jurisdiction, FOREIGN AFF., Sept.-Oct. 2001, at 150, 150-51 (“Universal Jurisdiction was also the concept that allowed Israel to try Adolf Eichmann in Jerusalem in 1961.”)

64

J.E.S. Fawcett, The Eichmann Case, 38 BRIT. Y.B. INT’L L. 181, 182 (1962). See Michael H. Cardozo, Note, When Extradition Fails, Is Abduction the Solution?, 55 AM. J. INT’L L. 127 (1961).

62


and Nazi Collaborators (Punishment) Law (Nazis’ Law)65 with “crimes against the Jewish people,” crimes against humanity, war crimes, and membership in enemy organizations.66 Eichmann was alleged to have carried out “the Final Solution of the Jewish Problem.”67 After being convicted on all counts, Eichmann was sentenced to death.68 His conviction and sentence were subsequently affirmed by the Israeli Supreme Court.69 Eichmann was hanged on May 31, 1962.70

A.

District Court Judgment

In its December 1961 judgment, the district court in Eichmann confirmed that its jurisdiction was based exclusively upon Israel’s Nazis’ Law.71 The court described Israel’s right to prescribe and enforce under such a statute in these words:

65

4 L.S.I. 154, 5710-1950, reprinted in United Nations, 1950 Y.B. on H.R. 163 [hereinafter Nazis’ Law]. See War Crimes Cases (Israel), 18 I.L.R. 538. The Nazis’ Law was described as follows by the Israeli Supreme Court in its opinion in Honigman v. Attorney General: Indeed, this Law is fundamentally different in its characteristics, in the legal and moral principles underlying it and in its spirit, from all other criminal enactments usually found on the Statute books. The Law is retroactive and exterritorial and its object, inter alia, is to provide a basis for the punishment of crimes which are not comprised within the criminal law of Israel, being the special consequence of the Nazi regime and its persecutions ... . It is more severe than criminal statutes. It authorizes an Israel court to judge for the second time in Israel a person already tried abroad for the same offence, account however being taken of any sentence served abroad... . The Court has special power to deviate from the rules of evidence. What is the reason for all this? Only one answer is possible: the circumstances in which the crimes were committed were extraordinary, and therefore it was only right and proper that this Law, its application, employment, and the purpose which the State had in mind in enacting it—that these too should be extraordinary. Honigman v. Attorney Gen., 18 I.L.R. 542, 543 (Isr. S. Ct. 1953). The Court further remarked that the punishments contained in the Nazis’ Law “were not intended principally to reform the criminal or to deter potential criminals, but rather—as the title of the law itself indicates—‘to take revenge’ on the enemies of Israel and the destroyers of Israel.” Abbie L. Dienstag, Comment, Federenko v. United States: War Crimes, the Defense of Duress, and American Nationality Law, 82 COLUM. L. REV. 120, 150 n.95 (1982) (quoting Honigman v. Attorney Gen., 7 Piskei Din 296, 304 Isr. (1953), 18 I.L.R. 542-43 (1953)).

66

Fawcett, supra note 64, at 182.

67

Attorney Gen. v. Eichmann, 36 I.L.R. 277, 277 (Isr. S. Ct. May 29, 1962). See Robert K. Woetzel, The Eichmann Case in International Law, in INTERNATIONAL CRIMINAL LAW 354, 354 (Gerhard O.W. Mueller & Edward M. Wise eds., 1965).

68

Fawcett, supra note 64, at 182.

69

Id. at 182-83.

70

Id. at 183.

71

Attorney Gen. v. Eichmann, 36 I.L.R. 5, 25 (Isr. D.C., Jerusalem, Dec. 12, 1961), aff’d, 36 I.L.R. 277 (Isr. S. Ct. May 29, 1962).

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From the point of view of international law, the power of the State of Israel to enact the Law in question or Israel’s “right to punish” is based, with respect to the offences in question, on a dual foundation: the universal character of the crimes in question and their specific character as intended to exterminate the Jewish people.72 With respect to the first foundation, namely, “the universal character of the crimes,” the court concluded that it had the right to assert universal jurisdiction over Eichmann. The district court, however, erroneously equated the universal condemnation of the crimes charged with its juridical ability to assert universal jurisdiction.73 Such confusion is evident in the following passage: “[T]he crimes of genocide which were committed against the Jewish people and other peoples during the period of the Hitler regime were crimes under international law. It follows, therefore, in accordance with the accepted principles of international law, that the jurisdiction to try such crimes is universal.”74 As detailed below, however, the Eichmann decisions were not predicated upon universal jurisdiction but, rather, were an assertion of the passive personality theory of jurisdiction and an invocation of the protective principle.75 The second foundation mentioned by the district court “is the special connection which the State of Israel has with such crimes, since the people of Israel (Am Israel), the Jewish people (Ha’Am Ha’Yehudi, to use the term in the Israel legislation), constituted the target and the victim of most of the said crimes.”76 Such a formulation, of course, represents the passive personality theory of jurisdiction. In addition, the court made specific reference to the “protective principle,”77 which a state may invoke when foreign acts threaten a state’s vital interests, safety, or security.

72

Id. at 26.

73

See supra note 61 and accompanying text.

74

Eichmann, 36 I.L.R. at 34.

75

See, e.g., Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14) at ¶ 44 (Van den Wyngaert, J., dissenting), reprinted in 41 I.L.M. 536, 634 (“Although there are many examples of States exercising extraterritorial jurisdiction for international crimes such as war crimes and crimes against humanity and torture, it may often be on other jurisdictional grounds such as the nationality of the victim. A prominent example was the Eichmann case which was in fact based not on universal jurisdiction but on passive personality.”); Bassiouni, supra note 16, at 137-38; W.T. Mallison, Jr., The Zionist-Israel Juridical Claims to Constitute “The Jewish People” Nationality Entity and to Confer Membership in It: Appraisal in Public International Law, 32 GEO. WASH. L. REV. 983, 1045 (1964) (“[T]he Israeli court preferred to base its jurisdictional claim to try Eichmann principally upon the alleged legal link between the State of Israel and ‘the Jewish people’ rather than upon the recognized authority of universality of jurisdiction.”).

76

Eichmann, 36 I.L.R. at 49-50 (emphasis added).

77

Id. at 50.

64


In an effort to demonstrate a “linking point” between Israel and the accused, so as to justify the court’s exercise of penal jurisdiction for foreign offenses, the district court presented a number of arguments. First, the court pointed to the nature of the crime alleged against Eichmann: The “linking point” between Israel and the accused (and for that matter any person accused of a crime against the Jewish people under this Law) is striking in the case of “crime against the Jewish people,” a crime that postulates an intention to exterminate the Jewish people in whole or in part... . If an effective link (not necessarily an identity) existed between the State of Israel and the Jewish people, then a crime intended to exterminate the Jewish people has an indubitable connection with the State of Israel.78 The court then remarked that “[t]he connection between the State of Israel and the Jewish people needs no explanation.”79 The court further noted that the Declaration of the Establishment of the State of Israel pointed to “the very special tragic link” between the crimes enumerated in the Nazis’ Law and the founding of the State of Israel.80 Next, the trial court explained that, in view of the recognition of Israel’s establishment by the United Nations and many other countries, “the connection between the Jewish people and the State of Israel constitutes an integral part of the law of nations.”81 In addition, the district court posed the following query: “In these circumstances, unprecedented in the annals of any other nation, can there be anyone who would contend that there are not sufficient ‘linking points’ between the crime of the extermination of the Jews of Europe and the State of Israel?”82 The court concluded by reasoning that, because the crime of genocide alleged against Eichmann concerned the “vital interests” of the State of Israel, the state was justified in punishing Nazis under the protective principle: “The punishment of Nazi criminals does not derive from the arbitrariness of a country ‘abusing’ its sovereignty but is a legitimate and reasonable exercise of a right of penal jurisdiction.”83

78

Id. at 52.

79

Id.

80

Id. at 52-53.

81

Id. at 53.

82

Id.

83

Id. at 54.

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B.

Supreme Court Judgment

In relying upon the district court’s dicta concerning universal jurisdiction, the Israeli Supreme Court seems to have similarly confused universal condemnation with universal jurisdiction in enunciating the proposition that “[i]t is the peculiarly universal character of these crimes that vests in every State the authority to try and punish anyone who participated in their commission.”84 With respect to the district court’s discussion of the protective principle and the passive personality theory, the Supreme Court held as follows: In regard to the crimes directed against the Jews the District Court found additional support for its jurisdiction in the connecting link between the State of Israel and the Jewish people—including that between the State of Israel and the Jewish victims of the holocaust— and the National Home in Palestine, as is explained in its judgment. It therefore upheld its criminal and penal jurisdiction by virtue also of the “protective” principle and the principle of “passive personality”. It should be made clear that we fully agree with every word said by the Court on this subject ... . If in our judgment we have concentrated on the international and universal character of the crimes of which the appellant has been convicted, one of the reasons for our so doing is that some of them were directed against non-Jewish groups (Poles, Slovenes, Czechs and gipsies).85 In sum, the Eichmann decisions were predicated upon the passive personality theory of jurisdiction and the protective principle.86 Both courts clearly confused the “universal character” of the alleged crimes with their right to exercise universal jurisdiction with respect to the accused. Additionally, the courts’ concentrated efforts to establish links between Eichmann and the State of Israel, as well as between the State of Israel and the Jewish people, further evidences that the deci-

84

Attorney Gen. v. Eichmann, 36 I.L.R. 277, 287 (Isr. S. Ct. May 29, 1962).

85

Id. at 304.

86

Whether Israel’s invocation of these jurisdictional theories was valid under international law is highly doubtful. See Steven W. Becker, Fiction of Jurisdiction: Defects in Israel’s Asserted Right to Try Alleged Nazi War Criminals Under the Nazis and Nazi Collaborators (Punishment) Law in Light of Established Principles of International Law 19-31 (Dec. 18, 2000) (unpublished manuscript, on file with author) [hereinafter Becker, Fiction of Jurisdiction]; Randall, supra note 4, at 813-14. [T]he Eichmann case is different from the previous Nazi trials because the state of Israel did not exist when Eichmann committed his crimes... . Eichmann’s victims were not Israelis when Eichmann acted and because Eichmann never threatened Israel’s security, Israel’s reliance on the passive personality and protective principles expanded these jurisdictional bases.

66


sions were grounded in jurisdictional theories other than universal jurisdiction, which, by definition, does not require such a nexus. A proper understanding of Eichmann is critical because it is consistently, albeit erroneously, invoked as the premier post-war precedent evidencing the judicial application of universal jurisdiction. Yet, those who seek to promote the usage of universality to end impunity do no service to their cause by citing to authorities that do not, in fact, support their position. Such misguided zeal just lessens the movement’s credibility and provides ammunition for opponents. Unfortunately, this error is not limited only to the Eichmann case. Those who rely on Eichmann also inevitably cite to the 1985 opinion of the Sixth Circuit Court of Appeals in Demjanjuk v. Petrovsky.87 The decisions throughout the lengthy Demjanjuk proceedings,88 however, suffer from the same defects as those perpetuated by the Israeli courts a quarter-of-a-century before and rely “on the same Israeli law that was based on the theory of passive personality.”89 For example, the extradition court ruled that Israel’s assertion of universal jurisdiction over John Demjanjuk was in conformity with international principles because “universal condemnation of the acts involved and general interest in cooperating to suppress them” established universal jurisdiction under international law.90 Similarly, in affirming the subsequent denial of Demjanjuk’s petition for writ of habeas corpus,91 the Sixth Circuit concluded as follows: Israel is seeking to enforce its criminal law for the punishment of Nazis and Nazi collaborators for crimes universally recognized and condemned by the community of nations. The fact that Demjanjuk is charged with committing these acts in Poland does not deprive Israel of authority to bring him to trial. Further, the fact that the State of Israel was not in existence when Demjanjuk allegedly committed the offenses is no bar to Israel’s exercising jurisdiction under the universality principle.92

87

776 F.2d 571 (6th Cir. 1985). Examples of this dual reliance are plentiful. See, e.g., Scharf, supra note 63, at 370; Henry T. King, Jr., Universal Jurisdiction: Myths, Realities, Prospects, War Crimes and Crimes Against Humanity: The Nuremberg Precedent, 35 NEW ENG. L. REV. 281, 284-85 (2001).

88

For a discussion of the Demjanjuk proceedings, see Becker, Fiction of Jurisdiction, supra note 86, at 12-19.

89

Bassiouni, supra note 16, at 138.

90

In re Extradition of Demjanjuk, 612 F. Supp. 544, 555-56 (N.D. Ohio 1985).

91

Demjanjuk v. Petrovsky, 612 F. Supp. 571 (N.D. Ohio 1985), aff’d, 776 F.2d 571 (6th Cir. 1985).

92

Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir. 1985).

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Again, just as in Eichmann, both these courts erroneously equated “universal condemnation” with the exercise of universal jurisdiction and, therefore, their decisions cannot be validly cited as responsible precedent for the proposition that such a jurisdictional theory was invoked by the United States federal courts.

IV.

Competing Theories of Universal Jurisdiction

There are three distinct schools of thought or “theories” of universal jurisdiction that have arisen in recent times. The first, which, for sake of identification, will be referred to as the “maximalist” position, is most readily associated with human rights organizations and emphasizes the aggressive use of universal jurisdiction as a means of ending impunity and obtaining justice for the victims of serious international crimes. The second, the “minimalist” position, adheres to the primacy of the principle of territorial jurisdiction, generally rejects the validity of universality, and warns of the international chaos that would ensue if such a theory were put into practice. The third, the “median” position, generally accepts the goals of the maximalists but also embraces the practical concerns raised by the minimalists, viz., that the unbridled exercise of universal jurisdiction could lead to political harassment and a disruption of world order. Adherents to the median position have thus sought to clarify the parameters of the application of universality by proposing procedural safeguards to limit the potential abuses inherent in this extraterritorial theory. An overview of each of these theories follows.

A.

Maximalist View

The raison d’être of the maximalist position is the quest to end impunity for the perpetrators of gross violations of international humanitarian and human rights law.93 This position is exemplified by the efforts of human rights organizations, which have fueled the current debate on the subject of universal jurisdiction by gaining passage of national legislation, actively participating in the filing of complaints, and influencing public opinion.94 Another hallmark of this position is the desire to gain justice for the victims of serious international crimes.95 This is often accomplished through encouraging victims to file complaints so that, where applicable, magistrates may commence investigations into alleged abuses.96 Because maximalists take the view that all serious international crimes are

93

See Roth, supra note 63, at 150.

94

See sources cited supra note 26.

95

See Roth, supra note 63, at 150.

96

See THE PINOCHET PRECEDENT, supra note 26, at 16.

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subject to unrestricted universal jurisdiction, the focus instead is on which country has priority in exercising universality. Furthermore, advocates of the maximalist position often insist that the exercise of universal jurisdiction by states is not just an option but a duty.97 The fruits of these efforts are epitomized in Belgium’s 1993 Act Concerning the Punishment of Grave Breaches of International Humanitarian Law, as amended in February 1999.98 Although those who espouse the maximalist view are undoubtedly driven by salutary motives, scholars have rightly raised concerns over the fact that these advocates, in their zeal to obtain results, may have pushed the envelope too far too quickly, i.e., they have acted before universality has gained general acceptance and, more importantly, before appropriate standards could be devised to ensure its responsible exercise: Advocates of international criminal accountability see universal jurisdiction as the most effective means to accomplish their goal. Frequently, however, they rely on certain judicial opinions and legal writings as support for the proposition that unbridled universal jurisdiction is not a mere desideratum, but established law. The reliance on such sources, however, is often unjustified or stretched too far. Thus, they cross the line between the lex lata and de lege ferenda.99 As a consequence, the unprincipled application of universal jurisdiction can lead to a backlash or to a discrediting of the theory of universality altogether. In fact, it appears as if such a counteractive trend has already begun.100 The major objection to the maximalist position, of course, is that the unrestricted application of universal jurisdiction will lead to chaos in the international order by subjecting world leaders to harassment and embarrassment through unjustified and politically motivated complaints and prosecutions.101 In addition, outstanding warrants or pending investigations could prevent foreign dignitaries and heads of states from carrying out their official state duties, as was alleged by the Congo in its suit against Belgium before the International Court of Justice.102

97

See AMNESTY INTERNATIONAL, supra note 57, at 2.

98

Belgian Act, supra note 18, 38 I.L.M. 921-25.

99

Bassiouni, supra note 16, at 94-95.

100

See Hall, supra note 31, at 3-6 (detailing the setbacks to universal jurisdiction in recent years); see also Ames, supra note 17, at 2.

101

See, e.g., Belgium to Limit War Crimes Law, supra note 24, at 34 (“Government officials said changes [in Belgian’s 1993 law] would prevent more cases like those lodged against Bush, Secretary of State Colin Powell, or an earlier complaint against Israeli Prime Minister Ariel Sharon that provoked outrage in Israel.”).

102

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14) at ¶ 64, reprinted in 41 I.L.M. 536, 552.

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The issue of chaos was specifically addressed by President Guillaume in his Separate Opinion in the Case Concerning the Arrest Warrant of 11 April 2000: [A]t no time has it been envisaged that jurisdiction should be conferred upon the courts of every State in the world to prosecute such crimes, whoever their authors and victims and irrespective of the place where the offender is to be found. To do this would, moreover, risk creating total judicial chaos. It would also be to encourage the arbitrary for the benefit of the powerful, purportedly acting as agent for an ill-defined “international community.” Contrary to what is advocated by certain publicists, such a development would represent not an advance in the law but a step backward.103 It also appears likely that the International Court of Justice’s decision to rule in favor of the Congo on the issue of procedural immunity, while bypassing the pregnant jurisdictional issue entirely,104 may well have been predicated upon on its concern over the potential for political tensions that might arise between states as a result of the unrestricted exercise of universal jurisdiction. Judge Van den Wyngaert says as much in her dissent: “An implicit consideration behind this Judgment may have been a concern for abuse and chaos, arising from the risk of States asserting unbridled universal jurisdiction and engaging in abusive prosecutions against incumbent Foreign Ministers of other States and thus paralyzing the functioning of these States.”105 In her parting shot to the majority, however, Judge Van den Wyngaert succinctly capsulized the tension between the maximalist and minimalist positions: “Perhaps the International Court of Justice, in its effort to close one box of Pandora for fear of chaos and abuse, has opened another one: that of granting immunity and thus de facto impunity to an increasing number of government officials.”106

103

Id. at ¶ 15 (separate opinion of President Guillaume), reprinted in 41 I.L.M. 536, 562-63.

104

Id. at ¶ 46, reprinted in 41 I.L.M. 536, 548. In avoiding the jurisdictional issue, the Court was forced to invert its usual analysis: As a matter of logic, the second ground [i.e., immunity] should be addressed only once there has been a determination in respect of the first [i.e., the question of the propriety of exercising universal jurisdiction], since it is only where a State has jurisdiction under international law in relation to a particular matter that there can be any question of immunities in regard to the exercise of that jurisdiction. However, in the present case ... the Court will address first the question [of immunity] ... .

105

Id. at ¶ 87 (Van den Wyngaert, J., dissenting), reprinted in 41 I.L.M. 536, 644.

106

Id., reprinted in 41 I.L.M. 536, 644.

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B.

Minimalist View

On the other hand, the minimalist position is marked by a fierce respect for traditional notions of sovereignty and a marked distrust for experiments in extraterritoriality: “Governments perceive external jurisdiction over their territory and nationals to be a threat to their interests and to their sovereignty. Sovereignty is at bay on more than one score.”107 Those who advocate this view stress the primacy of territorial jurisdiction and generally reject universality on the grounds that it has not yet achieved recognition as a valid theory of jurisdiction or, as presently posited, lacks adequate protections against abuse. Following is a representative argument based on the former objection: In fact, despite the inflated claims regularly made on behalf of “universal jurisdiction,” territorial jurisdiction remains the primary basis of international legal authority, recognized by all States and supported by centuries of consistent practice. “Universality” has a far more checkered pedigree. In theory, it permits any State to proscribe certain conduct damaging to all States. In practice, the only universal offenses that have a long history of general acceptance are piracy and the slave trade, both activities taking place on the high seas, beyond the territorial jurisdiction of any single state... . It is, in fact, difficult to find a single instance in which a State exercised “universal” jurisdiction over offenses taking place within the territory of another State, where none of its nationals were involved... . Whatever the developments in the law of “universal jurisdiction” over the past fifty years, the universality principle has not reached a level of acceptance that would permit its application in clear contravention of the predominant territorial principle.108 In addition, those minimalists who recognize universality as being valid do so only under circumstances in which there is a treaty with explicit authorizing language supported by national implementing legislation. With regard to the potential for abuse and lack of adequate safeguards, former Secretary of State Henry Kissinger wrote of the recent phenomenon of universal jurisdiction, “In less than a decade, an unprecedented movement has emerged to submit international politics to judicial procedures. It has spread with extraordinary speed and has not been subjected to systematic debate, partly because of the

107

Bartram S. Brown, The Evolving Concept of Universal Jurisdiction, 35 NEW ENG. L. REV. 383, 38990 (2001).

108

Lee A. Casey, The Case Against the International Criminal Court, 25 FORDHAM INT’L L.J. 840, 85557 (2002).

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intimidating passion of its advocates.”109 He then opined that “[t]he danger lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often lead to inquisitions and even witch-hunts.”110 Specifically, Mr. Kissinger pointed to the fact that universality could arm magistrates throughout the world with extraordinary extradition powers and could “subject the accused to the criminal procedures of the magistrate’s country, with a legal system that may be unfamiliar to the defendant and that would force the defendant to bring evidence and witnesses from long distances.”111 In addition, scholars have voiced concerns about due process, especially in situations in which universality is invoked by rogue states or for political purposes by nations with non-independent judiciaries.112 Yet, perhaps the most weighty objection of minimalists is that universality will cause tensions between states and, ultimately, may lead to armed conflict: The situations in which genocide, war crimes, or crimes against humanity may be alleged are generally large-scale conflicts in which governments are involved. Because official acts will often be at issue in prosecutions under universal jurisdiction, such trials often will constitute, in effect, the judgment of one state’s policies and perhaps, officials, in the courts of another state. In such instances, there is the risk, foreseen by the law of piracy, that universal jurisdiction will become a source and an instrument of interstate conflict.113 In light of such concerns, proponents of this view caution that, even in the face of potential impunity, universality should not be exercised until its defects are first remedied: “Universal jurisdiction entails important risks that we would overlook only at our peril. The potential pitfalls in fashioning jurisdictional mechanisms in this field must be soberly addressed. The awful need to do something should not lead to incaution in determining exactly what it is that should be done.”114

109

See Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, FOREIGN AFF., July-Aug. 2001, at 86.

110

Id.

111

Id. at 90.

112

Morris, supra note 48, at 352-53.

113

Id. at 354.

114

Id. at 361.

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The minimalist position was, of course, more than evident in the United States’ persistent opposition to the inclusion of universality as a basis of jurisdictional competence for the permanent International Criminal Court.115

C.

Median View

As the designation implies, the “median” position encompasses certain goals and concerns of each of the other two opposing theories. Like the maximalist view, the adherents of the median position believe that universal jurisdiction can serve an important role in the fight to end impunity. On the other hand, the proponents of this view also agree with the minimalists that unbridled universality could lead to international chaos and a deprivation of significant rights for the accused. Accordingly, those who advocate the median school of thought are generally engaged in an ongoing effort to clarify the appropriate limits of universal jurisdiction, establish appropriate standards, and design adequate safeguards for its responsible use. Supporters of this view also seek to have such conditions accepted by the international legal community prior to universality being exercised in practice in order that its beneficial uses are not tainted by abusive exercise before it can be effectively utilized in the battle for accountability. In addition, universal jurisdiction is generally viewed as a means of last resort to be invoked only in situations where other states fail to exercise jurisdiction under the more traditional theories. Moreover, some “connecting link” with the state seeking to exercise universality is usually deemed necessary.116 The Princeton Project on Universal Jurisdiction117 and the International Law Association’s deliberations as memorialized in the Kamminga Report118 represent scholarly efforts to bring clarity to the theory of universal jurisdiction in harmony with the median view. For example, the mission of the Princeton Project was described thusly: Recognizing that universal jurisdiction promises to be a potent weapon in the arsenal of those seeking to end impunity, the drafters of

115

See Brown, supra note 107, at 385-87; id. at 386. The U.S. government vigorously opposed all proposals to build the jurisdiction of the ICC upon the foundation of universal jurisdiction, preferring to base the ICC’s jurisdiction upon state consent. In a sense, the U.S. Government position prevailed, because under the jurisdictional compromise ultimately incorporated into the Rome State, the ICC will be based not on universal jurisdiction, but upon the right of every State to prosecute crimes committed on its territory or by its nationals.

116

But see PRINCETON PRINCIPLES, supra note 5, Principle 1(1), at 28.

117

See id., supra note 5.

118

See KAMMINGA REPORT, supra note 2.

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the Principles strove to bring greater clarity to this often-misunderstood area of law in an effort to provide practical guidance to national legal systems, which have only just begun to embrace universality as a means of ensuring accountability. At the same time, however, the drafters understood the necessity of including procedural safeguards to protect against the vagaries inherent in the unrestricted exercise of universal jurisdiction, which is pregnant with the potential for vexatious and politically motivated prosecutions.119 In their attempts to reach this goal, both scholarly assemblies attempted to define universal jurisdiction, enumerate the crimes to which it could be applied, identify obstacles to its effective exercise, and recommend safeguards to ensure that its potential for abuse and harassment was minimized. One of the significant contributions of the Princeton Principles was the adoption of a balancing test to aid in the resolution of competing claims “[w]hen more than one state has or may assert jurisdiction over a person and where the state that has custody of the person has no basis for jurisdiction other than the principle of universality,”120 thereby seeking to alleviate tensions that could arise between competing states. In addition, each of these assemblies addressed issues pertaining to immunity, amnesties, and the application of international due process norms to ensure fairness to the accused.121 It is also worthy of note that, with respect to the fundamental difference between substantive and procedural immunity, the Princeton assembly’s conclusions prefigured the decision of the International Court of Justice in the Case Concerning the Arrest Warrant of 11 April 2000 in two regards. First, although the Princeton Principles rejected substantive immunity, they did not “purport to revoke the protections afforded by procedural immunity.”122 Secondly, the Commentary on the Princeton Principles explained that, due to the existence of procedural immunity, “[a] head of state, diplomat, or other official may, therefore, be immune from prosecution while in office, but once they step down any claim of immunity becomes ineffective, and they are then subject to the possibility of prosecution.”123 This construction likewise anticipated the Court’s important holding that “[w]hile jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well

119

Steven W. Becker, The Princeton Principles on Universal Jurisdiction, 14 INTERIGHTS BULL. 15, 15 (2002).

120

PRINCETON PRINCIPLES, supra note 5, Principle 8, at 32.

121

See id., Principles 5, 7, 9-10, at 31, 33-34; KAMMINGA REPORT, supra note 2, at 13-16, 19-20.

122

PRINCETON COMMENTARY, supra note 14, at 50-51.

123

Id. at 51.

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bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.”124

V.

Conclusion

Although organized scholarly efforts have helped to bring well-needed clarity to the subject of universal jurisdiction, the waters of universality still remain murky. Unfortunately, in its recent judgment involving the dispute between the Democratic Republic of the Congo and Belgium, the International Court of Justice forfeited a golden opportunity to provide guidance and authoritatively define the parameters of universal jurisdiction, which was its first major opportunity to do so since the famous Lotus125 case.126 As a result, the theory of universality will continue to be interpreted by way of the three competing theories discussed herein, and the effectiveness of universal jurisdiction will suffer accordingly as a consequence of these internal divisions. If the origins of universality as a theory of extraterritorial criminal jurisdiction may, in fact, be found in the efforts to combat piracy on the high seas, then universal jurisdiction today must likewise be construed according its original rationale, viz., that the theory was predicated on the fact that the crime was committed beyond the territorial reach of any nation and that, without the exercise of such a jurisdictional construct, no nation could prosecute the offender. Absent a radical revision of the erroneous interpretation that universality is based on the subjective severity of certain international crimes, universality will ultimately fail from a lack of intellectual cohesiveness and an inability to define, with precision, the limits of its breadth. Truly, a house built upon the sand will fall.127 If universality is not returned to the historic foundations upon which it was first constructed, it will be unable to withstand the intellectual and political assaults that will be, and are currently being, brought to bear upon it in our modern world. More significantly, however, universal jurisdiction may forever lose its potential efficacy as a weapon in the growing international battle to end impunity.

124

Case Concerning the Arrest Warrant of 11 April 2000, 2002 I.C.J. (Feb 14) 121 at ¶ 60, reprinted in 41 I.L.M. 536, 551. Cf. Joel Greenberg, Israelis Vent Anger at Belgium: Possible Sharon Trial Condemned, CHIC. TRIB., Feb. 14, 2003, at 3 (“A ruling by Belgium’s highest court that Prime Minister Ariel Sharon of Israel could be tried there for war crimes after he leaves office brought a chorus of outrage from top Israeli officials ... .”).

125

S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).

126

Arrest Warrant of 11 April 2000, 2002 I.C.J. (Feb 14) 121 at ¶ 5 (Van den Wyngaert, J., dissenting), reprinted in 41 I.L.M. 536, 624 (“This case was to be a test case, probably the first opportunity for the International Court of Justice to address a number of questions that have not been considered since the famous “Lotus” case of the Permanent Court of International Justice in 1927.”).

127

Cf. Matthew 7:24-27.

75

UNIVERSAL JURISDICTION IN BELGIAN LAW* Eric David†

Introduction ........................................................................................................ 78 A. Belgium’s Law Establishes Universal Jurisdiction to Enforce International Rules That Are Binding upon Belgium ............................. 79 A.1 Universal Jurisdiction in Belgian Law Based upon International Conventions....................................................................................... 79 A.2 Universal Jurisdiction in Belgian Law Based upon International Custom .............................................................................................. 82 B. Belgium’s Law Establishes Universal Jurisdiction beyond the Requirements of International Rules That Are Binding upon Belgium..... 84 B.1 Universal Jurisdiction in Belgian Law over Offenses That Do Not Require It under International Law................................................... 85 B.2 Universal Jurisdiction in Belgian Law over Offenses Not Recognized As Crimes under International Law .............................. 87 B.3 Universal Jurisdiction in Belgian Law in Cases Where It Is Not Required under International Law .................................................... 88 C. Belgium’s Law Establishes Absolute Universal Jurisdiction .................. 88 C.1 Jurisdiction in Absentia in International Law ................................... 89 C.2 Jurisdiction in Absentia in Belgian Domestic Law........................... 93 C.3 The Review of Universal Jurisdiction in Absentia in Belgian Law..... 97 C.3.a. The Role of the Court of Cassation in Disclaiming Jurisdiction............................................................................ 101 C.3.b The Government’s Authority ................................................. 104 C.3.c The Criteria for Referring a Crime with Or without Disclaiming Jurisdiction........................................................ 106 Conclusions ...................................................................................................... 108 First Addendum ................................................................................................ 112 Second Addendum............................................................................................ 114

*

Article originally written in French. Translation into English for the Yearbook.

†

Professor of law at the Free University of Brussels.


UNIVERSAL JURISDICTION IN BELGIAN LAW

Introduction The principle of universal jurisdiction (the jurisdiction of domestic courts to rule on offenses regardless of where they were committed, the nationality of the perpetrator or that of the victim – ubi te invenero, ibi te judicabo) is by no means new. Its origins are to be found, first, in international custom and the immemorial recognition of every state’s right to arrest pirates on the high seas and to bring them to trial.1 Legal writers also accepted the principle in the case of war crimes,2 before it was expressly incorporated into the four 1949 Geneva Conventions relative to the protection of war victims (see below). 1.

The principle was subsequently incorporated into conventional international law as states adopted treaties recognizing certain acts as crimes and providing that states parties must either extradite the perpetrators to any state requesting their extradition or bring them to trial themselves. The first treaty to confer such jurisdiction appears to have been the International Convention for the Suppression of Counterfeiting Currency (Art. 9), 3 signed at Geneva on April 20, 1929. It was followed by the four Geneva Conventions of August 12, 1949 for the protection of war victims (hereinafter “1949 Geneva Conventions”) (common articles 49/50/129/146 of the four conventions, respectively),4 the Single Convention on Narcotic Drugs of March 30, 1961 (Art. 36),5 and others. Unlike some extraterritorial jurisdiction, which is designed solely to meet the exigencies of national policy and which, when exercised, prompts legitimate protests from other states on the grounds of nonintervention,6 the exercise of universal jurisdiction by domestic courts should not raise any difficulties with regard to international law insofar as it is based upon international law. Only when it goes beyond the limits laid down in international law is it necessary to determine whether it is nevertheless still consistent with international law (see discussion in section B, below).

2.

1

HUGO GROTIUS, 2 LE DROIT DE LA GUERRE ET DE LA PAIX ch. XX, ch. XL, p. 3 (1625); EMER VATTEL, 1 LE DROIT DES GENS OU PRINCIPES DE LA LOI NATURELLE ch. XIX, § 233 (1758).

2

See 1 L. REP. TRIALS WAR CRIMINALS 103 (notes on the Zyklon B Case, decided by the British Military Court of Hamburg, March 8, 1946).

3

MONITEUR BELGE, Aug. 20, 1932.

4

MONITEUR BELGE, Sept. 26, 1952.

5

MONITEUR BELGE, Nov. 27, 1969.

6

See, e.g., ERIC DAVID, ELÉMENTS DE DROIT PÉNAL INTERNATIONAL §§ 3.5 ff. (2003) (discussing certain American laws in this category, including the Export Administration Act, of 1979, and the Helms-Burton Act, of 1996); 1989 KEESING’S RECORD OF WORLD EVENTS 36451 (documenting the case of the Fatwa issued by Iran in 1989 against author Salman Rushdie for publishing the Satanic Verses).

78

DE


The formal incorporation of universal jurisdiction into Belgian domestic law is relatively recent. It came about on a case-by-case basis, partly as a result of international obligations assumed by Belgium and partly in response to specific reactions on the part of the public or the legislature to particular offenses. Thus there is no single principle of universal jurisdiction in Belgian law embodied in a specific law but rather a more or less disparate collection of manifestations of such jurisdiction in a series of laws. The purpose of these laws may be to enforce international conventional or customary rules that are binding upon Belgium (discussed in section A, below), or to go beyond what is required of Belgium under those rules (discussed in section B, below). In this context, special attention will be paid to “absolute” universal jurisdiction conferred by the Belgian law of 1993/1999/2003 for serious breaches of international humanitarian law (“IHL”) (discussed in section C, below).

3.

A.

Belgium’s Law Establishes Universal Jurisdiction to Enforce International Rules That Are Binding upon Belgium

The Belgian laws designed to fulfill Belgium’s international obligation of enforcement under international law are generally based upon rules contained in international conventions (discussed in section A.1, below), albeit without prejudice to universal jurisdiction based exclusively upon international custom (discussed in section A.2, below).

4.

A.1

Universal Jurisdiction in Belgian Law Based upon International Conventions

The first laws on international jurisdiction to be adopted in Belgium were intended to comply with the principle aut dedere aut judicare (the duty to extradite or prosecute) enshrined in certain international conventions. Thus, under the Convention for the Suppression of Unlawful Seizure of Aircraft signed at The Hague on December 16, 1970 [hereinafter “1970 Hague Aircraft Convention”], each contracting state is required to establish its jurisdiction over the offenses covered by the convention, not only when the offense is committed in its territory or on board an aircraft under its jurisdiction (Art. 4, § 1) but also when the alleged offender is present in its territory and the state does not extradite the offender to another contracting state (Art. 4, § 2).

5.

With some variations, this kind of rule is to be found in most international criminal law conventions adopted since 1970. In other words, the jurisdiction exercised by the contracting state is not completely universal but is limited to cases where the following applies:

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• the perpetrator of an international offense is present in the territory of a state party to the convention; • there is no classic link between the offense and the state where the perpetrator is to be found (territoriality of the offense, law of the flag, nationality of the perpetrator or of the victim); •

another state party to the convention requests the perpetrator’s extradition; and

• the state party to which the request is addressed does not grant extradition, for reasons to do with its own domestic extradition law (e.g., in Belgium, if the offense is political,7 the person sought is a Belgian national,8 there is a relevant treaty,9 and so forth). The exercise of universal jurisdiction in any given case is, therefore, far from automatic. Rather, it is subject to a prior request for extradition from another state.10 In the absence of such a request, the state where the alleged perpetrator is to be found may, it is true, prosecute him, but it is not required to do so (see, e.g., 1970 Hague Aircraft Convention, Art. 4 § 3). Belgium has universal jurisdiction solely in cases where it does not extradite a person sought by a state party to one of the following conventions:

6.

• 1970 Hague Aircraft Convention: jurisdiction to prosecute incorporated by Belgian law of June 2, 1973, Article 2(b);11 • Convention for the Suppression of Unlawful Acts against Safety of Civil Aviation, signed in Montreal on September 23, 1971: jurisdiction to prosecute incorporated by Belgian law of July 20, 1976, Article 2(c);12

7

Extradition Law of October 1, 1833 (amended on March 22, 1856, March 15, 1874, and July 8, 1946), art. 6, 67 Bulletin Official. Article 6 provides that in the case of “délit politique antérieur à l’extradition” [political offenses prior to extradition] or “fait connexe à un semblable délit” [acts connected with such offenses], “toute extradition, toute arrestation provisoire sont interdites” [extradition and temporary detention are prohibited] (unofficial translation from the French).

8

Extradition Law of March 15, 1874, art. 1, § 1, Moniteur Belge, March 17, 1874.

9

Id., art. 1, § 1.

10

Cf. Gilbert Guillaume, La compétence universelle, formes anciennes et nouvelles, in Gazette du Palais, Mélanges offert à George Levasseur – Droit Pènale, Droit Européen 35 (1992).

11

Law of June 2, 1973, art. 2, Moniteur Belge, Sept. 25, 1973: Art. 2: “Pour l’application de cette Convention, … les tribunaux belges sont compétents … ; (b) pour connaître de l’infraction … dans l’hypothèse où l’auteur présumé de l’infraction se trouve sur le territoire de la Belgique et où le Gouvernement belge ne l’extrade pas vers un des Etats visés à l’art. 4 § 1 [de la Convention].” [For the purposes of this Convention, … the Belgian courts shall have jurisdiction … ; (b) over offenses … where the alleged perpetrator is in Belgian territory and the Belgian Government does not extradite him to any of the States referred to in Art. 4 § 1 [of the Convention]] (unofficial translation from the French).

12

Law of July 20, 1976, Moniteur Belge, Sept. 1, 1976.

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• European Convention on the Suppression of Terrorism, concluded at Strasbourg on January 27, 1977: jurisdiction to prosecute incorporated by Belgian law of September 2, 1985, Article 2;13 • Convention on the Physical Protection of Nuclear Material, signed at New York and Vienna on March 3, 1980: jurisdiction to prosecute incorporated by Belgian law of April 17, 1986 inserting a new Article 12 bis into the Preliminary Title of the Code of Criminal Procedure.14 This system of adapting the law on a case-by-case basis to bring it in line with conventions as they were adopted was replaced in 2001 by a system of automatic incorporation into Belgian law of conventions conferring jurisdiction not established under domestic law. Article 12 bis of the Preliminary Title of the Code of Criminal Procedure, referred to in § 6 above, was replaced on July 18, 2001 by a new Article 12 bis,15 automatically giving the Belgian courts jurisdiction over any offense covered by an international convention that is binding upon Belgium. The mechanism is similar to that provided for under the Spanish Code of Criminal Procedure (Art. 23 § 4) and the Swiss Penal Code (Art. 6 bis). It is now no longer necessary to change the law every time Belgium becomes a party to an international criminal law convention of the type aut dedere aut judicare. The jurisdiction of the Belgian courts is automatically adapted to comply with the provisions of the convention. 7.

Insofar as universal jurisdiction in Belgian law is based upon the principle aut dedere aut judicare and therefore depends upon a decision not to extradite the person sought to another state, an essential prerequisite for the exercise of that jurisdiction is that the person in question be present in Belgian territory. This is an implicit condition for the exercise of universal jurisdiction in the aforesaid cases, over and above the requirement of a prior request for extradition.

8.

9. Belgium is a party to other conventions in which the rule aut dedere aut judicare applies, but it did not adapt its legislation to meet cases where it did not grant extradition to another state party and should therefore itself prosecute the perpetrator of an offense that had no link with Belgium. Thus, in the case of the Single Convention on Narcotic Drugs of March 30, 1961, as amended by the Protocol of March 25, 1972, and the Convention on Psychotropic Substances of February 21, 1971, under which contracting states must either extradite or prosecute, Belgium did not adapt its legislation to enable it to exercise universal jurisdiction in this field. The travaux préparatoires for the laws implementing these conventions

13

Law of September 2, 1985, Moniteur Belge, Feb. 5, 1986.

14

Law of April 17, 1986, Moniteur Belge, Aug. 14, 1986.

15

Law of July 18, 2001, Moniteur Belge, Sept. 1, 2001.

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provide no explanation of the matter.16 The new Article 12 bis in the Preliminary Title of the Code of Criminal Procedure has now supplied that deficiency (see supra, § 7). Belgium is also a party to conventions where the principle is not aut dedere aut judicare, but first judicare and second, possibly, dedere! Common articles 49/50/129/146 of the 1949 Geneva Conventions provide that each state party must hand perpetrators of war crimes over to its courts for prosecution “regardless of their nationality” or, if it prefers, “hand such persons over for trial to another High Contracting Party concerned.”17 This rule also applies to the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977 (Art. 85 § 1) [hereinafter “1977 Protocol I”]. 10.

In order to fulfill that obligation, Belgium adopted on June 16, 1993 its famous law on the punishment of serious offenses under the 1949 Geneva Conventions and the Additional Protocols thereto,18 referred to in the press as the “loi de compétence universelle” (universal jurisdiction law). Amended in 1999 to include genocide and crimes against humanity, the law (hereinafter the “1993/1999 law” or the “1993/1999/2003 law”) has been widely discussed in recent years. Contrary to the claims made in the travaux préparatoires of the law,19 the 1949 Geneva Conventions do not establish an obligation aut dedere aut judicare. The principle of universal jurisdiction enshrined in the Belgian law was nevertheless in line with the provisions of the 1949 Geneva Conventions and the 1977 Protocol I thereto. The question was whether the scope, both ratione materiae (application to noninternational armed conflicts) and ratione conditionis (universal jurisdiction by default), was admissible in domestic and international law. This will be considered later, in section C below. A.2

Universal Jurisdiction in Belgian Law Based upon International Custom

In the case of genocide, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide [hereinafter “Genocide Convention”] rec-

11.

16

Documents parlementaires [D.P.], Chamber, 1968-1969, n° 358-1; 1982-1983, n° 446-1; Senate, 1968-1969, n° 440; 1982-1983, n° 465-1 & 2.

17

Jean Pictet, 3 Les Conventions de Genève du 12 août 1949, Commentaire 657 (1958) [hereinafter Pictet Commentary]; Marc Henzelin, Le principe de l’universalité en droit pénal international 353 (2000) [hereinafter Le principe de l’universalité].

18

Law of 16 June 1993 on the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977, Moniteur Belge, Aug. 5, 1993 [hereinafter Belgian 1993 Universal Jurisdiction Law].

19

D.P., Senate, 1990-1991, n° 1317/1 (French translation: Pasicrisie [Pas.], 1993, 1842).

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ognizes only the jurisdiction of the state in whose territory the offense was committed (or of an international criminal court) (Art. VI) and does not mention the state’s right to exercise universal jurisdiction. This limitation is no accident: it is clear from the travaux préparatoires of the convention that states were opposed to universal jurisdiction at the time and regarded the jurisdiction of a hypothetical “international criminal court” as the only alternative to the jurisdiction of the state in whose territory the offense was committed.20 In the case of crimes against humanity, the rules on such crimes have never been codified except in the statutes of the international criminal courts. Although there is no conventional obligation to exercise universal jurisdiction in the case of genocide and crimes against humanity, the Belgian legislature nevertheless recognized such jurisdiction in the amendments to the 1993 law, introduced on February 10, 1999. In so doing, the Belgian legislature relied upon international custom. In the case of genocide, universal jurisdiction was explicitly recognized by the International Court of Justice in 1996.21 In the case of crimes against humanity, universal jurisdiction may be based either upon certain resolutions of the United Nations General Assembly, under which such crimes must be prosecuted “regardless of where they are committed,”22 or upon the preamble to the Rome Statute of the International Criminal Court [hereinafter “Rome Statute” of the “ICC”], which states that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.”23 Even where domestic law does not establish universal jurisdiction, courts may decide to exercise such jurisdiction by direct reference to international law. In Belgium, courts have twice held that they had universal jurisdiction, relying not upon domestic law (which was silent on the subject) but directly upon international law. The cases in question concerned piracy24 (although the use of the term

12.

20

U.N. GAOR, 6th Comm., 3rd session, 1st part, 100th sitting, 394-407 passim. (Nov. 11, 1948).

21

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.) 1996 I.C.J. 595, 616 § 31 (July 11) [hereinafter 1996 ICJ Genocide Convention case].

22

Principles of International Co-operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, G.A. Res. 3074 (XXVIII), U.N. GAOR 28th Sess., 2187th mtg. at 230-31, U.N. Doc. A/Res/3074 (XXVIII) (1973); see also Question of the Punishment of War Criminals and of Persons Who Have Committed Crimes Against Humanity, G.A. Res. 2840 (XXVI), U.N. GAOR, 26th Sess., 2025th mtg. at 88, U.N. Doc. A/Res/2840 (XXVI) (1971).

23

Rome Statute of the International Criminal Court, 6th preambular para., U.N. Doc. A/CONF. 183/9 (July 17, 1998), reprinted in 37 I.L.M. 1002 (1998) [hereinafter Rome Statute].

24

Court of Appeals (Antwerp), July 19, 1985, reported in 1985 Droit européen des transports Europäisches Transportrecht 542 [Dr. Eur. Transp.]; aff’d, Cass., December 19, 1986, Pas., 1987 I, 497.

83


was highly debatable in that case)25 and crimes against humanity. In the second case, the investigating judge, Damien Vandermeersch, held that the court was competent to rule upon complaints lodged in Belgium against former Chilean General Augusto Pinochet at a time (1998) when Belgian criminal law did not recognize either the concept of a crime against humanity (the charge was not introduced into Belgian law until 1999) or, a fortiori, universal jurisdiction over such crimes. To quote the words of his very fine ruling, he held that there was “une règle coutumière du droit des gens, voire de jus cogens, reconnaissant la compétence universelle et autorisant les autorités étatiques à poursuivre et à traduire en justice, en toutes circonstances, les personnes soupçonnées de crimes contre l’humanité….” [a rule of customary international law, even jus cogens, recognizing universal jurisdiction and authorizing national authorities to pursue and prosecute, in all circumstances, persons suspected of crimes against humanity….]26 These examples show that even if domestic law is inadequate, domestic courts may nevertheless have jurisdiction to rule upon the most serious breaches of international law. This alone confirms that international law establishes rules that are directly invocable and, subject to the exigencies of domestic law, courts may apply them to supply deficiencies in their own legislation.

13.

B.

Belgium’s Law Establishes Universal Jurisdiction beyond the Requirements of International Rules That Are Binding upon Belgium

In asserting universal jurisdiction, the Belgian legislature occasionally goes beyond the requirements of international law, either by providing for universal jurisdiction over crimes that do not require it (discussed in section B.1, below), or over crimes that are not recognized as such in international law (discussed in section B.2, below), or by claiming universal jurisdiction in cases where it is not established in international law (discussed in section B.3, below).

14.

25

See, e.g., Eric David, Greenpeace: des pirates?, 1989 Revue belge de droit international 295 [R.B.D.I.].

26

Court of First Instance (Brussels) (Ordonnance du juge d’instruction), November 6, 1998, 118 Journal des Tribunaux 308 (1999) [J.T.], English translation available in 119 I.L.R. 357. For a favorable discussion of this decision, see José A. Burneo Labrin & Henri-D. Bosly, La notion de crime contre l’humanité et le droit pénal interne, 1999 Revue de Droit Pénal et de Criminologie 278 [R.D.P.C.]; for a critical discussion of this decision, see Joe Verhoeven, M. Pinochet, la coutume internationale et la compétence universelle, 1999 J.T. 311. See also Anne Weyembergh, Sur l’ordonnance du juge d’instruction Vandermeersch rendue dans l’affaire Pinochet le 6 novembre 1998, 1999 R.B.D.I. 178; J. Goffin, C. Denis, B. Chapaux, J. Magasich & A. Goldman, La mise en œuvre du droit pénal international dans l’ordre juridique belge: perspectives au regard de l’ordonnance du 6 novembre 1998, 1999 Revue du droit des étrangers 415 [Rev. dr. étr.].

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B.1

Universal Jurisdiction in Belgian Law over Offenses That Do Not Require It under International Law

The Belgian legislature has established universal jurisdiction to enable the courts to rule upon certain international offenses in cases where the international rules on those crimes do not require states to exercise such jurisdiction. It has done so for the following crimes:

15.

• Sexual Offenses against Minors, and Procuring and Trafficking in Persons: These activities have been recognized as crimes at the international level (directly or indirectly, outright or in part, depending upon the case) in instruments requiring every state party to punish such offenses when they are committed either in its territory or in another state by a national of the state party in question. These instruments include: the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of December 2, 1949 (Arts. 1-4, 9) [hereinafter “Trafficking Convention”]; (Second) Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography of May 25, 2000 (Art. 4) [hereinafter “Second Protocol on the Rights of the Child”]; and the U.N. Convention against Transnational Organized Crime, signed at Palermo on December 12, 2000 (Art. 15 § 4) [hereinafter “Palermo Convention”] and the Additional Protocols thereto (Art. 1). These instruments do not impose universal jurisdiction (the Palermo Convention merely allows it, Art. 15 § 4), but the Belgian legislature nevertheless decided to confer universal jurisdiction upon the Belgian courts in 1995; that is the purpose of the Belgian law of April 13, 1995,27 inserting a new Article 10 ter into the Preliminary Title of the Code of Criminal Procedure. This diligence on the part of the Belgian legislature is justified, politically and morally, by the serious nature of the acts in question and, legally, by the fact that the instruments recognizing those acts as crimes provide that there is nothing in the said instruments to exclude the exercise of any criminal jurisdiction established in accordance with domestic law (Trafficking Convention, Arts. 11-12; Second Protocol on the Rights of the Child, Art. 4 § 4; Palermo Convention, Art. 15 § 6).28 • Bribery and Corruption: Here too, the relevant instruments require a state party to punish such offenses only if they are committed in its territory or committed by a national of a state party or against its officials in another state: the E.U. Protocol of September 27, 1996 to the Convention of July 26, 1995 on the Protection of the Financial Interests of the European Communities; the

27

Law of April 13, 1995, art. 8, Moniteur Belge, April 25, 1995.

28

Art. 15 § 6 of the Palermo Convention reads: “Without prejudice to norms of general international law, this Convention does not exclude the exercise of any criminal jurisdiction established by a State Party in accordance with its domestic law.”

85


E.U. Convention on the Fight against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union of May 26, 1997; the O.E.C.D. Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of December 17, 1997; and the C.O.E. Criminal Law Convention on Corruption of January 27, 1999. The legislature nevertheless conferred universal jurisdiction upon the Belgian courts on February 10, 199929 by inserting a new Article 10 quater to that end into the Preliminary Title of the Code of Criminal Procedure. Here too, the instruments cited above do not exclude any jurisdiction established in domestic law.30 • Marine Pollution: In the case of these offenses, recognized as crimes under the International Convention for the Prevention of Pollution from Ships of November 2, 1973 (MARPOL) and the United Nations Convention on the Law of the Sea of December 10, 1982 (Art. 218), the legislature conferred universal jurisdiction upon the Belgian courts on January 20, 199931 by inserting a new Article 17 bis to that end into the law of April 6, 1995. Article 218 of the U.N. Convention on the Law of the Sea authorizes, but does not impose, such jurisdiction.32 Under Article 12 of the Preliminary Title of the Code of Criminal Procedure33 (in the case of sexual offenses and bribery) and Article 17 bis § 1 of the law of April 6, 199534 (in the case of marine pollution) the alleged perpetrator of the 16.

29

Law of February 10, 1999, art. 6, Moniteur Belge, 23 March 1999.

30

See, e.g., the 1999 C.O.E. Criminal Law Convention on Corruption, Art. 17 § 4 of which reads as follows: “This Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with national law.”

31

Law of January 20, 1999, art. 66, Moniteur Belge, 12 March 1999.

32

Art. 218, § 1 of the Convention on the Law of the Sea reads: “When a vessel is voluntarily within a port … of a State, that State may undertake investigations and, when the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or exclusive economic zone of that State in violation of applicable international rules .…” (emphasis added).

33

Art. 12 of the Preliminary Title of the Code of Criminal Procedure reads: “… la poursuite des infractions dont il s’agit dans le présent chapitre n’aura lieu que si l’inculpé est trouvé en Belgique.” [… the offenses referred to in this chapter will be prosecuted only if the accused is in Belgium.] (unofficial translation from the French).

34

Art. 17 bis § 1 of the Law of April 6, 1995 reads: “Dans les ports belges, les commissaires maritimes et les agents de la police maritime peuvent mener une enquête à bord d’un navire battant pavillon étranger afin d’établir si des substances nuisibles ont été rejetées, en infraction aux dispositions de la présente loi…. Une poursuite en justice peut être entamée lorsque des éléments de preuve l’exigent. Cette compétence leur est également octroyée, à leur propre initiative ou à la demande d’un autre Etat concerné, pour les infractions à la Convention commises en haute mer….” [In Belgian ports, maritime commissioners and police officers may conduct inquiries on board a vessel flying a foreign flag in order to determine whether harmful substances have been discharged in breach of the provisions of this law…. Judicial proceedings may be instituted in cases where the evidence warrants it. They shall also be granted jurisdiction at their own request or at the request of another State concerned, in respect of breaches of the Convention committed on the high seas….] (unofficial translation from the French).

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abovementioned offenses may be prosecuted only if present in Belgian territory. That requirement should not, however, prevent the prosecuting authorities from investigating the alleged perpetrator even if not present in the territory of the Belgian state, provided the authorities do not claim jurisdiction stricto sensu. B.2

Universal Jurisdiction in Belgian Law over Offenses Not Recognized As Crimes under International Law

The Belgian Law of 16 June1993 on the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977 provided, in the initial draft,35 for universal jurisdiction over the war crimes referred to in the 1949 Geneva Conventions (common articles 50/51/130/147) and 1977 Protocol I (Art. 11, § 4; Art. 85 §§ 2-4). This met the requirements of the provisions in question (1949 Geneva Conventions, common articles 49/50/129/146;36 1977 Protocol I, Art. 85, § 1). 17.

Following an amendment tabled by members of the Senate,37 the legislature decided to go beyond the requirements of public international law and to confer universal jurisdiction upon the Belgian courts to rule upon certain serious violations of the 1949 Geneva Conventions and the Second Additional Protocol thereto of 1977 (“1977 Protocol II”) applicable in noninternational armed conflicts. Until 1994, it was generally considered that crimes were to be regarded as war crimes stricto sensu under international law only when they were committed in the course of an international armed conflict.38 18.

That situation changed through three developments. First, the Statute of the International Criminal Tribunal for Rwanda (“ICTR”) was adopted in 1994, which provided under Article 4 that acts committed in the course of a civil war might also be regarded as crimes. Second, in 1995, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) handed down its famous judgment in Tadic.39 Third, in 1998, the Rome Statute of the ICC provided in Article 8 § 2,

35

D.P., Senate, 1990-1991, 1317-1, April 30, 1991, explanatory memorandum.

36

Common articles 49/50/129/146 of the 1949 Geneva Conventions provide: “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.”

37

D.P., Senate, 481-4, S.E. 1991-1992, Nov. 25, 1992, R. Lallemand et al.; id., 481-5, Dec. 22, 1992, additional report Loones.

38

On the concept of “international armed conflict,” see Eric David, Principes de droit des conflits armés 131 (3rd ed. 2002) [hereinafter conflits armés].

39

Prosecutor v. Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1-AR72 (Oct. 2, 1995), reprinted in 35 I.L.M. 32 (1996) (the discussion beginning at § 88 of the judgment is of particular relevance).

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c-f, that various violations of international humanitarian law committed in the course of a domestic armed conflict may be regarded as crimes. There is consequently nothing in Belgian law today that was not already to be found in international criminal law in 1993. It is nevertheless an interesting example of legislation that goes beyond the requirements of international law, albeit without departing from the principles of that law since, when the Belgian law was adopted, the acts at issue were prohibited under international law and universally recognized as crimes in domestic law.40 B.3

Universal Jurisdiction in Belgian Law in Cases Where It Is Not Required under International Law

The Belgian legislature has granted Belgian courts the widest measure of universal jurisdiction over serious breaches of international humanitarian law. Not only may the perpetrator of such crimes be prosecuted without a request for extradition from another state, the prosecution and trial may be conducted even if the perpetrator is not present in Belgian territory. This was established, first, in Article 7 of the law of June 16, 1993,41 for war crimes (serious breaches of the 1949 Geneva Conventions and the additional protocols thereto). Subsequently, it was established in the law of February 10, 1999,42 amending the law of 1993, for genocide (based upon the Genocide Convention of December 9, 1948) and crimes against humanity (based upon Article 7 of the Rome Statute of the ICC of July 17, 1998). 19.

The question has been the subject of so much debate that the next section of the present study is devoted to it.

C.

Belgium’s Law Establishes Absolute Universal Jurisdiction

20. “Absolute” universal jurisdiction allows the law to be enforced in absentia or “by default.” In Belgium, this mechanism was challenged with regard to international law (discussed in section C.1, below) and with regard to Belgian domestic

40

conflits armés, supra note 38, at 703-705.

41

Article 7 of the Belgian 1993 Universal Jurisdiction Law, supra note 18, reads: “Les juridictions belges sont compétentes pour connaître des infractions prévues à la présente loi, indépendamment du lieu où celles-ci auront été commises.… ” [The Belgian courts shall have jurisdiction to rule on offenses covered by this law, regardless of where they are committed….] (unofficial translation from the French). Cf. A. Andries, E. David, C. van den Wijngaert & J. Verhaegen, Commentaire de la loi du 16 juin 1993 relative à la répression des infractions graves au droit international humanitaire, 74 R.D.P.C. 1114 (1994).

42

Law of February 10, 1999, art. 3, Moniteur Belge, March 23, 1999.

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law (discussed in section C.2, below), before leading to an important reform (discussed in section C.3, below). C.1

Jurisdiction in Absentia in International Law

In its application instituting proceedings before the International Court of Justice (“ICJ”) in the Case Concerning the Arrest Warrant of 11 April 2000, the Democratic Republic of the Congo (“DRC”) challenged not only Belgium’s refusal to grant a serving foreign minister immunity from criminal prosecution but also its right to exercise universal jurisdiction when the accused was not present in Belgian territory.43 The question of immunity to criminal prosecution will not be considered here, as it is not specifically linked to universal jurisdiction.44 21.

As regards Belgium’s exercise of universal jurisdiction in absentia, it should be noted that the DRC did not maintain that part of its application in its written or oral pleadings. The Court, therefore, refrained from ruling upon the question, in accordance with the non ultra petita rule.45 However there are various grounds for supposing that universal jurisdiction in absentia was implicitly recognized by the Court in the case.

22.

First, the DRC did not ask the Court to find against Belgium on this point, which suggests that it did not really think such a plea would be successful. Second, although the Court did not take a position on the question, it did nevertheless observe that the question of immunity may be considered only insofar as the state has jurisdiction over an offense for which immunity may be claimed: As a matter of logic, the second ground [violation by Belgium of the immunity claimed by the DRC] should be addressed only once there has been a determination in respect of the first [violation of international law arising from the exercise of universal jurisdiction in absentia], since it is only where a State has jurisdiction under international law in relation to a particular matter that there can be any question of immunities in regard to the exercise of that jurisdiction.46

43

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121, § 17 (Feb. 14), reprinted in 41 I.L.M. 536 (2002).

44

For a critical examination of the ICJ ruling, see, Damien Vandermeersch, La compétence universelle en droit belge, in Poursuites pénales et extraterritorialité. Strafprocesrecht en extraterritorialiteit 65-74 (Gert Vermeulen ed., 2002) [hereinafter Poursuites pénales]; conflits armés, supra note 38, §§ 4.323 et. seq.

45

Arrest Warrant of 11 April 2000, 2002 I.C.J. 121, §§ 43, 45-46.

46

Id., § 46.

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It is true that the Court went on to say that, in view of the most recent pleadings of the DRC, it would not consider the question of universal jurisdiction and would proceed directly to examine the question of immunity.47 However it reserved the right to deal with the question of jurisdiction, should it find it necessary to do so. In the Court’s own words: While the Court is thus not entitled to decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning. Thus in the present case the Court may not rule, in the operative part of its Judgment, on the question whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts. This does not mean, however, that the Court may not deal with certain aspects of that question in the reasoning of its Judgment, should it deem this necessary or desirable.48 In deciding finally not to address the question but to proceed directly to the question of immunity, the Court implied that Belgium’s exercise of universal jurisdiction in absentia did not raise any particular problem. Third, of the eleven judges who expressed a view on the subject, four considered, albeit without stating the reasons for their view, that universal jurisdiction by default was contrary to international law,49 while the other seven explicitly50 or implicitly51 accepted it. In its counter-memorial, Belgium explained at length why the exercise of universal jurisdiction did not break any rule of international law.52 There is no need to repeat the whole argument. Suffice it to mention four points:

23.

• The judgment of the Permanent Court of International Justice (“PCIJ”) in the Lotus case admits the exercise of any jurisdiction that is not prohibited under

47

Id.

48

Id., § 43 (emphasis added).

49

Id. (separate opinion of President Guillaume, §§ 11-17; separate opinion of Judge Rezek, § 11; separate opinion of Judge ad hoc Bula-Bula, §§ 65 ff.; declaration of Judge Ranjeva, §§ 11-12).

50

Id. (separate opinion of Judges Higgins, Kooijmans and Buergenthal, §§ 19-65; dissenting opinion of Judge ad hoc Van den Wyngaert, §§ 40-58).

51

Id. (separate opinion of Judge Koroma, § 9; dissenting opinion of Judge Oda, § 12; dissenting opinion of Judge Al-Khasawneh, in which he does not take a position on the question but nevertheless implicitly recognizes the validity of universal jurisdiction in absentia when he states that immunity should not prevent prosecution in casu).

52

Counter-Memorial of the Kingdom of Belgium (Congo v. Belg.), 2002 I.C.J. Pleadings (Case Concerning the Arrest Warrant of 11 April 2000) §§ 3.3.1 et seq. (Sept. 28, 2001) [hereinafter Counter-Memorial of Belgium].

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international law.53 The claim that the exercise of such jurisdiction impugns the sovereignty of the state of which the accused is a national does not make good sense; the exercise of jurisdiction by default is established under the laws of a good many states. If a person may be prosecuted for even a minor offense committed in the territory of the prosecuting state when he or she is, in the hallowed phrase, “a fugitive from justice,” it would be absurd to maintain that a person cannot be prosecuted for a war crime or a crime against humanity on the grounds that he or she is not present in the territory of the state where the tribunal is convened, particularly when such crimes appeal to everyone’s conscience and every state should assist in punishing them. To judge an offense committed outside the territory of the state in which the tribunal is convened does not impugn the sovereignty of the state in which the offense was committed any more than does the exercise of personal jurisdiction (based on the active personality principle, the passive personality principle, the law of the flag, and so forth). • It is significant that since the Convention on Offences and Certain Other Acts Committed on Board Aircraft, of September 14, 1963 (“Tokyo Convention”) (Art. 3 § 3), most modern international criminal law conventions contain a provision recognizing the right of a state to exercise any jurisdiction other than that established in the convention on condition that such jurisdiction is exercised in accordance with the national law of the state party.54 This implies recognition of a state’s right, in particular, to exercise jurisdiction by default if there is provision for such jurisdiction in its national law. It should be noted that a clause of this type is to be found in the Palermo Convention of 2000 (Art. 15 § 6) (discussed supra § 15) and in the current draft Comprehensive Convention on International Terrorism (Art. 6 § 6) but with a proviso that is new: domestic jurisdiction exercised by the state, other than that established in the convention, must be exercised “without prejudice to the norms of general international law.”55 • The Princeton Principles on Universal Jurisdiction, produced by some forty international and criminal lawyers, recognize the right of a national judicial authority to open inquiries or investigations by default.56

53

S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 19 (Sept. 7).

54

Cf. Counter-Memorial of Belgium, supra note 52, §§ 3.3.39/41.

55

Rapport du Comité spécial créé par la résolution 51/210 de l’Assembleé générale en date du 17 décembre 1996, U.N. GAOR, 57th Sess., session, Supp. No. 37, Annex 1, at 10, U.N. Doc. A/57/37 (2002).

56

Princeton Project on Universal Jurisdiction, Princeton Principles on Universal Jurisdiction, Principle 1 § and commentary, at 28, 44 (2001).

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• The Principes de Bruxelles contre l’impunité et pour la justice internationale adopted by a group of Belgian lawyers following a colloquy held in March 2002 are a step in the same direction (Principle 13, § 2).57 It therefore appears that, in the context of universal jurisdiction, prosecution may proceed where the alleged perpetrator of the crime is not present in the territory of the prosecuting state. The Republic of the Congo (Brazzaville) (“RoC”) nevertheless filed an application at the ICJ on December 9, 2002 initiating proceedings against France following an investigation opened in France into complaints lodged against President Nguesso, his minister of the interior, and two senior officers in the Congolese armed forces. The RoC took the view, based upon Article 2 § 1 of the U.N. Charter, that these complaints, inasmuch as they related to acts committed in another state,58 were contrary to the principle that a state may not exercise its jurisdiction in the territory of another state.59 24.

France has specifically recognized the jurisdiction of the ICJ to rule in this one case (apparently the only instance so far in which Art. 36 § 5 of the ICJ Statute has been invoked), so it could afford an opportunity for the Court to give a clear ruling on the problem. So, “watch this space,” as they say … 25. Jurisdiction in absentia could raise a problem of compatibility with the ICC Statute: it has been claimed, of the 1993/1999 law, that “virtuellement, elle prive de toute utilité la cour nouvellement instituée” [it renders the newly established court virtually otiose].60 The concern is that the exercise of such jurisdiction might prevent the ICC from ruling on a crime within its jurisdiction since, under the rules on complementarity contained in the Rome Statute (Art. 1), the ICC is to determine that a case is inadmissible where the case “is being investigated or prosecuted by a State which has jurisdiction over it” (Art. 17 § 1).

The problem, in this instance, is not so much the validity of jurisdiction in absentia as its advisability, since the Rome Statute does not prohibit states from

57

Groupe de Bruxelles pour la justice internationale, Principes de Bruxelles contre l’impunité et pour la justice internationale, Principle 13, § 2, at 123 (2002).

58

Oral Pleadings of the Republic of Congo (Republic of the Congo v. France), CR2003/20 (Case Concerning Certain Criminal Proceedings in France) at 17-18 (April 28, 2003) (this follows, implicitly rather than explicitly, from the pleadings of Congo counsel).

59

Application of of the Republic of Congo (Republic of the Congo v. France) (Case Concerning Certain Criminal Proceedings in France) (Dec. 9, 2002) available at: .

60

J. Verhoeven, Remarques critiques sur les lois du 16 juin 1993 et du 10 février 1999 et sur la compétence universelle, in De Genocidewet in internationaal perspectief 188 (J. Wouters & H. Panken eds., 2002).

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exercising such jurisdiction. It could simply prevent the Court from ruling on a case where such jurisdiction is exercised. Is this fear justified? The Rome Statute states that prosecution in a state does not preclude the Court from exercising jurisdiction unless that State is unable “genuinely to carry out the investigation or prosecution” (Art. 17 § 1). It adds: “In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” (Art. 17 § 3) In other words, cases of “inability” on the part of a state where the Court may exercise jurisdiction in a case despite the fact that it is subject to the judicial system of that state are cases where either the judicial system in question is so impaired as to be unable to perform its duties or it is unavailable. The first case covers situations where the country is seriously affected by war or natural disaster.61 The second may relate to cases where the state’s judicial system is unable to carry out its work.62 Does this apply to proceedings in absentia that cannot lead to the actual arrest and prosecution of the person sought? An affirmative answer would at least be consistent with the spirit of Article 17 § 3, if not with the letter of that provision; the meaning of the word “unavailability” is debatable. An investigation in absentia that did not enable the courts “genuinely to carry out prosecutions” would be a case of unavailability of the national judicial system, where the ICC could exercise jurisdiction without breaching the principle of complementarity. Under the 2003 amendments to the 1993/1999 law, designed to align it with the Rome Statute, the minister of justice may refer a case to the ICC (in accordance with Article 14 of the Statute) (new Article 7 § 2 of the law), which should avoid any danger of a fruitless exercise of jurisdiction in absentia impinging upon the jurisdiction of the Court. C.2

Jurisdiction in Absentia in Belgian Domestic Law

Under Article 12 of the Preliminary Title of the Belgian Code of Criminal Procedure, most of the forms of extraterritorial jurisdiction recognized in that title may be exercised only “si l’inculpé est trouvé en Belgique” [if the accused is in

26.

61

Sharon A. Williams, Preconditions to the Exercise of Jurisdiction, in Commentary on the Rome Statute of the International Criminal Court 394 (Otto Triffterer ed., 1999).

62

According to the Petit Robert (1993 ed.), a person is “indisponible” [unavailable] inter alia when he or she is “empêchée de fournir un travail” [prevented from doing work].

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Belgium]. What is to be understood by the phrase “trouvé en Belgique” [in Belgium]? The broad interpretation prevails: the accused is presumed to be in Belgium if he or she has spent some time there, however short, since the offense was committed.63 The presence of the accused is required, for the purpose of prosecution, only in certain cases specifically listed in the Preliminary Title (active and passive personality jurisdiction, law of the flag, and so forth). However, since the 1993/1999 law is not mentioned in the Preliminary Title, the requirement that the accused be present is irrelevant for the purposes of prosecutions under that law.

27.

The explanatory memorandum to the 1993 law appears, however, to suggest that, in the spirit of legislative intent, Article 12 also applied to the 1993 law. According to the explanatory memorandum, the 1993 law provided jurisdiction even if the accused was not in the territory (i.e., despite the ostensible restrictions of Article 12), but there was no point in saying so explicitly in the law itself because Article 12 was in any case going to be repealed.64 This was clearly an erroneous interpretation of the actual scope of Article 12, yet it appears in the explanatory memorandum! As Article 12 had not been repealed, the Chamber of Indictments of the Brussels Court of Appeals in 2002 concluded that it applied to the 1993/1999 law and that certain complaints, with civil claims for damages, lodged on the basis of the law against persons not present in Belgium – namely, the complaints against the former minister of foreign affairs of the DRC, Abdulaye Yerodia Ndombasi, and Israeli Prime Minister Ariel Sharon and Israeli Defense Ministry Director General Amos Yaron – were consequently inadmissible.65 There were however various grounds for supposing that Article 12 did not apply to the 1993 law:

28.

• First, the wording of Article 12, as we have just seen in preceding § 27, does not mention the 1993 law.66 Ordinarily, the plain text of a law is to be preferred to travaux préparatoires. • Second, the subject is not mentioned in the travaux préparatoires of the 1999 law, which confirmed the wording of the 1993 law on this point. • Third, the Court of Cassation implicitly applied the 1993 law to procedures by default in 1996 when it agreed to disclaim jurisdiction in favor of the ICTR

63

H.-D. Bosly & D. Vandermeersch, Droit de la procédure pénale 69 (2001).

64

D.P., Senate, 1990-1991, n° 1317/1, in 1993 Pasin. 1842.

65

Judgment of April 16, 2002 (unpublished); Judgment of June 26, 2002, J.T. 539-543 (2002).

66

Cf. B. Spriet, (Extra)territoriale werking van de Belgische strafwet, met enkele ‘klassieke’ extraterritoriale jurisdictiegronden uit de voorafgaande titel van het wetboek van strafvordering, in Poursuites pénales et extraterritorialité, supra note 44, at 38.

94


for investigations conducted on the basis of the 1993 law into Colonel Theoneste Bagosora (head of the Rwandan government during the genocide, from April to July 1994) and Georges Omar Ruggiu (presenter with Radio et Television Libre des Mille Collines), neither of whom had been in Belgium since they committed the war crimes of which they were accused.67 If Article 12 had applied to the law, the Court would not have had to disclaim Belgian jurisdiction; it would have sufficed to say there was no need to disclaim jurisdiction as the matter had not been properly brought before the Belgian courts. In deciding to disclaim jurisdiction, the Court recognized that the matter had been properly brought before the Belgian courts and that Article 12 did not apply to the 1993 law. There followed a regular saga, with the parliament and the judiciary equally busy, occasionally at cross-purposes. The high points are described briefly below. In the legislature, members of the Senate reacted on July 18, 2002 to the abovementioned decisions of the Chamber of Indictments of the Brussels Court of Appeals by tabling a draft law interpreting the 1993/1999 law “comme s’appliquant sans considération du lieu où l’auteur présumé du crime peut être trouvé” [as applying regardless of where the alleged perpetrator of the crime may be found].68 On September 19, the President of the Senate submitted a request for an opinion to the legislative section of the Conseil d’Etat (Council of State), which replied in December that an interpretive law was admissible but that it might raise problems in respect of retroactivity and compatibility with Article 12 bis of the Preliminary Title of the Code of Criminal Procedure (supra §§ 6-7).69 After discussion, the Senate Justice Committee nevertheless decided to keep the wording of the draft interpretive law as it was; it was subsequently passed at a plenary session of the Senate and forwarded to the Chamber on January 30, 2003. 29.

Meanwhile, in the judiciary, the Court of Cassation, in a judgment delivered on November 22, 2002 (not published as of this writing), quashed the decision in Yerodia on a point of procedure, and adjourned the Sharon case sine die. The Court appears to have wanted to wait for the legislature to define its position.

30.

However, two months later, the Court of Cassation put on a burst of speed in Sharon et al. On January 23, 2003 the Public Prosecutor at the Court of Cassation submitted a note recognizing that Article 12 of the Preliminary Title and Article 7 of the 1993/1999 law differed in respect of their scope (cf. supra §§ 25, 27) but concluding that the complaints were nevertheless inadmissible and the appeals

67

Cass. b. July 9, 1996, Pas., 1996 I, 274 ; Cass. b., Oct. 9, 1996, 1996 Bull. 962 ; M.-A. Swartenbroekx, Observations concernant la décision de la Cour de cassation (2ème ch. F.) du 15 mai 1996, en cause de E. Nd., J. Ka. et A. Hi, 89 Revue du droit des étrangers 374, 380 (1996).

68

D.P., Senate, July 18, 2002, n° 2 – 1255/1, Proposition Destexhe.

69

D.P., Senate, 23 Dec. 2002, n° 2 – 1255/2.

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should be dismissed. The rationale was that when the 1993 law was adopted, the legislature had in fact intended to apply the principle aut dedere aut judicare established in the 1949 Geneva Conventions,70 and that principle required that the accused be present in Belgium.71 In so doing, the Public Prosecutor repeated another of the errors made by the legislature (cf. supra § 27 for the first one), namely the assertion that the 1949 Geneva Conventions established the principle aut dedere aut judicare (cf. supra § 10). The Court of Cassation delivered its judgment on February 12, 2003. It confirmed that the Preliminary Title of the Code of Criminal Procedure did not apply to the 1993/1999 law. It did not concur with the Public Prosecutor’s opinion and observed that, while Article 12 bis (supra §§ 6-7) referred to treaties binding upon Belgium “et contenant une règle obligatoire d’extension de compétence dérogeant à la territorialité du droit pénal” [and containing a mandatory rule of extended jurisdiction in derogation from the territoriality of criminal law], neither the 1948 Genocide Convention, the ICC Statute, nor the 1949 Geneva Conventions “ne comportent une telle règle” [contain such a rule].72 Although the wording was slightly ambiguous, the Court probably wanted to reply to the Public Prosecutor’s assertion that the 1949 Geneva Conventions established the rule “aut dedere…,” quod non. On this point, therefore, the Court is in accord with the Senate. In any event, it certainly cannot be said, as one commentator has, that “…la Cour a très clairement refusé de trouver dans ces traités la source d’une obligation de réprimer ‘universellement’ ces crimes internationaux en dérogation du principe de territorialité du droit pénal.” […the Court quite clearly refused to find in these treaties the source of a ‘universal’ obligation to punish these international crimes in derogation from the principle of the territoriality of criminal law.]73 Such an assertion would be so patently contrary to the actual wording of the 1949 Geneva Conventions (common articles 49/50/129/146) that it can scarcely be supposed that such was the intention. Moreover, while it is true that the Genocide Convention establishes territorial jurisdiction only, it should be remembered that the ICJ has interpreted it contra legem. The Court has held that “the obligation each State thus has to prevent and to punish the crime of genocide is

70

D.P., Senate, 1990-1991, n° 1317/1, Pasin., 1993, 1842.

71

Note posted on www.cass.be/juris/jucf.htm, Feb. 12, 2003; Revue de jurisprudence de Liège, Mons et Bruxelles 364 ff. [J.L.M.B.] (2003).

72

Cass. b., February 12, 2003, available at www.cass.be/juris/jucf.htm; J.L.M.B., 368 ff. (2003); J.P., 22 (Feb. 21, 2003); Id., 16-23 (March 21, 2003) (commentary J. Kirkpatrick); J.T., 243 ff. (2003) (commentary by P. d’Argent).

73

P. d’Argent, J.T. 149 (2003).

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not territorially limited by the Convention.”74 Lastly, as we have seen, the preamble of the Rome Statute refers to the duty of states to prosecute those responsible for international crimes (cf. supra § 11). It is therefore unlikely that the Court of Cassation would have “clairement refusé de trouver dans ces traités la source d’une obligation de réprimer ‘universellement’ ces crimes internationaux” [clearly refused to find in these treaties the source of a ‘universal’ obligation to punish these international crimes]. Nevertheless, the Court dismissed the appeal in respect of the complaints against Sharon on the grounds of his immunity. It is true that the Genocide Convention rejects immunity for persons accused of that crime (Art. IV); however, as just observed, that Convention only recognizes the jurisdiction of the state where the crime is committed – in casu Lebanon. It is custom that accords it unlimited territorial scope. The customary rule on immunity must, therefore, apply to Sharon in Belgium. In the case of Yaron, on the other hand, the question of immunity does not arise, and the Court accepted the appeal.75 The Senate and the Court of Cassation therefore agreed in recognizing – the Senate explicitly and the Court implicitly – that the 1993 law allowed for the exercise of universal jurisdiction in absentia. As a result, the need for an interpretive law was much less pressing and, as some members of parliament still had reservations about it,76 it was not adopted.

31.

However, the flood of complaints lodged in Belgium based upon universal jurisdiction was to cause parliament to undertake a serious review of application of the principle in absentia in Belgium. C.3

The Review of Universal Jurisdiction in Absentia in Belgian Law

32. Simultaneously with the tabling of the draft interpretive law (supra § 29), members of the Senate tabled another proposal designed to bring the 1993/1999 law in line with the Rome Statute (modification of the scope ratione materiae of the law, Art. 1 § 3) and to take account of the judgment of February 14, 2002 in which the ICJ censured Belgium for failing to recognize the immunity of the DRC’s minister of foreign affairs when he was in office (amendment of Art. 5 § 3).77 These two points will not be addressed in this article, as they are not directly related to the topic of universal jurisdiction.

74

1996 ICJ Genocide Convention case, supra note 21, at 616, § 31.

75

See analyses of the decision collected supra note 72.

76

D.P., Chamber, Doc. 50 2261/002, April 4, 2003, Report Lalieux – Talhaoui.

77

D.P., Senate, 18 July 2002, n° 2 – 1256/1, Proposition Mahoux.

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The Belgian government began to realize the scale of the diplomatic problems the 1993/1999 law might cause when complaints were lodged against the former Iranian president, Akbar Hashemi Rafsanjani, the late Congolese president, Laurent Kabila, and his former minister of foreign affairs, Abdulaye Yerodia Ndombasi. It was intimated to Belgium that there were Belgians in the countries concerned who might experience certain problems. Also these complaints and especially their consequences – the issue of an arrest warrant by default against Yerodia – were at odds with Belgium’s foreign policy in the Great Lakes region of Africa.78 In the case of Yerodia, Belgium even had to face an action brought by the DRC before the ICJ. Although Belgium came out of it reasonably well as regards the validity of the universal jurisdiction established in the 1993/1999 law (supra § 22), it suffered a crushing defeat on the question of immunity – and too bad if the Court’s reasoning on this point was by no means persuasive. 33.

Belgium’s diplomatic difficulties were further exacerbated when complaints were lodged in 2001 against Israeli Prime Minister Ariel Sharon and others for their involvement in the massacre of Palestinians at the Sabra and Shatila refugee camps (Beirut, September 16-18, 1982). These claims were partly validated by the Court of Cassation (supra § 30). Then, on the eve of the 2003 American intervention in Iraq, further complaints were lodged against former U.S. President George Bush senior, current U.S. Secretary of State Colin Powell, current U.S. Vice President Richard Cheney, and retired U.S. Army General H. Norman Schwarzkopf, for their role in ordering bombings during the Gulf War in 1991 which allegedly caused almost 400 civilian casualties.79 Israel promptly recalled its ambassador and most of the Israeli media launched a press campaign against Belgium that bordered on hysteria.80 The U.S., for its part, suggested that Belgium was no longer a very safe country and that it would perhaps be wise to find a new home for NATO headquarters.81 Although the bill was later amended, one Democratic member of Congress, Gary Ackermann, went so far as to table a draft law – the “Universal Jurisdiction Rejection Act of 2003” – which would have prohibited the U.S. administration from responding to any request from another state for cooperation in criminal matters on the basis of a “universal jurisdiction act” and authorizing the U.S. president to use:

78

See A.P., Chamber, External Relations Committee, July 10, 2000, question by Minister of Foreign Affairs, Mr. Louis Michel.

79

1991 Keesing’s Record of World Events 37984.

80

See Belgian press, February 13, 2003 et seq.

81

Le Monde, April 8, 2003.

98


all means necessary and appropriate to bring about the release of […] 1) Any covered United States person. 2) Any covered allied person if the government of the country by reason of which the individual is a covered allied person requests that the authority under subsection (a) [the U.S. president] be exercised.82 In short, a “Belgium Invasion Act” had been tabled in the U.S. Congress … It was in this context that substantial amendments were made to the 1993/1999 law – and particularly to Article 7 on universal jurisdiction – in order, first, to avoid orchestrated and ill-founded complaints and, second, to enable Belgium to extricate itself from complaints that had already been lodged and were extremely damaging to its diplomacy.83 These amendments were adopted on April 23, 2003.84

34.

The new Article 7 is based upon the following principles, illustrated by the following five scenarios:

35.

First scenario: The Belgian courts still have jurisdiction to rule on crimes under IHL even if they have no link with Belgium. The Public Prosecutor’s Office is entitled to institute public proceedings on its own initiative or in response to a complaint concerning a crime under IHL regardless of where it is committed, the nationality of the victim or the nationality or place of residence of the alleged perpetrator (Art. 7 § 1). Where the crime has no link with Belgium, the question of instituting public proceedings ex officio is still, of course, largely academic (the Public Prosecutor’s Office is rarely diligent in such cases). However, the law does not preclude it. Second scenario: Where the crime has no link with Belgium – i.e., crimes committed in another state, by a foreign national and against a foreign national who has not been resident in Belgium for at least three years when the complaint is lodged (not when the crime was committed)85 – and the public proceedings are initiated as a result of a complaint accompanied by a civil claim for damages (Code of Criminal Procedure, Art. 63 ff.), the opening of investigation is subject to the Federal Prosecutor taking statements for the prosecution (law of 93/99/03, Art. 7 § 1, para.1). The Federal Prosecutor may refuse to take such statements if: the complaint is unfounded; the acts are not crimes under IHL; it is apparent that

82

108th Congress, 1st Sess., April 8, 2003.

83

D.P., Chamber, 2002-2003, doc 50 2265/10, 1 April 2003.

84

Moniteur Belge, May 7, 2003.

85

Cf. D.P., Senate, 2001-2002, n° 2-1256/1, July 18, 2002, § 55.

99


justice would be better served by prosecution before an international criminal court or a domestic court of the state where the crime was committed or of which the perpetrator is a national or in which the perpetrator may be found (Art. 7 § 1, para. 2) (the doctrine of “forum conveniens”). The decision not to proceed is open to appeal by the civil parties before the Chamber of Indictments, which determines the matter (Art. 7 § 1, para. 3). Third scenario: If the crime has been committed in another state, by a foreign national and against a foreign national, the government may refer the matter to the ICC (Art. 7 § 2) or to: the state where it was committed; the State of which the alleged perpetrator is a national; or the State in which the alleged perpetrator may be found (Art. 7 § 3) – provided that the state to which it is referred respects the rules of fair trial. The crime may be referred even if the Federal Prosecutor has decided to open proceedings (first and second scenarios, above), and even if the alleged perpetrator is in Belgium. Moreover, the wording of the law does not preclude the possibility of referring the matter to one of the aforementioned other states if the crime (committed in another state) was committed by a Belgian or against a Belgian. Whether the matter is referred to the ICC or to another state more “naturally” qualified to exercise jurisdiction than Belgium, the Belgian courts may resume jurisdiction in either case if the ICC or the other state take no action in the matter (Art. 7 § 2, para. 3; Art. 7 § 3, para. 2, a contrario). Fourth scenario: Again if the crime has been committed in another state, by a foreign national and against a foreign national, the government may refer the matter to the state of which the alleged perpetrator is a national. As in the preceding scenario, there is nothing to prevent the government from referring the case, even if the Federal Prosecutor has decided to open proceedings (first and second scenarios, above) and even if the alleged perpetrator is in Belgium. This scenario differs from the preceding one in that, if the state to which the crime is referred has legislation under which serious crimes under IHL are punishable and the parties are assured of a fair trial, Belgium may hand the case over to that state definitively (Art. 7 § 4, para. 2). This rule applies to complaints lodged before the amendments were promulgated (e.g. the complaints in the Sharon and Bush cases). In this scenario, the government must first ask the Chamber of Indictments for an opinion. However, the opinion is not binding upon the government (Art. 7 § 4, para. 3). Fifth scenario: In each case where a crime is referred to the ICC or to another state (third and fourth scenarios, above), the decision to disclaim Belgian jurisdiction is made by the Court of Cassation on the basis of a statement by the Public Prosecutor (Art. 7 §§ 2-4, para. 2) according to the following criteria: • Where the matter is referred to the ICC, the Court of Cassation simply disclaims the jurisdiction of the Belgian courts without further investigation (Art. 7 § 2, para. 2). 100


• Where the matter is referred to a third State but may be referred back to the Belgian courts later, the Court of Cassation disclaims the jurisdiction of the Belgian courts after first verifying that there has been no mistake as to the person concerned and that the judicial system of the state in question respects the rules of fair trial (Art. 7 § 3, para. 2), as is clear from the travaux préparatoires (discussed further, below), the law itself being unclear on this point. • Where the matter is referred to the state of which the perpetrator is a national and may not be referred back to the Belgian courts later, the Court of Cassation “sur réquisition du procureur général, prononce, le dessaisissement de la juridiction belge saisie du même fait, après avoir vérifié qu’il n’y a pas erreur sur la personne” [on the basis of a statement by the Public Prosecutor formally disclaims the jurisdiction of the Belgian court to which the matter has been referred, after first verifying that there has been no mistake as to the person concerned] (Art. 7 § 4, para. 2). The new Article 7 raises the following three questions, which are addressed in the three subsequent sections of this paper:

36.

• What is the precise role of the Court of Cassation in disclaiming the jurisdiction of the Belgian courts? • Is referring a case to the ICC or the authorities of another state tantamount to a governmental right to order the judiciary not to act? • When can the government refer matters to another state with or without disclaiming the jurisdiction of the Belgian courts? C.3.a. The Role of the Court of Cassation in Disclaiming Jurisdiction One of the principal questions raised by what is now the 1993/1999/2003 law, on which members of parliament were long divided, is the extent of the Court of Cassation’s right of review in cases where the jurisdiction of the Belgian courts is disclaimed definitively, pursuant to Article 7, § 4. Is the Court’s role confined to verifying the identity of the person concerned or can it go further?

37.

A draft amendment indicated that the Court disclaimed jurisdiction “dans le respect des obligations internationales de la Belgique” [in keeping with Belgium’s international obligations].86 This proviso was deleted87 after the

86

D.P., Chamber, 2002-2003, Doc. 50 2265/002; D.P., Chamber, 2002-2003, Doc. 50 2265/003, at 55, March 28, 2003.

87

D.P., Chamber, 2002-2003, Doc. 50 2265/003, at 55, March 28, 2003; D.P., Chamber, 2002-2003, Doc. 50 2265/11.

101


Minister of Justice pointed out that the principle of the primacy of international law over domestic law was already enshrined in Belgian law88 and there was consequently no need to repeat it. While the words may have been deleted, the idea nevertheless remained. The legislature argued that if the decision to disclaim jurisdiction must comply with international law, then the Court of Cassation should be able to review that issue. However, the Conseil d’Etat was more circumspect: “…la rédaction du texte ne semble guère prendre en considération le pouvoir d’appréciation de la Cour de cassation. Pourra-t-elle, par exemple, refuser de prononcer le dessaisissement de la juridiction belge si elle juge qu’un tel dessaisissement ne serait pas compatible avec les obligations internationales de la Belgique ou si ce dessaisissement doit se faire au profit d’une juridiction d’un État où la peine de mort est encore d’application?” [… the wording of the instrument appears to pay little attention to the discretion to be accorded to the Court of Cassation. Will it, for example, be able to refuse to disclaim the jurisdiction of the Belgian courts if it considers that a decision to disclaim jurisdiction would be incompatible with Belgium’s international obligations or if jurisdiction were to pass to a court in a state where the death penalty still applies?]89 The government ultimately gave a clear response on this point. Replying to a member of parliament, Jean-Pierre Grafé, who sought an assurance that the Court of Cassation would be able to satisfy itself that there were “garanties suffisantes pour que le dossier soit instruit de manière correcte après le dessaisissement” [sufficient guarantees that the matter would be investigated properly after jurisdiction had been disclaimed], the minister of justice said the Court “contrôlera bien entendu si les conditions énoncées à l’al. 1er du § 4 sont remplies” [would of course find out whether the conditions set out in para. 1 of § 4 were fulfilled].90 In a separate answer, the minister of justice said: “…la décision de dessaisissement serait de toute façon la conséquence (non automatique) d’une décision de dénonciation prise par le ministre de la justice.” […the decision to disclaim jurisdiction would in any event follow (albeit not automatically) from a decision by the Minister of Justice to refer the case.]91

88

D.P., Chamber, 2002-2003, Doc 50 2265/003, at 56, March 28, 2003.

89

D.P., Senate, 2002-2003, 2-1256/13, April 4, 2003, II, 3.1.

90

D.P., Chamber, 2002-2003, Doc. 50 2265/008, at 9, 1 April 1, 2003.

91

D.P., Chamber, 2002-2003, Doc. 50 2265/003, at 24, March 28, 2003 (emphasis added).

102


Minister for Foreign Affairs Louis Michel put the matter even more clearly: “… le rôle de la Cour de cassation, tel que prévu aux paragraphes 3 et 4 de l’article 7, n’est pas un rôle formel. Il s’agit, au contraire, d’un rôle tout à fait réel et cette cour, comme toutes les juridictions du Royaume, ainsi que le gouvernement, devra respecter les obligations internationales que la Belgique doit assumer conformément aux instruments internationaux qu’elle a ratifiés. “Ces instruments sont évidemment nombreux et bien connus. Je pense à la Convention européenne des droits de l’homme de 1950, aux Pactes des Nations unies de 1966 et aux nombreux autres instruments en matière de droit humanitaire international. “Pour répondre à … un certain nombre d’autres intervenants, je dirai que la Cour de cassation conserve bien son pouvoir d’appréciation plein et entier.… “Je réaffirme donc que nous ne nous départirons pas du principe fondamental, à savoir le respect de nos obligations internationales, tant du point de vue des droits de l’homme, qui exigent une justice indépendante, impartiale et équitable, que du point de vue humanitaire international. C’est tellement évident et incontestable qu’il ne faut pas l’exprimer explicitement.”92 [ … the role of the Court of Cassation, as laid down in paragraphs 3 and 4 of Article 7, is not a formalistic role. It is, on the contrary, a very real role and that Court, like every court in the Kingdom and like the government, must comply with the international obligations Belgium is required to assume in accordance with international instruments it has ratified. [There are of course many such instruments and they are well known. I am thinking of the European Convention on Human Rights of 1950, the United Nations covenants of 1966, and the many other instruments of international humanitarian law. [In reply to … a number of other speakers, I will say that the Court of Cassation certainly still has full and absolute discretion.… [I repeat therefore that we will not depart from the fundamental principle, namely compliance with our international obligations both in respect of human rights, which require a fair, impartial and independent judicial system, and with regard to international humanitarian con-

92

A.P., Senate, 2-289, April 5, 2003.

103


siderations. This is so obvious and indisputable that it does not need to be spelled out.] Consequently, the Court of Cassation may certainly undertake thorough review of decisions to disclaim Belgian jurisdiction, and such reviews should include the criterion of “respect des obligations internationales de la Belgique” [compliance with Belgium’s international obligations].93 That criterion should prevent Belgium from abandoning cases on which international law requires it to rule. Thus under the 1949 Geneva Conventions (common articles 49/50/129/146), states are required to prosecute perpetrators of war crimes who are in their territory. States may, it is true, extradite perpetrators of such crimes to a state that requests extradition. However, in the absence of such a request, the state in which the perpetrator was arrested is required to prosecute.94 In such a case, it would not in principle be possible to disclaim jurisdiction without extraditing the accused to a state wishing to prosecute the perpetrator. C.3.b The Government’s Authority 38. The Conseil d’Etat and several members of parliament wondered whether the new system complied with the principle of the separation of powers (Belgian Constitution, Art. 151) and whether the Court was being “instrumentalisée” [reduced to a tool],95 a “notaire du gouvernement” [government notary]96 or an office for rubber-stamping the government’s decisions on cases brought before the courts.97

Even the U.N. Committee Against Torture (established under the 1984 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) found the situation disturbing and recommended that the Belgian government, a few days after the amendments were adopted, “… d’assurer le respect du principe de l’indépendance des juridictions belges par rapport au pouvoir exécutif, pour ce qui concerne l’exercice de la compétence universelle en matière de violations graves du droit international humanitaire.”

93

See also, A.P., Senate, 2-289, April 5, 2003, P. Monfils, H. Vandenberghe.

94

3 Pictet Commentary, supra note 17, at 657; Le principe de l’universalité, supra note 17, at 353.

95

A.P., Senate, 2-289, April 5, 2003, oral report by Mme J. Leduc, J. Dubié, P. Mahoux, P. Moureaux, M. Kaçar.

96

A.P., Senate, 2-289, April 5, 2003, C. Nyssens.

97

D.P., Senate, 2002-2003, 2-1256/13, April 4, 2003, II, 3.1; D.P., Chamber, 2002-2003, Doc. 50 2265/008, at 4, 10, per B. Laeremans and G. Bourgeois; D.P., Senate, 2002-2003, 2-1256/14, April 5, 2003, per P. Mahoux, G. Dallemagne & C. Nyssens; A.P., Senate, 2-289, April 5, 2003, P. Mahoux, H. Vandenberghe, L. Tobback, J. Dubié.

104


[… assure compliance with the principle of the independence of the Belgian courts from the executive, as regards the exercise of universal jurisdiction in the matter of serious breaches of international humanitarian law.]98 Here too, the government was clear: the minister of justice considered that there was no question of establishing a “droit d’injonction négative” [right to order the Court not to act], since the Court of Cassation would not allow the minister to exercise such a right.99 The minister for foreign affairs took the same view:

39.

“Enfin, ce fameux paragraphe 4 est bien évidemment subsidiaire au paragraphe 3. Il n’entre pas dans nos intentions de nous immiscer dans les activités du pouvoir judiciaire. Nous n’entendons pas demander aux autorités judiciaires d’habiller en quelque sorte juridiquement une décision politique du conseil des ministres. Au contraire, nous voulons que le dessaisissement s’opère toujours par les autorités judiciaires. La décision du conseil des ministres entend seulement éclairer la Cour de cassation sur certains aspects devant être pris en considération et dont elle n’aurait pas connaissance.” [Lastly, the famous paragraph 4 is quite clearly subordinate to paragraph 3. It is not part of our intention to interfere with the activities of the judiciary. We do not intend to ask the judicial authorities to clothe a political decision of the Council of Ministers in some sort of juridical garb. On the contrary, it is our wish that disclaiming jurisdiction should always be an act of the judicial authorities. The Council of Ministers’ decision is intended only to clarify for the Court of Cassation certain aspects which must be taken into consideration and of which it may not be aware.]100 This statement is clearly very important and must be taken literally: if the government’s role consists solely of “éclairer” [clarifying] for the Court points “dont elle n’aurait pas connaissance” [of which it may be not be aware], that means that the judiciary has full control over its own decisions.

98

Committee against Torture, 30th session, April 28–May 16, 2003, CAT/C/CR/30/6, Examen des rapports présentés par les Etats parties en application de l’article 19 de la convention, part relating to Belgium, § 7, f (May 14, 2003).

99

D.P., Chamber, 2002-2003, Doc. 50 2265/003, at 57, March 28, 2003.

100

A.P., Senate, 2-289, April 5, 2003, Louis Michel.

105


C.3.c The Criteria for Referring a Crime with Or without Disclaiming Jurisdiction The law does not explain the “circonstances objectives” [objective circumstances],101 or the criteria that would lead the government to refer a case, either with the possibility that it may be referred back to the Belgian courts (Art. 7 § 3), or without that possibility (Art. 7 § 4). The lack of clarity on this point is a source of legal uncertainty for the victims.102 The travaux préparatoires, however, does offer some insight. The minister of justice stated that definitive dismissal of a complaint “ne s’appliquera pas aux dossiers pendants” [would not apply to cases pending before the courts]103 and would be a last resort if all else failed: “l’exception absolue, lorsqu’aucune autre issue n’est possible” [an absolute exception, when there is no other way out].104

40.

Some members of parliament pointed out that the procedure was without prejudice to the Conseil d’Etat’s powers to review decisions taken by the government under § 4.105 The question nevertheless arose whether such a course was possible, since the Court of Cassation reviewed the disclaiming of Belgian jurisdiction.106 If reference by the minister of justice was entirely without prejudice to the Court of Cassation’s right to accept or refuse a proposal to disclaim jurisdiction, the reference appeared to be an act within the state’s discretion and so, in principle, not subject to censure by the Conseil d’Etat.107 41.

42. The Conseil d’Etat also wondered whether the different treatment accorded to the complainants referred to in §§ 2-3, on the one hand, and those referred to in § 4, on the other, might not constitute discrimination prohibited under Arts. 1011 of the Belgian Constitution (possibly in conjunction with Art. 191); under § 4,

“… les plaignants n’ont aucune garantie que leur plainte pourra effectivement être examinée par une autre juridiction, soit internationale, soit d’un autre État qui se serait reconnue compétente.” [… complainants have no guarantee that their complaint will in fact be heard by 101

D.P., Senate, 2002-2003, 2-1256/13, April 4, 2003, II, 3.2.

102

D.P., Chamber, 2002-2003, Doc. 50 2265/008, at 4, April 1, 2003, per B. Laeremans.

103

D.P., Chamber, 2002-2003, Doc. 50 2265/003, at 56, 28 March 28, 2003.

104

D.P., Senate, 2002-2003, Doc. 2-1256/12, at 17, April 3, 2003.

105

D.P., Chamber, 2002-2003, Doc. 50 2265/008, at 12-14, April 1, 2003, F. Erdman, F. Moerman, G. Bourgeois.

106

Id., at 12, O. Maingain

107

See R. Ergec, Le contrôle juridictionnel de l’administration dans les matières qui se rattachent aux rapports internationaux: acte de gouvernement ou réserve du pouvoir discrétionnaire?, 1986 Revue de droit international et de droit comparé 72; see also CE aff. 73027, April 9, 1998, Tshizeze Mayembe, 1998 Adm. Publ., M 5, 80; id. T4/1998, at 317-318 (note by E. Robert); M. Leroy, Les actes de gouvernement: un spectre qui hante la jurisprudence du Conseil d’Etat belge, 1999 Adm. Publ., T, 183-189.

106


another court, either an international court or a court of another state which claims jurisdiction.]108 There would thus be discrimination between complainants whose complaints would be heard by the courts pursuant to §§ 2-3 of the law and complainants who would have no assurance as to what action would be taken on their complaints if they were referred to another state pursuant to § 4 of the law. An action for the annulment of § 4 of the law could therefore be brought before the Court of Arbitration (special law of January 6, 1989 on the Court of Arbitration, Art. 1), although it is doubtful whether such an action would be successful. Such, therefore, is the system finally adopted after a parliamentary steeplechase that divided the governmental majority and was eventually won by the right, against opposition from the left and center, only by dint of a new majority relying upon votes from the extreme right.

43.

The new system had its baptism by fire on May 14, 2003, a week after it came into force (May 7, 2003), when complaints were lodged in Belgium against Commander in Chief of the U.S. Central Command General Tommy Franks, U.S. Marine Lieutenant Colonel Bryan McCoy and unnamed members of the American armed forces in connection with the use of cluster bombs in Iraq, in areas where there were civilians. As the acts in question had been committed in another state by foreign nationals against foreign nationals who had not been resident in Belgium for at least three years, there was no link with Belgium – the possibility covered by Article 7 § 1, para. 2. Action could not be taken on the complaints unless the Federal Prosecutor ruled that they were admissible.

44.

However, as these complaints had again aroused anger in the U.S., the Belgian government did not wait for the Federal Prosecutor’s decision on admissibility but decided, six days later, to invoke Article 7 § 4 of the law to bring the matter to the attention of the U.S. government officially.109 In law, however, the complaint is with the Federal Prosecutor and, formally, it is the Federal Prosecutor’s role to notify the complainants whether or not the complaint is admissible, as is provided in Article 7 § 1, para. 2. The complainants may then appeal against the decision before the Chamber of Indictments (supra § 35). Moreover, the minister of justice had stated in this connection: “Même après la décision du Conseil des ministres, la cause demeurera pendante d’un point de vue pénal jusqu’au moment du dessaisissement.” [Even after the Council of Ministers has taken a decision, the

108

D.P., Senate, 2002-2003, 2-1256/13, April 4, 2003, II, 3.2; see also, Tony van Parys, Doc. 50 2265/003, at 61, March 28, 2003; D.P., Chamber, 2002-2003, Doc. 50 2265/008, at 5, April 1, 2003, per B. Laeremans; D.P., Senate, 2002-2003, 2-1256/14, April 5, 2003, per P. Mahoux; A.P., Senate, 2-289, April 5, 2003, C. Nyssens.

109

Council of Ministers, sitting of May 20, 2003.

107


case will remain pending from the point of view of criminal justice until jurisdiction is disclaimed.]110 The discussion is, of course, becoming academic, but there is nevertheless some interest in seeing what will happen next.

Conclusions The essential objective of universal jurisdiction is to prevent perpetrators of certain particularly shocking offenses from escaping punishment by crossing a border.

45.

The exercise of universal jurisdiction under the rule aut dedere aut judicare does not raise any particular legal problem: it is enshrined in many international conventions requiring that it be incorporated into the domestic law of states parties. Article 12 bis of the Preliminary Title of the Code of Criminal Procedure now fulfills that requirement in the case of Belgium (supra §§ 6-7). Should a state fail to fulfill this obligation, a court well versed in constitutional and international law may invoke international law directly to justify the exercise of universal jurisdiction within the domestic legal order (supra §§ 11-13). There is more debate as to the legal and political justification for universal jurisdiction in absentia in the case of serious crimes under IHL.111 Legally, the arguments may seem vain (supra §§ 21 ff.), but politically they serve to bolster the application of such jurisdiction to offenses that are the most serious of serious crimes. The investigation of such crimes cannot be improvised; if crimes against humanity as a whole are to be effectively punished, the ground must be properly prepared and investigating judges must be able, within the limits of the means available to them, to consider complaints relating to crimes whose sole link with the prosecuting state is the universal nature of the liability attaching to them and the fact that the victims are in the territory of that state. In an age of cross-border crime, it is absurd to seek to prevent investigations because the alleged perpetrator of an offense is not in the territory of the state. 46.

This does not necessarily entail proceeding to trial by default: it is far better for a crime to be judged in the country where it was committed.112 Moreover, it would be unhealthy for one state to become the long arm of the judicial law for the rest of the world, and universal jurisdiction would stand revealed as theoreti-

110

D.P., Chamber, 2002-2003, Doc. 50 2265/003, at 57, March 28, 2003.

111

On this point, see Eric David, Une règle à valeur de symbole, 23 Politique 12 (Brussels) (February 2002); for a critical view, see J. Verhoeven, Prétentieuse et bricolée, 23 Politique 18 (February 2002).

112

D. Vandermeersch, La compétence universelle en droit belge, in Poursuites pénales et extraterritorialité, supra note 44, at 79-80.

108


cal if only one state were to apply it. However, Belgium is no longer alone in introducing this purely procedural extension of universal jurisdiction.113 Consequently, if the court that should ordinarily judge the crime (by virtue of personal or territorial jurisdiction) does not act, it is desirable that another state should do so, although it must warn the complainants of the difficulties this will entail. Nevertheless, justice sought at a distance is better than no justice at all. Symbolic justice may be laughable, or at least risible, but it has nevertheless kept a former dictator under house arrest for almost fourteen months and prevented ministers from travelling as they wished. It may be branded as “neo-colonialist,” but it is generally invoked only by citizens of former colonial countries. It may be deemed inappropriate for crimes committed in faraway countries, with unfamiliar languages, customs, traditions and laws, but it seems doubtful that war crimes or crimes against humanity depend upon the language, customs, traditions or laws of the place where they are committed …

47.

Nonetheless, the fact remains that the road from theory to practice, from moral precept to law, from intention to action, is full of pitfalls. From Iran to the DRC, Israel and the U.S., Belgium is beginning to form an idea of the diplomatic price of enforcing the 1993/1999/2003 law. It is true that states have accepted the principle of universal jurisdiction in theory and in the abstract, but serious crimes under IHL are almost always committed in a context of state policy. To seek to punish them is to put on trial not only individuals but also the state that is behind the crimes. Hence the hysterical touch-me-not reactions of political authorities who – not always unreasonably, it must be said – feel under fire when the rules they themselves agreed upon are enforced. So it is not just universal jurisdiction in absentia that is at stake, it is universal jurisdiction in its entirety. The political problems arising from the prosecution of a Russian or American general for war crimes are not diminished if the person concerned is present rather than absent. Quite the contrary!

48.

So what is to be done? Is universal jurisdiction over crimes under IHL to be regarded as a myth, a pious hope, an “ideal to be achieved” if all goes well, or is it to be viewed as a rule of law proper, even if still difficult to enforce because of the balance of power that still governs international relations?

49.

Whether one likes it or not, universal jurisdiction over crimes under IHL is based upon normative instruments or customary rules that are undisputed (supra

113

See, e.g., the Luxembourg law of January 9, 1985 on the punishment of serious offenses under the 1949 Geneva Conventions, Art. 10; the Italian Penal Code, Art. 7; the New Zealand International Crimes and ICC Act 2000, sect. 8 (1) (available at: rangi.knowledge-basket.co.nz/gpacts/ public/text/2000/an/026.html); the German law of June 26, 2002 establishing an International Criminal Code, Art. 1 § 1 (available at: www.iuscrim.mpg.de/forsch/legaltext/vstgblfranz.pdf). See also certain laws in Bolivia, Burundi, El Salvador, Peru and Switzerland, cited by Amnesty International, Study on Universal Jurisdiction Vol. 1, Part A, at 28, 35, 68 ; Part B, at 49, 77 (2001).

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§§ 11-12). It therefore pertains to law proper, and the problem is not so much one of law as of political will. In the present state of international relations, Belgium has not the means to lead the campaign for IHL even if it has the right to do so. To reconcile the demands of IHL with the constraints imposed by international politics, one possible solution might be to review the application of the 1993/1999/2003 law once again in the light of the following principles:

50.

• A clear distinction should be drawn between the judicial and the executive branches. The right to review the enforcement of the law should be vested exclusively in the judiciary, leaving the executive branch to act in its own proper sphere. There should be no question of the political authorities disclaiming the jurisdiction of the courts, not even through the roundabout route of the Court of Cassation (1993/1999/2003 law, Art. 7 § 4); • The Public Prosecutor’s Office must continue to be responsible for screening complaints that have no link with Belgium, as provided under the new amendments (1993/1999/2003 law, Art. 7 § 1). The judiciary must be trusted use its discretion to reject not only complaints that are unfounded but also complaints that are well-founded but politically “impossible.” • In the case of complaints that would be better handled by the ICC or another state, the system of referral laid down in Article 7, §§ 2-3 should be retained. However, in order to develop a uniform policy on crime, the Public Prosecutor’s Office should bring cases to the government’s attention for subsequent referral to the ICC or other states better situated to deal with them. Should no action be taken on a case that has been referred, the Belgian court would continue to have jurisdiction, as at present. • Well-founded complaints that are conclusively rejected by the Public Prosecutor’s Office because of the serious international political problems they raise should not, however, be abandoned altogether. It would again be for the Public Prosecutor’s Office to bring them to the government’s attention and to ask that the necessary diplomatic measures be undertaken to ensure that action is taken on the complaints in question. Here too, it would be for the government to refer the crime to the state best situated to deal with it (the state where the crime was committed, the state of which the alleged perpetrator is a national or in which the alleged perpetrator is to be found), while also exerting appropriate diplomatic (or judicial) pressure (as it thinks best) to ensure that the complaints are investigated by the state to which they are referred. No state, no matter how powerful, can blame the Belgian authorities for insisting upon securing respect for IHL, since this insistence is based upon international law.114 If associations for the defense of human rights (Amnesty 114

Cf. common art. 1 of the four 1949 Geneva Conventions, Art. 1 § 1, of the First Additional Protocol of 1977.

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International, International Federation of Human Rights Leagues, Human Rights Watch, and others) or IHL (the International Committee of the Red Cross) can do it, then a fortiori a state ought to be able to do it as well. This system would give the Public Prosecutor’s Office a central role in enforcement and would maintain arrangements for screening claims for damages. Yet it would have the advantage of ensuring that the judiciary is independent of the executive branch and that action is taken on all complaints that are well-founded – judicial action in Belgium or elsewhere, and political/diplomatic action in the case of complaints that cannot be handled in Belgium. It is true that this system could not guarantee that crimes are punished. Nevertheless, one state cannot be asked to do more, alone, than the 193 or so states comprising the international community have ever agreed to do together. The international criminal justice system that the international community has established is itself a two-tiered system. The Nuremberg and Tokyo international military tribunals only ruled on the crimes committed by those who had lost the war; nothing was done about the bombings of Dresden, Tokyo, Hiroshima or Nagasaki. Ad hoc international criminal tribunals were set up only for the former Yugoslavia, Rwanda and Sierra Leone. Nothing was done about Indonesia in 1965, Nigeria/Biafra in 1970, Bangladesh at the same time, Cambodia in 19751979, Sudan since 1980, Burundi in 1972 and since 1993, Algeria in the 1990s, etc. The ICC only has jurisdiction over states that accept it (either informally or formally, by accepting the statute), unless the Security Council should refer a case to it.

51.

If double standards are the rule in the international criminal justice system, a state can hardly be expected to show more perfect consistency. With these provisos, universal jurisdiction is not a mirage. In addition to the jurisdiction exercised in the case of international offenses committed by individuals rather than states (terrorism in all its forms, trafficking of various kinds, and so forth), universal jurisdiction is also a legal reality in the case of the worst atrocities humans may commit under the cover afforded by states. It is not always easy to enforce, but it is there. The world cannot but move towards a more effective application of its principles.

52.

In the meantime, let the U.S. consider the famous words of the miller of Sanssouci. When King Frederick II of Prussia wanted to evict him to extend his park, his retort was: “Es gibt noch Richter in Berlin” [There are still courts in Berlin]. Even if there are not, as yet, many countries where the courts can hear complaints from victims of the worst atrocities, their numbers are nevertheless steadily increasing. No matter what the detractors of universal jurisdiction may think about it, this trend is unstoppable.

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As a member of the Belgian Senate said, paraphrasing Clausewitz, during the debate on the 2003 amendments to the 1993 law: if “ la diplomatie finit là ou commence la guerre, […] nous devons oser dire : la diplomatie s’arrête là où le génocide est en jeu. ” [“War may be the continuation of politics by other means, […] but we must have the courage to say that genocide is not.”]115 May 28, 2003

First Addendum Following the elections of May 18, 2003, the winning parties – the Socialists (left) and the Liberals (right) – engaged in discussions. As part of a pregovernmental agreement, these two groups decided that the 1993 law would have to be revised (for the fourth time!). This decision was the result of American pressure. The U.S., through Secretary of Defense Donald Rumsfeld, had made it clear, first, that it would not contribute to the cost of erecting of new buildings for NATO in Brussels and, second, that it was determined to get NATO headquarters moved unless the 1993 law was amended to suit its wishes. In its view, NATO headquarters could not possibly remain in a country where representatives and special envoys of NATO member states might be subject at any time to judicial measures based upon that law. It considered that the April 2003 amendments to the law would not suffice to prevent that risk.116

53.

America’s fears are clearly absurd in view of the diplomatic or quasi-diplomatic immunity accorded to the permanent representatives of NATO member states and members of special missions under the Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, signed at Ottawa on September 20, 1951 (Arts. XII-XIII). In fact, the U.S. probably cannot bear the thought that, even if its agents were not taken into custody, they might be called to account in a foreign court for acting on a governmental decision or in the context of such a decision. The U.S. opposes such a procedure even in the case of private individuals, as we see from its energetic attempts to conclude agreements with as many states as possible not to refer U.S. citizens to the ICC. It accepts the arrest and prosecution of U.S. nationals without demur when they are charged with ordinary legal offenses but it will not allow them to be prosecuted in a foreign court for the most serious of serious crimes. This is not inconsistency, it is a political choice: the U.S. will allow a foreign court to prosecute an American who has been trafficking in drugs but not an American who is accused of torture or war crimes. The former, unlike the latter, is not, as a rule, acting on his country’s orders.

54.

115

A.P., Senate, 2-289, 5 April 2003, V. Van Quickenborne.

116

See Le Soir, La Libre Belgique, l’Echo, and others, June 14, 2003 and subsequent days.

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In fact, the amended law does not preclude the possibility that Americans may be prosecuted for crimes that have some link with Belgium (supra § 35). Even where a complaint is lodged against them in Belgium, though without any link with that country, a decision by the Federal Prosecutor that the complaint is inadmissible may be reviewed by a Belgian court by way of an appeal to the Chamber of Indictments (supra § 35, second scenario). The mere possibility of such an event is unacceptable to the “Empire.”

55.

Physically, if the U.S. threats were followed up and NATO headquarters were moved to another country, SHAPE (the Supreme Headquarters Allied Powers Europe) – currently located in the Walloon region – would have to move too, with serious economic repercussions for the regions involved. These American threats to move out undoubtedly constitute intervention in the internal affairs of Belgium, inasmuch as they seek to prevent Belgium from exercising its sovereignty in compliance with international law. The intention is to “use” or “encourage the use of ”

56.

economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.117 Since the exercise of universal jurisdiction over persons in the territory of the state where the court is convened is a legal obligation (supra §§ 10-11), to prevent the exercise of that jurisdiction would be to prevent the state from doing something it is authorized and obliged to do under international law. This constitutes the very essence of intervention.118 Although the Belgian Government claimed with a perfectly straight face that it was not yielding to American pressure,119 it nevertheless rewrote its text once again. A press release issued on June 22, 2003 gives some indication as to the amendments to be made to Article 7 of the law. 57.

First, the jurisdiction of the Belgian courts is to be limited to cases where the perpetrator or the victim of the crime are Belgian nationals or have been resident in Belgium for at least three years. In other words, out goes universal jurisdiction! All that remains is the customary personal jurisdiction, active and passive, already enshrined in the Preliminary Title of the Code of Criminal Procedure (Arts. 7 and 10, 5°), albeit extended to cover persons who have been resident in Belgium for three years. So much for the conventional and customary rules that require Belgium, like every other state (including the U.S.), to exercise universal jurisdiction (supra §§ 10-11).

117

U.N. General Assembly Declaration of October 24, 1970 on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, A/Res. 2625 (XXV), 3rd principle, 2nd para.

118

Eric David, “Portée et limites du principe de non-intervention,” 1990 R.B.D.I. 350.

119

See Le Soir and other Belgian papers on June 23, 2003.

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Second, the admissibility of a complaint is to depend upon acceptance by the President of the Court of Appeals, even if the complaint in question meets the criteria on links set out in the law. Paradoxically, under this system the Belgian courts will have more limited jurisdiction over the most serious of serious crimes (in violation of international law) than over ordinary crimes. If a Belgian is the victim of an ordinary crime committed in another state, a Belgian court may hear the case in accordance with Article 10, 5° of the Preliminary Title of the Code of Criminal Procedure, provided that the perpetrator of the crime is in Belgium (the Preliminary Title of the Code of Criminal Procedure, Art. 12). In contrast, if the same Belgian suffers the same fate but the crime is classified as a “war crime,” the Belgian court can only hear the case if the President of the Court of Appeals agrees. Lawyers will quickly realize that, if the victim is a Belgian, they will only have to file the complaint on the basis of the regular penal code provisions – e.g., manslaughter, murder, etc., whether as a principal plea or in the alternative – to avoid the screening process. Third, a complaint would be inadmissible if the perpetrator of a crime were a national of a state where the relevant provisions of law are similar to that of the Belgian law and the right to a fair trial is guaranteed. However, as no state yet categorizes as crimes all the offenses covered by the law of June 16, 1993, as set out in Articles 1, 1 bis and 1 ter, this criterion of admissibility would be de facto inapplicable. It remains to be seen how parliament will react to the new proposals. We await the next thrilling installment … June 30, 2003

Second Addendum Habemus legem … We did not have to wait long. On July 11, 2003, the Socialists and the Liberals agreed on the following points:

58.

•

The 1993/1999/2003 law is to be repealed.

• The crimes and jurisdiction covered by that law are to be incorporated into the Penal Code and the Code of Criminal Procedure. • The Belgian courts will continue to have active personal jurisdiction, extending to persons resident in Belgium when the offense was committed. • The Belgian courts will continue to have passive personal jurisdiction, extending to refugees and stateless persons who were resident in Belgium for three years when the offense was committed. 114


• Universal jurisdiction will be retained in cases where international conventional and customary law binding upon Belgium requires it (application of the rule aut dedere aut judicare in general, and aut judicare aut dedere in the case of crimes covered by the 1949 Geneva Conventions). •

Cases may still be referred to the ICC.

• There will be no prosecutions of current foreign heads of state, ministers of foreign affairs or other persons protected by immunity, which will apply in accordance with the general and specific rules of international law binding upon Belgium. • Complainants may still lodge direct civil claims for damages but only in cases where the crime has been committed in Belgium or elsewhere by a Belgian national or by a person resident in Belgium. In other cases, the right to lodge a civil claim for damages is subject to submission of appropriate statements for discretionary consideration by the Federal Prosecutor. To that end, the Prosecutor is required to consider the possibility of prosecution in another state that guarantees respect of the fundamental rights and freedoms named in the instruments enshrining Belgium’s connection with that other state. As of this writing, these amendments are yet to be submitted to the Conseil d’Etat for examination and forwarding to the Parliament. However, as the basic principles have been adopted by the actual political majority, they should pass into law without too much difficulty.120

59.

This system represents the abandonment of absolute universal jurisdiction in favor of a universal jurisdiction limited to what is required under international law. Any civil claim for damages will be a matter for the Federal Prosecutor. There will be no more executive branch interference (even superficial, supra § 38) in the work of the judiciary. The principle of judicious discretionary prosecution will apply.

60.

This is a considerable improvement on the amendments of April 2003 and those announced in June 2003. Belgium has again equipped itself with some of the weapons it needs to combat impunity, albeit strictly within the limits of what the international rules require. Such are the exigencies of international law, and thus Belgium could do no less. Yet such is the balance of power in international society, and thus Belgium could do no more. The new amendments are a perfect illustration of the old adage that politics is the art of the possible. July 12, 2003

120

The amendments were enacted into law on August 5, 2003. See Moniteur Belge, Aug. 7, 2003.

115

ISRAEL’S VIOLENT ATTACKS ON PALESTINIAN ARABS IN 1948-49: QUALIFYING CRIMES IN LIGHT OF INTERNATIONAL LAW AND CONSEQUENCES* Monique Chemillier-Gendreau†

I.

Introduction ............................................................................................... 118 A. Little-Known Events and Long-Term Implications ............................. 118 B. Establishing a Legal Framework to Qualify Criminal Acts and to Determine Necessary Reparations....................................................... 120

II. Crimes and Context ................................................................................... 123 A. Overview .............................................................................................. 123 B. Massacres ............................................................................................. 124 C. Expulsions............................................................................................ 126 D. Irreversible Measures ........................................................................... 128 III. A Deliberate Long-Term Policy ................................................................ 129 A. Criminal Intent ..................................................................................... 129 B. An Unrelenting Pattern of Criminality ................................................ 133 IV. Legal Qualification of the Facts................................................................ 135 A. Applicable Law in 1948-49 ................................................................. 136 B. Crimes Against the Peace..................................................................... 136 C. War Crimes .......................................................................................... 137 D. Crimes against Humanity..................................................................... 138 E. The Crime of Genocide ....................................................................... 139 F. Prescription or Imprescriptibility? ....................................................... 140 V. The Consequences of Persistent Criminal Acts ........................................ 141 A. Applying the Law of the Present to Crimes Committed in the Past ... 141 B. Israel’s Crimes of 1948-49 in Light of Changes to International Law... 142 VI. Prosecuting Crimes against Humanity: Prospects .................................... 144

*


†

Professor of international law, Université Paris VII-Denis Diderot.


ISRAEL’S VIOLENT ATTACKS ON PALESTINIAN ARABS IN 1948-49

I.

Introduction

The events of 1948 permanently scarred the collective memory of the Palestinian people, who continue to refer to them as al-Nakba (the catastrophe). Jewish extremist groups, such as Irgun Zvai Leumi (National Military Organization) and the Stern Gang, with the active or passive collusion of Haganah, the precursor to the Israeli army, perpetrated anti-Palestinian massacres, some of which led to Arab counter-attacks. These massacres were accompanied by a spate of forced expulsions that varied in their brutality. These expulsions set off a huge Arab exodus, with entire populations fleeing cities and villages. This led Israel to implement a systematic and irreversible program that made it impossible for Arabs to return to their homes. Amid scenes of unparalleled suffering, some 700,000800,000 individuals – a sizeable proportion of the Palestinian people – were relegated to refugee camps. Some camps were located in areas of the West Bank that Israel did not annex; others were in neighboring countries. Conditions in the camps are still disastrous, more than fifty years later. Palestinian refugees initially hoped that their departure would be short-lived. As the decades went by, however, they were forced to recognize their plight: they had been driven from their lands, stripped of their property and condemned to a life of uncertainty. The fact that the Palestinians have been deprived of nationhood only serves to exacerbate their condition. Dating back to the beginning of the British Mandate, in 1922, the Arab-Jewish conflict in Palestine was sparked when a “Jewish national home” was promised and waves of Jewish immigrants began to arrive. Under British rule, a number of violent incidents led to an Arab revolt. Strictly speaking, however, the present conflict began when Britain announced its intention to withdraw from Palestine and the United Nations General Assembly adopted Resolution 181 (November 29, 1947), which proposed partitioning Palestine into a “Jewish state” and an “Arab state.”1

A.

Little-Known Events and Long-Term Implications

The events of 1948-49, including the first Arab-Israeli war, are unique for two reasons. We will consider these features before presenting our legal analysis thereof.

1

This conflict has generated a vast bibliography. The material presented in the Revue d’Études Palestiniennes over the years is particularly useful, as is Alain Gresh’s overview of the situation. See ALAIN GRESH, ISRAËL, PALESTINE. VÉRITÉS SUR UN CONFLIT (2002).

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First, for many years, Israelis took a highly controversial view of the period in question, with Palestinian eyewitnesses and historians unable to provide alternative interpretations. Indeed, as one consequence of the conditions imposed upon them, Palestinian researchers studying the period had no access to official archives and lacked the resources to make their voices heard within the field of historical studies. Nevertheless, after Israel granted access to its archives and Israel’s “new historians” began to reevaluate the record of events, the real picture began to emerge. Second, Israel’s official version of its “Arab policies” has never changed – for change to happen, there would have to be peace. These assorted policies have varied in intensity over the years. Palestinians were systematically massacred on several occasions, most notably in 1982 during the Lebanese civil war. There was unprecedented violence on a massive scale in the Sabra and Shatila refugee camps near Beirut. For more than fifty years, Israel’s relentless and systematic efforts to expel the Palestinians and to reduce their inhabitable territory have featured three strategies: expropriating land; confiscating property; and initiating a program of long-term colonization. Irrespective of the parties in power, the Israeli government has steadfastly supported measures leading to the permanent occupation of historical Arab lands that Resolution 181 had set aside for the Palestinians. What is more, it appears that Israel’s crimes in 1948 are inseparable from its more recent offenses. All told, this pattern reflects the implementation of continuous and deliberate policies, broadly supported by various Israeli governments ever since the state was founded. (This point will have a bearing upon our legal analysis.) These preliminary remarks underscore the relevance of the issues at stake. In another context, one could say that the legal qualification of crimes committed more than fifty years ago would only be of interest to historiographers. Nonetheless, conducting in-depth investigations to establish historical “truths” is never futile per se. If we hope to see societies develop democratically, such research is a political necessity. This study, however, has other objectives. The twentieth century produced conflicts marked by staggering violence and, at times, staggering cruelty. This led to two related developments: the refusal to cover up international crimes and the determination to bring legal action. The urgent need to clarify collective and individual liability and to set up reparations mechanisms led to an important shift in legal responsibility. This began to resounding effect in Nuremberg with the efforts of the International Military Tribunal, which tried former Nazi leaders for crimes committed during the Second World War and most notably against the Jewish people. Since then, this movement has gained in scope and breadth. Mindful of these developments, the Jewish people obtained reparations from Germany and recently took broad steps to address the issue of property stolen from them during the war. Indeed, whenever violence has wrought havoc, observers agree that social 119


peace hinges on two courses of action: shedding light on crimes and their perpetrators, and providing for reparations. There are many cases in point: Rwanda, Sierra Leone, the former dictatorships of Latin America, post-apartheid South Africa, Cambodia after the Khmer Rouge and the former Yugoslavia are among the nations which have sought to establish historical truths and to grant official “victim” status to those who have suffered. In some countries, special courts, such as South Africa’s Truth and Reconciliation Commission, have helped to heal wounds and to ease social tensions. In Rwanda and the former Yugoslavia, ad hoc international criminal tribunals have taken up the task of uncovering historical truths, determining responsibilities and meting out punishment via legal proceedings. As an initial step toward obtaining reparations, uncovering historical truths is essential. Providing legal qualifications of crimes, however, allows us to take matters further still. In this context, these goals are interrelated. Thanks to historians’ renewed interest in the 1948-49 period, the pattern of events and the particularities of each have given rise to authoritative interpretations that clearly demonstrate Israel’s responsibilities and goals. It is thus reasonable to analyze these events in light of their contemporary repercussions, tracing the echoes of yesteryear in the events of today. Two questions seem particularly relevant: do these events constitute a pattern of “instantaneous” crimes and violations that occurred only in the distant past; or, alternatively, do they constitute “continuing situations” whose nature and objectives, although subject to variation, continue by mirroring past policies?

B.

Establishing a Legal Framework to Qualify Criminal Acts and to Determine Necessary Reparations

Issues relating to international law require a multifaceted approach. There are two broad areas of consideration: international criminal law, specifically, and public international law, generally. As regards the former, we must qualify certain offenses as international crimes while identifying the perpetrators (whether individual or collective) with the aim of preventing future crimes. Since public international law generally is broadly similar to civil law we must address the issue of reparations for crime victims. Crucial questions of intertemporal law and statutes of limitations come into play in both international criminal law and public international law generally. The principle of nonretroactivity figures in many systems of criminal law. According to this principle, whenever new categories of offenses are created and codified as part of changes to existing law, these new offenses do not apply to prior acts. Moreover, since the primary sources of international law are international treaties, the principle of nonretroactivity and the rule that treaties govern only the states signatories thereto serve to further restrict these treaties’ narrow 120


range of jurisdiction. These points would seem to support those who argue that the events of 1948-49 fall within the exclusive purview of laws that were then in effect. To be sure, the parties involved might attempt to invoke the relativity of international agreements in order to circumvent any related legal consequences. All the same, several considerations serve to undermine these arguments. International crimes are divided into four separate categories: the crime of aggression, war crimes, crimes against humanity and genocide. As the most notorious example of collective crimes, crimes of aggression pit one state against another state or people. War crimes relate to particular and individual acts that violate the rules of warfare. Crimes against humanity and genocide both pertain to deliberate large-scale destruction carried out as part of a comprehensive and systematic plan. Since such crimes take place over prolonged periods, we must determine whether they have ceased if we wish to qualify them and, if possible, to bring charges. However, where there are manifestations of deliberate intent, these crimes will be found to have a continuing nature. This argument is reinforced by what is known as the doctrine of intertemporal law. International law recognizes that some cases relate to continuing violations, rather than to instantaneous events. This applies in particular to cases of territorial sovereignty.2 Facts giving rise to sovereignty disputes begin within the legal framework of a certain time period. They may subsequently lead to conflict, with legal action being brought at an even later date; in the interim, applicable laws may have changed. With respect to continuing situations, grievances cannot be resolved solely by referring to applicable laws in effect when the facts giving rise to the dispute started. With the passage of time, opposing parties in such continuing situation cases will be subject to later-in-time laws. Although the doctrine of intertemporal law is a fragile mechanism, it plays an essential role in averting socially unacceptable legal anachronisms. Since the doctrine of intertemporal law is part of general public international law, there is no reason why it should not apply to criminal matters. This does not mean that new laws are applied retroactively to past events. Rather, we should recognize that some cases might stem from a continuing pattern of events; these cases should be judged by applying the laws in effect when the crimes become known. Taking past events into account in the legal treatment of subsequent identical events is one example of how the doctrine of intertemporal law is applied in cases of continuing violations.

2

The Swiss jurist Max Huber provided a particularly cogent analysis of the doctrine of intertemporal law when he arbitrated a dispute between the United States and the Netherlands concerning the sovereignty of the Island of Palmas. See Island of Palmas Case (Netherlands, United States), 2 R.I.A.A. 831 (award of April 4, 1928).

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The logic of this approach was confirmed in contemporary international law when the permissible “retroactive” effect of a newly emerging peremptory norm of international law was recognized. Article 64 of the Vienna Convention on the Law of Treaties, which was opened for signature on May 23, 1969, states: “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.”3 Since the 1990s, new customary norms have entered into international law. These norms are clearly binding in character; indeed, they form a set of vital regulations designed to protect humanity in all its aspects and to guarantee fundamental human rights. To maintain the coherence and effectiveness of international law, we would emphasize that peremptory norms void existing treaties whose provisions enter into conflict with the new norms. In addition, such norms govern human rights cases, seeking to prevent massive violations of rights. This is not retroactivity in the usual sense of the term; rather, the “retrospective” aspects of these extraordinary penal norms are reserved for the most serious continuing offenses. In conclusion, if new norms can apply to the past, that is, to crimes committed long ago, then the future is assured, since the passage of time has no exonerating effect. As a result, the refusal to grant immunity for such crimes renders them imprescriptible and incapable of being extinguished due to passage of time. The time factor is thus reconciled by taking two issues into account. The first relates to the past: we must determine which norms were in effect when the crimes were committed; in the case of continuing crimes, we must determine whether they fall within the purview of new norms that have emerged since the crimes were initiated. The second issue relates to the future: we must determine whether the grave nature of the crimes in question precludes applying the usual mechanisms of prescription through imposition of time bars to prosecution. Similarly, the civil law aspect of the right to reparations flows from the qualification of the offenses. The right to reparations remains open as long as the offenses give rise to responsibility. These preliminary remarks reflect the two-fold strategy that informs our subsequent arguments. First, we will provide a comprehensive factual overview of the crimes under consideration; we will then qualify them based upon the categories set out in international law. Pursuant to applicable international law, we must also determine whether these crimes might result in legal action and if so, which type of proceedings would be appropriate. Legal action would aim not only to punish the guilty, assuming they are still alive, but also to allow victims to assert their right to reparations.

3

Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 64, 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).

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II.

Crimes and Context

In presenting an overview of the crimes in question, we will take into account the massacres that took place in 1948-49, together with the actual expulsion measures and the official acts that made expulsion irreversible. As part of our legal analysis, we will also focus on the systematic and deliberate nature of these acts as we seek to determine whether they constituted deliberate policies and whether they have been continued beyond the initial period in question.

A.

Overview

The events under consideration date back to 1947. In that year, the British government decided it would withdraw from the territory assigned to it in 1922 through the League of Nations Mandate for Palestine. Also in 1947, the U.N. General Assembly proposed a plan to partition the territory. Shortly after the First World War, the British agreed to a plan allowing Jewish immigration to Palestine despite unyielding Arab opposition. Britain had favored integrating the Balfour Declaration of 1917 into its territorial mandate thereby supporting a highly ambiguous goal: establishing a “national home” in Palestine for the Jewish people. This idea soon proved highly controversial, and Britain found itself obliged to restrict Jewish immigration and to put down a Palestinian revolt. By the end of the Second World War, the gulf between Arabs and Jews, and between both of these groups and Great Britain, had become unbridgeable. The London Conference, which the British reconvened in January 1947, did not succeed in reconciling the different positions.4 Under enormous pressure from Jewish immigration, Britain failed to win approval for its two-state proposal. The question of Palestine was subsequently referred to the U.N., which created the United Nations Special Committee on Palestine (“UNSCOP”). Before September 1, 1947, UNSCOP submitted proposals to the U.N.; however, UNSCOP fell victim to one-sided information. According to reports it received, the Jewish people faced ongoing danger in Europe and should be allowed to emigrate to Palestine; in addition, the Jews already living in Palestine had fostered remarkable developments that should be encouraged. UNSCOP thus called for partition, and the General Assembly adopted Resolution 181 proposing this

4

WM. ROGER LEWIS, THE BRITISH EMPIRE IN THE MIDDLE EAST, 1945-1951, 451-52 (1988).

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option on November 29, 1947.5 Resolution 181 was only approved as the result of intense pressure exerted on certain delegations.6 The Palestinians adamantly opposed the partition resolution. Fighting broke out almost immediately in its wake. Dissident Jewish groups (including Irgun and the Stern Gang) joined forces with Palmach, the standing Jewish army, to carry out a string of military operations. Amid growing military hostilities, Britain finally announced its intention to withdraw from Palestine on May 15, 1948. The day before that, on May 14, the provisional state of Israel declared its independence. Immediately thereafter, Arab armies entered Palestine. After several months of fighting, Israel emerged victorious in the first Arab-Israeli war, capturing territory in addition to that which had been proposed for the “Jewish state” in Resolution 181 and expelling many Palestinians who had previously lived there. For many years, historians conducted virtually no objective or critical research into the events of late 1947 through 1949. Legal analyses of crimes against Palestinians were in even shorter supply. The myth of a “spontaneous” Arab “departure” was relatively easy to sustain since Palestinians’ voices went virtually unheard. When Israel finally opened up its archives thirty years later, historians were able to refocus their attention on these questions. The importance of shedding light on past events is further underscored by the fact that a peace settlement has not yet been reached. At present, acts similar to those condemned in the past continue to be carried out before our very eyes.

B.

Massacres

A number of massacres galvanized public opinion and drew international criticism; on several occasions, the U.N. Security Council also condemned them. The most infamous case was the carnage at Deir Yassin. Nevertheless, other larger massacres were ignored until recently, when researchers brought to light massive and repeated instances of savagery. The massacres began in late 1947. In December of that year, 450 people were killed, primarily Palestinians. On December 18, Haganah forces attacked the village of Qazaza, where they blew up the mayor’s home even though people were

5

Resolution 181 was actually a recommendation. This point was subsequently obscured: no one pointed out that the U.N. General Assembly does not have the power to issue binding decisions. Similarly, it cannot issue rulings as to where the Palestinian people may or may not live because the Palestinians, like all peoples, have the right of self-determination. See Monique ChemillierGendreau, Le droit au secours de la paix en Palestine, 26 CONFLUENCES MÉDITERRANÉE 71 (Summer 1998).

6

Gresh, supra note 1, at 108.

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still inside.7 On January 1, 1948, ten people were killed in Jaffa. On January 3, fourteen more lost their lives in Jaffa, and twenty Palestinians were murdered in Jerusalem. During the night of January 30-31, Arab refinery workers in Haifa launched a counter-attack against Irgun forces. Meanwhile, Palmach and Haganah forces attacked the neighboring village of Balad al-Sheikh, where sixty people, mostly civilians, were killed in their homes.8 Although some of these incidents could be classified as reprisals against Arab actions, they gradually became a general offensive. Beginning in mid-February 1948, Arab villages became targets of systematic attack.9 During the night of February 14-15, a bloody raid was launched on the village of Sacsac. As the newspaper Yediot Aharonot noted, “owing to its high-tech nature, this raid was long viewed as an exemplary military operation.”10 Some twenty homes were blown up, killing the people inside. Despite having raised a white flag, sixty to seventy people were massacred in the village of Salha.11 On April 9, Irgun and the Stern Gang cold-bloodedly executed 250 villagers in Castel. In early April 1948, the Haganah began efforts to clear the road leading from Tel Aviv to Jerusalem and to destroy any villages that resisted. Although the residents of Deir Yassin had signed a non-aggression pact with their Jewish neighbors, Irgun and Stern forces attacked during the night of April 9-10. Although Menachem Begin denied that a massacre had occurred, this incident acquired legendary status because it has become viewed as leading to the Palestinians’ “voluntary” decision to flee. Perpetrated for no valid reason,12 the Deir Yassin massacre is no longer a matter of dispute, although the exact death toll remains unclear (according to current estimates, 250 people lost their lives).13 This massacre was subsequently described by two eyewitnesses: Meir Pail, a young Palmach colonel whose account appeared in Yediot Aharonot, and Dr. Jacques de Reynier, the chief representative for the International Committee of the Red Cross in Palestine and one of the first people to arrive on the scene.14 7

ELIAS SANBAR, PALESTINE 1948. L’EXPULSION 154 (1984) (citing The New York Times of December 21, 1947).

8

Id.

9

Id., at 157.

10

Id., at 172-73 (citing Yediot Aharonot of April 14, 1972) (quotation translated from the French).

11

Gresh, supra note 1, at 140 (citing report by Yosef Nachmani, a high-ranking Haganah officer, in his diary).

12

See, e.g., NOAH LUCAS, THE MODERN HISTORY OF ISRAEL 251 n.3 (1974) (underscoring the “wanton” aspects of the operation and recounting Irgun’s denials that a massacre had taken place: “Not a massacre, but a blood libel.”).

13

Fouad Moughrabi, Réécrire l’histoire, 29 REVUE D’ÉTUDES PALESTINIENNES 139 (Fall 1988).

14

JACQUES DE REYNIER, 1948 À JÉRUSALEM (1969); DOMINIQUE VIDAL, LE PÉCHÉ ORIGINEL D’ISRAËL. L’EXPULSION DES PALESTINIENS REVISITÉE PAR LES “NOUVEAUX HISTORIENS” ISRAÉLIENS (2002).

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Even though it had been raked by machine gun fire, the village refused to surrender. It was then subjected to “cleansing”: women and children were killed by explosives fired into their homes; survivors were lined up against walls and executed. De Reynier described the “cleansing team” he encountered in the aftermath of the massacre. Making his way among the ruins, he saw dead bodies and other signs that a bloodbath had taken place. He also spotted a 10-year-old girl, severely injured by a grenade but still alive. He carried her away in his arms. This riveting and irrefutable account helped to seal Deir Yassin’s notoriety many years ago. Although this massacre came to symbolize the first Arab-Israeli war, it was only one episode in a long string of barbaric incidents. Speaking with a senior Haganah officer, de Reynier cited cases of troops who had fired at Arab ambulances and killed people inside hospitals, with civilians either executed or “missing.” Nevertheless, the spate of senseless killings continued on April 13-14, 1948, in Nasir al-Din, near Tiberias, and on May 22-23 in Tantura, where 200 villagers were murdered despite stiff resistance. In recent years, the Tantura massacre has become a focus of interest for academic researchers in Israel. Their findings have generated much controversy while underscoring Israeli society’s implacable opposition to those who expose long-hidden truths.15 More carnage occurred on July 11-12, 1948 when the villages of Lydda and Ramle were captured. These incidents came to light thanks to the efforts of Israeli historian Benny Morris, who stated that Israeli gunfire between 11:30 a.m. and 2:00 p.m. left 250 dead and many wounded.16 Similar events took place on October 29-30 in ad-Dawayima, west of Hebron; roughly 80-100 Arabs were killed in two waves of the operation. One Israeli soldier who took part in the second wave of the attack reported that cudgels had been used to split children’s skulls open; two elderly women were pushed into a house that was subsequently blown up. That same day, in the Christian settlement of Eilabun further to the north, twelve young people were selected for execution; the village itself was looted.

C.

Expulsions

Survivors of these massacres were then forced to abandon their homes. Later in this study, we shall examine the broader policy framework that led to measures to expel Palestinians. For the time being, we will endeavor to gauge the importance of these measures. Over the past few years, historians have emphasized that

15

As regards Tantura, see Mustapha al-Wali, 22-23 mai 1948 : le massacre de Tantoura, 27 REVUE D’ÉTUDES PALESTINIENNES 12 (Spring 2001) (compiling eyewitness accounts of the massacre).

16

BENNY MORRIS, THE BIRTH inafter THE BIRTH].

OF THE

PALESTINIAN REFUGEE PROBLEM, 1947-1949, 206 (1987) [here-

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substantial numbers of Palestinians who departed did so under the threat of force. These departures began in early 1948 and gathered considerable momentum in April 1948. The first premeditated organized expulsion targeted inhabitants of Qisarya (Ceaserea), both before and after the city was captured by Palmach forces on February 15, 1948. The evacuation of Haifa began in late March. Triggered by the ongoing military hostilities, this exodus included not only Haifa residents, but also people from surrounding villages who had flooded into the city. The British Royal Navy oversaw these operations. The Arab population was transported across Haifa bay toward Saint-Jean d’Acre (Acre) in landing craft and small boats belonging to the British navy; plans were also drawn up to transport thousands of other Palestinians in British army trucks to Nazareth, Nablus and neighboring Lebanon.17 When Tiberias fell on April 18, 1948, the British evacuated 4,000 Arabs. Following the departure of the British military, Israeli forces assumed control. In May 1948, Arabs in eastern Galilee were driven out, village by village. Some 1,200 people were forced to flee Safad for Acre. On May 13, the entire population of Beisan was forced out. Fighting in May made it possible for Israeli forces to expel Arab refugees from Acre; loudspeaker messages urged the inhabitants to choose between “surrender or suicide.” In July 1948, 70,000 people, including some 7,000 refugees, were expelled from the cities of Lydda and Ramle. Yitzhak Rabin offered his own account of the events: that the population did not leave voluntarily and that the only solution was to use force, including warning shots, to compel them to leave. Although Israeli censors removed this passage from Rabin’s memoirs, it was published in The New York Times on October 23, 1979.18 In October 1948, Israeli military commanders in Upper Galilee sent a cable to local commanders indicating that the inhabitants would “require assistance” in leaving the conquered cities. Residents of three villages – Jaba, Ijzim and Ein Ghazal – were forced to flee. Many such operations also took place in the Negev region. Residents of Beersheba were expelled toward Gaza, where the number of refugees soared from 100,000 to 230,000 during November 1948. After fighting in the region ended, 20,000 Palestinians were expelled. In many cases, Israeli troops forced people into trucks before transporting them across the border. The last mass-scale expulsions occurred in mid-1949 in the north, where people were loaded into trucks at midnight and forced to leave their villages. In late 1948, the Red Cross representative in Palestine, Jacques de Reynier described the refugees’ plight: “Having abandoned their homes and lost all their property, these impoverished people were housed in temporary camps, with no

17

Sanbar, supra note 7, at 179 (quoting The New York Times of April 25, 1948).

18

Gresh, supra note 1, at 143 (quoting The New York Times of October 23, 1979).

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resources.… From the banks of the Jordan up to the high plateaus, we could see clusters of people from the roadway, sometimes in very large groups. Barely clothed, they tried to find any semblance of shelter, beneath trees, in grottoes or beside small walls of dry stone.… There were 200,000 refugees packed into an old abandoned British camp, in a desert region, with no resources whatsoever.”19

D.

Irreversible Measures

The third factual component of the 1948-49 period relates to steps taken by the Israeli authorities to make it impossible for Arab populations to return. These measures including destroying homes, occupying lands and building Jewish settlements – the three pillars of a far-reaching policy. After consulting archival documents, Israeli historians have concluded that some 400,000 dwellings were abandoned and then confiscated. The Absentees’ Property Law, passed by the Israeli parliament in March 1950, applied to people who “left” their homes between November 29, 1947 and some as-yet-to-be-reached date in the future when Israel declares its “state of emergency” no longer to exist. This law confiscated the property of those individuals designated as “absentees.” “Absentee” status also prevented individuals from returning and receiving Israeli citizenship. Yosef Weitz, who headed the Jewish National Fund Lands Department/ Development Division, listed Arab villages to be destroyed and areas to be colonized by Jews. To preclude any possibility that the Arabs might return – despite the fact that the right of return was affirmed by the U.N. General Assembly in Resolution 194 of December 1948 and has been recognized internationally – immediate action was taken. Proposals submitted to Israeli Prime Minister David Ben-Gurion included destroying villages, banning Arab farming, establishing Jewish settlements to avoid a territorial “vacuum,” bringing in relevant legislation and waging a campaign to prevent Arabs from returning.20 As early as September and October 1948, the primary concern was to rebuild Arab villages in order to accommodate Jewish families. The figures are revealing: some 299,000 hectares of Arab land, 73,000 Arab housing units and 8,700 Arab stores were transferred to Jews, according to estimates made by Yishuv historian Joseph Schechtman in 1952.21 As Jewish colonization gathered pace, Arab bank accounts, totaling some five million British pounds, were frozen. In the space of three years, Israel’s population soared by 120%; one key factor was the rapid construction of Jewish settle-

19

De Reynier, supra note 14, at 172 (translated from the French).

20

THE BIRTH, supra note 16, at 155, 174.

21

Vidal, supra note 14, at 126 (citing Schechtman).

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ments to replace Palestinian villages, with Yosef Weitz overseeing the program with great efficiency. In June 1948, after the fall of Tantura, the Nahsholim kibbutz, built where the Palestinian village had once stood, became the new home of colonists from the United States and Poland. In October 1949, forty-seven new rural settlements supplanted abandoned Arab villages and absorbed 22,255 new immigrants. By using Arab homes that had escaped the devastation, Israel substantially reduced the cost of absorbing immigrants within Jewish settlements.

III.

A Deliberate Long-Term Policy

As part of our qualification of these crimes, we must decide if they were “accidental” or if they stemmed from deliberate actions. To be sure, premeditation becomes more apparent when a pattern of criminality is repeated over many years, thereby demonstrating persistent intent.

A.

Criminal Intent

Although some massacres garnered media attention, in particular Deir Yassin, many others were covered up in Israel. Seen as cases of regrettable but isolated misconduct, these incidents received only limited and belated scrutiny. Irgun claimed responsibility for the Deir Yassin massacre. According to Simha Flapan, After the massacre of Dir Yassin, Ben-Gurion sent a special message from the Jewish Agency to [Jordan’s King] Abdallah disclaiming all responsibility for the attack and condemning its perpetrators, but he refused to take punitive action against the underground armies or move to prevent further “unauthorized” actions on their part….22 The Jewish Agency also condemned a number of other incidents, including the Castel massacre, although there were no repercussions. Menachem Begin, then head of Irgun, denied that any civilians had been killed. Nevertheless, a largescale Haganah offensive, known as Plan Dalet, included systematic murder. Operational orders given to battalion commanders in line with these objectives included the following: “[a]ttack in order to conquer, to kill among the men, to destroy and burn the villages of Al Kabri, Umm al Faraj and An Nahr.”23 Moreover, Israeli historian Aryeh Yitzhaki, who conducted research on Haganah,

22

SIMHA FLAPAN, THE BIRTH OF ISRAEL: MYTHS AND REALITIES 95 (1987).

23

THE BIRTH, supra note 16, at 125 (quoting operational order given by Brigadier-General Moshe Carmel on May 19, 1948).

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stated that the Deir Yassin massacre was “in line with dozens of attacks carried out at that time by the Haganah and Palmach, in the course of which houses full of elderly people, women and children were blown up.”24 Netiva Ben-Yehuda, an officer in Palmach’s sabotage unit, acquired the nickname of “hit woman.” Her autobiography, which covered events between November 1947 and June 1948, described atrocities in which she took part.25 An eyewitness to the ad-Dawayima massacre claimed that: cultured officers … had turned into base murderers and this not in the heat of battle … but out of a system of expulsion and destruction. The less Arabs remained – the better. This principle is the political motor for the expulsions and the atrocities.26 Israeli leaders were well aware of their troops’ misconduct. Until October 1948, external investigations were prohibited altogether while internal investigations and punishments were strictly limited. The fighting during October 1948, however, led to large numbers of atrocities that could no longer be overlooked. On November 7, 1948, the government named three ministers to head an enquiry into military operations carried out in the conquered territories. Revelations concerning these horrific operations divided the government. Some members were profoundly disturbed, although others leaped to Palmach’s defense and condemned the use of terms such as “Nazi actions.”27 Aharon Zisling, the agriculture minister, expressed disappointment: “But now Jews too have behaved like Nazis and my entire being has been shaken.”28 The National Religious Party’s Haim Moshe Shapira submitted his resignation. The enquiry was then entrusted to Israel’s attorney general: a number of relatively short prison terms were handed out and the army was given strict new instructions. Today, it would be impossible to downplay such atrocities as out-of-control behavior that resulted in official statements of regret. In fact, Israel tolerated and, more often than not, encouraged the massacres of Arabs in 1947-48, demonstrating a deliberate political strategy. The expulsion of Palestinians was summed up by the U.N. Mediator for Palestine, Count Folke Bernadotte, who viewed it as largely premeditated: “The majority of these refugees have come from territory which, under the Assembly resolution of 29 November, was to be included in the Jewish State. The exodus of

24

Flapan, supra note 22, at 94.

25

Moughrabi, supra note 13, at 150.

26

THE BIRTH, supra note 16, at 223 (citing testimonial recorded by S. Kaplan, a member of Israel’s United Workers Party (Mapam)).

27

Id., at 232.

28

TOM SEGEV, 1949: THE FIRST ISRAELIS 26 (1986).

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Palestinian Arabs resulted from panic created by fighting in their communities, by rumours concerning real or alleged acts of terrorism, or expulsion.” 29 Nevertheless, in the intervening decades and to some extent today, Israelis have attempted to give credence to an implausible notion: the Palestinians’ departure was somehow “spontaneous,” with the Israeli army and government having played no part in it. In the 1960s, Palestinian historians began researching the topic.30 Nevertheless, this idea remained popular among Israelis, who believed that Arab leaders had triggered the “departures” by promising that the Palestinians would return as soon as the Arabs had won the war. The myth eventually crumbled, thanks to numerous works by Israeli historians. Since people today are more mindful of these issues, we will not attempt to revisit the complicated process of raising public awareness. Instead, we will focus on a number of key factors. The military struggle actually favored the Jewish forces from the outset. In this context, the Deir Yassin massacre played an important role: “The choice the Palestinians faced – leave or die – could only result from a situation in which death was the only possible ‘solution’.”31 According to Israelis’ lasting perceptions of this period, the exodus was exacerbated by the fact that the Palestinians were a people without real roots. Arab leaders supposedly used radio broadcasts to issue orders to the Palestinians, convincing them to flee and assuring them that they would be able to return after the Arabs had won the war. This version of events was contradicted when the first academic researchers took up the subject, especially historians who studied the Arab radio broadcasts. These communications paint an entirely different picture and confirm that the Palestinians were actually asked to remain where they were.32 An Israeli intelligence services document set out the origins of the Palestinian exodus, as seen by the Israelis themselves. Contributing factors included: attacks by Jews; Haganah operations; raids by dissident armed groups (Irgun, Stern); orders from Arab militia members; Jewish rumor-mongering; evacuation orders in the form of ultimatums; and Arab fears of Jewish reprisals. This document concluded that 55% of the departures stemmed from Haganah/Israel Defense Forces (“IDF”) military operations and the repercussions therefrom.33 In some cases, expulsion was deliberate and well

29

Progress Report of the United Nations Mediator on Palestine, U.N. GAOR, 3rd Sess., Supp. No. 11, para. 6, U.N. Doc. A/648 (1948).

30

See, in particular, Walid Khalidi, Plan Dalet: Master Plan for the Conquest of Palestine, 37 MIDDLE EAST FORUM 22 (November 1961).

31

Sanbar, supra note 7, at 174 (quotation translated from the French).

32

See, e.g., Erskine Childers, The Other Exodus, SPECTATOR (London), May 12, 1961.

33

Benny Morris, The Causes and Character of the Arab Exodus from Palestine: The Israeli Defense Forces Intelligence Branch Analysis of June 1948, 22 MIDDLE EASTERN STUD. 5, 9 (January 1986).

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thought out. Yigal Allon, an Israeli military commander, reportedly asked Prime Minister Ben-Gurion: “What shall we do with the Arabs?” Ben-Gurion waved his hand dismissively and said, “Expel them [garesh otam].”34 This was also confirmed by Yitzhak Rabin in his memoirs. By the end of the first Arab-Israeli war, the IDF had destroyed 418 Arab villages.35 In 228 of these cases, it emerged that the villagers fled advancing Jewish troops; in 41 cases, expulsions were carried out under the threat of force. In 90 cases, rumors or fears of attack prompted the departures. Benny Morris divides the Palestinian exodus into five parts. The first wave came in late 1947 and involved roughly 70,000 people, primarily wealthy individuals; the pace picked up markedly as the military operations increased in intensity. The second wave, triggered by Plan Dalet, occurred between April and June 1948. Even though this plan may not have set out official plans to expel Palestinians, it did reflect a deliberate policy of expulsion. The third wave began in July 1948. Yitzhak Rabin’s orders were unmistakable in their clarity: “The inhabitants of Lydda must be expelled quickly without attention to age.”36 In August, the IDF received orders to expel all unarmed individuals in the coastal region, which was already surrounded by military units. The fourth wave coincided with the invasion of the Negev region. Official orders were given to expel any Arabs encountered along the way. On October 26, 1948, in Beersheba, Ben-Gurion told Yigal Allon: “We have come to expel the Arabs. Yigal, rely on me.” Allon replied that the Arabs had already left.37 The fifth wave included “residual” displacements as well as Israeli military operations, which lasted until July 1949, designed to prevent Arabs from returning. Moshe Sharett, Israel’s first foreign minister, rose up in protest and issued this warning: “Every intentional pressure aimed at uprooting [these Arabs] is tantamount to a planned act of eviction on our part.”38 The next point is highly relevant to this study. If expulsion had been merely sporadic and restricted in scope, that is, if it had not been an overriding military objective, we would be obliged to adopt a different hypothesis. Some may still dispute the fact that general orders were issued on all fronts to expel Arab populations. We now know, however, that these expulsions were the result of steps taken by local commanders. Those individuals had carte blanche to put their plans into effect with the knowledge that the government supported their initiatives.

34

THE BIRTH, supra note 16, at 207.

35

WALID KHALIDI, ALL THAT REMAINS: THE PALESTINIAN VILLAGES OCCUPIED AND DEPOPULATED ISRAEL IN 1948 (1992).

36

THE BIRTH, supra note 16, at 207.

37

Id., at 221.

38

Id., at 244.

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BY


Spurred on by the Peel Commission’s partition plan of 1937, the policy of population “transfer” played a central role in Ben-Gurion’s government. However, this policy’s roots go even deeper; in fact, it is a constant Zionist refrain.39 Although transfer has always generated some opposition in Israel, it is disturbing to note that such opposition has stemmed from material or financial considerations, rather than ethical concerns. Since proponents of transfer often draw their inspiration from Biblical verses, Israeli society would have to become completely secular for this idea to disappear. Instead, trends in Israel since 1948 have been altogether different. Zionism – the ideological cornerstone of the Jewish state – has never condemned transfer; even Israel’s left-wing movements subscribe to the idea. Since transfer was on the agenda as early as 1948, we must examine the events of that year in that light, in legal terms. Moreover, there was nothing “sporadic” about efforts to make the expulsion of the Arabs irreversible. Nonetheless, various members of the government expressed indignation at the expulsions. The cabinet was divided on the issue because a full-blown scandal was likely. For that reason, Yosef Weitz’s schemes received no official backing; the policy of Palestinian “non-return” had to be implemented on the sly. According to the official line – subsequently refuted by researchers – the Arabs left “spontaneously,” urged on by their leaders. Later developments, however, assured that the departures were irreversible. Furthermore, no one challenged the necessity of “non-return.”

B.

An Unrelenting Pattern of Criminality

Since the scope of this study is limited, we will not be able to provide an exhaustive account of numerous similar criminal acts committed over a period of many years. Suffice it to say that the pattern of criminality described above has been both wide-ranging and unrelenting. We will note, however, a number of similar incidents that stemmed from the active or passive complicity of successive Israeli governments. Although the massacres have varied in intensity over the years, they have never stopped completely. The Qibya massacre – one of Ariel Sharon’s initiatives – occurred during the night of October 13-14, 1953. Sixty-six kilos of explosives were distributed and placed alongside dwellings; 45 homes were destroyed and 69 villagers died. Deeply shocked by this incident, Moshe Sharett, the foreign minister, had to contend with the international reaction. The U.N. Security Council

39

See, e.g., Israël Shahak, L’idée du ‘transfert’ dans la doctrine sioniste, 29 REVUE PALESTINIENNES 103 (Fall 1988).

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D’ÉTUDES


condemned the massacre on November 24, 1953. Also notorious was the 1956 Kafr Kassem massacre, which coincided with Israel’s invasion of Egypt. An official enquiry was launched, with some attempting to portray it as a “blunder.” In 1982, the massacres at the Sabra and Shatila refugee camps in Lebanon during Ariel Sharon’s tenure as defense minister certainly left an indelible and bloody stamp upon human memory. More recently, ominous debates followed the bloodbath in Jenin in 2002; these sought to determine if a massacre had actually taken place. (How else could it be described?) The IDF took strict precautions to prevent any witnesses from approaching the camp in the hours immediately following the military operation. Whatever the exact death toll, there is no doubt that the army used bulldozers to demolish sections of the camp without checking to see if people were still inside their homes; as a result, some individuals were crushed to death amid the ruins. The most recent statistics indicate that the second Intifada, dating back to late September 2000, has claimed 2,927 victims, including 689 Israelis and 2,182 Palestinians; many of the latter were women and children.40 These figures clearly prove that Israel is willing to murder Palestinians. As manifestations of Israel’s desire to exterminate the Palestinian people, these massacres are not isolated past events: while dictated by circumstance, they are nevertheless methodical and persistent. The history of the Israeli-Palestinian conflict also features semi-successful attempts to transfer entire Arab populations. In 1951, Yosef Weitz submitted a proposal to Moshe Sharett, who in turn presented it to Ben-Gurion; the latter viewed transfer as a fine and crucially important idea. Weitz then traveled to Argentina, where discussions focused on evacuating Palestinian Christians. In 1955, the Israeli government met on several occasions to determine how to finance the transfer scheme. In 1956, it considered resettling Palestinians in Libya; it abandoned the Libya Project in 1958, owing to the cost of the 1956 war. Israel’s victory in the 1967 war allowed it not only to fantasize about transferring Palestinians, but to make these dreams a reality. In June 1967, an estimated 150,000 people were transferred. Over the following year, Israel stopped at nothing while expelling an additional 300,000 people. In certain cities, including Qalqilya, transfer was carried out using trucks and buses. The growing numbers of expulsion orders reflected what noted writer Erskine Childers has called “a wordless wish”: throughout their history, Israelis have always hoped that the Palestinians would simply disappear. A clandestine group was set up to accelerate the process of transfer. Some Palestinians were offered one-way tickets to Paraguay. In 1982, Yaakov Meridor, a minister without portfolio, stated during a visit to Lebanon that the Palestinians had to be driven eastward, toward Syria, to make sure that they never returned.41

41

See Shahak, supra note 39.

40

Statistics quoted in Le Monde, February 7, 2003.

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Israel Shahak, the noted human rights activist, maintained that transfer was an integral part of Zionist ideology, particularly in its socialist form. However, Israel’s motivation to transfer Palestinians and the steps it took to make this a reality did not end with the 1967 war. Indeed, Israel’s conduct in the occupied territories has amounted to a policy of unrestrained transfer. Although incidents may no longer be massive and flagrant, they continue to stem from the objectionable living conditions imposed upon the Palestinians. Vital Palestinian infrastructure is being insidiously destroyed. Sieges and sealed-off areas prevent Palestinians from working, traveling or obtaining medical care. Schools are closing, trucks are no longer distributing water and the social fabric is unraveling. Groups of Jewish settlers have moved quickly to jump-start the process, harassing the residents of neighboring Arab villages, adding to areas under Jewish control and erecting outposts and watchtowers. Inevitably, Arab families are gradually leaving their villages as transfer becomes a reality.42 In effect, transfer means that Arabs are not able to implement their right of return, even though this right has been upheld by various international bodies, including the U.N. General Assembly, which strongly affirmed Palestinian refugees’ rights when it issued Resolution 194 in 1948. Palestinians’ right of return has thus been denied for more than 50 years; in 2000, the issue was blamed for the collapse of the Camp David negotiations. In the tragic light of war in Iraq (March 2003), the desire to carry out large-scale expulsions has been expressed in several Israeli circles; transfer is now a political program, not just a fantasy. One-third of the ministers in Ariel Sharon’s cabinet have openly backed the program.43

IV.

Legal Qualification of the Facts

The multi-faceted and continuing nature of the crimes of 1948-49 complicates the legal analysis thereof. To draw conclusions concerning the application of international law, we must identify the customary norms in effect in 1948-49 and determine how these norms related to the various parties when the criminal acts were committed. We must also determine if considerations of treaty law apply to these acts. These two areas of consideration – customary law and treaty law – will thus play a key role in our analysis. Were these acts legally prohibited when they were committed, and are they outside the limitation period?

42

See Gadi Algazi & Azmi Bdeir, Le véritable cauchemar des transferts, HA’ARETZ (supplement dated November 15, 2002).

43

See MICHEL WARSCHAWSKI & MICHÈLE SIBONY, À CONTRE CHŒUR. LES VOIX DISSIDENTES EN ISRAËL (2003).

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We note that the scope of customary law has expanded significantly in the past fifty years. Given that the offenses under consideration and other similar, deliberate acts have continued steadily up until the present day, do today’s legal standards apply to these past crimes? In this light, what are the prospects for bringing legal proceedings or obtaining reparations?

A.

Applicable Law in 1948-49

The post-World War II years were critical for the development of general international law and international criminal law in particular. During this period, four categories of international crimes were defined in treaty law: crimes against the peace, war crimes, crimes against humanity and genocide.

B.

Crimes Against the Peace

Acts of aggression, as one of the most flagrant crimes against the peace, figure prominently in the collective security mechanisms set out in Chapter VII of the U.N. Charter. These mechanisms aim to prevent or punish the use of force by one state in violation of the territorial integrity of another state. The extensive efforts of the Special Committee on the Question of Defining Aggression prompted the U.N. General Assembly to adopt Resolution 3314 in 1974. This resolution defined acts of aggression as illegal, state-sponsored acts. However, does this definition apply only to relations between states? Similarly, insofar as Israel’s actions have violated the recommendations of General Assembly Resolution 181, which proposed partitioning Palestine into a “Jewish state” and an “Arab state,” do these actions constitute aggression? Developments over the years have left Palestine’s status uncertain: the occupied territories were administered by Jordan and Egypt before they came to be viewed as autonomous and began claiming nationhood. Nonetheless, Resolution 181 makes it possible to consider Palestine an “embryonic” state whose dreams of nationhood have been thwarted by Israel. Moreover, whenever Israel has resorted to military force outside its borders, it has committed aggression against a foreign people. The international community’s failure to recognize Palestinian statehood formally does not mean that Israel’s antiPalestinian actions do not constitute state-on-state aggression. Furthermore, the U.N. General Assembly used this term when it condemned “Israel’s aggression and practices against the Palestinian people in the occupied Palestinian territories and outside these territories, particularly Palestinians in Lebanon” (Resolution 37/123F, of December 16, 1982). Although the U.N. Charter condemns acts of aggression, it does not do so as part of international criminal law. In this regard, the Nuremberg trials, authorized by the London Agreement of August 8, 1945, were pivotal. The International

136


Military Tribunal handed down its judgment on September 30, 1946. The judges recognized that a war of aggression had taken place; this meant that individuals could be charged with planning, launching and overseeing the war, and could thus be punished for committing crimes against the peace. Notwithstanding the nonretroactivity of criminal law and despite the fact that the crime of aggression did not exist in law when the offenses in question were committed, qualifying aggression as a crime represented a major shift in legal thinking; indeed, such changes to the law were consistent with a changing world.44 Consequently, when Israel committed acts of aggression against Palestinians in 1948-49, crimes against the peace were already part of customary law, although this field was reserved for exceptional situations. Around the same time, however, there were preliminary efforts aimed at incorporating crimes of aggression within treaty law; that process is still ongoing.

C.

War Crimes

War crimes have figured prominently in international law. As models of laudable internal legislation, the Lieber Code of 1863 and the Oxford Manual (1880) paved the way for the legal recognition of war crimes. The conventions signed in The Hague in 1899 and 1907 stipulated that states bear responsibility if their armed forces violate these conventions. Although these conventions did not describe individual responsibilities, the Responsibilities Commission did raise this issue after the First World War. A number of Geneva Conventions were adopted prior to 1949, most notably in 1906 and 1929. These conventions introduced the concept of the belligerent state suppressing certain offenses committed by its own citizens.45 Israel ratified the 1929 Geneva Conventions on August 3, 1948. Therefore, during the initial phase of the Israeli-Palestinian conflict, Israel was obligated to respect various norms; the legal consequences thereof are an integral part of this study. The crimes of 1948-49 do not fall within the purview of the Geneva Conventions, which were not adopted until August 12, 1949. Israel became a signatory thereto on December 8, 1949, and only ratified them on July 6, 1951. The legal framework established at Nuremberg represented a dramatic step forward. Article 6(b) of the Charter of the International Military Tribunal

44

See Maris Dumée, Le crime d’agression, in DROIT INTERNATIONAL PÉNAL (Hervé Ascensio, Emmanuel Decaux & Alain Pellet eds., 2000).

45

Georges and Rosemary Abi-Saab, Les crimes de guerre, in DROIT INTERNATIONAL PÉNAL, supra note 44; ÉRIC DAVID, PRINCIPES DE DROIT DES CONFLITS ARMÉS (1994).

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(“IMT”)46 focused on the issue of war crimes, which it described in a nonexhaustive list; it also established that criminal responsibility for war crimes applied to the individual perpetrators of these crimes. The Nuremberg tribunal declared that the basis of guilt stemmed in part from the qualifications in the IMT Charter. It also declared that the 1907 Hague Convention (in Articles 46, 50, 52 and 56) and the 1929 Geneva Convention (in Articles 2, 3, 4, 46 and 51) also served as sources for war crimes. Moreover, the tribunal found that these conventions were regarded by states as a codification of the laws and customs relating to warfare. The U.N. General Assembly ratified the IMT’s findings in December 1946. Does the Nuremberg framework only apply to declared conflicts pitting the armies of two states against each other? Since the first Arab-Israeli war does not fit this precise definition, could Israeli leaders circumvent applicable laws relating to warfare? To begin with, an armed conflict occurred between Israel and the Arab states, with the latter intervening to oppose the Zionists’ plans. The applicable rules of warfare should have been respected throughout this conflict; they were not. Moreover, pursuant to Resolution 181, Palestine was an “embryonic” state, as we have noted previously; in this capacity, it rose up against the violence visited on its people. The active role of Jacques de Reynier, the Red Cross representative in Palestine during the conflict, together with his frequent calls for the parties to respect the rules of warfare, most notably at Deir Yassin, confirm that the belligerents were indeed bound by the principle of jus in bello (humanitarian law).47 Since that time, a prolonged pattern of criminal acts, constituting war crimes, has been attributed to various Israeli political and military leaders. These offenses have included assassinations, massacres, inhuman treatment, civilian deportations and willfully causing great suffering, or serious injury to body or health. In addition, public and private property has been confiscated or looted, and cities and villages have been wantonly destroyed. The provisions of conventional law opposable to Israel in 1948-49 and those pertaining to prevailing customary international law authorize the qualification of war crimes.

D.


By the time of the first Arab-Israeli war, the concept of crimes against humanity had appeared in positive law. This concept had proved valuable to the authors of the IMT Charter, who sought more effective ways to prosecute the Axis pow-ers’ crimes against the Jewish people; in fact, Article 6(c) of the IMT Charter con-

46

Charter of the International Military Tribunal, Annexed to the London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 1945, reproduced in D. SCHINDLER & J. TOMAN (eds.), THE LAWS OF ARMED CONFLICT 911 (3d ed. 1988).

47

See de Reynier, supra note 14.

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tained a list of exceptionally cruel acts. When Israel waged its campaign of war and repression on Palestinian territory in 1948, these offenses were already prohibited under prevailing customary law, even though the specific content of these crimes has been refined through later developments of the law. These offenses included inhumane acts against civilians both before and after the war, as well as instances of political, racial and religious persecution. The qualification of crimes against humanity involves particularly grave and inhumane acts carried out on a vast scale. This does not mean that crimes against humanity necessarily involve mass killings. Crimes against humanity are also characterized by the desire to eliminate an entire population through systematic and widespread attacks. When this qualification was first applied at Nuremberg, two questions arose. First, are crimes against humanity characterized by premeditated acts of discrimination, carried out as part of a concerted state-sponsored program? Second, in the absence of these characteristics, can offenses be qualified as crimes against humanity? In this context, however, these points are moot. Israel’s systematic repression of Palestinians, dating back to 1948, is a direct consequence of state-sponsored policies. The targets have been the Palestinian Arabs, who have faced highly specific instances of deportation, torture and dispossession, all writ on a massive scale. Palestinians were, and continue to be, massacred. According to the definition set out in the IMT Charter of 1945, which formed the basis of the binding international law in effect when Israel committed its offenses, these offenses qualify as crimes against humanity owing to their inhumane nature and deliberate intent.

E.

The Crime of Genocide

The crime of genocide initially acquired legal force during the first Arab-Israeli war.48 The IMT Charter did not mention genocide. Even though the Nuremberg prosecutors referred to genocide in their bill of indictment, the judges chose to apply the category of crimes against humanity instead. The concept of genocide became part of positive law on December 9, 1948, when the U.N. General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide; this convention entered into force on January 12, 1951. As one of the first twenty signatories, Israel signed the convention on August 17, 1949, ratifying it on March 9, 1950. Strictly speaking, the events of 1948-49 predate the convention and thus do not fall within its purview. Nonetheless, once the concept of genocide became part of positive law, this qualification became appli-cable to the continuation, in some cases, and the increase in the number of these offenses.

48

See Jean Graven, Les crimes contre l’humanité. La Convention Internationale sur le Génocide, 76 R.C.A.D.I. 490 (1950).

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In more general terms, one might wonder if the crimes committed during the period under consideration constitute genocide in and of themselves. For our purposes, however, this point appears moot. War crimes and crimes against humanity are established categories; both are utilizable under the provisions of international law in effect when the crimes were committed.

F.

Prescription or Imprescriptibility?

It is not enough to state that war crimes or crimes against humanity constituted recognized international crimes as defined in prevailing positive law. Given that more than fifty years have elapsed since the events of 1948-49, we must determine whether crimes from that era are imprescriptible, that is, immune to extinction by time bars such as statutes of limitations. We must also determine whether any prescriptive mechanisms have acted to diminish responsibility for these crimes. The 1945 IMT Charter makes no mention of any statute of limitations for international crimes. Since it would be unthinkable to have an implied limitation without including a precise time period – its essential component – we must conclude that the authors of the charter believed that the imprescriptibility of grave international crimes was self-evident. The principle that war crimes and crimes against humanity are imprescriptible is now beyond doubt. A variety of interpretations have been employed in domestic legal systems to set aside statutes of limitations in the case of crimes against humanity.49 The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, adopted on November 26, 1968, reaffirmed the principle of imprescriptibility for war crimes and crimes against humanity. It is true that many states have chosen not to sign this convention. Nevertheless, domestic legislation applying time bars to such crimes is incompatible with international law because imprescriptibility has entered into customary law. Indeed, the opinio juris relating to this customary norm extends far beyond the group of states signatory to the 1968 convention. Proof of this is demonstrated by the Rome Statute of the International Criminal Court (“ICC”), which entered into force in July 2002. Article 29 thereof states: “The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.”50 War crimes and crimes against humanity are among the categories of international crimes for which the ICC has jurisdiction. Accordingly, the goal of suppressing the gravest crimes is hindered by those domestic legal systems that retain the retrograde possibility for a right of action for crimes against humanity to be extinguished over time.

49

See JEAN-FRANÇOIS ROULOT, LE CRIME CONTRE L’HUMANITÉ 395 (2002).

50

Rome Statute of the International Criminal Court, Art. 29, U.N. Doc. A/CONF.183/9 (1998).

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V.

The Consequences of Persistent Criminal Acts

To sum up, statutes of limitations do not apply to the war crimes and crimes against humanity committed by Israel during the first Arab-Israeli war; thus there are no time bars to bringing these crimes to account under prevailing positive international law. Nevertheless, the system of law governing these crimes requires a multi-faceted analysis. Account must also be taken of the applicability of substantive norms of law over time and the related consequences for qualifying and suppressing these crimes.

A.

Applying the Law of the Present to Crimes Committed in the Past

Applying the law of the present to crimes committed in the past is justified in two situations: when the crimes in question are sufficiently grave, and when they are continuing in nature. In the case of particularly serious crimes, can subsequent developments in international law be taken into consideration? Referring to law that developed after offenses were initiated may appear to infringe the penal law principle of nonretroactivity, a well-established feature of national legal systems. Nevertheless, referring to such law is consistent with the logic of international criminal law, which governs particularly grave crimes. Since the purpose of international law is to protect all of humanity and to make human survival possible, expanding positive law to include new norms that seek to suppress serious crimes by providing clearer definitions thereof amounts to a declaration of pre-existing implicit rights. To assert that such rights did not exist before they were formally codified is illogical. It was on this basis that the Nuremberg tribunal rejected defense arguments that the crimes at issue were not punishable because they had been committed before they were defined in the IMT Charter. Similarly, the 1968 U.N. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity states that such crimes are punishable regardless of when they were committed (Article 1). Although the International Criminal Court’s statute refers to imprescriptibility, this statute also limits the court’s jurisdiction to crimes committed after it entered into force. Nevertheless, this technical provision limits jurisdiction only; it does not limit the application of substantive principles of law. Moreover, this provision does not contradict the argument that new law should apply to past crimes when these crimes are particularly grievous. Furthermore, the continuing nature of such crimes has implicated every Israeli regime, including the current government. As previously noted, the crimes of 1948-49 were the first in a long string of continuing criminal acts. We have already proposed various solutions with respect to applying the law of the pres-

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ent to crimes committed in the past.51 Whenever situations develop and continue over prolonged periods, any legal analysis or proceeding relating to the dispute should examine the laws that were in effect when the crimes were initiated while also considering subsequent legal developments. In fact, the provisions of international criminal law that govern the most serious crimes belong to the category of jus cogens, that is, peremptory norms of international law. One aspect of jus cogens, when it arises, is that it may have a retroactive effect. When jus cogens appears, it is declaratory of a preexisting norm, transforming it into a nonderogable one. However, the new peremptory nature of such a norm makes it possible for it to have retroactive effect.

B.

Israel’s Crimes of 1948-49 in Light of Changes to International Law

Massive and repeated human rights violations occurred in the second half of the twentieth century; this same period also led to refinements in human rights law. Many conventions have seen their jurisdiction extended beyond the original signatories thereto and now have customary force. The judgments handed down by the ad hoc international criminal tribunals for Rwanda and the former Yugoslavia serve to reinforce international customary law, which is binding upon all states. In light of our foregoing analysis, we must examine the consequences of these refinements as they relate to Israel’s crimes of 1948-49. With respect to crimes of aggression, a number of difficulties remain. Crimes of aggression have been defined as “crimes that continue as long as warfare continues.”52 In 1948, Israel embarked upon a program of continuous aggression, persistently and illegally occupying territories via military repression and the use of armed force. Although the International Criminal Court has jurisdiction over such crimes, its statute does not yet provide a definition for them. Efforts are under way to define this crime, with a view to revising the Rome Statute accordingly. In the absence of precise definitions in penal law, there have been a number of preliminary attempts to clarify customary law. For the time being, however, charging Israeli leaders with crimes of aggression is a highly unlikely prospect. In contrast, considerable progress has been made with respect to war crimes. The four Geneva Conventions of August 12, 1949 remain in force and have been ratified by 192 states. Adopted in The Hague, the Convention for the Protection of Cultural Property in the Event of Armed Conflict came into force on August 7, 1956. The additional protocols of June 8, 1977 have reinforced rules relating to cultural property. The category of “ethnic cleansing” has been invoked by the ad

51

See preceding discussion of this matter supra § I.B, Establishing a Legal Framework to Qualify Criminal Acts and to Determine Necessary Reparations.

52

See Dumée, supra note 44, at 277 (quotation translated from the French).

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hoc international criminal tribunals. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment entered into force on June 26, 1987. All indications are that Israel will continue to maintain that war crimes are instantaneous acts that should be examined in light of the law in effect when each crime was committed and only if the state in question was a signatory to the relevant conventions. It is pointless, however, to wonder if this argument will be admissible. For one thing, the criminal acts surveyed in the first part of this study are already covered by law that was in effect in 1948-49 or on the basis of their imprescriptibility in customary law. Taken separately, these offenses constitute war crimes; taken together, they constitute crimes against humanity. The qualification of crimes against humanity is central to our study. As established in the Nuremberg judgments, this category predates the period under consideration. Israel is thus guilty of such crimes, given the number and nature of the continuing and recurring offenses that are still being committed after more than fifty years. The events of 1948-49 should be examined in this broader context as we seek to qualify Israeli crimes in light of evolving legal criteria and to determine how such crimes may be suppressed in the future. At the same time, the category of crimes against humanity has led to significant developments in customary law. The effects of various conventions, together with the efforts of national courts, criminal tribunals and the U.N.’s International Law Commission, have reinforced the Nuremberg judgments. Consequently, progress has been made with respect to defining genocide and qualifying apartheid as a crime against humanity. When the U.N. General Assembly adopted the Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity, it provided a summary of such crimes. Ad hoc international tribunals have also taken up the issue of crimes against humanity. This qualification was cited on November 29, 1996, in the initial indictment of Drazen Erdemovic. In confirming the bill of indictment against Radovan Karadzic and Ratko Mladic, with respect to the Srebernica massacre, the presiding judge categorized their actions as crimes against humanity rather than as war crimes; in so doing, the judge sought to cover the various incidents at issue in their entirety. During the trial of Dusko Tadic and Dragan Nikolic, the judges chose to address the question of crimes against humanity, not by invoking the IMT Charter but by applying customary law. This made it possible for the judges to consider crimes against humanity as a distinct category, without a nexus to armed conflict.53 Such legal reasoning is essential to our present-day qualification of crimes committed in Palestine more than fifty years ago. Accordingly, we note that Israel’s civilian and military authorities have violated Palestinian human rights on a massive scale, dating back to 1948. These crimes against humanity began with the founding of Israel and continue to this very day.

53

For analysis of the tribunal’s decisions, see Annuaire Français de Droit International and Roulot, supra note 49, at 352.

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It also seems unnecessary to revisit the more specific question of genocide in any great detail. Suffice it to say that in 1988, the U.N. Commission on Human Rights qualified Israel’s actions in Palestine as genocide.54 In addition, U.N. General Assembly Resolution 37/123, adopted on December 16, 1982, described the massacres at Sabra and Shatila as genocide. Nevertheless, in our view, the more clear-cut category of crimes against humanity is the most accurate legal qualification of the facts.

VI.

Prosecuting Crimes against Humanity: Prospects

The prospects of prosecuting crimes against humanity are limited by the mechanisms of the international justice system. Moreover, certain consequences of state sovereignty render the jurisdiction of international bodies contingent. For example, the International Court of Justice cannot compel states to submit to its jurisdiction, nor can it hear petitions from individuals relating to reparations. Only states can submit cases to this court, and Palestinian statehood has yet to gain broad official recognition. Moreover, Israel has never yet submitted to the court’s jurisdiction. Similarly, Israel has never signed the Rome Statute of the International Criminal Court. However, if Palestine achieved statehood and became a party to the statute of the court, the court could then exercise its jurisdiction since the crimes in question were committed on Palestinian soil. As noted, the court’s jurisdiction applies only to crimes committed on a state’s territory after that state has ratified the statute. However, since crimes against humanity comprise a comprehensive series of events, the court would no doubt become a forum for debates over persistent and continuing crimes that began long ago. Domestic legal systems with universal jurisdiction provisions present the fewest restrictions in this regard. Some countries, most notably Belgium, have passed criminal laws allowing them to exercise this authority. Grounded in customary law, universal jurisdiction is provided for in a number of international conventions. This enables judges from any state to institute proceedings against any individuals suspected of international crimes, especially when these individuals are present on the court’s national territory. This raises the possibility that Israelis who committed crimes in 1948-49 could still be brought to justice before they die. The decision to charge these individuals with crimes against humanity would be based on the prevailing customary law definition of these crimes. The imprescriptibility of such crimes and the continuing pattern of persistent criminal intent would make it possible to judge both current and past crimes in a single legal action. 54

Michel Masse, Crimes contre l’humanité et droit international, in LE CRIME CONTRE L’HUMANITÉ 48 (Marcel Colin ed., 1996).

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THE UNITED NATIONS’ RESPONSE TO ISRAEL’S SEIZURE OF THE GAZA STRIP AND WEST BANK John Quigley*

I.

Introduction..........................................................................................

146

II.

U.N. Response to Israel’s Claim of Armed Attack by Egypt...............

147

III. U.N. Response to Israel’s Claim of Anticipatory Self-Defense...........

150

IV.

Israel’s Leaders and the Crime of Aggression .....................................

155

V.

Response of the U.N. General Assembly .............................................

157

VI. Response of the U.N. Security Council ...............................................

158

VII. Subsequent U.N. Action .......................................................................

159

VIII. The Madrid/Oslo Process and the United Nations ..............................

162

IX. The United Nations in Today’s Circumstances ....................................

163

X.

164

*

Conclusion ...........................................................................................

President’s Club Professor in Law, The Ohio State University. LL.B., M.A. 1966, Harvard University.

The Palestine Yearbook of International Law, Vol. XII, 2002/2003, pp. 145–164 © 2005 Koninklijke Brill NV.

THE UNITED NATIONS’ RESPONSE TO ISRAEL’S SEIZURE OF THE GAZA STRIP

I.

Introduction

The United Nations has been heavily engaged in the Palestinian-Israeli conflict from the inception of the U.N. as an organization. When, in 1967, Israel occupied those areas of Mandate Palestine that it had not gained in 1948, the United Nations focused on that occupation and its consequences. The Security Council and the General Assembly, the U.N.’s two principal organs dealing with such matters, assessed Israel’s conduct as belligerent occupant in the Gaza Strip and in the West Bank of the Jordan River. Year after year, these bodies condemned Israel for its construction of settlements, for seizure of land, for detaining persons without charge, and for other violations of the law of belligerent occupation. The General Assembly and Security Council each adopted resolutions calling upon Israel to withdraw.1 They did so without making a finding of fault for the 1967 military action. Such a finding was not technically necessary. Even a state that takes territory while acting defensively gains no sovereign rights, since it is limited to force that is necessary to repel the aggression.2 Territory taken defensively may be kept only so long as necessary to forestall the aggression that precipitated the taking. Even if Israel acted defensively in taking the Gaza Strip and West Bank, it had no right to remain. Nonetheless, a finding that Israel had acted aggressively would have had significant consequences. Under the U.N. Charter, the Security Council is responsible for maintaining the international peace, and an act of aggression is the most serious act whereby international peace is disrupted. Had the Security Council determined that Israel had acted aggressively, the Council would have been under greater pressure to do more than simply call upon Israel to withdraw. Under the U.N. Charter, the Council has measures available to it to deal with serious breaches of the international peace, including economic sanctions and military action. Additionally, if a state acts aggressively, its leaders render themselves guilty of aggression as a crime. When a state commits aggression, not only is it, as an entity, responsible, but its leaders are individually responsible. This article recounts how Israel acted aggressively in the military action of 1967 and argues that, as a result, the United Nations should have acted with greater urgency to compel it to withdraw from the Gaza Strip and West Bank. The

1

S.C. Res. 242, 22 U.N. SCOR, Resolutions 8, U.N. Doc. S/INF/22/Rev.2 (1968); S.C. Res. 476, 35 U.N. SCOR, Resolutions & Decisions 13, U.N. Doc. S/INF/36 (1980); G.A. Res. 3414, 30 U.N. GAOR, Supp. (No. 34) at 6, U.N. Doc. A/10034 (1975).

2

R.Y. JENNINGS, THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAW 55-56 (1963); W. THOMAS MALLISON & SALLY V. MALLISON, THE PALESTINE PROBLEM IN INTERNATIONAL LAW AND WORLD ORDER 259 (1986); J. R. GAINSBOROUGH, THE ARAB-ISRAELI CONFLICT: A POLITICO-LEGAL ANALYSIS 149, 158 (1986).

146


fact that Israel has been able to maintain control since 1967 of the occupied territory does not diminish the current U.N. obligation to take necessary action.

II.

U.N. Response to Israel’s Claim of Armed Attack by Egypt

During the hostilities of 1948, Israel planned invasions of both the Gaza Strip and West Bank, in order to complete its occupation of Mandate Palestine.3 It refrained only under pressure from Britain and the United States.4 In 1955, Israel’s cabinet rejected a proposal by Prime Minister David Ben-Gurion to invade Gaza, the cabinet fearing a negative reaction from the United States.5 In 1956, however, Israel, acting in concert with France and the United Kingdom, occupied the Gaza Strip, asserting a need to prevent guerrilla attacks against itself. Israel’s action was widely regarded as unlawful.6 The United States threatened to cut off economic aid, and Israel withdrew within a few months.7 In the spring of 1967, Israeli officials planned for an invasion of Egypt through Gaza, but they were concerned lest they be forced to stop fighting before securing significant sectors of Egyptian territory. The commanders feared that the United Nations and the major powers might try to enforce a cease-fire immedi-

3

JON & DAVID KIMCHE, BOTH SIDES OF THE HILL: BRITAIN AND THE PALESTINE WAR 267-68 (1960); JAMES G. MCDONALD, MY MISSION IN ISRAEL, 1945-1951, 107-08, 116-17 (1951); Ben-Gurion Stirs Dispute over ‘48, N.Y. TIMES, March 9, 1964, at A7 (Gen. Yigal Allon stating that when Israel stopped under pressure, “a few more days of fighting would have enabled us…to liberate the entire country.”).

4

5 FOREIGN RELATIONS OF THE UNITED STATES 1948, at 1704 (message from acting secretary of state to U.S. representative (McDonald) in Israel, indicating that U.S. would block U.N. membership for Israel if it took Gaza Strip); id. at 1705 (Britain to notify U.S. that Israeli failure to withdraw would trigger 1936 Anglo-Egyptian mutual defense treaty).

5

LIVIA ROKACH, ISRAEL’S SACRED TERRORISM: A STUDY BASED DIARY AND OTHER DOCUMENTS 46 (1980).

6

Aide-mémoire on the Israel Position on the Sharm el-Sheikh Area and the Gaza Strip at 5, 11 U.N. GAOR, U.N. Doc. A/3511 (1957); Report by the Secretary-General in Pursuance of the Resolution of the General Assembly of 19 January 1957 (A/RES/453), part 2, para. 5(a), U.N. Doc. A/3512 (1957).

7

Aide-mémoire to Ambassador Abba Eban by Secretary John Foster Dulles, Feb. 11, 1957, 36 DEP’T ST. BULL. 392 (1957); DONALD NEFF, WARRIORS AT SUEZ 431-35 (1981); Benny Morris, Creeping Withdrawal, JERUSALEM POST (int’l ed.), Dec. 10, 1988, at 9.

147

ON

MOSHE SHARETT’S PERSONAL


ately after the commencement of an Israeli attack.8 Despite this concern, Israel’s cabinet decided at its meeting of June 4, 1967 to invade Egypt.9 When it invaded Egypt the next morning, Israel was met with a charge of aggression, communicated to the United Nations by Egypt.10 In response, Israel claimed that Egypt had struck first.11 It asserted a more immediate need of defense than Israel had asserted in 1956. It told the U.N. Security Council that three villages in southern Israel had just been shelled by Egypt, and that Egyptian aircraft were detected by Israeli radar as being in the air, flying in the direction of Israel: “[O]n the morning of 5 June,” it reported to the Security Council, “when Egyptian forces engaged us by air and land, bombarding the villages of Kissufim, Nahal-Oz and Ein Hashelosha we knew that our limit of safety had been reached, and perhaps passed. In accordance with its inherent right of self-defence as formulated in Article 51 of the United Nations Charter, Israel responded defensively in full strength.” Israel claimed that “approaching Egyptian aircraft appeared on our radar screens.”12 In fact, hostilities were initiated by Israel. Israel’s claim that Egypt initiated the hostilities was false.13 Egypt’s aircraft, far from being in flight towards Israel, were on the ground at their home bases, and Israel’s air force bombed them there,14 destroying most of the combat aircraft at Egypt’s disposal.15 Simultaneously with this air attack, Israel invaded on the ground through the Gaza Strip and Sinai Peninsula.16

8

EZER WEIZMAN, ON EAGLES’ WINGS: THE PERSONAL STORY ISRAELI AIR FORCE 215 (1976).

9

Asher Wallfish, Meir Reveals Text of Cabinet Decision, JERUSALEM POST, June 5, 1972, at 1; Howard Koch, June 1967: The Question of Aggression, 15 ARAB WORLD 10-13 (June 1969); DAVID KIMCHE & DAN BAWLY, THE SANDSTORM: THE ARAB-ISRAELI WAR OF JUNE 1967: PRELUDE AND AFTERMATH 134-56 (1968).

10

22 U.N. SCOR, 1347th mtg., at 1-2, U.N. Doc. S/PV.1347 (1967) (Mr. El Kony, United Arab Republic).

11

22 U.N SCOR, 1347th mtg., at 1, U.N. Doc. S/PV.1347 (1967) (Permanent Representative of Israel to President of Security Council).

12

22 U.N. SCOR, 1348th mtg., at 15, U.N. Doc. S/PV.1348 (1967) (Mr. Eban, Israel).

13

A. MARK WEISBURD, USE OF FORCE: THE PRACTICE OF STATES SINCE WORLD WAR II, 137 (1997).

14

Weizman, supra note 8, at 221-27; Michael Akehurst, The Arab-Israeli Conflict and International Law, 5 NEW ZEALAND UNIVERSITIES L. REV. 231, 241 (1973); EDGAR O’BALLANCE, THE THIRD ARAB-ISRAELI WAR 49 (1972).

15

SYDNEY D. BAILEY, THE MAKING OF RESOLUTION 242, 68 (1985); NADAV SAFRAN, FROM WAR TO WAR: THE ARAB-ISRAELI CONFRONTATION, 1948-1967, 320-30 (1969); ROBERT STEPHENS, NASSER: A POLITICAL BIOGRAPHY 493 (1971).

16

Weizman, supra note 8, at 227; Tom J. Farer, Law and War, in THE FUTURE OF THE INTERNATIONAL LEGAL ORDER: VOL. III: CONFLICT MANAGEMENT 15, 41 (Charles Black & Richard Falk eds., 1971).

148

OF THE

LEADING COMMANDER

OF THE


Israel’s claim was denounced as prevarication by Arab and Soviet-bloc representatives. In the Security Council, the U.S.S.R. charged Israel with aggression.17 Most Security Council member states, however, remained uncertain. Among them, only the United States had direct information in advance about Israel’s plan to invade Egypt. The United States knew, through its own intelligence-gathering and through communication with Israeli officials, that Israel was about to invade Egypt.18 It chose to maintain silence in Security Council sessions on the question of who attacked first.19 The Security Council did quickly call for a cease-fire,20 but it did nothing to enforce its call, and Israel was able to consolidate control of the Gaza Strip, the Sinai Peninsula, the Golan Heights, and the West Bank. Gideon Rafael, who represented Israel at the United Nations at the time, later disclosed in a memoir that he had been instructed to engage in a diplomatic holding action, to give the Israel Defense Forces (“IDF”) time: “Our armoured divisions would cover the space as fast as they could and our diplomatic corps was to provide the time for them to reach their objectives.”21 Since it was Israel that was advancing, the effect was to call upon Israel to stop. Some Council members wanted to add a call for Israel to withdraw, a call one would expect in the event of aggression. Israel consulted with the United States to try to prevent a call for withdrawal.22 A call for a mutual cease-fire did, of course, ask Egypt, the victim of aggression, to stop trying to repel the IDF. The effect was to deprive Egypt of its right of self-defense. As Bulgaria correctly told the Security Council, “A nation defending its territorial integrity and its freedom cannot be asked to halt its resistance while the aggressor is in its territory and is continuing the aggression.”23 The U.S.S.R. proposed a resolution in the Security Council to condemn “Israel’s aggressive activities” and to demand that it withdraw to the 1949 armistice lines.24

17

22 U.N. SCOR, 1348th mtg., at 5, U.N. Doc. S/PV.1348 (1967) (Mr. Fedorenko, U.S.S.R.).

18

LYNDON JOHNSON, THE VANTAGE POINT: PERSPECTIVES OF THE PRESIDENCY 1963-1969, 293 (1971); GIDEON RAFAEL, DESTINATION PEACE: THREE DECADES OF ISRAELI FOREIGN POLICY - A PERSONAL MEMOIR 160 (1981).

19

22 U.N. SCOR, 1348th mtg., at 2-4, 11-14, 22-23, U.N. Doc. S/PV.1348 (1967) (Mr. Goldberg, U.S.A.).

20

S.C. Res. 233, 22 U.N. SCOR, Resolutions at 2, U.N. Doc. S/INF/22/Rev.2 (1968); S.C. Res. 234, id. at 3. S.C. Res. 235, id.

21

Rafael, supra note 18, at 157.

22

Id. at 159.

23

22 U.N. SCOR, 1351st mtg., at 10, U.N. Doc. S/PV.1351 (1967) (Mr. Tarabanov, Bulgaria).

24

22 U.N. SCOR, 1351st mtg., at 5, U.N. Doc. S/PV.1351 (1967).

149


The Security Council did not condemn Israel for its initiation of hostilities, nor did it characterize Israel’s action as aggression.25 Israel’s false claim of an Egyptian invasion had been highly effective. The concern of Israeli commanders that a cease-fire might be forced upon them may explain Israel’s decision to invent a story about an Egyptian attack. An invasion might have been met with strong international reaction if perceived to be aggression. In any event, the reaction was muted.

III.

U.N. Response to Israel’s Claim of Anticipatory Self-Defense

Once the hostilities ended, Israel dropped its false claim that Egypt had attacked first. On July 8, 1967, Prime Minister Levi Eshkol offered a new explanation about the onset of the hostilities, namely, that Egypt had been on the verge of invading Israel and that Israel’s action was needed to avert that anticipated invasion. Eshkol called Israel’s strike “legitimate defence.” Eshkol did not explicitly admit that Israel had lied to the Security Council, but, as analyzed by the Times of London, Eshkol did so implicitly: he “buried the often-repeated statement that Egyptian [air] and land forces attacked Israel before she launched her devastating lightning offensive on June 5.”26 Having no evidence of an attack by Egypt on June 5, Israel would have been hard pressed to make a persuasive case, once the heat of battle had dissipated. However, still seeking to avoid pressure to withdraw, Israel retreated to an explanation that still portrayed it in a defensive posture. The new Israeli explanation was met with skepticism from some analysts, in part because whenever a state gives a new explanation for something it has previously explained otherwise, the natural question to ask is why it did not give the second explanation immediately.27 Notwithstanding this problem, Israel enjoyed great success with its new explanation. Many states and analysts were willing to overlook Israel’s change of story. To anyone unfamiliar with the reasons behind moves by Egypt that had seemed to menace Israel, Israel’s story that it had anticipated an Egyptian attack was plausible. Many specialists in the law of warfare, some who acknowledge anticipatory self-defense and some who do not, accepted Israel’s factual argument that it had used force against Egypt to forestall an Egyptian attack.28

25

M.N. SHAW, INTERNATIONAL LAW 551 (1986).

26

Admission on Attack, TIMES (London), July 8, 1967, at 3.

27

Akehurst, supra note 14, at 241.

28

Richard Gardner, Commentary on the Law of Self-Defense, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 51 (Damrosch & Scheffer eds., 1991); Shaw, supra note 25, at 551.

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Israel’s anticipatory self-defense explanation would be asserted successfully by Israel for many years. In 1978, in a statement at the United Nations, Israel’s President Chaim Herzog, referring to 1967, said that Israel was: the victim of aggression when President Nasser with great fanfare moved his armies into Sinai and in an atmosphere of Arab frenzy and hysteria undertook publicly to annihilate Israel. He closed the Straits of Tiran, peremptorily ordered the United Nations forces out of Sinai and Gaza, and gathered around Israel an international Arab army bent on the destruction of our country – as he put it in Arabic, “El-Kadaa a la Israel” – the total annihilation of our people – men, women and children.29 President Herzog referred to the action of Egypt as an “attack,” even though he was not asserting that it struck first: As a result of this unprovoked Arab attack, which took place when we were sitting along the 1967 lines, ... the territories under discussion [the Gaza Strip and West Bank] fell under Israeli control where they are today. We sought no war. We were promised annihilation. A new holocaust was our prospect. We fought back to defend ourselves, our wives, our children, our homes from a grim and unthinkable fate – a fate, I repeat, openly promised us over every Arab medium by every Arab leader in a wave of uncontrolled hysteria which is in itself frightening and horrifying to recall to this day.30 President Herzog’s position was that, even though Egypt had made no overt military move against Israel, it had set the stage for an invasion by moving forces up to the Egypt-Israel armistice line, by getting the U.N. force away from that line, and by closing the Straits of Tiran to Israeli shipping. These three actions, coupled with threats of war from official and semi-official sources in Egypt, bespoke an intent by Egypt to invade Israel.31 Israel has never backed off this position. However, a leading Israeli international lawyer has concluded that anyone who viewed Egypt’s intentions in the light suggested by President Herzog had been mistaken. Yoram Dinstein says that this view was based upon information that made it a reasonable view. In his estimation, however, information that subsequently became available showed that Egypt had not been preparing an invasion of Israel. Dinstein refers to “hindsight knowledge, suggesting that – notwithstanding the well-founded contemporaneous

29

32 U.N. GAOR, 2 Plen. mtgs. 867-868, U.N. Doc. A/32/PV.47 (1978) (President Chaim Herzog, Israel).

30

Id. at 868.

31

YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 180 (1988).

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appraisal of events – the situation may have been less desperate than it appeared.”32 Doubtless there were many in Israel who believed Egypt was about to attack, hence that the situation for Israel was desperate. That number did not, however, include Israel’s cabinet, which made the decision to invade, knowing that Egypt was not about to invade. The cabinet’s knowledge of the true facts was contemporaneous. General Matitiahu Peled, a member of Israel’s general staff in 1967, said that the “thesis according to which the danger of genocide weighed on us in June 1967, and that Israel struggled for its physical existence is only a bluff born and developed after the war.” Peled said, “our General Staff never told the government that the Egyptian military threat represented any danger to Israel or that we were unable to crush Nasser’s army, which, with unheard-of foolishness, had exposed itself to the devastating might of our army.”33 Yitzhak Rabin, who as Chief of Staff was involved in the decision to invade Egypt, later indicated that the Israeli leadership understood that Egypt would not invade: “I do not believe that Nasser wanted war. The two divisions he sent into Sinai on May 14 would not have been enough to unleash an offensive against Israel. He knew it and we knew it.”34 Menachem Begin was a cabinet minister in June 1967 and voted to invade Egypt. In 1982, as prime minister, Begin sought to explain Israel’s decision that year to invade and occupy parts of Lebanon. Begin started his explanation by conceding that Lebanon was not preparing an attack on Israel. Begin then said that Israel’s invasion of Lebanon was similar in aim to its 1967 invasion of Egypt: “In June 1967, we again had a choice. The Egyptian Army concentrations in the Sinai approaches do not prove that Nasser was really about to attack us. We must be honest with ourselves. We decided to attack him.” Explaining why Israel invaded Egypt in 1967, Begin said it was to “take the initiative and attack the enemy, drive him back, and thus assure the security of Israel and the future of the nation.”35 Mordecai Bentov, another cabinet minister who voted to invade Egypt, also said that the cabinet did not expect an Egyptian attack: “This entire story about the danger of extermination was invented of whole cloth and exaggerated after the fact to justify the annexation of new Arab territories.”36

32

Id. at 181.

33

Amnon Kapeliouk, Israël était-il réellement menacé d’extermination?, LE MONDE, June 3, 1972, at 4.

34

Le général Rabin ne pense pas que Nasser voulait la guerre, LE MONDE, Feb. 29, 1968, at 1.

35

Excerpts from Begin Speech at National Defense College, N.Y. TIMES, Aug. 21, 1982, at A6.

36

Kapeliouk, supra note 33, at 4 (quoting Bentov).

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The actions of Egypt that Israel publicly cited as manifesting Egypt’s aggressive intent could be explained in ways consistent with a lack of aggressive intent. As the quoted Israeli officials indicated, the cabinet so understood them. Israel and Syria were in a state of high tension in May 1967. The actions by Egypt that might have appeared to presage an Egyptian invasion of Israel were more accurately understood as aimed at deterring an Israeli invasion of Syria, or at allowing Egypt to attack Israel in the event of an invasion by Israel of Syria.37 In moving troops to the Egyptian-Israeli line, which Egypt did in mid-May, President Gamal Abdel Nasser explained that he hoped thereby to deter an attack by Israel on Syria.38 As for closing the Straits of Tiran to Israeli-flag vessels, or any vessel carrying strategic material to Israel, President Nasser also cited Israel’s threats against Syria.39 Explaining his own threats against Israel, President Nasser stated, “When we said we were ready for battle, we meant that we would indeed fight if Syria or any other Arab State was subjected to aggression.”40 When Egypt on May 18 asked the United Nations to withdraw U.N. forces from the Egyptian side of the Egyptian-Israeli border, the commander reported that Egypt said it was preparing for “action against Israel, the moment it might carry out any aggressive action against any Arab country.”41 The Israeli leadership understood that President Nasser’s moves were aimed at protecting Syria. “The [Israeli] military now became convinced that Nasser meant to intervene in case of an Israeli attack against Syria.”42 Israel and Syria were at odds over a demilitarized zone that straddled the 1949 armistice line between their territories. Israel, over U.N. Security Council objections, claimed sovereignty in the portion of the zone that fell on its side of the 1949 armistice line.43 The IDF was cultivating land in the zone, in apparent violation of the armistice.44 Objecting to the sovereignty claim and the cultivation, Syria on April 7 attacked into the demilitarized zone, and Israel retaliated.45 37

Quincy Wright, Legal Aspects of the Middle East Situation, 33 LAW & CONTEMP. PROBS. 5, at 8 (1968).

38

Akehurst, supra note 14, at 240.

39

16 KEESING’S CONTEMPORARY ARCHIVES 22065 (1967).

40

Text of Nasser’s Speech on the Blockade of Aqaba, N.Y. TIMES, May 26, 1967, at A16.

41

INDAR JIT RIKHYE, THE SINAI BLUNDER: WITHDRAWAL OF THE UNITED NATIONS EMERGENCY FORCE LEADING TO THE SIX-DAY WAR OF JUNE 1967, 16 (1980).

42

Safran, supra note 15, at 307.

43

S.C. Res. 93, 6 U.N. SCOR, Resolutions & Decisions 7, U.N. Doc. S/INF/6/Rev.1 (1951); J.L., The International Status of Palestine, 90 JOURNAL DE DROIT INTERNATIONAL 964, 979-980 (1963).

44

Israel-Syria, General Armistice Agreement, art. 5, 42 U.N.T.S. 327; HENRY CATTAN, PALESTINE AND INTERNATIONAL LAW: THE LEGAL ASPECTS OF THE ARAB-ISRAELI CONFLICT 167-76 (1976).

45

James Feron, Israel Reports Her Jets Downed 6 Syrian MIG-21’s, N.Y. TIMES, April 8, 1967, at A1; La genèse de la guerre, LE MONDE, June 7, 1967, at 3.

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When Israeli officials threatened to occupy Damascus and overthrow the Syrian government, Syria complained of the threats to the Security Council.46 U.N. Secretary-General U Thant said the statements by Israeli leaders were “so threatening as to be particularly inflammatory in the sense that they could only heighten emotions and thereby increase tensions on the other side of the lines.”47 In the view of analysts, Israel “definitely contemplated some kind of action against Syria in the course of the month of May.”48 Since Israel did not anticipate an attack by Egypt, its initiation of hostilities on June 5, 1967 failed to qualify as self-defense. This conclusion is valid even if one accepts the more extended views of the right of self-defense held by some analysts. Under Article 51 of the U.N. Charter, self-defense is open to a state only if it has been subjected to an “armed attack.” By one view, self-defense is available only if an attack has begun,49 or is so imminent as to be obvious.50 Other analysts think that self-defense is available to preempt an attack that is anticipated in the near future.51 Under none of these tests would Israel’s June 5, 1967 invasion of Egypt be justifiable as self-defense. Egypt did not attack, and Israel did not anticipate an Egyptian attack. Once Israel invaded Egypt, Jordan came to Egypt’s defense, under a mutual defense treaty. In the late morning hours of June 5, Jordan fired shells into Israel in the Jerusalem area.52 President Herzog called Jordan’s shelling into Israel around Jerusalem aggression, saying that Jordan “launched a military attack on Jerusalem along the Israeli border, indiscriminately bombing, shelling and attacking Israeli towns and villages, including the Holy City of Jerusalem.”53 However, under Article 51 of the U.N. Charter, a state may come to the aid of another state under attack. This is called “collective” self-defense.54 Since Israel’s action

46

22 U.N. SCOR, Supp. (April, May, June 1967) at 90, U.N. Doc. S/7885 (1967) (Letter dated May 15, 1967 from the Representative of Syria to the President of the Security Council).

47

22 U.N. SCOR, Supp. (April, May, June 1967) at 109, 110, U.N. Doc. S/7896 (1967) (Report of the Secretary-General on the Situation in the Near East), reprinted as Text of the Thant Report on the Mideast Crisis, N.Y. TIMES, May 21, 1967, at A2.

48

Safran, supra note 15, at 306.

49

HANS KELSEN, THE LAW OF THE UNITED NATIONS: A CRITICAL ANALYSIS OF ITS FUNDAMENTAL PROBLEMS 792 (1950); Oscar Schachter, In Defense of International Rules on the Use of Force, 53 U. CHI. L. REV. 113, 133 (1986); LOUIS HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 141-45 (1979).

50

IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 366-68 (1963).

51

DEREK BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW 188-193 (1958).

52

O’Ballance, supra note 14, at 181.

53

32 U.N. GAOR, 2 Plen. mtgs. 868, U.N. Doc. A/32/PV.47 (1978) (President Chaim Herzog).

54

Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 102-03, 120 (June 27).

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against Egypt was not justified as self-defense, Jordan was within its rights to initiate military action against Israel. As a result, Israel’s responsive military force against Jordan was part and parcel of its aggression against Egypt. Hence, Israel’s invasion of the West Bank constituted aggression. In the Security Council, the U.S.S.R. characterized as aggression Israel’s action not only against Egypt but against Jordan as well.55 So did India, which stated, following Israel’s invasion of Syria on June 9, “Unleashing offensive armed action, indeed a blitzkrieg, Israel has occupied vast territories in the United Arab Republic, Jordan, and now within Syria too. Can anyone in this Council claim that this action is in accordance with the principles of the Charter, of international law and practice, or even of international morality?”56 Critically, the Security Council undertook no factual inquiry, despite the clear inconsistency in the version of events given by Egypt, on the one hand, and Israel, on the other. Clarifying the facts is often employed as a technique of bringing resolution to an international controversy. For the Security Council, obligated as it is to deal with breaches of the international peace, an inquiry into the facts would seem to have been essential to the fulfillment of this function. Instead, the Council simply took in the inconsistent statements made to the delegates. An inquiry could easily have shown that the Israeli claim of an initial Egyptian attack was false. Israel could have produced no evidence to back the claim. There would have been no physical evidence of the purported attacks on the three villages Israel named nor evidence of radar showing an imminent Egyptian aerial attack. As to the subsequent claim of anticipatory self-defense, an inquiry could have shown that Egypt was not about to attack Israel.

IV.

Israel’s Leaders and the Crime of Aggression

Since Israel’s military action against both Egypt and Jordan constituted aggression, not only is Israel responsible as a state for an international delict against those two states, but Israel’s leaders who took these decisions are individually responsible for the crime of aggression. A crime of aggression was recognized in the Charter of the International Military Tribunal (Nuremberg), which characterized planning or waging a war of aggression as an offense.57 The crime of aggression has been carried over into the Statute of the International Criminal

55

22 U.N. SCOR, 1352nd mtg., at 6, U.N. Doc. S/PV.1352 (1967) (Mr. Fedorenko, U.S.S.R.).

56

22 U.N. SCOR, 1352nd mtg., at 8, U.N. Doc. S/PV.1352 (1967) (Mr. Parthasarathi, India).

57

Charter of the International Military Tribunal, art. 6, appended to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82 U.N.T.S. 279.

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Court.58 Difficult issues might arise as to precisely which officials would be responsible, but for the central figures involved in the decisions to invade Egypt and the West Bank, penal responsibility would seem clear. Those central figures took advantage of a situation in which they could make it appear to the world that they were attacking defensively. No generally applicable definition of aggression as a penal offense has yet been adopted. No definition has yet been drafted to apply before the International Criminal Court. However, the International Law Commission, in its effort at producing a Draft Code of Crimes against the Peace and Security of Mankind, developed a definition that parallels the definition devised by the U.N. General Assembly as applicable to states.59 The International Law Commission’s definition lists seven acts as constituting aggression. The list include acts that cover Israel’s invasion of Egypt and of the West Bank, in particular: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack ... (b) Bombardment by the armed forces of a State against the territory of another State ... (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State.60 Culpability falls on Israeli officials who participated in approving the decision to invade Egypt or in organizing the invasion. The circle of individuals responsible criminally for the invasion of the West Bank might not be identical to that responsible criminally for the invasion of Egypt. In two other conflict situations, tribunals have been used to try persons suspected of committing internationally cognizable offenses. In dealing with the conflicts in the 1990s in Rwanda and in the former Yugoslavia, the Security Council set up special tribunals. The Council deemed such penal proceedings to be part of its function to restore peace at the end of a conflict. The Council gave these special tribunals jurisdiction to prosecute for atrocities (genocide, war crimes, crimes against humanity), since atrocities were the feature of those con-

58

Statute of the International Criminal Court, art. 5, U.N. Doc. A/CONF.183/9 (July 17, 1998), reprinted in 37 I.L.M. 999 (1998).

59

G.A. Res. 3314, 29 U.N. GAOR, Supp. 31, at 42 (1974).

60

International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind, art. 12, ¶ 4, reprinted in Stephen C. McCaffrey, The Fortieth Session of the International Law Commission, 83 AM. J. INT’L. L. 153, 155 (1989).

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flicts that the Council thought needed to be the focus of penal proceedings.61 Such a tribunal could equally well be tasked with conducting proceedings for the crime of aggression.

V.

Response of the U.N. General Assembly

At the United Nations, Israel’s withdrawal from Gaza and the West Bank was viewed as a necessity.62 For lack of Security Council action, the U.S.S.R. asked the U.N. Secretary-General to convoke the General Assembly to take action to secure Israel’s withdrawal. The U.S.S.R. requested a special Assembly session “to consider the question of liquidating the consequences of Israel’s aggression against the Arab States and the immediate withdrawal of Israeli troops behind the armistice lines.”63 This effort to involve the General Assembly enjoyed widespread support. Only the United States, Israel and Botswana opposed the Soviet request for a special session.64 U.S. representative Arthur Goldberg, in a letter to the Secretary-General, said that the Security Council was “still engaged in consultation looking towards further action.”65 In the General Assembly, many states favored a call on Israel to withdraw.66 The United States insisted that language about an overall political settlement be included, despite the concern of other states that an overall peace would take time to negotiate and thus would allow Israel to remain in occupation for an undetermined period. Soviet Prime Minister Alexei Kosygin accused the United States of helping Israel to protect the fruits of its aggression.67 Kosygin spoke of the need to curb aggression whenever it is committed: there are many regions in the world where there are likely to be those eager to seize foreign territories, where the principles of territorial

61

Statute of the International Criminal Tribunal for the Former Yugoslavia, appended to S.C. Res. 827, 48 U.N. SCOR, 3217th mtg., U.N. Doc. S/RES/827 (1993); Statute of the International Criminal Tribunal for Rwanda, appended to S.C. Res. 955, 49 U.N. SCOR 3453d mtg., U.N. Doc. S/RES/955 (1994).

62

JOHN DUGARD, RECOGNITION AND THE UNITED NATIONS 113 (1987).

63

U.N. GAOR (5th emerg. spec. sess.), Annexes (agenda item 5) at 2, U.N. Doc. A/6717 (1967) (Letter dated June 13, 1967 from the representative of the U.S.S.R. to the Secretary-General).

64

1967 U.N.Y.B. 191.

65

22 U.N. SCOR, Supp. (Apr.-June 1967) at 256, U.N. Doc. 6718 (1967) (Letter dated June 15, 1967 from the representative of the U.S.A. to the Secretary-General).

66

Bailey, supra note 15, at 112-113; DONALD NEFF, WARRIORS CHANGED THE MIDDLE EAST 345 (1984).

67

U.N. GAOR (5th emerg. spec. sess.), 1526th plen. mtg. at 5, U.N. Doc. A/PV. 1526 (1967) (Prime Minister Kosygin, U.S.S.R.); Bailey, supra note 15, at 110.

157

FOR JERUSALEM:

THE SIX DAYS THAT


integrity and respect for the sovereignty of States are far from being honoured. If Israel’s claims are not rejected today, then tomorrow new aggressors, large or small, may attempt to overrun the lands of other peaceful countries.68 Kosygin expressed concern that a failure to condemn Israel for aggression would only exacerbate the situation in the region: Territorial conquests, if they were recognized by various states, would lead only to new and perhaps even larger conflicts; and peace and security in the Middle East would remain illusory.69 Kosygin tabled a draft resolution in the General Assembly that condemned Israel for aggression and demanded both withdrawal and reparations.70 The United States opposed the Soviet draft resolution, urging that Israel should be required to withdraw only in the context of an overall Middle East peace settlement. It said that an overall settlement was necessary to ensure that peace be long-term and stable.71 During the General Assembly session, several states remarked that the evidence did not permit a conclusion as to who started the hostilities. Said Denmark, “The evidence before the Security Council and this Assembly offers no ground for an identification of the country which struck first, let alone the question whether any of the parties could be identified as an aggressor.”72 As in the Security Council, the U.S. delegate sat silent. The General Assembly, after two weeks of debate, failed to take any significant action aimed at an Israeli withdrawal, in large part because most members did not view Israel as the aggressor.

VI.

Response of the U.N. Security Council

The Security Council took five months to devise a resolution. It spent that time negotiating over the resolution’s language.73 It undertook no inquiry into the facts surrounding the outbreak of the hostilities. The Council’s failure to deter-

68

U.N. GAOR (5th emerg. spec. sess.), 1526th plen. mtg. at 5, U.N. Doc. A/PV. 1526 (1967) (Prime Minister Kosygin, U.S.S.R.).

69

Id. at 5.

70

Id. at 6.

71

U.N. GAOR (5th emerg. spec. sess.), 1527th plen. mtg. at 4, U.N. Doc. A/PV. 1527 (1967) (Mr. Goldberg, U.S.A.).

72

U.N. GAOR (5th emerg. spec. sess.), 1529th plen. mtg. at 7, U.N. Doc. A/PV. 1529 (1967) (Prime Minister Krag, Denmark).

73

See generally Bailey, supra note 15.

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mine the facts meant that it was devising a solution without understanding the problem. As to the remedy, controversy centered, as it had in the General Assembly, over whether to deal only with the June hostilities or to include a proposal for an overall settlement of the Arab-Israeli conflict. The latter approach prevailed. Resolution 242, adopted in November 1967, referred to “the inadmissibility of the acquisition of territory by war” and called for “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict.” Resolution 242 also called for “[t]ermination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.”74 Resolution 242 thus did not deal solely with the 1967 military action and resulting occupation. The inclusion of language on this latter topic – and this was the fear of the Latin American states – left it open to Israel to argue that the two aspects of the resolution were interrelated in the sense that Israel need not withdraw unless and until its neighboring states recognized it and promised not to attack it, despite the resolution’s language about the impermissibility of the acquisition of territory by warfare.

VII.

Subsequent U.N. Action

Thirteen years later, a Security Council resolution making no reference to an overall settlement called upon Israel to withdraw. The Council “reaffirm[ed] that acquisition of territory by force is inadmissible” and “reaffirm[ed] the overriding necessity to end the prolonged occupation of Arab territories occupied by Israel since 1967, including Jerusalem.”75 These two reaffirmations were obvious references to Resolution 242. They thus constitute an interpretation by the Security Council of Resolution 242, indicating that the Council did not view Israel’s obligation to withdraw as being conditional upon the conclusion of peace with its neighbors. The General Assembly has also called upon Israel to withdraw unconditionally. In one resolution, the Assembly stated “that the acquisition of territory by force is inadmissible under the Charter of the United Nations” and that “Israel must withdraw unconditionally from all the Palestinian and other Arab territories occupied by Israel since 1967, including Jerusalem.”76 Additionally, the General

74

S.C. Res. 242, 22 U.N. SCOR, Resolutions 8, U.N. Doc. S/INF/22/Rev.2 (1968).

75

S.C. Res. 476, 35 U.N. SCOR, Resolutions & Decisions 13, U.N. Doc S/INF/36 (1980).

76

G.A. Res. 37/123(F), 37 U.N. GAOR, Resolutions & Decisions 38, preamble para. 8, U.N. Doc. A/37/51 (1982).

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Assembly has called for an end to aid to Israel, on the rationale that aid enables Israel to maintain the occupation.77 Despite these clear calls for a withdrawal, the United Nations has avoided using powers it possesses that might actually secure a withdrawal. The Security Council is not only empowered but obligated to maintain the international peace to the extent that it is capable of doing so. The Palestinian-Israeli conflict is arguably the most serious instance of a breach of the international peace with which the United Nations has been asked to deal in the years of the organization’s existence. The Security Council has the power to impose economic sanctions and to organize military action to enforce the international peace. Under Article 39 of the U.N. Charter: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. If a negotiated settlement cannot be achieved, Article 41 requires the Security Council to impose economic sanctions. It provides: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. The Security Council may take military action under Article 42: Should the Security Council decide that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. Under Article 24, the Security Council has “primary responsibility for the maintenance of international peace and security.” Hence, it is under an obligation to utilize its powers to maintain the international peace. Heavily dependent upon foreign commerce for input materials, and for markets for its products, Israel is a

77

G.A. Res. 36/226, para. 12, 36 U.N. GAOR, Resolutions & Decisions 47, U.N. Doc. A/36/51 (1982); G.A. Res. 38/180(D), para. 10, 38 U.N. GAOR, Resolutions & Decisions 51, U.N. Doc. A/38/47 (1984).

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good candidate for economic sanctions. An effective set of international economic sanctions against Israel might convince it to withdraw. “[T]he moral clarity of the legal situation suggests the appropriateness of mobilizing as much international pressure as possible to end the circumstance of unlawful occupation,” wrote two international lawyers.78 “[T]here will be no solution of the Palestine problem until effective sanctions are applied to the Government of Israel,” wrote two others.79 In Resolution 476, the Security Council announced its intention to invoke its powers under Articles 41 and 42 of the U.N. Charter to secure Israel’s withdrawal. In the concluding article of Resolution 476, the Council said that it “reaffirms its determination, in the event of non-compliance by Israel with the present resolution, to examine practical ways and means in accordance with relevant provisions of the Charter of the United Nations to secure the full implementation of the present resolution.”80 In any event, the Council never carried through on this statement of intent. In the absence of action by the Security Council, the General Assembly could act to deal with a breach of the peace under a resolution that it adopted during the Korean war to deal with a situation in which the Security Council failed in its responsibilities. The resolution, denominated Uniting for Peace, lets the Assembly recommend economic or military action when the Security Council fails to deal with a breach of the peace “because of lack of unanimity of the permanent members.”81 Under Uniting for Peace, the Assembly would adopt sanctions against Israel for failing to withdraw and ask member states to observe them.82 This request would be a recommendation only, since the Assembly has no power to require member states to adopt a particular course of action.83 The Assembly would first recommend economic sanctions, although it might call for military measures as it did in implementing the Uniting for Peace Resolution in Korea in 1950. Although it has not sought Israeli withdrawal under Uniting for Peace, the General Assembly has taken actions that exert pressure on Israel in that direction. It invited the Palestine Liberation Organization to the United Nations as a per-

78

Richard A. Falk & Burns H. Weston, The Relevance of International Law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada, 32 HARV. INT’L L. J. 129, 157 (1991).

79

Mallison & Mallison, supra note 2, at 420.

80

S.C. Res. 476, 35 U.N. SCOR, Resolutions & Decisions 13, U.N. Doc S/INF/36 (1981).

81

Uniting for Peace, G.A. Res. 377A, art. 1, 5 U.N. GAOR, Supp. (No. 20) at 10, U.N. Doc. A/1775 (1950).

82

Mallison & Mallison, supra note 2, at 420.

83

U.N. Charter, arts. 11, 13, 14.

161


manent observer.84 It established the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories.85 It created the Committee on the Exercise of the Inalienable Rights of the Palestinian People86 and, within the U.N. Secretariat, an office to facilitate the work of the Committee, called the Special Unit on Palestinian Rights,87 later upgraded to a division of the Secretariat.88 The General Assembly tried to organize a conference at which the modalities of an Israeli withdrawal would be negotiated, but the conference was never held, as Israel and the United States opposed the idea.89

VIII.

The Madrid/Oslo Process and the United Nations

When it initiated a peace process in 1991, the United States recognized the Security Council’s responsibilities but at the same time said that the Security Council should not play a major role in promoting a Palestinian-Israeli peace. It sent a letter to the Palestinian delegation, stating: With regard to the role of the United Nations, the U.N. Secretary General will send a representative to the conference as an observer. The co-sponsors (the United States and the Soviet Union) will keep the Secretary General apprised of the progress of the negotiations. Agreements reached between the parties will be registered with the U.N. Secretariat and reported to the Security Council, and the parties will seek the Council’s endorsement of such agreements. Since it is in the interest of all parties for this process to succeed, while this process is actively ongoing, the United States will not support a competing or parallel process in the United Nations Security Council.90 The United States did not want action by the Security Council that might be inconsistent with an approach the parties might take. But when Israel actively pursued civilian settlement construction in East Jerusalem, and Security Council members tried to adopt resolutions of condemnation, the United States vetoed, on the rationale that such action by the Council might interfere with the bilateral

84

G.A. Res. 3237, 29 U.N. GAOR, 1 Resolutions 4, U.N. Doc. A/9631 (1975).

85

G.A. Res. 2443, 23 U.N. GAOR, Resolutions 50, U.N. Doc. A/7218 (1969).

86

G.A. Res. 3376, 30 U.N. GAOR, Resolutions 3, U.N. Doc. A/10034 (1976).

87

G.A. Res. 32/40(B), 32 U.N. GAOR, Resolutions & Decisions 25, U.N. Doc. A/32/45 (1978).

88

G.A. Res. 34/65D, 34 U.N. GAOR, Resolutions & Decisions 20, U.N. Doc. A/34/46 (1980).

89

G.A. Res. 38/58C, 38 U.N. GAOR, Resolutions & Decisions 47, U.N. Doc. A/38/47 (1984).

90

U.S. Department of State, Letter of Assurances, Oct. 18, 1991, reprinted in 6 PAL. Y.B. INT’L L. 281 (1990/91).

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peace process.91 After several such vetoes, the Assembly invoked the Uniting for Peace procedure to convoke a special session about settlement construction, although not about the occupation itself.92 When Israel persisted in the construction, the Assembly called upon states signatory to the fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 to hold a conference on enforcement of the convention in the occupied territories.93

IX.

The United Nations in Today’s Circumstances

The United Nations has failed in its responsibility to maintain the international peace in relation to the Palestinian-Israeli conflict. It has allowed the conflict to simmer, at times rising to open hostilities. The Security Council has been hampered in its efforts by the position of the United States, which, as a permanent member, exercised its right of veto to protect Israel from U.N. action aimed at forcing a withdrawal. The United Nations could have dealt with the 1967 hostilities and their aftermath more decisively. It could have determined that Israel was responsible for aggression. Despite avoiding the issue of aggression, the Security Council did call, in Resolutions 242 and 476, for withdrawal by Israel. Under the U.N. Charter, Article 25 states members are required to comply with Security Council resolutions. Israel thus remains in breach of its obligations as a U.N. member state for failing to withdraw from Gaza and the West Bank. The Madrid process did not free the United Nations of its responsibility for maintenance of the international peace. Another development made it harder still for the Security Council to fulfill its responsibilities for an Israeli-Palestinian peace. With the end of the Cold War, the United States was left as the sole superpower. This meant, first, that the United States was in an even stronger position to protect Israel from concerted international action aimed at a withdrawal. Second, it led to the United States taking a lead role on issues of international peace to the exclusion of the Security Council.94 Thus, with the Gulf War, the United States was the prime actor, having convinced the Security Council to authorize it to take military action against Iraq.95 Military action in Afghanistan in 2001 was taken by the United States, along with the United Kingdom, with no Security Council authorization.

91

U.N. SCOR, 50th Sess., 3538th mtg., U.N. Doc. S/PV/3538, at 6 (1995).

92

G.A. Res. ES-10/2, U.N. GAOR, 10th (emerg. spec.) Sess., U.N. Doc. A/RES/ES-10/2 (1997).

93

G.A. Res. ES-10/3, U.N. GAOR, 10th (emerg. spec.) Sess., U.N. Doc. A/RES/ES-10/3 (1997).

94

John Quigley, The United Nations Security Council: Promethean Protector or Helpless Hostage?, 35 TEX. INT’L L.J. 129 (2000).

95

S.C. Res. 678, 45th Sess., Resolutions & Decisions 27, U.N. Doc. S/INF/46 (1990).

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The marginalization of the Security Council on the Israeli-Palestinian conflict that was reflected in the United States’ view of the Madrid process was exacerbated by this further general marginalization of the Security Council. The Council remains, nonetheless, in breach of its obligations. As the body delegated by the United Nations with the task of maintaining the international peace, the Security Council cannot permanently remove itself from the longest-standing conflict in the history of the United Nations. The Council’s failure has only been highlighted by the period of heightened violence that began in late 2000. As negotiations were replaced by open hostilities, the Security Council did little. When violence was particularly intense, in spring 2002, the United Nations was not even able to arrange a fact-finding mission to the refugee camp at Jenin, in the West Bank, to inquire into allegations of atrocities by the Israel Defense Forces.96 When the IDF reoccupied Palestinian cities that it had turned over the Palestinian Authority, the Security Council called upon Israel to quit the cities but did nothing to enforce its call.97 With the Security Council marginalized, the General Assembly, in theory, could take up the slack. But if the General Assembly makes recommendations to states that are opposed by the United States, the chances for implementation are remote. In the current world situation, the United States is able to pressure states into refraining from policies it opposes.

X.

Conclusion

The United Nations, despite all the attention it has given to the PalestinianIsraeli conflict, has avoided key issues and thereby failed to perform the role envisaged for it by the U.N. Charter. One major failing for the U.N. has been its failure to view Israel’s military action of June 1967 as aggression, with a concomitant failure to take appropriate measures to reverse that aggression. The Security Council has been given the task of preserving the international peace. In 1967, it did little to deal with the obvious aggression committed by Israel. A consequence of that failure was that the civilian and military officials of Israel who planned and carried out the attack were not thought to have committed the crime of aggression. More broadly, the U.N.’s failure has made a Middle East peace even more elusive, by allowing Israel to control the entire territory of Mandate Palestine and, U.N. objections notwithstanding, to populate the occupied territory with its own civilian settlers. Had the Security Council ascertained the true facts in June 1967 and reversed Israel’s military gains, the situation in the region might have been more conducive to a durable peace.

96

S.C. Res. 1405, 57 U.N. SCOR, U.N. Doc. S/RES/1405 (2002).

97

S.C. Res. 1435, 57 U.N. SCOR, U.N. Doc. S/RES/1435 (2002).

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JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT OVER HUMAN RIGHTS VIOLATIONS COMMITTED BY ISRAELI FORCES IN THE OCCUPIED TERRITORIES AFTER JULY 1, 2002* William Bourdon†

I.

Introduction ...........................................................................................

166

II. War Crimes under Article 8 of the Rome Statute ..................................

167

III. Crimes Against Humanity......................................................................

171

IV. International Criminal Responsibility....................................................

173

V. What Means of Referral to the ICC Are Available to Palestinian Victims?..................................................................................................

178

VI. Conclusion..............................................................................................

181

*


†

President of SHERPA NGO. Attorney in private practice. Author of various publications on human rights, including the first commentary in French on the Rome Statute, La Cour pénale Internationale Le Statut de Rome. Former Secretary-General of the International Federation of Human Rights Leagues.


JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT OVER HUMAN RIGHTS

I.

Introduction

The Rome Statute1 entered into force on July 1, 2002, enabling the International Criminal Court (“ICC”) to set to work before the end of 2002. Its Prosecutor was elected on April 22, 2003. Teams are now being set up and inquiries into prospective cases may begin. One of the main challenges, indeed perhaps the most important one, facing the ICC is for it to establish its legitimacy rapidly. However, the legitimacy of the Court may be contested if, after a few years, crimes that shock international public opinion remain beyond its jurisdiction or if victims who have suffered atrocities run into legal obstacles, due to the Court’s statute, making it impossible for jurisdiction to be established over certain crimes. This is precisely what may well happen with crimes committed by belligerents in Israel and the Occupied Palestinian Territories (“OPTs”). ICC judges will have to overcome a huge paradox. On the one hand, the Court may be able to mobilize substantial human and financial resources to prosecute some junior officer in a devastated African country or perhaps, in the near future, the leaders of a fanatical Latin American guerrilla group. On the other, it may prove powerless to prosecute other perpetrators with equal or greater responsibility for crimes. How, in this context, is the Court to make its judgments coherent and logical, to avoid the risk of appearing so sectarian as to be of little interest to anyone? There is little point in reiterating the fact that the acts of Israeli security forces, notably the military, have for many years constituted war crimes. Qualifying their actions as war crimes is consistent with international legal doctrine in its entirety. For many years, both the international community and its institutions have criticized the commission of war crimes and, more generally, clear violations of international humanitarian law committed by Israeli security forces in the occupied territories. Such condemnation is based upon customary international humanitarian law and the four Geneva Conventions of August 12, 1949, including, a fortiori, the two Additional Protocols thereto of 1977 (hereinafter “1977 Additional Protocol I” and “1977 Additional Protocol II”). It should be borne in mind that 1977 Protocol I, in particular, contains a set of precise rules for the protection of civilians. These rules form a part of customary international law. War crimes, as such, clearly fall within the substantive jurisdiction of the ICC, notably under Article 8(1): “war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.”2

1

Rome Statute of the International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, reprinted in 37 I.L.M. 999 (1998) [hereinafter Rome Statute].

2

Id., art. 8(1).

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II.

War Crimes under Article 8 of the Rome Statute

A review of the focus of negotiations between states over the Rome Statute may be useful. The greatest difficulty was seen in reaching agreement upon a precise definition of war crimes.3 Article 8 establishes the court’s jurisdiction over a long list of war crimes. It also distinguishes between war crimes committed during international versus internal (noninternational) armed conflicts. The list of war crimes for the first category details thirty-four crimes, whereas there are only sixteen for internal armed conflicts. Some states, including India, Indonesia, Iran, Nigeria and Pakistan, wanted to exclude internal armed conflicts from the ICC’s jurisdiction. They submitted two arguments. First, they considered that national authorities were better placed to manage internal conflicts, including at a judicial level. Second they maintained that humanitarian law applicable to internal conflicts, in particular 1977 Additional Protocol II,4 had not yet attained customary status in international law and could consequently be ignored when drafting the statute. Those in favor of including jurisdiction over internal armed conflicts in the Rome Statute argued that there were many provisions in the statute that prevented the Court from encroaching upon the natural jurisdiction of sovereign states. They also pointed out to reluctant states that several provisions of the statute expressly confirmed the principle that the court was complementary to the national domestic jurisdiction of states. Consequently the ICC would only exercise its jurisdiction if states failed or were unwilling to act, as stipulated in Articles 1 and 17 of its statute. Furthermore, it was pointed out that internal armed conflicts currently account for the majority of conflicts in the world today. To exclude them from the Court’s jurisdiction would substantially restrict the objectives set for it by states. Regarding the argument contesting the customary nature of humanitarian law provisions on internal armed conflicts, states in favor of inclusion responded that internal armed conflicts were already governed by customary international law. A delegation representing the International Committee of the Red Cross (“ICRC”) noted that the rules governing internal armed conflicts contained in common Article 3 of the 1949 Geneva Conventions constituted customary law. Some states also maintained that although 1977 Additional Protocol II had not yet been fully

3

For a commentary on Article 8, see, PATRICK DAILLIER & ALAIN PELLET, DROIT INTERNATIONAL PUBLIC 679 (6th ed., 1999).

4

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609. This protocol entered into force on December 7, 1978 but has never been ratified by a large majority of states.

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integrated into customary international law, at least part of its provisions certainly had been. Furthermore, it seemed logically inconsistent to consider, for instance, that mutilation, or scientific or medical experiments causing death or seriously endangering the health of the victims constituted a war crime when committed as part of an international armed conflict but did not qualify as such if committed during an internal armed conflict. Ultimately, good sense prevailed over considerations of domestic policy, and the Rome Statute was drafted to include jurisdiction over internal armed conflicts. Moreover, the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has ruled on several occasions, most notably in the Tadic judgment of October 2, 1995,5 that serious violations of the customary rules and principles applicable to internal armed conflicts may be prosecuted as crimes. The drafters of the ICTY Statute had provided an Article 2, entitled “Grave Breaches of the Geneva Conventions of 1949,” which included a list of violations pursuant to the conventions, and an Article 3, entitled “Violations of the Laws or Customs of War.” These definitions were not restrictive, insofar as the judges have often referred to the Hague Conventions of 1899 and 1907, governing the conduct of hostilities. In addition, the judges of the two ad hoc tribunals (for the former Yugoslavia and Rwanda) also based their judgments upon the four Geneva conventions of August 12, 1949 and the two Additional Protocols thereto of 1977. The statute of the International Criminal Tribunal for Rwanda (“ICTR”) put all war crimes together in an Article 4, entitled “Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II” (the Rwandan genocide having occurred during an internal armed conflict). They also provided an open definition of violations and, above all, included “rape, enforced prostitution and any form of indecent assault,” to which the Geneva conventions make only one, far from explicit, reference. Due to its systematic commission in Rwanda, rape was seen as a crime that had to be included in the prosecution of war crimes. Furthermore, former chief prosecutor of the ICTY and the ICTR between 1994 and 1996 Richard Goldstone, in a letter to Professor Rhonda Copelon dated September 8, 1995, confirmed that the rapes constituted a war crime.6 The first paragraph of Article 8 of the ICC’s Rome Statute specifies the court’s jurisdiction with respect to war crimes. This, too, prompted lively discussion, particularly on whether the statute should set a lower limit for jurisdiction and, if so, how low. Article 8(1) stipulates that: “The Court shall have jurisdiction in respect

5

Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1-AR72 (Oct. 2, 1995).

6

Letter from Richard Goldstone, former chief prosecutor of the ICTY and the ICTR, to Professor Rhonda Copelon, International Women’s Human Rights Clinic, City University of New York, September 8, 1995.

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of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.”7 The issue that prompted so much debate among states was whether the jurisdiction of the ICC should cover war crimes only when committed on a large scale or whether it should also encompass isolated war crimes. In the end, the question was settled by adding a nonexclusive threshold to the ICC’s jurisdiction. The phrase “in particular” in no way restricts the Court’s jurisdiction, but states made it clear that the priority objective for the ICC is to prosecute the most serious crimes. The Court, consequently, does have jurisdiction over isolated war crimes, which is fortunate. However, the phrasing may impact upon the court’s criminal policy, except, of course where Article 124 is invoked. The second paragraph of Article 8 provides a list of enumerated war crimes that come within the substantive jurisdiction of the ICC. The list is long, yet it nevertheless omits some serious violations of international humanitarian law. It should be emphasized that this article expressly refers to the Geneva Conventions of August 12, 1949. This is in contrast to the overall approach of the statute which generally avoids reference to specific international conventions, states having objected that they had not all ratified them. Some war crimes were deliberately omitted, a point noted by the ICRC which highlighted several of them. No provision is made, for example, for unjustifiable delays in repatriating prisoners of war or civilians.8 In addition, the scope of Article 8(2)(b)(xx) on the use of weapons “of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate,”9 represents a significant regression in relation to the relevant provisions of the Geneva Conventions. States had difficulty reaching a consensus on this issue. The restrictions will affect prosecutors, who will not be able to find a way around them by simply referring to the Geneva Conventions. Some states wanted to add nuclear weapons to the list of prohibited arms, a proposition that others, including, of course, states which already have nuclear weapons or are planning to acquire them, categorically rejected. Ultimately their opposition resulted in the list omitting not only nuclear but also biological weapons, lasers and anti-personnel mines, despite the fact that the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction of September 18, 1997 (“Ottawa Treaty”) prohibited the manufacture and use of anti-personnel mines and required

7

Rome Statute, supra note 1, art. 8.

8

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, art. 85(4)(b), 1125 U.N.T.S. 3.

9

Rome Statute, supra note 1, art. 8(2)(b)(xx).

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that existing stocks be destroyed. The treaty entered into force on March 1, 1999. The United States and China, neither of which has ratified the treaty nor has any intention of doing so, prevailed on this point. New conditions were added to prosecute indiscriminate attacks on civilians, property or the environment (Art. 8(2)(b)(iv)). Henceforth, attacks must be intentional and the perpetrators must be aware that such attacks will clearly cause excessive damage “in relation to the concrete and direct overall military advantage anticipated.”10 Mentioning “overall military advantage” implies that this element very likely will be evaluated as a function of the overall military situation rather than as a function of the specific losses and damages involved in the relevant attack. In other words, states required that a special type of intent to be characterized. The transfer of civilians into an occupied territory constitutes a war crime (Art. 8(2)(b)(viii)). This provision is a direct offshoot of the fourth Geneva Convention, but the Rome Statute clarifies that henceforth the transfer of population may be “direct” or “indirect.”11 Similarly to the category of crimes against humanity (infra), one of the major advances achieved by Article 8 is that it includes crimes of sexual violence. Here again these provisions were the focus of much controversy. The Rome Statute qualifies rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization as war crimes. The inclusion of forced pregnancy prompted heated debate, often reduced, in particular by the Vatican and certain Arab states, to a discussion of abortion. As is discussed below in our comments on Article 7, these states systematically opposed recognition by the Rome Statute of specific gender-related differences. This explains why the third paragraph of Article 7 contains a clarification and definition of the word “gender.” Lastly “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities”12 is considered to be a war crime falling within the court’s jurisdiction. The Rome Statute also details violations constituting war crimes in the context of internal armed conflicts (Art. 8(2)(c)-(f)). The ICRC deplored the fact that some violations were not enumerated as war crimes, namely: measures to starve civilians deliberately; the use of certain weapons; deliberate, extensive, lasting, serious damage to the natural environment; slavery; and the execution of minors and pregnant women.

10

Id., art. 8(2)(b)(iv).

11

Id., art. 8(2)(b)(viii).

12

Id., art. 8(2)(b)(xxvi).

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It should also be noted that war crimes cannot be characterized as occurring in situations of mere “internal disturbances and tensions”13 but only in armed conflicts occurring on the territory of a state, with part of its armed forces fighting rebel forces. An additional condition limiting ICC jurisdiction in cases of noninternational armed conflicts was appended (Art. 8(2)(f)), stipulating that such conflict must be “protracted.”14 Neither the 1949 Geneva Conventions nor 1977 Additional Protocol II includes this requirement. Furthermore the provisions on internal armed conflicts do not affect the responsibility of governments to maintain or restore public order in the state or to defend the unity and territorial integrity of the state by all legitimate means. In conclusion, the list of violations constituting war crimes, despite its omissions and regressions in relation to existing international conventions, will probably enable the ICC to exercise its jurisdiction fairly widely. Borderline cases will no doubt be referred to the Court and, in the last analysis, its judges will have the final word. Mention should nevertheless be made of a major reservation. Article 124 of the Rome Statute allows any state so wishing to declare that it does not accept the jurisdiction of the Court with respect to war crimes for a renewable period of seven years. This very important provision has, as of this writing, only been used by France, when it ratified the Rome Statute. Colombia recently followed suit in an attempt to protect its “death squads” and other paramilitary groups, widely believed to be responsible for a large number of summary executions of civilians, trade unionists and political activists. However, despite these restrictive conditions on the Court’s jurisdiction that were included by states to prevent the ICC from being overwhelmed by war crimes prosecutions based solely upon isolated acts, the case of Israel would seem to escape these restrictions, since the violations committed by Israeli security forces are clearly part of a plan and are obviously being committed on a large scale.

III.

Crimes Against Humanity

There is every reason to raise the question of whether war crimes committed by Israeli forces have, at times, escalated into crimes against humanity. Crimes against humanity are not necessarily committed during an armed conflict but may be perpetrated in times of peace or war. The Rome Statute defines crimes against humanity such as “murder”15 or other inhumane acts “intentional-

13

Id., art. 8(2)(f).

14

Id.

15

Id., art. 7(1)(a).

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ly causing great suffering, or serious injury to body or to mental or physical health”16 committed “as part of a widespread or systematic attack directed against any civilian population”17 and “pursuant to or in furtherance of a State or organizational policy to commit such attack.”18 The systematic attacks on Palestinian civilians are sometimes so massive and widespread (claiming hundreds of lives and injuring thousands) that they may fairly be considered to be conducted pursuant to an express political objective, aiming to kill civilians and terrorize the whole of the Palestinian population. The widespread nature of the attacks on Palestinian civilians is particularly apparent if also we consider “indirect” victims, not directly affected by the attacks themselves. How does Israel stand in relation to the ICC? As is well known, Israel has not ratified the Rome Statute and is not inclined to do so. What is more Israel, much as the U.S., distrusts multilateralism in general. The state of Israel did not reject the ICC out of hand and signed the Rome Statute at the same time as the U.S., on December 31, 2000. The debate on ratification that coincided with the signing and continues in Israel, if only on the sidelines, shows that the matter is not taken lightly. The decision not to ratify the Rome Statute, announced at the end of June 2002, even prompted some criticism. Yossi Beilin, a former Labor minister of justice, spoke of a “sad and stupid decision, taken by an extreme-rightist government that is afraid of the world and that believes that everyone is against Israel.”19 Israeli leaders have raised several arguments against the ICC, notably accusing it of having given itself a warrant to judge the perpetrators of genocide, crimes against humanity and war crimes, but not terrorism, the calamity that has brought grief to Israel. They claim this shows that the court is politically biased. However, this argument does not hold up under close examination. Although the Rome Statute does not use the word “terrorism,” it is nevertheless clear that the campaign of suicide attacks against Israel, and the systematic way in which such attacks target civilians, could constitute a crime against humanity, and hence would come within the jurisdiction of the Court. Israeli leaders also point out that the definition of war crimes in the Rome Statute is not exactly the same as in the 1949 Geneva Conventions, because the Rome Statute includes the “transfer, directly or indirectly, by the Occupying

16

Id., art. 7(1)(k).

17

Id., art. 7(1).

18

Id., art. 7(2)(a).

19

See, Sophie Claudet, Israel Spurns International Criminal Court, AGENCE FRANCE PRESS, June 12, 2002.

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Power of parts of its own civilian population into the territory it occupies.”20 According to Israel, the modified language was introduced in response to lobbying by Egypt, with the sole aim of having Israel prosecuted for its settlement activity in the OPTs. However, the significance of this objection appears to fade in light of the fact that Israel did finally sign the Rome Statute in 2000, apparently in the belief that it had obtained adequate reassurances on this point during negotiations. Israel will need answers to many questions before it is likely to ratify the Rome Statute. In particular, it will need to know under what conditions a case might be made for the criminal responsibility of high-ranking civilian and military officials, and in particular their responsibility as superior officers with command responsibility for military forces. Let us look now at the relevant principles as set forth by the ICC. To begin, let us examine the scope of Article 25 of the Rome Statute.

IV.

International Criminal Responsibility

The first reference in an international treaty to a provision concerning individual criminal responsibility was in Article 227 of the Treaty of Versailles of June 28, 1919. Under the terms of this article, the victors of World War I “publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offense against international morality and the sanctity of treaties.”21 The Versailles Treaty also provided for a special tribunal on which five judges, appointed by the U.S., France, Italy, the United Kingdom and Japan, would sit. However it was never convened. Articles 6 and 7 of the Charter of the International Military Tribunal at Nuremberg22 (“IMT Charter”) subsequently confirmed the principle of individual criminal responsibility. The article was consistent with what became known as the Nuremberg Principles, subsequently adapted by the International Law Commission and submitted to the United Nations General Assembly in 1950 as part of a preliminary work on international criminal jurisdiction. In contrast, when framing the Rome Statute, states were more conservative than the drafters of comparable provisions contained in Articles 7 and 6, respectively, of the ICTY and ICTR statutes. Vis-à-vis the ICC, states were keen to

20

Rome Statute, supra note 1, art. 8(2)(b)(viii).

21

Treaty of Versailles, June 28, 1919, art. 227, reprinted in 2 BEVANS 43.

22

Charter of the International Military Tribunal, appended to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 U.N.T.S. 279; 59 STAT. 1544; 3 BEVANS 1238; 39 AM. J. INT’L L. 258 (1945).

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introduce lines of defense to protect their civilian or military agents who might otherwise get swept up in the ICC prosecutor’s net in the future. States therefore included specific provisions (namely, Articles 31 and following) as possible grounds for excluding the criminal responsibility of perpetrators of international crimes. In keeping with established principles, Article 25 gives the Court jurisdiction over persons committing a crime, ordering, soliciting or inducing its commission, or contributing to it “in any other way.”23 This formulation is consistent with the jurisprudence of the ICTY and the ICTR. In the Tadic trial chamber judgment,24 judges noted two basic grounds for recognizing individual responsibility: intent to commit and participation in the alleged crimes. The judges added that the terms “aiding and abetting” covered all acts of assistance, whether of a verbal and/or material nature, as long as the requisite intent existed.25 In a situation of this sort, the simple presence of the accused on the scene of the crime could, in light of the judgment, constitute aiding and abetting. Article 25, therefore, appears to establish a relatively broad definition of complicity (cf. Art. 25(3)(c)-(d)). As a provision for a specific indictment, incitement is only mentioned with reference to genocide, regarded as the most serious of crimes. However, it would not have been unreasonable to list it for crimes against humanity too. In the case of war crimes, the command responsibility of military officers and their superiors was deemed sufficient. The definition of attempts to commit genocide (cf. Art. 25(3)(f)) conforms with principles of criminal law found in most legal systems. Only persons completely and voluntarily giving up their criminal purpose shall not be liable for punishment. Article 25 also shows that states have learned from the ruling made in the Karadzic & Mladic case.26 There, an ICTY Trial Chamber upheld the principle of individual criminal responsibility on account of the planned conquest by Bosnian Serbs of certain parts of Bosnia and Herzegovina and the ethnic cleansing that occurred there. The ruling is very important because although the judges recognized that the conditions for command responsibility were fulfilled (ICTY Statute, Art. 7(3)), they thought it more appropriate to base their indictment of Karadzic and Mladic upon the principle of individual responsibility. Some of the key considerations in the ruling merit a reminder:

23

Rome Statute, supra note 1, art. 25(3)(d).

24

Prosecutor v. Tadic, Trial Chamber Judgment, No. IT-94-IT (May 7 1997).

25

Id.

26

Prosecutor v. Karadzic & Mladic, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, Nos. IT-95-5-R61 and IT 95-18-R61 (July 11, 1996).

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81. In the light of the analysis of the institutional functions and the effective exercise of power by the two accused, the Chamber may now consider the alleged individual criminal responsibility. • 82. The conditions for the responsibility of superiors under Article 7(3) of the Statute, that is those constituting criminal negligence of superiors, have unquestionably be fulfilled. • The Bosnian Serb military and police forces committing the offenses alleged were under the control, command, and direction of Radovan Karadzic and Ratko Mladic during the whole period covered in the indictment. • Through their position in the Bosnian Serb administration, Radovan Karadzic and Ratko Mladic would have known or had reason to know that their subordinates committed or were about to commit the offenses in question. • Lastly, it has been established that Radovan Karadzic and Ratko Mladic would have failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 83. The Chamber does consider, however, that the type of responsibility incurred is better characterized by Article 7(1) of the Statute. The evidence and testimony tendered all concur in demonstrating that Radovan Karadzic and Ratko Mladic were not only informed of the crimes allegedly committed under their authority but also, and in particular, that they exercised their power in order to plan, instigate, order, or otherwise aid and abet in the planning, preparation, or execution of the said crimes.27 The principle of individual criminal responsibility must therefore prevail if it overlaps with the principles concerning command responsibility. However, none of the statutes of the criminal tribunals surveyed make any reference to responsibility by omission, or failure to act. France opposed any reference to this principle in the draft statute prepared by the International Law Commission. Some states, notably Canada and Austria, tried in vain to incorporate a notion close to the principle of criminal responsibility by omission into the Rome Statute. The U.K. totally opposed the idea. It should be borne in mind that in the case of French domestic law, only in very limited cases does the jurisprudence of the criminal chamber of France’s Supreme Court of Appeal recognize complicity by omission or abstention, and thus the guilt of the accused, and this only when the latter had the means and above all the mandate, through position

27

Id., §§ 81-83.

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and functions, to prevent the crime. Many representatives of the international civilian or military community were very worried about the notion of guilt by omission. This has led to the paradox that despite the Security Council mandate to protect certain populations, states have nevertheless allowed crimes to be prepared, or even committed, before their very eyes, despite having been given specific authorization to protect populations at risk. Yet, the notion of issuing an indictment on the grounds of responsibility by omission would, in theory, reduce or altogether eliminate any element of intent. This was considered too high a price, and the proposition was therefore dropped. France wanted it to be possible to prosecute corporate bodies, and in particular private commercial companies, but excluding state, nongovernmental and nonprofit organizations. The boost to the rights of victims stemming from this proposal, which held out the promise of making remedies of restitution and compensation available, could have helped gain support for it. It was pointed out that Article 9 and following of the IMT Charter upheld the principle of the responsibility of criminal organizations. However, as most of the major legal systems do not recognize the criminal responsibility of corporate bodies, it was decided not to include this form of liability in the Rome Statute. The last paragraph of Article 25 reaffirms one of the founding principles of international criminal law: “No provision of this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.”28 Despite having been called into question on several occasions, the principle that states cannot incur criminal responsibility continues to form a bedrock principle of international relations, without ever having been properly discussed. There is good cause to wonder how Article 25 of the Statute will interact with Article 28, on responsibility of military commanders and other superiors. Here, for reference, is the relevant text: Article 28: Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

28

Rome Statute, supra note 1, art. 25(4).

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(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.29 The provisions on the responsibility of superiors and relations between them and subordinates gave rise to the noisiest debates. The Rome Statute draws a distinction between military commanders and other superiors. For military commanders, the statute upholds the standard established by Articles 6 and 7 of the IMT Charter, namely: a military commander is criminally responsible if he or she knew or, given the circumstances, should have known that his or her forces were committing or were about to commit crimes and he or she failed to take the appropriate measures to prevent such an occurrence or to refer the matter to the competent authorities for investigation. Several nongovernmental organizations pointed out that this provision was restrictive; it reflected the fact that representatives of the French and U.S. defense ministries were among the leading negotiators. For instance, omission of the concept of “conscious disregard” could protect some military commanders guilty of various serious simultaneous violations. Stricter standards now apply to civilian superiors, the Rome Statute having introduced new principles. A superior may be held criminally responsible if: he

29

Id., art. 28.

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or she exercised effective authority or control over activities constituting war crimes or persons having committed such crimes; if he or she had knowledge or consciously disregarded information about crimes being committed or about to be committed by his or her subordinates; or he or she failed to refer the matter to the competent authorities for investigation and prosecution. The Karadzic & Mladic case reveals the full importance of these principles. The court could seek to establish the criminal responsibility of Slobodan Milosevic and some of his most important civilian and military subordinates under Article 7 of the ICTY Statute. However, this article lacks detail on this point and might miss its mark. In contrast, Article 28 of the Rome Statute establishes more clearly the criminal responsibility of those who, on account of their command and supervisory functions, not only could not fail to know the crimes were actually being committed but did nothing to prevent them. Nevertheless, as the ICTY judges emphasized, for the present and future we must give priority to individual criminal responsibility.

V.

What Means of Referral to the ICC Are Available to Palestinian Victims?

he attitude of certain countries, notably the U.S. and Israel, has fueled suspicion regarding the ICC. However, by calling the Court into question they have attacked the U.N. itself, as it was the U.N. that initiated efforts to establish the international tribunal. Thus the challenge is to the international community as a whole, which, nevertheless, becomes increasingly unanimous in its conviction that nowhere in the world has a peace process been able to take root and flourish unless justice has had its say in one way or another. The ICC was set up to compensate for the shortcomings of those states which may prove unable or powerless to prosecute and punish the perpetrators of international crimes falling within the substantive jurisdiction of the ICC, namely: genocide, crimes against humanity, war crimes and the crime of aggression. Some people hoped that when Jordan ratified the Rome Statute (the first Arab country to do so, for which it must be congratulated), it would enable Palestinian victims to refer valid claims to the Prosecutor. However, such hopes were quickly put to rest by the reminder that King Hussein bin Talal had made it publicly known that he renounced all sovereign claim over the OPTs. Accordingly, the OPTs do not fall under Jordanian sovereignty, and consequently there is no way for Palestinian victims to refer valid claims to the Prosecutor. In view of the procedure governing referral of cases to the court as set forth in Article 12, there is, as things stand, absolutely no possibility at the present of referring a case, however legitimate, to the ICC. Here is a reminder of the procedure: 178


Article 12: Preconditions to the exercise of jurisdiction 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9. This article is a central provision in the Rome Statute. It is among the provisions most criticized by international humans rights organizations, as it may be construed as being in contradiction with the universal character of the court. It should be remembered that in the International Law Commission’s draft, the proposed jurisdiction of the court was compulsory, the acceptance of states being required. This idea was based upon a common sense assumption. It was by definition absolutely contradictory to envisage a court charged with prosecuting crimes most damaging to essential human rights if at the same time procedure required the assent of the executioner before he or she could be indicted. Ultimately, in negotiating the Rome Statute, the following provision was adopted. Paragraph 2 of Article 12 conditions the jurisdiction of the court if cases are referred to it under Article 13(a) or (c). In other words, if a case is referred to it by a state party or by the Prosecutor, the ICC may exercise its jurisdiction providing either that the state in which the crime was committed or the state of which the accused is a national is a party to the statute, and obviously all the more so if both states are. As is all too apparent, this provision may restrict the court’s independence and, above all, its effectiveness. In the event of an internal conflict, the state where a crime is committed will also be the state of nationals likely to be indicted.

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Over the last thirty years, it is internal conflicts that have given rise to crimes against humanity and genocide (e.g., Cambodia, Rwanda, the former Yugoslavia, Iraq, and so forth). Furthermore, this provision will hinder the effectiveness of the ICC, for if the two states – in fact only one in many cases – are not parties to the statute or have not recognized the court’s jurisdiction through the case-by-case declaration provided for in Article 12(3), then the Court will be quite unable to prosecute crimes committed there, unless – and this is an essential point – the U.N. Security Council refers the matter to it. Under Article 13 of the Rome Statute, the Security Council may refer a case to the ICC. Such a referral is not subject to any conditions whatsoever, other than the requirement of acting under Chapter VII of the U.N. Charter. However, referral may be vetoed by a Security Council member state. It should be remembered that the U.N. acted under Chapter VII of the U.N. Charter when it intervened in Rwanda and the former Yugoslavia and when it set up to the two ad hoc tribunals for those jurisdictions. This is why the compromise, submitted by South Korea in June 1998 and seconded by several states, would have offered the advantage of introducing an alternative criterion for affording the Court jurisdiction based upon the status of a third or fourth state, namely either that of the nationality of the victims or that in which they were detained. Such alternative grounds for jurisdiction would thus prevent certain crimes from going unpunished. It is to be regretted that the Rome Statute ultimately contained no provision for jurisdiction based upon either of these two alternative proposed grounds for jurisdiction. Even if international law rarely recognizes the victim’s nationality as a grounds for jurisdiction, a provision of this sort would have been innovative and in keeping with the object and purpose of the ICC. If a victim’s nationality had been recognized as a criterion, European journalists, who have repeatedly been the target of fire from Israeli security forces since the Rome Statute entered into force on July 1, 2002, would have been able to refer such incidents to the ICC for indictment as war crimes. As for the final paragraph of Article 12 (voluntary acceptance on a case-bycase basis), it does not in any way alter the provisions of the dual alternative (although it does modify the dual acceptance rule). It seems highly improbable that a state not party to the statute would submit a case-by-case, crime-by-crime declaration enabling its nationals or leaders to be prosecuted, unless of course new authorities had taken over from a dictatorship. Provision for such an eventuality is made in Article 11(2). Thus, in the case of violations committed against Palestinians by Israeli perpetrators, there remains just one theoretical grounds for ICC jurisdiction, namely Security Council referral of a case to the Court. However, practically speaking this remains a purely theoretical option, simply because the U.S. would undoubtedly veto such a motion. Only a major change in the policy of the U.S. adminis180


tration is likely to change this situation. In the meantime, this scenario remains totally improbable. Nor is it plausible to imagine the setting up of an ad hoc tribunal to prosecute crimes committed in the OPTs, as this would require an international consensus, equally unrealistic at present.

VI.

Conclusion

However, not all the doors are closed. The states that have ratified the Rome Statute (as of this writing, slightly over ninety in number) will need to adjust their domestic legislation to take into account their obligations assumed under the statute, and most notably regarding cooperation with the ICC. Changes to domestic criminal law will also be required to enable national prosecutors to intercept persons entering their territory who are alleged to be responsible for commission of international crimes, and in particular war crimes. In other words France, Italy, the U.K., Spain and numerous other countries will have to integrate universal jurisdiction procedures for all international crimes into their domestic legislation.30 Nevertheless, states are reluctant to make such changes. The recent August 2003 reform in Belgium has substantially reduced the scope of the laws of 1993 and 1999, which had established the broadest possible rules for universal jurisdiction in the repression of international crimes. This move is a clear indication that states are likely to drag their feet before updating domestic legislation. Once introduced, the changes would mean, for example, that a prosecutor in France, Switzerland or Spain could detain an Israeli military commander for whom there were valid grounds for suspecting sufficient involvement in the commission of war crimes in the OPTs, provided, of course, the relevant commander was in the state’s territory. Whatever happens, even if there is resistance, the establishment of the ICC has set in motion an irreversible process. Victims and representatives of international civil society have established legal procedures, albeit still insufficient at this stage and containing gaps, which should nevertheless in the future lead to a process enabling national, and perhaps international, judges to prosecute those responsible for the human rights violations that have been, and unfortunately continue to be, committed in the OPTs. As everyone realizes, this is the price that must be paid for achieving a genuine and lasting peace process.

30

For example, the French parliament will begin in Autumn 2003 a legal project aimed at integrating into French domestic law universal jurisdiction mechanisms for all the crimes coming under the subject matter jurisdiction of the ICC, although it is likely to be done in a restrictive manner.

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SPECIAL DOSSIER ON THE “SABRA AND SHATILA” CASE IN BELGIUM INTRODUCTION: NEW LIGHTS ON THE SHARON CASE Chibli Mallat* “If you can look into the seeds of time, And say which grain will grow and which will not, Speak then to me.”1

It would have been difficult to anticipate, at 9:30 a.m. on the morning of June 18, 2001, in the office of the Investigating Judge Sophie Huguet at the Brussels Palace of Justice, the farreaching effects of the criminal complaint of 28 victims filed “against Ariel Sharon, Amos Yaron and all Israelis and Lebanese responsible” for the massacres of Sabra and Shatila which took place on 16-18 September 1982. It would certainly have been hard to predict that the process would lead to a ruling of the Court of Cassation in February 2003 in favor of the plaintiffs, allowing the investigation and the trial to proceed; that the case would develop into the most serious crisis between Tel Aviv and a European capital since the establishment of the state of Israel; and that both the U.S. secretary of state and his defense counterpart would weigh in personally against the law on which the case was based. Nevertheless, one knew that the case would be an important test for international humanitarian law, for Belgian law, and for the future of justice and peace in the Middle East. Preparing the case had taken several years of academic and practical work. It developed out of close familiarity with the Pinochet affair in England, the momentous action to establish the International Criminal Court, and the founding of INDICT, the Londonbased international campaign to bring Saddam Hussein and other mass assassins and torturers in Iraq to account, an undertaking that had received wide support in the U.S. Congress. It took several additional months of intense and precise work in the difficult conditions of the Palestinian refugee camps in Lebanon for the case finally to be brought to the Brussels judge by my two Belgian colleagues, Michaël Verhaeghe and Luc Walleyn, and myself on that morning of June 18, 2001. The complaint was based on the so-called “universal jurisdiction” law that Belgium had adopted – by a unanimous vote of the peoples’ representatives in both houses of par-

*

Counsel for the Sabra and Shatila victims in the Sharon case in Belgium; EU Jean Monnet Professor in European Law, Saint Joseph’s University, Beirut.

1

Shakespeare, Macbeth, III, i.


ON THE “SABRA AND SHATILA” CASE IN BELGIUM

liament – first in 1993. The law was then amended in 1999 by an equally enthusiastic government and legislature. Shortly before the complaint was filed, the trial of the Rwandan “four” had just ended in their conviction, to universal acclaim. Ironically, the lawyer for the Rwandan victims would be, a few months later, the one whom the state of Israel would appoint to prevent the Sabra and Shatila victims from seeking redress under the same law. That was one bitter irony in the case, to be followed by many others – not the least the two amendments to the 1993/1999 law that followed the Court of Cassation ruling on February 12, 2003. This dossier collects key legal documents in the Sharon affair. Being a legal dossier, the collection contains two sets of documents. The first set traces the evolution of Belgium’s 1993/1999 “universal jurisdiction” law by making available in English, in several cases for the first time, translations of successive amendments to the law that first expanded, and then dramatically contracted, its scope. The second set of documents contains key pleadings and court decisions related directly to the Sharon case itself, beginning with the initial complaint filed by the plaintiffs and concluding with the June 10, 2003 ruling by the Brussels Court of Appeals that the case against Yaron may proceed. Several of these documents are also made available in English for the first time in this special dossier. There are, of course, many other documents and materials directly related to this case, and three different books on the case have been completed, or are at press as of this writing: by Raoul Jennar, in French; by Stefania Limiti, in Italian; and by John Borneman, in America, the last following an international conference held at Princeton early in 2003. An important book was also published in Arabic in 2003 by Bayan Nuwayhid al-Hout, who has devoted years of work to assembling as accurate a picture as possible from survivors on the basis of their oral testimony. This, in addition to hundreds of articles in the press and a web site dedicated exclusively to the topic organized by Laurie King-Irani. Over three hundred lawyers wrote to express their support and their keenness to help from all five continents, including Israel, Australia and South Africa. Yale Law School’s Human Rights Clinic, under the direction of Deena Hurwitz and Jim Silk, provided exceptional legal briefings in a whole range of issues raised by the trial. A fuller story still needs to be written, with the appropriate documents produced and reflecting the dedication of a large number of persons, jurists and non-jurists. The list is impressive and deserves a dedicated effort to account for an unprecedented international search for justice. Leah Tsemel and Raef Verstraeten also helped directly in the protracted trial. One can see in a detailed article in this volume of the Yearbook by Eric David, the “father” of the Belgian law, and in the continued, unyielding support of Amnesty International, Human Rights Watch, Avocats sans Frontières, and countless personalities, independently or through the various Sabra and Shatila committees that sprang up across the world, how the campaign ultimately involved a wide gamut of distinguished jurists and ordinary people. The international effort, spearheaded by my two Belgian colleagues, was nothing short of heroic. The patience and understanding of the plaintiffs, who were subjected to intense emotional pressure twenty years after the massacre, was no less remarkable, especially in view of the countless attempts by parasitic, sometimes ill-intentioned quarters, to derail the case or to use it for their own narrow purposes. The case is not over, and as of this writing, the fight was still continuing in Brussels. Whether we succeed or not, there will be more books and many more articles about or touching on the Sharon affair. In this all too brief introduction, we shall endeavor to highlight a few lesser known but nevertheless salient aspects of the case. 184


As soon as the Sharon case – as it came to be known – was launched,2 trouble erupted, and the regional and world media, including most prominently in Israel, showed much interest in its development.3 However, that was just the beginning, and rarely have ups and downs been so marked in a modern judicial criminal case. As soon as the complaint was lodged, jurists in both the Ministries of Justice and Foreign Affairs in Israel expressed concern about the action, while the principal accused remained calculatingly silent, and has remained silent about it ever since.4 Under the Belgian system, investigations of criminal complaints may proceed in private. However, the Sabra and Shatila victims had agreed from the beginning that they had nothing to hide, and that their preferred course of action would be to launch as transparent a case as possible. Thirty immediate relatives of persons who had been killed or who had disappeared were identified by careful research in the camps of Lebanon. This was achieved by Sana Hussein, herself a resident of the camps, with the help of Dr. Rosemary Sayegh, a long-time friend of the Palestinian cause and the author of landmark books on the plight of the Palestinians in Lebanon. Of the thirty persons chosen, all from different families to cover the largest possible sample, two decided that the case would reopen the wounds in a way that they could not tolerate. Yet the other twenty-eight victims, who were aware of the uncertainties and possible risks in taking on powerful and violent defendants such as the prime minister of Israel, nevertheless decided to go forward. The text of the complaint was distributed at the press conference held immediately after it was formally filed on the morning of June 18, and it was posted and widely distributed on the internet. Despite its length, it was eventually translated into over six languages, including Japanese. Another early irony was that Israeli media accounts later that same week reported that Israeli secret service agents were still scurrying around trying to obtain the text days after it had been widely quoted and discussed in the Belgian and Arab press. Ridden with such conspiracy thinking, the Israeli government also reacted angrily to the airing of a BBC program entitled “The Accused” on the eve of filing of the complaint. Sharon and his aides were convinced that it was all a concerted international effort of some dark, coordinated plot to undermine him. Predictably, the BBC was accused of anti-Semitism and was openly associated with the complaint in Belgium. In reality, while we had known about the program through an Amnesty International friend two weeks before it was aired, and later through the row occasioned by the protestations of Sharon’s government in the

2

The Sharon case is an inaccurate rendering of what should be more appropriately called “the Sabra and Shatila case,” but the role of the former Minister of Defense in the invasion of Lebanon in 1982 and in the subsequent massacres was so central that it makes sense for the general public to refer to the case by the name of the top, active commander.

3

In contrast, the disinterest of the U.S. press and media was remarkable. With the exception of National Public Radio and, occasionally, the Christian Science Monitor, heavy silence descended on the case, even when the U.S. government actively worked to undermine the law in Brussels. Not one op-ed dealing with the case was allowed to be printed in the leading American papers over a period of two years.

4

When the Court of Appeals ruled on June 26, 2002 that the case could not go forward because the accused was not on Belgian soil, the Israeli press reported from circles close to him that this was his “best day” since he had become prime minister.

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press, we had known little about its content until we actually watched it on television, like all other European viewers, at 11:00 p.m. Belgian time on June 17. A powerful testimony, “The Accused” would be aired in a number of countries, except, notably, in the United States. As for the Belgium forum, it had been chosen after systematic research into international criminal law and a careful examination of the various possibilities offered in a number of western systems. This was carried out together with two outstanding lawyers, Andrew Allen and Peter van den Auweraert, whom I knew well as close friends and assistants during my tenure at London University. With its reinforcement by the Rwandan trials, it was clear that the 1999 amendment in Belgium had tightened the original 1993 “universal jurisdiction” law to prevent all the usual procedural barriers: territorial restriction, statutes of limitations, and immunities. In its amended form, the Belgian law had been carefully modeled after the Rome Statute for the International Criminal Court and conceived, as requested by the statute itself, to be complementary with the worldwide effort against impunity in mass crime. “The fight against impunity” would remain the leitmotiv of the Sharon affair throughout the ups and downs that followed. From the beginning, the pressure of the Israeli government was relentless, and sometimes it took on an ugly aspect. In the week following the lodging of the case, the Belgian consulate in Tel Aviv was attacked, and during a visit of the Belgian Prime Minister as member of the European Union troika in 2002, he was grossly insulted by close supporters of Ariel Sharon, including the mayor of Jerusalem. With all the ups and downs of the case, the most dramatic moment was occasioned by the assassination of Elias Hobeika on the morning of January 24, 2002 in Beirut. On January 22, on the occasion of the visit of a delegation of Belgian senators to Beirut, Elias Hobeika had received two of them, Josy Dubié, head of the Justice Commission at the Belgian Senate, and Vincent Van Quickenborne, a liberal young senator who supported the case from its very inception, along with a journalist from a leading Flemish paper. Hobeika repeated in the meeting, which took place at his house in the evening, his keenness to clear his name from the record that had singled him out in the Kahan Commission report as the major perpetrator of the massacres. The following day, on January 23, the senators left for Belgium, but on that day also, a session was scheduled at the Court of Appeal.5 On January 23, it was scheduled for the prosecutor and for the lawyers of the plaintiffs/victims to make the case. We raised the issue of the reluctance of the investigating judge, followed by the prosecution and the court, to call upon Hobeika, if not as an accused at least as a witness, in accordance with his repeated statements to the press. We never received a proper answer to the question, which was the more legitimate since the investigating judge had asked for his address and contact numbers to invite him for a hearing in Belgium. The court session closed at around 2:00 p.m. Beirut time. The following morning, at 9:00 a.m., Elias Hobeika was dead.

5

All these sessions were held in camera. We had not insisted that they should be public, so tense was the atmosphere in Belgium because of the aggressiveness of the Israeli government. Maybe it was a mistake, as it deprived the public, and more importantly, the victims back in Beirut, of a closer and more detailed observation of the proceedings. In fairness, however, most of the proceedings were of a mostly procedural nature, and it would have taken extensive explaining to unravel the intricacies raised by the technical arguments.

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Elias Hobeika was killed, along with three bodyguards, near his home in Hazmiyye, a Beirut suburb. The investigation was unable to proceed very far, as the booby trapped car had been sold a few weeks earlier in Sidon to a person whose identity had clearly been forged. It is time to shed some light on this sinister assassination. For us lawyers, the immediate reaction was one of distress. Distress was not so much because of what Hobeika would have said that could incriminate him or Ariel Sharon but because we truly believed that this case was one of important symbolic value, offering a peaceful alternative to the world of violence that had dominated the Arab-Israeli conflict for a hundred years. For the first time, Palestinian victims were reaching out to a judge for redress, rather than taking the matter into their own hands. That the crime at Sabra and Shatila would claim more yet lives was insufferable. Yet the fact that Elias Hobeika had come out so insistently to face the claims that had been hanging over him like an albatross ever since September 1982 was in itself a breakthrough of ominous consequences. The point was not necessarily substance, or what Elias Hobeika had to say, although his point of view would have certainly shed important light on an affair which, as it turned out, had been improperly investigated because none of the militia members nor the victims had been heard by the Kahan Commission. However, since the commission had concluded in February 1983 that Sharon, then minister of defense, was “personally responsible” for the massacres, the matter of Sharon’s guilt posed little problem, especially as he was the one who was singled out in the commission’s conclusions for this sharp qualification. As the case developed, the picture drawn by the Israeli commission proved increasingly incomplete. From the testimonies of our victims, two puzzling issues had emerged. The first, which was emphasized in writings by Robert Fisk and Julie Flint (in addition to a remarkable Channel 4 documentary by Julie Flint) was the issue of the “disappeared”: hundreds of mostly young men who were arrested, interrogated and taken away even after the massacre proper had officially ended. The second discovery, also noted first in the testimonies of the victims, pointed to the fact that Israelis had been physically present in the camps, in contrast to the violent denials of any such presence before the Kahan Commission and in versions received since. As a matter of common sense, and even if the Israeli army did not enter the camps and left the matter of “cleaning them up” to the extremist Christian militias, as the official order from the Ministry of Defense on the morning of September 16 expressed it, it is nevertheless hard to imagine that no Israeli official set foot in the camps for three days. On the Sunday following the assassination of Hobeika, a French journalist who had spent several years researching the massacres was interviewed on French television and revealed that special Israeli units had entered the camps in the first hours and killed sixty-three persons. The unit was even named in the interview. It has remained puzzling that the channel never aired it again. There were, therefore, enough “new” elements to attract renewed interest. This is also why, in retrospect, the killing of Hobeika appears to me as much – if not more – a matter of procedure than one of mere substance. In our pleadings on the morning of January 23, we focused intensively on the inexplicable reaction of the Belgian judges toward Hobeika’s readiness to come to Brussels and to testify in the trial. Hobeika had repeated his keenness several times, expressing gratitude for the opportunity to clear his name

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before “a neutral judge.” In one telling moment, on the occasion of a television program in Beirut soon after I returned from Belgium after the complaint had been lodged, Hobeika was interviewed at his home by satellite, while I was the guest in the studio, and he expressed his gratefulness for us bringing the case. This was a particularly awkward moment, as I did not consider it proper to discuss publicly any particular evidence when a formal judicial forum was finally able to receive information and to rule upon it. To all the journalists who repeated the question, the answer was that it would be far more appropriate for any actor or witness, especially one who was universally perceived as the leader of the militias in the camps, to offer his testimony to the investigating judge rather than to the lawyers of the plaintiffs. Elias Hobeika understood this correctly. Never was a back channel approach attempted to reach me or my colleagues, and Hobeika repeated several times, to the written and televised media, his wish to go to Brussels. This was also what he told the Belgian senators. On behalf of the victims, we repeatedly asked the investigating judge, Patrick Collignon, to hear Mr. Hobeika. Upon Collignon’s demand, we informed him officially of his address and fax number so that he could contact him. He never did, despite having assured my Belgian colleagues that no one at that stage would be put in custody and that he merely wanted to take depositions of all the parties involved as witnesses. One of the great disappointments in the case was the pusillanimity with which Collignon carried out his task. This was clear to me when he went on a holiday at a time when the whole world was drawn to the dramatic developments of the case in Brussels, and then, when he came back, as he refused to listen to our side of the argument before pronouncing the Ordonnance (judgment) of September 7, 2001, which halted the investigation until the Court of Cassation reinstated it in its historic judgment of February 12, 2003. Despite Hobeika’s formal appearance as an accused under the “constitution de partie civile” procedure, Collignon and the Belgian judiciary would still not move. This was all the more puzzling since the office of the prosecutor, who had rallied to our position, had notified Sharon and Yaron formally of the accusation of the victims as “parties civiles.” It was at this charged session of January 23 that the prosecutor, Pierre Morlet, an outstanding jurist by the account of all who dealt with him, also explained the convoluted means employed to notify the two Israelis formally accused, considering the awkwardness for the Belgian diplomatic corps, which had to relay the notification. This made the refusal to notify Hobeika the all stranger, since he was the one who was requesting to be heard by the court. No form of coercion was needed. A notification by fax would have been sufficient. It was on this puzzling set of unusual hurdles that I based my oral argument before the court on January 23, 2003. While the distinct unease which I sensed on the bench might have been a merely subjective recollection, what happened afterwards confirmed this impression in a tragic manner. For until then, the argument that “the accused had to be in Belgium” for jurisdiction to exist had remained faint, for three major reasons. The first concerns this mass type of crime, which tends to involve hundreds of victims, and dozens, if not hundreds of perpetrators. Under the classical system of penal jurisdiction, the persons involved on both sides tend to be limited, and an ordinary crime concerns only a few victims and one, or a limited gang, of assassins, who usually share the same nationality. However, with hundreds or thousands of actors involved, the traditional “passive” and “active” personality principles of jurisdiction – which establish the competence

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of a national court to look into a crime taking place abroad if either the victim (“passive personality”) or the accused (“active personality”) is one of its nationals – break down. The nationality ramifications tend to be immense: in Sabra and Shatila in 1982, as in New York in 2001, the victims belonged to over ten different nationalities. Unlike New York, they were all from the third world, and the killers went to great lengths to avoid the assassination of the few foreign doctors and nurses who operated in the camps. Still, in mass crimes, the passive and active personality principles tend to be more easily trumped. When they are not, the system of extradition common for “normal” crimes should operate, as in the Pinochet case. In the case of Sabra and Shatila, it was a matter of luck for the accused that none of the relatives of the victims had acquired Belgian nationality, but it is only a matter of time before either some connection to the forum is found – for instance if one of the perpetrators is found to have dual nationality – or the rules on extradition are made more operational for jurisdictional purposes. The second reason was textual: it was only through a very complicated and tortuous argumentation that the Court of Appeals found on June 26, 2002 that the principle of the accused “physically being” in Belgium governed the whole issue. Michaël Verhaeghe argued convincingly that this nineteenth century arrangement was moot in the twenty-first century, and we discovered that Sharon had actually visited Belgium in 1987. Not only was the argument weak but it came late in the day precisely because of the clear disposition of the law, which could be read literally in the travaux préparatoires: there, in response to a question, the government had clearly stated that “the accused need not be in Belgium” for the law to operate.6 The third reason was factual: the readiness of one of the alleged perpetrators, formally accused by the “parties civiles,” to come to Belgium. In the voluminous files of the Sharon trial, a break is clear. Before Hobeika’s assassination, there was little focus on “the presence of the accused on Belgian soil.” After his assassination, the exclusive focus of Sharon’s defense was on “the presence of the accused.” This is also why I personally think there is a heavy moral responsibility on Sharon’s Belgian lawyers in the assassination. The Sharon case is not difficult morally, even if it has witnessed some of the most elaborate legal argumentation in Belgian criminal legal history ranging, as the reader will discover in this dossier, from procedural law in Belgium, to amnesty laws in Lebanon, to the qualification of “inquiry committees” in Israel, to international law in so many of its aspects. Despite arguments both intricate and wide-ranging, the moral issue is simple: would the victims of one of the terrible landmarks in the late twentieth century be able to get some compensation, some relief, for their silent suffering? Would the man who was the commander of the operation, along with the aides and executioners, finally be brought to account? In the Middle East, with its increasingly defining role for the stability and peace of the world, one cannot underline enough the importance of judicial accountability. In the current reality of the global world where, against economic forces that wreak havoc with peo-

6

This is why it was only natural for the Court of Cassation to overrule the complicated and torturous dismissal of the Court of Appeals.

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ples’ lives in a pattern that economic science has not yet been able to unravel even if it is now well described, the strongest counterbalance is that of international – or as Kant more correctly called it two centuries ago in his Principles of Perpetual Peace (1795) – cosmopolitan justice. This is also why, until some justice comes to the victims, the Sabra and Shatila case will never be closed.7 September 9, 2003

7

Ed. note: On 24 September 2003, not long after Dr. Mallat had submitted his Introduction to this Special Dossier section, the Belgian Court of Cassation issued a “cessation of all cases filed concerning the massacre perpetrated in September 1982 in the Sabra and Shatila refugee camps in Beirut.” The lawyers representing the survivors issued a press statement on the same day commenting upon the decision by the Court of Cassation that brought an abrupt end to at least this phase of the saga. The press release is included as the last document in this Special Dossier section.

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1. BELGIUM: ACT CONCERNING THE PUNISHMENT OF GRAVE BREACHES OF INTERNATIONAL HUMANITARIAN LAW*† (PROMULGATED FEBRUARY 10, 1999)** Introductory note by Stefaan Smis and Kim Van der Borght1

The current developments in international criminal law, with numerous high profile evolutions such as the establishment and first judgments of the ad-hoc tribunals for Former Yugoslavia and Rwanda, the Rome Conference for the establishment of an international criminal court and the adoption of the Statute of the latter as well as the recent Pinochet case in the United Kingdom, have considerably increased public awareness in this domain. It is in this light that the renewed interest of the Belgian Parliament for an efficacious implementation of its international commitments concerning the breaches of international humanitarian law should be seen. Recently, a number of members of Parliament have taken a personal interest in this issue. In September 1996, they organized a colloquium in the Belgian Senate to clarify the issues that still need attention from the Belgian legislature.2 The conclusion of this colloquium was that Belgian law needed specific acts to punish the crime of genocide as well as crimes against humanity. The initial proposal intended to incorporate the legal concept of genocide into Belgian law in accordance with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).3 In fact, Belgium had ratified the Genocide Convention in 1951 but had never enacted implementation legislation.4 Nevertheless, the actions that constitute the crime of genocide under the definition

*

Reproduced with permission from July 1999 issue of International Legal Materials, © The American Society of International Law.

†

The text of the act was translated by and provided to ILM by Stefaan Smis and Kim Van der Borght.

**

Cite as 38 I.L.M. 918 (1999).

1

Stefaan Smis, Lic.Iur., LL.M; Kim Van der Borght, Lic.Iur., PG.Dip. The authors are University Assistants at the Vrije Universiteit Brussel. They would like to express their gratitude to Dr. J.-M. Henckaerts and Tim De Bondt.

2

The proceedings of this colloquium are published in A. DESTEXHE & M. FORET, DE NUREMBERG À LA HAYE ET ARUSHA. ACTES DU COLLOQUE ORGANISÉ PAR LE GROUPE PRL-FDF DU SÉNAT 144 (1997).

3

Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277. See Sénat de Belgique, Proposition de loi relative à la répression du crime de génocide, en application de la Convention internationale pour la prévention et la répression du crime de génocide du 9 décembre 1948, Rapport fait au nom de la commission de la justice par Mme Merchiers, 1 Décembre 1998. (Report of the Justice Commission – Senate) (Available on the website of the Belgian Senate <www.senate.be>).

4

Ratification Act of 26 June 1951 (Official Journal, 11 January 1952).


BELGIUM: ACT CONCERNING THE PUNISHMENT OF GRAVE BREACHES

of the Genocide Convention were punishable under Belgian law. Indeed, an important body of Belgian and international doctrine maintains that the punishability of this offense is enshrined in customary international law and in natural law.5 Moreover, the 1993 Act concerning the punishment of grave breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 8 June 19776 made actions such as those described in the definition of genocide punishable under Belgian law. Thus, from a strictly technical viewpoint, a new Act was not required in order to comply with the international obligations. However, as the proposed Act had the dual aim of punishment and prevention, it was considered that criminalizing genocide as such would have greater effect and would increase the preventative force. Indeed, the colloquium organized by the senators emphasized the symbolic and educational value of declaring genocide a crime in itself, of “calling the issues by their proper name.”7 The Act went through a number of stages before being adopted. As stated, it was first introduced as a proposal of individual senators.8 On the basis of this proposal, a report was prepared by the Commission on Justice of the Belgian Senate, incorporating the points of view of the members of this Commission and the Minister of Justice.9 Meanwhile, the diplomatic efforts to agree on a statute for the international criminal court had produced results. The amended text that ensued from the report of the Commission and the Minister of Justice incorporated both the genocide convention and the definitions of the Rome Statute of the International Criminal Court into the 1993 Act. After its acceptance by the Senate, the text was proposed by the Government in the Chamber of Representatives.10

5

See Report of the Justice Commission – Senate, supra note 3, at 14-18 referring to E. DAVID, TRAITÉ 266-268 (1995); C. VAN DEN WYNGAERT, STRAFRECHT EN STRAFPROCESRECHT IN HOOFDLIJNEN (BOEK II) 804 (1994); R. A. LAWSON & H. G. SCHERMERS (EDS.), LEADING CASES OF THE EUROPEAN COURT OF HUMAN RIGHTS 615 (1997).

DE DROIT PÉNAL INTERNATIONAL

6

Act of 16 June 1993 concerning the punishment of grave breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 8 June 1977 (Official Journal, 5 August 1993). English translation of this Act provided by Dr. J.-M. Henckaerts, International Committee of the Red Cross (on file with authors).

7

M.-A. Swartenbroeckx, Moyens et limites du droit belge, in A. DESTEXHE & M. FORET, DE NUREMBERG À LA HAYE ET ARUSHA. ACTES DU COLLOQUE ORGANISÉ PAR LE GROUPE PRL-FDF DU SÉNAT 124 (1997).

8

Sénat de Belgique, Proposition de loi relative à la répression du crime de génocide, en application de la Convention internationale pour la prévention et la répression du crime de génocide du 9 décembre 1948 (Déposée par M. Foret et consorts), 16 octobre 1998. (Initial Proposal in the Senate) (Available on the website of the Belgian Senate <www.senate.be>).

9

See Report of the Justice Commission – Senate, supra note 3. Also see Proposition de loi relative à la répression du crime de génocide, en application de la Convention internationale pour la prévention et la répression du crime de génocide du 9 décembre 1948, Amendements N°1 du Gouvernement & N° 2 de M. Erdman, 1 décembre 1998. (Amendments by the Government and by senator Erdman) (Available on the website of the Belgian Senate <www.senate.be>).

10

See Chambre des Représantants de Belgique, Projet de loi relatif à la répression des violations graves du droit international humanitaire, Projet transmis par le Sénat, 7 décembre 1998. (Proposal submitted by the Government in the Chamber) (Available on the website of the Belgian Chamber of Representatives <www.dekamer.be>).

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The Minister of Justice, in his introduction, stressed the coherence in integrating in the 1993 Act, both the incrimination of genocide as well as the Rome Statute.11 He further emphasized that the law does not provide immunity on the basis of the official capacity of the person indicted for the crimes described in the Act. The Act was passed with an overwhelming majority in both houses and was promulgated by the King on 10 February 1999. As mentioned, the purpose of the Act concerning the punishment of grave breaches of international humanitarian law is to define three categories of graves breaches of humanitarian law and to integrate them into the Belgian domestic legal order. To remain consistent with the definitions used in international law, the Act textually refers to the wording of the relevant provisions of the international conventions. Thus for the crime of genocide, the Act quotes the definition of “genocide” in Article 2 of the Genocide Convention. The definition of crimes against humanity in the Act is directly taken from Article 7 of the 1998 Statute of the International Criminal Court.12 However, the Act limits itself to nine of the eleven criminal offenses enumerated in the Statute. Finally, for the grave breaches of the 1949 Geneva Conventions and their Additional Protocols I and II, the Act provides a combination of the grave breaches enumerated in the four Geneva Conventions of 1949 and their Additional Protocols I and II.13 However, contrary to the Geneva law, the Belgian Act does not make a distinction between international and non-international conflicts for the purpose of defining grave breaches. In fact, pursuant to Articles I/49, II/50, III/129 and IV/146 of the Geneva Conventions and Article 85, §1 of Additional Protocol I, the term “grave breaches” is only applicable to international armed conflicts. The violations of humanitarian law in non-international armed conflicts (Additional Protocol II) do not fall within the ambit of the undertaking referred to in the above mentioned Articles. However, considering the number of violations of international humanitarian law that are committed during non-international conflicts, the Belgian legislator found it wise to extend the application of “grave breaches” to violations of the laws of war committed during internal conflicts.14 Any person who has committed one of the criminal offenses defined in the Act, falls within the application of the present Act. The Act recognizes a universal competence for the Belgian courts to deal with grave breaches irrespective of the place where the criminal offense has been committed, the nationality of the offender or the victim. This universal competence is based on the above mentioned Articles of the Geneva Conventions and Additional Protocol I that are a reflection of the principle aut dedere aut judicare, obliging

11

See Chambre des Représantants de Belgique, Projet de loi relatif à la répression des violations graves du droit international humanitaire, Rapport fait au nom de la Commission de la Justice par M. J. Van Overberghe, 29 Janvier 1999. (Report of the Justice Commission – Chamber) (Available on the website of the Belgian Chamber of Representatives <www.dekamer.be>).

12

United Nations, Rome Statute of the International Criminal Court, 17 July 1998, 37 I.L.M. 999 (1998).

13

Geneva Conventions of 12 August 1949 (75 U.N.T.S. 3) and their Additional Protocols I and II of 8 June 1977 (1125 U.N.T.S. 609).

14

A. Andries, E. David, C. Van Den Wijngaert & J. Verhaegen, Commentaire de la loi du 16 juin 1993 relative à la répression des infractions graves au droit international humanitaire, 74 REVUE DE DROIT PÉNAL ET DE CRIMINOLOGIE 1121 (1994).

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the High Contracting Parties to extradite or to prosecute the offenders of grave breaches. Some senators also feared that the country could become a place of refuge for the perpetrators of the Rwandan genocide if it did not enact legislation that could also deal with cases not involving Belgian nationals.15 Moreover, according to the Act, any person who contributed to the grave breach through making such breaches possible or facilitating them, is put on the same level in terms of criminal responsibility as the person who has committed the grave breach (Art. 3). For the criminal offenses named in the Act, it enumerates the penalties (Art. 2) in accordance with the Articles of the Geneva Conventions that allow the High Contracting Parties to decide the penalties on condition that the mechanism of international criminal responsibility could be exercised16 and with Article 5 of the Genocide Convention which requires from the Contracting Parties “to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide.” Punished with the same penalties as the completed breaches, are the order, the proposal or offer, the incitement to commit, the participation, the failure to act and the attempt to commit such grave breach (Art. 4). Justifications such as political, military or national interest or necessity are explicitly excluded. Similarly the claim to have acted on the order of ones government or a superior does not absolve the author of the grave breach of his/her responsibility (Art. 5). Finally, the grave breaches are not subject to statutory limitations of public prosecutions and penalties. By adopting the Act concerning the punishment of grave breaches of humanitarian law, the Belgian legislator wanted to place itself at the outpost of countries which have adapted their legislation to better fight the most odious crimes. The result is an Act that has become one of the most progressive of its kind.

BELGIUM ACT CONCERNING THE PUNISHMENT OF GRAVE BREACHES OF INTERNATIONAL HUMANITARIAN LAW The Act of 16 June 1993 concerning the punishment of grave breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 8 June 1977 (Official Journal of 05.08.1993, at 17751-17755) As modified by the Act of 10 February 1999 concerning the punishment of grave breaches of international humanitarian law (Official Journal of 23.03.1999, at 9286-9287)

15

See Proposition de loi relative à la répression du crime de génocide, en application de la Convention international pour la prévention et la répression du crime de génocide du 9 décembre 1948, supra note 8, at 2-3.

16

Andries, David, Van Den Wijngaert & Verhaegen, supra note 14, at 1161.

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CHAPTER I Grave breaches Article 1 §1. The crime of genocide defined below, committed in peace time or in time of war, shall constitute a crime under international law and be punishable in accordance with the provisions of the present Act. In accordance with the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 – without prejudice to the criminal provisions applicable to other breaches committed out of negligence – genocide means any of the following acts, committed with the intent to destroy in whole or in part, a national, ethnic, religious or racial group, as such: 1° killing members of the group; 2° causing serious bodily or mental harm to members of the group; 3° deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 4° imposing measures intended to prevent births within the group; 5° forcibly transferring children of the group to another group. §2. The crime against humanity defined below, committed in peace time or in time of war, shall constitute a crime under international law and be punishable in accordance with the provisions of the present Act. In accordance with the Statute of the International Criminal Court, a crime against humanity means any of the following acts, committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack; 1° murder; 2° extermination; 3° enslavement; 4° deportation or forcible transfer of population; 5° imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; 6° torture; 7° rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; 8° persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in the Article. §3. The grave breaches listed below which cause injury or damage, by act or omission, to persons or objects protected by the Conventions signed at Geneva on 12 August 1949 and approved by the Act of 3 September 1952, and by Protocols I and II additional to 195


those Conventions adopted at Geneva on 8 June 1977 and approved by the Act of 16 April 1986, shall – without prejudice to the criminal provisions applicable to other breaches of the Conventions referred to in the present Act and without prejudice to criminal provisions applicable to breaches committed out of negligence – constitute crimes under international law and be punishable in accordance with the provisions of the present Act: 1° willful killing; 2° torture or other inhuman treatment, including biological experiments; 3° willfully causing great suffering or serious damage to physical integrity or health; 4° compelling a prisoner of war, a civilian person protected by the Convention relative to the Protection of Civilian Persons in Time of War or a person protected in that same respect by Protocols I and II additional to the international Geneva Conventions of 12 August 1949 to serve in the forces of a hostile power or adverse party; 5° depriving a prisoner of war, a civilian person protected by the Convention relative to the Protection of Civilian Persons in Time of War or a person protected in that same respect by Protocols I and II additional to the international Geneva Conventions of 12 August 1949 of the right to a regular and impartial trial in accordance with the contents of those provisions; 6° the unlawful deportation, transfer or movement, or unlawful detention of a civilian person protected by the Convention relative to the Protection of Civilian Persons in Time of War or of a person protected in that same respect by Protocols I and II additional to the international Geneva Conventions of 12 August 1949; 7° hostage-taking; 8° extensive destruction and appropriation of property not justified by military necessity as permitted by international law and carried out unlawfully and wantonly; 9° acts and omissions not justified in law which are likely to endanger the physical or mental health and integrity of persons protected by one of the Conventions relative to the protection of wounded, sick and shipwrecked persons, in particular any medical procedure which is not indicated by the state of health of such persons or not consistent with generally accepted medical standards; 10° other than where justified under the conditions provided for in subparagraph 9°, acts which consist in carrying out on persons referred to in subparagraph 9°, even with their consent, physical mutilations, medical or scientific experiments or the removal of tissue or organs for transplantation, except in the case of donations of blood for transfusion or of skin for grafting, provided that such donations are voluntary, consented to and intended for therapeutic purposes; 11° making the civilian population or individual civilians the object of attack; 12° launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause loss of human life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated, without prejudice to the crim196


inal nature of the attack whose harmful effects, even where proportionate to the military advantage anticipated, would be inconsistent with the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience; 13° launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause loss of human life, injury to civilians or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated, without prejudice to the criminal nature of the attack whose harmful effects, even where proportionate to the military advantage anticipated, would be inconsistent with the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience; 14° making non-defended localities or demilitarized zones the object of attack; 15° making a person the object of attack in the knowledge that he/she is hors de combat; 16° the perfidious use of the distinctive emblem of the Red Cross; 17° the transfer by the occupying power of parts of its own civilian population into the territory it occupies, in the case of an international armed conflict, or by the occupying authority in the case of a non-international armed conflict; 18° unjustifiable delay in the repatriation of prisoners of war or civilians; 19° indulging in practices of apartheid or other inhuman or degrading practices based on racial discrimination and resulting in outrages upon personal dignity; 20° directing attacks against clearly recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, where there is no evidence of the adverse party having violated the prohibition of using such objects in support of the military efforts, and where such objects are not located in the immediate proximity of military objectives. The acts listed in subparagraphs 11°, 12°, 13°, 14°, 15°, and 16° shall be regarded as grave breaches within the meaning of this Article where they bring about the death or cause serious injury to the physical integrity or health of one or more persons. Article 2 The criminal offenses enumerated in Article 1, first and second paragraph, and in Article 1, third paragraph, 1°, 2° and 11° to 15°, shall be punishable by [penal] reclusion for life. The criminal offenses enumerated in Article 1, third paragraph, 3° and 10°, shall be punishable by penal reclusion for twenty to thirty years. They shall be punishable by penal reclusion for life where they result in the death of one or more persons. The criminal offenses referred to in Article 1, third paragraph, 8°, shall be punishable by penal reclusion for fifteen to twenty years. The same criminal offense, as well as the criminal offense referred to in Article 1, third paragraph, 16°, shall be punishable by penal reclusion for twenty to thirty years where they result in either an incurable illness, the total

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loss of the use of an organ, or a serious mutilation. They shall be punishable by penal reclusion for life where they result in the death of one or more persons. The criminal offenses enumerated in Article 1, third paragraph, 4° to 7° and 17°, shall be punishable by penal reclusion for ten to fifteen years. In the cases of aggravating circumstances such as those provided for in the preceding paragraph, they shall be punishable, depending on the case, by penalties provided for in that paragraph. The criminal offense enumerated in Article 1, third paragraph, 18° to 20° shall be punishable by penal reclusion for ten to fifteen years, subject to the application of more stringent penalties imposed for serious injury to personal dignity. The criminal offense referred to in Article 1, third paragraph, 9°, shall be punishable by penal reclusion for ten to fifteen years. It shall be punishable by penal reclusion for fifteen to twenty years where it has serious consequences for public health. Article 3 Anyone who manufactures, holds or transports an instrument, device or object, or erects a construction or converts an existing construction in the knowledge that the instrument, device, object, construction or conversion is intended to commit one of the breaches provided for in Article 1 or to facilitate the commission thereof, shall be punished by the penalty provided for with respect to the breach that he/she has made possible or facilitated. Article 4 The following shall be punishable by the penalty provided for completed breaches: – an order, even where it is not carried out, to commit one of the breaches listed in Article 1, – a proposal or offer to commit such a breach and the acceptance of such proposal or offer, – incitement to commit such a breach, even where it is not carried out, – participation, within the meaning of Articles 66 and 67 of the Penal Code, in such a breach, even where it is not carried out, – failure to act to the extent available to them by persons who had knowledge of the orders given to commit such a breach or of acts initiating the commission thereof and who were able to prevent or put an end to such a breach; – any attempt, within the meaning of Articles 51 to 53 of the Penal Code, to commit such a breach. Article 5 §1. No political, military or national interest or necessity, even on grounds of reprisals, can justify the breaches provided for in Articles 1, 3 and 4, without prejudice to the exceptions referred to in subparagraphs 9°, 12° and 13° of paragraph 3 of Article 1. §2. The fact that the defendant acted on the order of his/her government or a superior shall not absolve him/her from responsibility where, in the prevailing circumstances, the 198


order could clearly result in the commission of a crime of genocide or of a crime against humanity, as defined in the present Act, or a grave breach of the Geneva Conventions of 12 August 1949 and their Additional Protocol I of 8 June 1977. §3. The immunity attributed to the official capacity of a person, does not prevent the application of the present Act. Article 6 Without prejudice to Articles 4 and 8 of the present Act, all the provisions contained in Book I of the Penal Code shall, with the exception of Article 70, be applicable to the breaches provided for in the present Act.

CHAPTER II Competence, applicable procedure and the execution of sentences Article 7 The Belgian courts shall be competent to deal with breaches provided for in the present Act, irrespective of where such breaches have been committed. In respect of breaches committed abroad by a Belgian national against a foreigner, no filing of complaint by the foreigner or his family or official notice by the authority of the country in which the breach was committed shall be required. Article 8 Article 21 of the Introductory Part of the Code of Penal Procedure and Article 91 of the Penal Code, relative to the statutory limitation of public prosecutions and penalties, shall not be applicable to the breaches listed in Article 1 of the present Act. Article 9 §1. Subject to Articles 99 to 108 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 and Article 75 of Additional Protocol I of 8 June 1977, the breaches provided for in the present Act shall, when Belgium is in a state of war, fall under the competence of military courts. §2. Where a breach falling under the competence of an ordinary court is related to one which, pursuant to paragraph 1 above, falls under the competence of a military court, both breaches shall be tried by the military court. §3. Where a breach provided for in the present Act falls under the competence of a military court, public prosecution shall be instituted through a summons issued by the Public Prosecutor’s Office for the accused to appear before the trial court or through a complaint filed by any person claiming to have suffered injury as a result of the breach and bringing a suit for damages before the president of the judicial commission at the Conseil de Guerre [Court Martial] under the conditions provided for in Article 66 of the Code of Criminal Investigation. 199


In the latter case, the decision not to prosecute may be taken only by the Court Martial composed solely of a civilian member assisted by a clerk, or by the Military Court composed solely of its president and two of its military members with the rank of major, assisted by a clerk, without prejudice to the application of Articles 111 to 113, 140 and 147 of the Military Code of Penal Procedure. Such a decision shall be given, when the submissions of the public prosecutor’s office have been heard, only under conditions such as those provided for in Article 128 of the Code of Criminal Investigation or where public prosecution is not admissible; it shall also order the party bringing the action for damages to pay the costs incurred by the State and the accused. §4. The procedure for referring a case to corps disciplinary authorities as provided for in Article 24 §1 of the Military Code of Penal Procedure shall at no time be applicable to breaches provided for in the present Act.

200

2. ACT AMENDING BELGIUM’S ACT OF 16 JUNE 1993 CONCERNING THE PUNISHMENT OF GRAVE BREACHES OF INTERNATIONAL HUMANITARIAN LAW (Promulgated April 23, 2003)* Article 1 The present Act regulates a matter contemplated in Article 77 of the Constitution. Article 2 Article 1 of the Act of 16 June 1993 Concerning the Punishment of Grave Breaches of International Humanitarian Law, as modified by the Act of 10 February 1999, is replaced by the following: “Article 1. The crime of genocide defined below, committed in peace time or in time of war, shall constitute a crime under international law and be punishable in accordance with the provisions of the present Act. In accordance with the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 – without prejudice to the criminal provisions applicable to other breaches committed out of negligence – genocide means any of the following acts, committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: 1º killing members of the group; 2° causing serious bodily or mental harm to members of the group; 3° deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 4° imposing measures intended to prevent births within the group; 5° forcibly transferring children of the group to another group. Article 1(b). The crime against humanity defined below, committed in peace time or in time of war, shall constitute a crime under international law and be punishable in accordance with the provisions of the present Act. In accordance with the Statute of the International Criminal Court, a crime against humanity means any of the following acts, committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: 1° murder; 2° extermination; 3° enslavement; 4° deportation or forcible transfer of population;

*

Translation into English for the Yearbook from Le Moniteur belge, May 7, 2003.


ACT AMENDING BELGIUM’S ACT OF 16 JUNE 1993

5° imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; 6° torture; 7° rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; 8° persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in Articles 1, 1(b) at 1(c); 9° enforced disappearance of persons; 10° the crime of apartheid; 11° other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Article 1(c). §1. As listed below, the war crimes contemplated in the Geneva onventions of 12 August 1949 and in the Protocols I and II additional to these conventions, adopted in Geneva on 8 June 1977, constitute crimes in international law and are punishable in accordance with the provisions of the present Act and by the laws and customs applicable to armed conflicts, as defined in Article 2 of the Geneva Conventions of 12 August 1949, in Article 1 of Protocols I and II additional to those conventions adopted in Geneva on 8 June 1977, and in Article 8(2)(f) of the Statute of the International Criminal Court, if such crimes undermine, by act or omission, the protection of persons and property guaranteed respectively by said Conventions, Protocols, laws and customs, without prejudice to the criminal provisions applicable to breaches committed out of negligence: 1º willful killing; 2º torture or inhuman treatment, including biological experiments; 3º willfully causing great suffering, or serious injury to body or health; 3(b)º rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of article 3 common to the Geneva Conventions; 3(c)º committing other outrages upon personal dignity, in particular humiliating or degrading treatment; 4º compelling a prisoner of war or a civilian person protected by the convention relative to the protection of civilian persons in time of war or a person protected in the same regard by the Protocols I and II additional to the Geneva Conventions of 12 August 1949 to serve in the forces or armed groups of a hostile Power or the adverse party; 4(b)º conscripting or enlisting children under the age of fifteen years into the armed forces or into armed groups, or using them to participate actively in hostilities;

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5º depriving a prisoner of war or a civilian person protected by the convention relative to the protection of civilian persons in time of war or a person protected in the same regard by the Protocols I and II additional to the Geneva Conventions of 12 August 1949 of their right to a fair and regular trial under the regulations of those provisions; 6º deportation, transfer, unlawful displacement or unlawful confinement of a civilian persons protected by the convention relative to the protection of civilian persons in time of war or a person protected in the same regards by the Protocols I and II additional to the Geneva Conventions of 12 August 1949; 6(b)º intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions; 7º taking of hostages; 7(b)º destroying or seizing the enemy’s property, in the event of an international armed conflict, or of an adversary, in the event of a non-international armed conflict, unless such destruction or seizure be imperatively demanded by military necessity; 8º extensive destruction and appropriation of property not justified by military necessity, as provided for by international law, and carried out unlawfully and wantonly; 8(b)º intentionally directing attacks against civilian objects, that is, objects which are not military objectives; 8(c)º intentionally directing attacks against buildings, material, medical units and transport, and personnel using, in accordance with international law, distinctive emblems as provided for under international humanitarian law; 8(d)º utilizing the presence of a civilian or any other person protected by international humanitarian law to render certain points, areas or military forces immune from military operations; 8(e)º intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians and civilian objects under the international law of armed conflict; 9º acts and omissions not justified in law which are likely to endanger the physical or mental health and integrity of persons protected under international humanitarian law, in particular any medical procedure which is not justified by the state of health of such persons or not consistent with generally accepted medical standards; 10º other than where justified under the conditions provided for in subparagraph 9º, acts which consist in carrying out on persons referred to in subparagraph 9º, even with their consent, physical mutilations, medical or scientific experiments or the removal of tissue or organs for transplantation, except in the case of donations of blood for transfusion or of skin for grafting, provided that such donations are voluntary, consented to and intended for therapeutic purposes; 203


11º intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; 11(b)º

intentionally directing attacks against places where sick or wounded persons are gathered, provided that such places are not military objectives;

12º intentionally directing attacks in the knowledge that such attacks will cause loss of human life, injury to civilians, damage to civilian objects or widespread, longterm and severe damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated, without prejudice to the criminal nature of the attack whose harmful effects, even where proportionate to the military advantage anticipated, would be inconsistent with the principles of international law derived from established custom, the principles of humanity and the dictates of the public conscience; 13º launching an attack against works or installations containing hazardous materials in the knowledge that such attacks will cause loss of human life, injury to civilians, damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated, without prejudice to the criminal nature of the attack whose harmful effects, even where proportionate to the military advantage anticipated, would be inconsistent with the principles of international law derived from established custom, the principles of humanity and the dictates of the public conscience; 14º attacking or bombarding, by whatever means, demilitarized zones or towns, villages, dwellings or buildings which are undefended and which are not military objectives; 14(b)º

pillaging a town or place, even when taken by assault;

15º attacking a person in the knowledge that such person is placed hors de combat, if such attack causes death or injury; 15(b)º

killing or wounding treacherously individuals belonging to the hostile nation or army or a combatant adversary;

15(c)º

declaring that no quarter will be given;

16º making perfidious use of the distinctive emblems of the red cross or red crescent or other protective emblems recognized under international humanitarian law, if such use causes death or serious injury; 16(b)º

making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, if such use causes death or serious injury;

17º the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, in the event of an international armed conflict, or by the occupying authority, in the event of a non-international armed conflict; 18º unjustifiable delay in the repatriation of prisoners of war or civilians;

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19º apartheid or any other inhuman or degrading practice founded on racial discrimination and that constitutes an outrage upon personal dignity; 20º directing attacks against clearly recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, where there is no evidence of the adverse party having violated the prohibition of using such objects in support of the military effort, and where such objects are not located in the immediate proximity of military objectives; 21º intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, or hospitals, provided such buildings are not military objectives; 22º employing poison or poisoned weapons; 23º employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; 24º employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; 25º declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; 26º employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to the Statute of the International Criminal Court; Article 1(c). §2. As listed below, the serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 constitute crimes in international law and are punishable in accordance with the provisions of the present Act in the event of armed conflicts defined in said article, if such violations undermine, by act or omission, the protection of persons guaranteed by these Conventions, without prejudice to the criminal provisions applicable to offenses committed out of negligence: 1º violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; 2º committing outrages upon personal dignity, in particular humiliating and degrading treatment; 3º taking of hostages; 4º the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. Article 1(c).§3. As listed below, the serious violations defined in Article 15 of the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (adopted in The Hague on 26 March 1999) and committed in the

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event of armed conflict as defined in Article 18, §§1 and 2, of the Hague Convention of 1954 and Article 22 of said Protocol constitute crimes in international law and are punishable in accordance with the provisions of the present Act if such offenses undermine, by act or omission, the protection of property guaranteed by these Conventions and Protocols, without prejudice to the criminal provisions applicable to offenses committed out of negligence: 1º making cultural property under enhanced protection the object of attack; 2º using cultural property under enhanced protection or its immediate surroundings in support of military action; 3º extensive destruction or appropriation of cultural property protected under the Convention and the Second Protocol. Article 3 Article 2 of the aforementioned act, modified by the Act of 10 February 1999, is replaced by the following: “Article 2. The offenses enumerated in Articles 1 and 1(b) are punishable by a sentence of life imprisonment. The offenses enumerated in subsections 1º, 2º, 8(c)º, 8(e)º, 11º–14º, 15º, 15(b)º and 15(c)º of Paragraph I of Article 1(c) are punishable by a sentence of life imprisonment. The offenses enumerated in subsections 3º, 3(b)º, 6(b)º, 8(d)º, 10º, 22º, 23º, 24º and 26º of the same Paragraph and Article are punishable by a sentence of twenty to thirty years’ imprisonment. They are punishable by a sentence of life imprisonment if they result in the death of one or more persons. The offenses enumerated in subsections 7(b)º, 8º, 8(b)º and 14(b)º of the same Paragraph and Article are punishable by a sentence of fifteen to twenty years’ imprisonment. Such offenses, as well as those contemplated in subsections 16º and 16(b)º of the same Paragraph and Article, are punishable by a sentence of twenty to thirty years’ imprisonment if they result in an apparently incurable illness, a permanent inability to perform personal work, the total loss of the use of an organ, or a serious mutilation. They are punishable by a sentence of life imprisonment if they result in the death of one or more persons. The offenses enumerated in subsections 4º–6°, 7º and 17º of the same Paragraph and Article are punishable by a sentence of ten to fifteen years’ imprisonment. In the case of aggravating circumstances such as those provided for in the preceding paragraph, they shall be punishable, depending on the case, by penalties provided for in that paragraph. The offenses enumerated in subsections 3(c)º, 18º–21º of the same Paragraph and Article are punishable by a sentence of ten to fifteen years’ imprisonment, subject to the application of more severe sentences for grave outrages upon personal dignity. The offense contemplated in subsection 9º of the same Paragraph and Article is punishable by a sentence of ten to fifteen years’ imprisonment. Such offense is punishable by a sentence of fifteen to twenty years’ imprisonment if it resulted in grave injury to public health.

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The offense enumerated in subsection 25°of the same Paragraph and Article is punishable by a sentence of ten to fifteen year’s imprisonment. The offense enumerated in subsection 1º of Paragraph 2 of Article 1(c) is punishable by a sentence of life imprisonment. The offenses enumerated in subsections 2º and 4º of the preceding Paragraph and Article are punishable by a sentence of ten to fifteen years’ imprisonment, subject to the application of more severe sentences for grave outrages upon personal dignity. The offense enumerated in subsection 3º of the same Paragraph and Article is punishable by a sentence of ten to fifteen years’ imprisonment. Such offense is punishable by a sentence of twenty to thirty years’ imprisonment if it resulted in an apparently incurable illness, a permanent inability to perform personal work, the total loss of the use of an organ, or a serious mutilation. Such offense is punishable by a sentence of life imprisonment if it resulted in the death of one or more persons. The offenses enumerated in subsections 1º–3º of Paragraph 3 of Article 1(c) are punishable by a sentence of fifteen to twenty years’ imprisonment.” Article 4 Article 5, §3 of the aforementioned act, modified by the Act of 10 February 1999, is replaced by the following: “§3. International immunity attributed to the official capacity of a person precludes the application of the present Act only within the limits established by international law.” Article 5 Article 7 of the aforementioned Act is replaced by the following: “Article 7, §1. Subject to the disclaiming of jurisdiction in one of the cases provided for in the following paragraphs, Belgian courts shall have jurisdiction to recognize the offenses provided for in the present Act, irrespective of where such offenses were committed and even if the alleged offender is not present in Belgium. However, prosecution may only be undertaken upon request of the Federal Prosecutor if: 1º the offense was not committed on Belgian territory; 2º the alleged offender is not Belgian; 3º the alleged offender is not present on Belgian territory; and 4º the victim is not Belgian or has not resided in Belgium for at least three years. When seized of a complaint in application of subparagraph 2, the Federal Prosecutor will request the investigating magistrate to investigate the complaint, unless: 1º the complaint is manifestly unfounded; or 2º the facts mentioned in the complaint do not satisfy the elements of the crimes provided for in the present Act; or 3º the complaint cannot give rise to an admissible prosecution; or 207


4º the circumstances of the case mean that in the interests of the proper administration of justice and in order to respect Belgium’s international obligations, the case should be brought either before international courts, or before the courts where the offenses were committed, or before the courts of the state of which the alleged offender is a national or where he can be found, so long as those courts have jurisdiction and are independent, impartial and fair. All decisions to refuse prosecution will be communicated to the complainant within one month. The complainant may appeal the decision within fifteen days of notification, before the chambre des mises en accusation by making a declaration to the registrar of the court of appeal which will be inscribed in a register opened for that purpose. The chambre des mises en accusation will issue a decision within fifteen days of the date upon which the declaration was deposited. The court will hear the Federal Prosecutor and the parties to the case, in public, if it so decides or is asked so to do by one of the parties. Where a complaint is refused under point 4 of subparagraph 3, the Minister of Justice will inform the authorities affected by the decision of the decision and the relevant facts. The only admissible party to a civil action before the criminal courts for one of the offenses provided for in the present Act is someone who has been personally harmed by the offense which is the subject of prosecution. §2. In application of Article 14 of the Rome Statute of 17 July 1998 and upon a decision of the Council of Ministers, the Minister of Justice may bring the matter with which the judicial authorities have been seized to the attention of the International Criminal Court. This information cannot relate to acts perpetrated on Belgian territory or acts perpetrated by a Belgian or against a Belgian, unless those acts are related to or identical to acts of which the Court has already been seized and for which a positive decision on admissibility has been taken in accordance with Article 18 of the Statute. Once the Prosecutor of the Court has provided notification under Article 18 §1 of the Statute relating to the matter which the Minister of Justice brought to the attention of the Court, the Court of Cassation, upon the request of the General Prosecutor, will announce the disclaiming of jurisdiction by the Belgian courts which had formerly been seized of the matter. Following the disclaiming of Belgian jurisdiction and upon the request of the Minister of Justice, if the International Criminal Court declares that the Prosecutor of the Court has decided not to proceed with a prosecution, that the Court has not confirmed the continuation of the prosecution, that the Court has declared itself incompetent or that the case inadmissible, the Belgian Courts will once again regain jurisdiction over the matter. In that case, the prosecution can only proceed upon the request of the Public Prosecutor’s Office, by persons who joined the proceedings as a civil party, or by persons who confirm that they made application to join the proceedings as a civil party prior to the referral of the matter; otherwise, only at the request of the Federal Prosecutor as provided for in Paragraph 1, Subparagraph 2. §3. Except where Paragraph 2 is applied, the Minister of Justice can, upon decision of the Council of Ministers, bring the alleged acts to the attention of the State upon whose territory the offense was committed and, except where the acts were perpetrated on the territory of the Kingdom, the State of nationality of the alleged offender, or the State upon whose territory it is presumed the alleged offender can be found. 208


Where the Courts of one of these States decide to exercise jurisdiction, the Court of Cassation, upon request of the General Prosecutor, and after verifying that there has been no mistake as to the person, will declare the relinquishing of jurisdiction by Belgian Courts seized of the matter, unless the procedure followed by the jurisdiction of that State manifestly disrespects the right of the parties to a fair hearing. §4 Unless Paragraph 2 applies, and where the victim is not Belgian or the acts were not perpetrated on Belgian territory, and where the alleged offender is a national of a state that has legislation providing for the prosecution of grave breaches of humanitarian law such as those listed in articles 1, 1(b) and 1(c) and which guarantees that the parties shall obtain a fair hearing, the Minster of Justice may, upon a decision of the Council of Ministers, bring the matter to the attention of such a state. Once the matter has been brought to the attention of the third state, the Court of Cassation shall, upon the request of the General Prosecutor and after having verified that no error of mistaken identity has been made, declare the disclaiming of jurisdiction by Belgian courts seized of the matter. If a matter described in the preceding subparagraph has been placed before an investigating magistrate before the entry into force of the present Act, the decision mentioned in the first subparagraph shall be made, upon the advice of the chambre des mises en accusation and to be rendered within fifteen days. The Federal Prosecutor shall produce a report based upon the criteria contained in §1, subparagraph 3, 1º–4º. The chambre des mises en accusation shall hear, in public, the Federal Prosecutor and the parties to the action, if it so decides or is requested so to do by one of the parties. Article 6 §1. In Article 3 of the Act of 16 June 1993, as modified by the Act of 10 February 1999, the words “in Article 1” are replaced by the words “in Articles 1, 1(b) and 1(c).” §2. In Article 4, first bullet-point item, of the Act of 16 June 1993, as modified by the Act of 10 February 1999, the words “Article 1” are replaced by the words “Articles 1, 1(b) and 1(c).” §3. In Article 5, Paragraph 1, of the Act of 16 June 1993, modified by the Act of 10 February 1999, the words “Article 1” are replaced by the words “Articles 1, 1(b) and 1(c).” §4. In Article 5, Paragraph 2, of the Act of 16 June 1993, as modified by the Act of 10 February 1999, the words “of a crime of genocide or of a crime against humanity, as defined in the present Act, or of a grave breach of the Geneva Conventions of 12 August 1949 and their Additional Protocol I of 8 June 1977” are replaced by the words “of one of the offenses provided for in Articles 1, 1(b) and 1(c).” §5. In Article 8 of the Act of 16 June 1993, as modified by the Act of 10 February 1999, the words “in Article 1” are replaced by the words “in Articles 1, 1(b) and 1(c).” Article 7 To Article 144(c), §1, 1º, fourth dash, of the Judicial Code inserted, by the Act of 21 June 2001, the words “1(b), 1(c)” are inserted between the words “the Articles 1” and “and 2.”

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Article 8 §1. Without prejudice to Paragraph 2 of the present article, the present Act takes effect on the same day it is published in Le Moniteur belge. §2. Paragraph 3 of the new Article 1(c) inserted in the Act of 16 June 1993, as modified by the Act of 10 February 1999, by Article 2 of the present Act and the final subparagraph of the new Article 2 inserted in the same Act by Article 3 of the present Act, both take effect on the same day that the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, adopted in The Hague on 26 March 1999, takes effect for Belgium.

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3. ACT AMENDING BELGIUM’S ACT CONCERNING SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW* (Promulgated August 5, 2003)† [EXCERPT]

CHAPTER III Modifications to the Act of 17 April 1878 Containing the Preliminary Title of the Code of Criminal Procedure Article 13 Article 1(b), as inserted in Chapter 1 of the Preliminary Title of the Code of Criminal Procedure, reads as follows: “Art. 1(b), §1. In accordance with international law, lawsuits are prohibited with respect to: –

foreign heads of state or governmental and external affairs ministers, during their period in office, along with any other individuals with recognized immunity under international law;

–

any individuals with either total or partial immunity pursuant to a treaty binding on Belgium.

§2. In accordance with international law, no constraint relating to public prosecutions shall be placed on any individuals staying in Belgian territory who have been officially invited to stay in Belgian territory by the Belgian authorities or by an international organization operating in Belgium and with which Belgium has entered into a headquarters agreement.” Article 14 Article 6 of the same Preliminary Title, as modified by the Acts of 4 August 1914, 12 July 1932 and 4 April 2001, is subject to the following modifications:

*

Translation into English for the Yearbook from Le Moniteur belge, August 7, 2003.

†

Extraordinary Session 2003. Chamber of Representatives: Parliamentary Documents. – Bill no. 51103/1. – Amendments no. 51-103/2. – Report no. 51-103/3. – Legislation adopted by the Commission, no. 51-103/4. – Legislation adopted in plenary session and transmitted to the Senate, no. 51-103/5. Official Record of Parliamentary Proceedings. – Verbatim transcript, 29 July 2003. Senate: Parliamentary Documents. – Bill sent by the Chamber of Representatives, no. 3-136/1. – Amendments no. 3-136/2. – Report no. 3-136/3. – Amendments no. 3-136/4. – Legislation adopted in plenary session, no. 3-136/5. Official Record of Parliamentary Proceedings. – Record of Senate Proceedings: 1 August 2003.


ACT AMENDING BELGIUM’S ACT CONCERNING SERIOUS VIOLATIONS

(1) The words “tout Belge” [“any Belgian”] are replaced by “tout Belge ou toute personne ayant sa résidence principale sur le territoire du Royaume” [“any Belgian or any individual having his or her primary residence in the Kingdom of Belgian”]; (2) Section 1(b) is inserted between Sections 1 and 2 and reads as follows: “1(b). Of a serious violation of international humanitarian law as defined in Book II, Title I(b) of the Penal Code.” Article 15 In Article 7, §1 of the same Preliminary Title, as replaced by the Act of 16 March 1964, the words “tout Belge” [“any Belgian”] are replaced by the words “tout Belge ou toute personne ayant sa résidence principale sur le territoire du Royaume” [“any Belgian or any individual having his or her primary residence in the territory of the Kingdom of Belgium”]. Article 16 Article 10 of the same Preliminary Title, as modified by the Acts of 12 and 19 July 1932, 2 April 1948, 12 July 1984 and 13 March 2002, is subject to the following modifications: (1) The Article’s introductory sentence is replaced by the words “Hormis dans les cas visés aux articles 6 et 7, §1er, pourra être poursuivi en Belgique l’étranger qui aura commis hors du territoire du Royaume :” [“Except in the cases covered by Articles 6 and 7, §1, lawsuits may be initiated in Belgium against foreign nationals who have committed [offenses] outside of Belgian territory:”]. (2) The new section 1(b), inserted between sections 1 and 2, reads as follows: “1(b). A serious violation of international humanitarian law covered by Book II, Title I(b) of the Penal Code and committed against an individual who, at the moment the offense is committed, is either a Belgian national or an individual who has lived effectively, habitually and lawfully in Belgium for at least three years. Lawsuits, including trial proceedings overseen by an examining magistrate, shall only be initiated at the request of the federal prosecutor, who must be cognizant of potential complaints. Such requests cannot be appealed. When overseeing a complaint arising from the application of the preceding paragraphs, the federal prosecutor shall call on the examining magistrate to investigate the complaint unless: (1) the complaint is manifestly unfounded; or (2) the offenses set out in the complaint are not consistent with the infractions set out in Book II, Title I(b) of the Penal Code; or (3) the complaint does not give rise to a receivable case for prosecution; or (4) given the material facts of the case, it emerges that, in the interests of the proper administration of justice and with a view to respecting Belgium’s international obligations, the case should be brought before either an international court, a court in the jurisdiction where the offenses were committed, a court in the state where the offender is a citizen or a court in the jurisdiction where the offender may be found, and providing that such court can demonstrate the particular qualities of independence, impartiality and equity

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as may be required by relevant international commitments binding on Belgium and on such a state. If the federal prosecutor decides to abandon a case, he shall notify the Minister of Justice of his decision by referring to the various points in the preceding paragraph on which his decision was based. If such a decision is based exclusively on points (3) and (4) above, or exclusively on point (4), and if the offenses in question were committed after 30 June 2002, the Minister of Justice shall inform the International Criminal Court of these offenses.” Article 17 In Article 12, first paragraph, of the same Preliminary Title, as modified by the Act of 14 July 1951, the words “article 6, 1° et 2°, 10, 1° et 2°” [“Article 6, Sections 1 and 2 and Article 10, Sections 1 and 2”] are replaced by the words “article 6, 1°, 1°bis et 2°, article 10, 1°, 1°bis et 2° et article 12bis” [“Article 6, Sections 1, 1(b) and 2, Article 10, Sections 1, 1(b) and 2 and Article 12(b)”]. Article 18 Article 12(b) of the same Preliminary Title, as inserted by the Act of 17 April 1986 and replaced by the Act of 18 July 2001, is subject to the following modifications: (1) The words “Les juridictions belges sont compétentes” [“The Belgian courts have jurisdiction”] are replaced by the words “Hormis les cas visés aux articles 6 à 11, les juridictions belges sont également compétentes” [“Except for the cases set out in Articles 6 to 11, the Belgian courts also have jurisdiction”]. (2) The words “convention internationale” [“international convention”] are replaced by the words “règle de droit international conventionnelle ou coutumière” [“rule of international treaty or customary law”]. (3) The words “cette convention” [“this convention”] are replaced by the words “cette règle” [“this rule”]. (4) The article is completed by the following paragraphs: “Lawsuits, including trial proceedings overseen by an examining magistrate, shall only be initiated at the request of the federal prosecutor, who must be cognizant of potential complaints. Such requests cannot be appealed. When overseeing a complaint arising from the application of the preceding paragraphs, the federal prosecutor shall call on the examining magistrate to investigate the complaint unless: (1) the complaint is manifestly unfounded; or (2) the offenses set out in the complaint are not consistent with the infractions set out in Book II, Title I(b) of the Penal Code; or (3) the complaint does not give rise to a receivable case for prosecution; or (4) given the material facts of the case, it emerges that, in the interests of the proper administration of justice and with a view to respecting Belgium’s international obligations, the case should be brought before either an international court, a court in the jurisdiction where the offenses were committed, a court 213


in the state where the offender is a citizen or a court in the jurisdiction where the offender may be found, and providing that such court can demonstrate the particular qualities of independence, impartiality and equity as may be required by relevant international commitments binding on Belgium and on such a state. If the federal prosecutor decides to abandon a case, he shall notify the Minister of Justice of his decision by referring to the various points in the preceding paragraph on which his decision was based. If such a decision is based exclusively on points (3) and (4) above, or exclusively on point (4), and if the offenses in question were committed after 30 June 2002, the Minister of Justice shall inform the International Criminal Court of these offenses.” Article 19 In Article 21, first paragraph, of the same Preliminary Title, as replaced by the Act of 30 May 1961 and modified by the Act of 24 December 1993, the words “L’action publique sera prescrite” [“Public prosecutions shall be prohibited”] are replaced by the words “Sauf en ce qui concerne les infractions définies dans les articles 136bis, 136ter et 136quater du Code pénal, l’action publique sera prescrite” [“Except for the infractions defined in Articles 136(b), 136(c) and 136(d) of the Penal Code, public prosecutions shall be prohibited”].

CHAPTER IV Modifications to the Code of Criminal Investigation Article 20 In Article 86(b), §2, of the Code of Criminal Investigation, as inserted by the Act of 8 April 2002, the words “ou une infraction à la loi du 16 juin 1993 relative à la répression des violations graves du droit international humanitaire” [“or an infraction of the Act of 16 June 1993 relative to the punishment of serious violations of international humanitarian law”] are deleted. Article 21 In Article 86(e) of the same Code, as inserted by the Act of 8 April 2002, the words “ou d’une infraction à la loi du 16 juin 1993 relative à la répression des violations graves du droit international humanitaire” [“or of an infraction of the Act of 16 June 1993 relative to the punishment of serious violations of international humanitarian law”] are deleted. Article 22 Article 90(c), §2, of the same Code, as inserted by the Act of 30 June 1994 and modified by the Acts of 13 April 1995, 10 June 1998, 28 November 2000, 29 November and 11 December 2001, 7 July 2002 and 6 January 2003, is subject to the following modifications: (1) Sections 1(b) through 1(f) are replaced by the following provisions: “1(b). Articles 136(b), 136(c), 136(d), 136(f) and 136(g) of the same Code; 214


1(c). Article 210(b) of the same Code; 1(d). Articles 246, 247, 248, 249, 250, and 251 of the same Code; 1(e). Article 259(b) of the same Code; 1(f). Article 314(b) of the same Code; 1(g). Articles 324(b) and 324(c) of the same Code.” (2) Section 21 is repealed. Article 23 In Article 104, §2, of the same Code, as inserted by the Act of 7 July 2002, the words “une infraction visée à l’article 90ter, §§2, 3 ou 4, une infraction commise dans le cadre d’une organisation criminelle visée à l’article 324bis du Code pénal ou une infraction visée à la loi du 16 juin 1993 relative à la répression des violations graves du droit international humanitaire” [“an infraction covered by Article 90(c), §§2, 3 or 4, an infraction committed by a criminal organization covered by Article 324(b) of the Penal Code or an infraction covered by the Act of 16 June 1993 relative to the punishment of serious violations of international humanitarian law”] are replaced by the words “une infraction telle que visée à l’article 90ter, §§2, 3 ou 4, ou une infraction commise dans le cadre d’une organisation criminelle visée à l’article 324bis du Code pénal” [“an infraction covered by Article 90(c), §§2, 3 or 4, or an infraction committed by a criminal organization covered by Article 324(b) of the Penal Code”].

CHAPTER V Modifications to the Judicial Code Article 24 In Article 144(c), §1(1), of the Judicial Code, as inserted by the Act of 26 June 2001, the fourth item is repealed. Article 25 There is inserted in the same Code in place of Article 144(d), which now becomes Article 144(f), a new Article 144(d) which reads as follows: “Art. 144(d). In the case of infractions covered by Book II, Title I(b) of the Penal Code, only the federal prosecutor may carry out public prosecutions.”

CHAPTER VI Miscellaneous Article 26 In Article 77 of the Act of 10 April 2003 governing the suppression of military tribunals in peacetime and their maintenance in times of war, the words “réprimées par la loi du 16 juin 1993 relative à la répression des violations graves du droit international humanitaire” 215


[“repressed by the Act of 16 June 1993 relative to the punishment of serious violations of international humanitarian law”] are replaced by the words “visées au livre II, titre Ibis, du Code pénal” [“covered by Book II, Title I(b), of the Penal Code”]. Article 27 The Act of 16 June 1993 relative to the punishment of serious violations of international humanitarian law, as modified by the Acts of 10 February 1999, 10 April1 and 23 April 2003, is repealed. Article 28 Without prejudice to the application of the Act of 22 March 1996 relative to the recognition of the International Criminal Tribunal for the Former Yugoslavia and of the International Criminal Tribunal for Rwanda, and relative to cooperation with these tribunals, and in application of Article 14 of the Rome Statute of 17 July 1998, the Minister of Justice, representing a considered decision of the cabinet, may bring to the attention of the International Criminal Court offenses relating to infractions set out in Book II, Title I(b) of the Penal Code of which the judicial authorities are seized. Once the Prosecutor of the International Criminal Court initiates the notification procedure set out in Article 18, §1 of the [Rome] Statute with respect to offenses the Minister of Justice has brought to the attention of the International Criminal Court, the Court of Cassation, at the request of the Prosecutor General, shall disclaim jurisdiction of the Belgian courts over the matter with which they had previously been seized. Following the disclaiming of Belgian jurisdiction in favor of the Court and upon an inquiry from the Minister of Justice, if the International Criminal Court determines that the Prosecutor of the Court has decided not to draw up a bill of indictment, that the Court has not confirmed an indictment, that the Court has declared itself without jurisdiction or that the action cannot be maintained before the Court, then jurisdiction will once again be restored to the Belgian courts for this matter.

CHAPTER VII Interim Provision and Entry into Force Article 29 §1. Without prejudice to the provisions of §2, the present Act enters into effect on the day that it is published in Le Moniteur belge.

1

Editor’s note: The Act of 10 April 2003 on the non-recognition of military courts in peace time and their recognition during war time contains two procedural articles on the sole jurisdiction of regular (i.e., non-military) courts to deal with serious violations of international humanitarian law, whether in time of peace or war. The Act of 10 April 2003 is not included in this “Special Dossier” section of Vol. 12 of the Yearbook.

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§2. The third subsection of Article 136(d) of the Penal Code and the last paragraph of Article 136(e) of the Penal Code, as inserted respectively by Articles 8 and 9 of the present Act, enter into effect on the same day that the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, adopted in The Hague on 26 March 1999, enters into force for Belgium. §3. Cases where preliminary judicial inquiries are pending on the date of entry into effect of the present Act and that relate to infractions set out in Book II, Title I(b) of the Penal Code shall be classified not for prosecution by the federal prosecutor within thirty days of the entry into effect of the present Act if they do not satisfy the criteria set out in Article 6, §1(b) and Article 10, §§1(b) and 12(b) of the Preliminary Title of the Code of Criminal Procedure. Cases where preliminary investigations overseen by an examining magistrate are pending on the date of entry into effect of the present Act and that relate to offenses covered by Book II, Title I(b) of the Penal Code shall be transferred by the federal prosecutor to the Prosecutor General for the Court of Cassation within thirty days of the effective date of the present Act – with the exception of cases already subject to pre-trial investigation – if at least one plaintiff was a Belgian national when the prosecution was initiated or if at least one defendant had a primary residence in Belgium when the present Act entered into force. Within the same thirty-day period, the federal prosecutor shall issue a report for each case transferred. This report shall indicate how each case fails to meet the criteria set out in Article 6, §1(b) and Article 10, §§1(b) and 12(b) of the Preliminary Title of the Code of Criminal Procedure. Within the fifteen days following the transfer, the Prosecutor General shall ask the Court of Cassation to declare within thirty days that the jurisdictional authority of the Belgian court has been disclaimed after having heard the federal prosecutor and, at their request, the plaintiffs and individuals indicted by the examining magistrate overseeing the case. The Court of Cassation shall base its declaration on the criteria set out in Article 6, §1(b) and Article 10, §§1(b) and 12(b) of the Preliminary Title of the Code of Criminal Procedure. With respect to cases not classified not for prosecution pursuant to Paragraph 1, §3 of the present Article or not transferred pursuant to the previous paragraph, the Belgian courts shall retain jurisdiction.

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4. COMPLAINT LODGED BY SURVIVORS AGAINST ISRAELI PRIME MINISTER ARIEL SHARON, DIRECTOR GENERAL OF THE DEFENCE MINISTRY AMOS YARON AND OTHER ISRAELIS AND LEBANESE RESPONSIBLE FOR THE SABRA AND SHATILA MASSACRE (June 18, 2001)* Preliminaries .............................................................................................................

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I.

Facts ...................................................................................................................

222

A. General .........................................................................................................

222

B. Specifics.......................................................................................................

225

B1. Plaintiffs, survivors of Sabra and Shatila............................................

225

B2. Testimonies, survivors of Sabra and Shatila. ......................................

235

B3. Other plaintiffs: ...................................................................................

239

II. Applicable Law ..................................................................................................

239

A. The Crime of Genocide ...............................................................................

239

B. Crimes Against Humanity............................................................................

243

B1. Definition and source(s) of incrimination ...........................................

243

B2. First and most essential constituent element: an attack against a civilian population............................................................................

245

B2.1. First sub-criterion: multiple crimes ..........................................

246

B2.2. Second sub-criterion: organisation and/or agreement ..............

247

B3. Second constituent element: The generalised or systematic character of the attack:........................................................................

251

B4. Third constituent element: The moral element ....................................

251

C. War Crimes ..................................................................................................

252

*

The original complaint, as filed in Brussels court before an investigating judge (Madame le juge d’instruction Sophie Huguet) on June 18, 2001, was written in French. It is available at . The English translation was made available by the International Campaign for Justice for the Victims of Sabra and Shatila. It is available from the campaign’s web site at . It is reproduced here, with only minor stylistic changes, with permission from the International Campaign for Justice for the Victims of Sabra and Shatila. [Note to the English text by the translators: Some quotes hereinafter might be a translation from the French version of the complaint, as the original English texts were not always available to the translators.] (The emphases in bold face are retained from the original English translation.)


COMPLAINT BY SURVIVORS AGAINST ISRAELI PRIME MINISTER SHARON ET AL.

D. Combination of Violations ...........................................................................

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E. Conclusion ...................................................................................................

253

III. Universal Jurisdiction of Belgian Courts...........................................................

254

A. Genocide ......................................................................................................

254

B. Crimes against Humanity.............................................................................

254

C. War Crimes ..................................................................................................

255

IV . Responsibility.....................................................................................................

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V.

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Damages.............................................................................................................

Preliminaries 1. Mrs. Samiha Abbas Hijazi, Lebanese (no passport, document #5496895/90), currently residing near the Austrian school in Al Horch, Beirut. 2. Mr. Abdel Nasser Alameh, Lebanese (passport #0473395), currently residing in El Deek Road, Sabra, Beirut. 3. Mrs. Wadha Hassan Al Sabeq, Palestinian (special refugee document # 205963), currently residing in Bir Hassan, Beirut. 4. Mr. Mahmoud Younis, Palestinian (special refugee document # 217163), currently residing in Shatila camp, Beirut. 5. Mrs. Fadia Ali Al Doukhi, Palestinian (special refugee document # 68624), currently residing in Miyeh Miyeh camp, Saida. 6. Mrs. Amina Hasan Mohsen, Palestinian (special refugee document # 912/4969), currently residing in Hiba complex, Al Hamtari Street, Saida. 7. Mrs. Sana Mahmoud Sersawi, Palestinian (special refugee document # 76/6931), currently residing in Houssi Building, Ali Al Bacha, Sabra, Beirut. 8. Mrs. Nadima Yousef Said Nasser, Palestinian (no passport, document # 602/7382), currently residing in 1 Gaza Building, Sabra, Beirut. 9. Mrs. Mouna Ali Hussein, Palestinian (special refugee document #214057), currently residing in 1 Gaza Building, Sabra, Beirut. 10. Mrs. Shaker Abdel Ghani Tatat, Palestinian (no passport, document # 842/2992), currently residing in Al Bacha Quarter, Sabra, Beirut. 11. Mrs. Souad Srour Al Meri, Palestinian nationality (document 924/21358, Lebanese passport # 1506939), currently resident in Al Horch region, Shatila, Beirut. 12. Mr. Akram Ahmad Hussein, Palestinian (special refugee document # 902/9265), currently residing in Shatila camp, Beirut. 13. Mrs. Bahija Zrein, Palestinian (Document # 108642), currently residing in Al Deek Alley, Sabra, Beirut.

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14. Mr. Muhammad Ibrahim Faqih, Lebanese (Lebanese passport #322903), currently residing in Bir Hassan, Beirut. 15. Mr. Muhammad Shawkat Abu Roudeina, Palestinian (special refugee document #161877), currently residing in Shatila camp, Beirut. 16. Mr. Fadi Abdel Qader Al Sakka, Palestinian (no passport, document #471/1144), currently residing in Shatila camp, Beirut. 17. Mr. Adnan Ali Al Mekdad, Lebanese (no passport), currently residing in Al Rihab, Shatila, Beirut. 18. Mrs. Amal Hussein, Palestinian (no passport), currently residing in Shatila camp, Beirut. 19. Mrs. Noufa Ahmad Al Khatib, Lebanese currently residing in Bir Hassan, Beirut. 20. Mr. Najib Abdel Rahman Al Khatib, Palestinian (no passport), currently residing in Shatila camp, Beirut. 21. Mr. Ali Salim Fayad, Lebanese (no passport), currently residing at the south entrance to Sabra, Beirut. 22. Mr. Ahmad Ali Al Khatib, Lebanese currently residing in Bir Hassan, Beirut. 23. Mrs. Nazek Abdel Rahman Al Jammal, Lebanese (no passport), currently residing in Al Deek Road, Sabra, Beirut. Represented by their counsel: Mr. Luc Walleyn, solicitor, 154 Rue des Palais, 1030 Brussels (Belgium). Mr. Michael Verhaeghe, solicitor, 60 Waversesteenweg, 3090 Overijse (Belgium). Mr. Chibli Mallat, solicitor, Beirut (Lebanon). Bring a civil indictment against Messrs. Ariel Sharon, Amos Yaron and other Israelis and Lebanese responsible for the massacre, killing, rape and disappearance of civilians that took place in Beirut between Thursday 16 and Saturday 18 September 1982 in the camps of Sabra and Shatila and the surrounding area. The charge is brought in accordance with the [Belgian] law of 16 June 1993 (as modified by the law of 10 February 1999) relating to the repression of grave violations of international humanitarian law, specifically: –

Acts of genocide (Article 1, §1);

–

Crimes against humanity (Article 1, §2);

–

Crimes against persons or objects protected by the Conventions signed at Geneva on 12 August 1949 (article 1 § 3).

The charge is founded on international customary law and on ‘ius cogens’ which relates to these crimes. The plaintiffs have been personally injured and/or have lost close family members or property as a result of these crimes.

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I.

Facts A.

General

On 6 June 1982, the Israeli army invaded Lebanon, in retaliation for the attempted assassination of Israeli Ambassador Argov in London on 4 June. The Israeli secret services had that same day attributed the attempted assassination to a dissident Palestinian organisation backed by the government of Iraq, which at the time was eager to deflect world attention from its recent setbacks in the Iran-Iraq war.1 The Israeli operation, planned well in advance, was called “Peace for the Galilee.” Initially, the Israeli government had announced that its intention was to penetrate just 40 kilometres into Lebanese territory. The military command, however, under the orders of Defence Minister Ariel Sharon, decided to execute a more ambitious project that Mr. Sharon had prepared several months earlier. Having occupied the south of the country and destroyed any Palestinian and Lebanese resistance there, simultaneously committing a series of violations against the civilian population,2 Israeli troops proceeded to penetrate as far as Beirut. By 18 June 1982 they had surrounded the armed forces of the Palestine Liberation Organisation (“PLO”) in the western part of the Lebanese capital. According to Lebanese statistics, the Israeli offensive, particularly the intensive shelling of Beirut, caused 18,000 deaths and 30,000 injuries, mostly among civilians. After two months of fighting, a cease-fire was negotiated through the mediation of United States Envoy Philip Habib. Under the terms of these negotiations, the PLO was to evacuate Beirut under the supervision of a multinational force deployed in the evacuated part of the town. The Habib Accords envisaged that West Beirut would subsequently be under the control of the Lebanese army, and the Palestinian leadership was given guarantees by the Americans regarding the security of civilians in the camps after their departure. The evacuation of the PLO ended on 1 September 1982. On 10 September 1982, the multinational forces left Beirut. The next day, Mr. Ariel Sharon announced that “2,000 terrorists” had remained inside the Palestinian refugee

1

The “Revolutionary Council,” better known as the “Abu Nidal Group,” cf. Z. Schiff and E. Ya’ari, Israel’s Lebanon War, New York, Simon & Schuster, 1994, p. 99: “The three detainees [arrested by Scotland Yard] also disclosed that an envoy from Baghdad emissary had brought them orders to carry out the assassination, and that they had received their weapons from the office of the military attaché of the Iraqi embassy in London.” The name of the Iraqi responsible is mentioned by Dilip Hiro, Iran under the Ayatollahs, London, Routledge, 1985, p. 211: “Israel’s attack was triggered off by an attempt to assassinate Shlomo Argov, the Israeli ambassador to Britain, on the night of 3 June. The London operation was masterminded by Nawal Al Rosan, an Iraqi ‘carpet dealer’ who was later found to be a colonel in the Iraqi intelligence .” (Footnotes omitted). It is worth noting that Ambassador Argov then denounced Ariel Sharon’s war on Lebanon.

2

For a detailed catalogue of the violations of the Geneva Conventions with regard to the civilian population, see the report of the MacBride Commission (Nobel Peace Prize 1974), Israel in Lebanon, The Report of the International Commission to enquire into reported violations of International Law by Israel during its invasion of the Lebanon, 28 August 1982 – 29 November 1982, London, Ithaca, 1983, pp. 187-192 (Conclusions) – hereafter referred to as the MacBride Commission.

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camps around Beirut. On Wednesday 15 September, the day after the assassination of President-elect Bashir Gemayel, the Israeli army occupied West Beirut, “encircling and sealing” the camps of Sabra and Shatila, which were inhabited by Lebanese and Palestinian civilians, the entirety of armed resistors (more than 14,000 people) having evacuated Beirut and its suburbs.3 Historians and journalists agree that it was probably during a meeting between Ariel Sharon and Bashir Gemayel in Bikfaya on 12 September that an agreement was made authorising the “Lebanese forces” to “mop up” these Palestinian camps.4 Mr. Sharon had already announced, on 9 July 1982, his intention to send the Phalangist forces into West Beirut,5 and in his autobiography he confirms having negotiated the operation during his meeting with Gemayel in Bikfaya.6 According to statements made by Ariel Sharon on 22 September 1982 in the Knesset (Israeli parliament), the decision that the Phalangists should enter the refugee camps was made on Wednesday, 15 September 1982 at 15:30.7 Also according to General Sharon, the Israeli Command had received the following instruction: “[t]he Tsahal8 forces are forbidden to enter the refugee camps. The ‘mopping-up’ of the camps will be carried out by the Phalangists or the Lebanese army.”9 By dawn on 15 September 1982, Israeli fighter-bombers were flying low over West Beirut and Israeli troops had secured their entry. From 9 a.m., General Sharon was present to personally direct the Israeli penetration, installing himself in the general army area at the Kuwait embassy junction situated at the edge of Shatila camp. From the roof of this six-storey building, it was possible to clearly observe the town and the camps of Sabra and Shatila. By midday, the camps of Sabra and Shatila – in reality a single zone of refugee camps in the south of West Beirut – were surrounded by Israeli tanks and soldiers, who had installed checkpoints all around the camps in order to monitor the entry or exit of any person. During the late afternoon and evening, the camps were shelled. By Thursday, 16 September 1982, the Israeli army controlled West Beirut. In a press release, the Israeli military spokesperson declared, “Tsahal controls all strategic points in Beirut. The refugee camps, inside which there is a concentration of terrorists, are surrounded and sealed.” On the morning of 16 September, the following order was issued

3

According to Kapeliouk, Sabra et Shatila: Enquête sur un massacre, Paris, Seuil 1982, citing Ha’Aretz of 15 September 1982, General Eytan declared the previous day before the Knesset’s Commission for Foreign Affairs that “[n]othing remains in Beirut but some terrorists and a small PLO office.” Kapeliouk, p. 30.

4

Benny Morris, The Righteous Victims, New York, A. Knopf, 1999, p. 540.

5

Schiff and Ya’ari, Israel’s Lebanon War, New York, Simon and Schuster, 1984, p. 251.

6

Ariel Sharon, Warrior: An Autobiography, Simon and Schuster, New York, 1989, p. 498.

7

Sharon at the Knesset, Annex to the Kahan Commission report, The Beirut Massacre, The Complete Kahan Commission Report, Princeton, Karz Cohl, 1983, p. 124 (Hereinafter, the Kahan Commission Report).

8

Israeli defense forces [actual literal translation from Hebrew; “tsahal” is an acronym of this phrase.]

9

Kahan Commission - Report, p. 125.

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by the army high command: “[t]he searching and mopping up of the camps will be done by the Phalangists/Lebanese army.”10 During the course of the morning, shells were being fired down at the camps from high locations and Israeli snipers were shooting at people in the streets. By approximately midday, the Israeli military command gave the Phalangist militia the green light to enter the refugee camps. Shortly after 5 p.m., a unit of approximately 150 Phalangists entered Shatila camp from the south and southwest. At this point, General Drori telephoned Ariel Sharon and announced, “Our friends are advancing into the camps. We have coordinated their entry.” To which Sharon replied, “Congratulations! Our friends’ operation is approved.”11 For the next 40 hours the Phalangist militia raped, killed and injured a large number of unarmed civilians, mostly children, women and elderly people, inside the “encircled and sealed” camps. These actions, accompanied or followed by systematic roundups, backed or reinforced by the Israeli army, resulted in dozens of disappearances. The Israeli army had full knowledge of what was going on in the camps right up until the morning of Saturday, 18 September 1982, and its leaders were in continuous contact with the militia leaders who perpetrated the massacre. Yet they never intervened. Instead, they prevented civilians from escaping the camps and arranged for the camps to be illuminated throughout the night by flares sent into the sky from helicopters and mortars. The count of victims varies between 700 (the official Israeli figure) and 3,500 (in the inquiry launched by Israeli journalist [Amnon] Kapeliouk). The exact figure can never be determined because in addition to the approximately 1,000 people who were buried in communal graves by the International Committee of the Red Cross (“ICRC”) or in the cemeteries of Beirut by members of their families, a large number of corpses were buried beneath bulldozed buildings by the militia members themselves. Also, particularly on 17 and 18 September, hundreds of people were carried away alive in trucks towards unknown destinations, never to return. The victims and survivors of the massacres have never been deemed entitled to a formal investigation of the tragedy, whether in Lebanon, Israel or elsewhere. After 400,000 Israelis took to the streets in protest once news of the massacre was broadcast by the international media, the Israeli parliament (Knesset) named a commission of inquiry, to be presided over by Mr. Yitzhak Kahan, in September 1982. In spite of the limitations of the Commission’s mandate (limited because it was a political rather than a judicial mandate and because the voices and demands of the victims were completely ignored), the Commission concluded that the Minister of Defence was personally responsible for the massacres.12 Upon the insistence of the Commission, and the demonstrations that followed its report, Mr. Sharon resigned from his post of Minister of Defence but remained in the

10

Kahan Commission Report, p. 14.

11

Kapeliouk, p. 37

12

Kahan Commission Report, p. 104: “We have found… that the Minister of Defence bears personal responsibility.” We shall return to this edifying conclusion.

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government as Minister without Portfolio. It is worth noting that during the “Peace Now” demonstration immediately prior to Sharon’s “resignation,” demonstrators were attacked with grenades, resulting in the death of a young demonstrator.13 Several non-official inquiries and reports, including those of [the] MacBride [Commission] and of the Nordic Commission, based mainly on the testimony of western eyewitnesses, as well as other pieces of journalistic and historical research, have assembled vital pieces of information. Some of these texts, in part or in full, are annexed to this file.14 In spite of evidence of what the U.N. Security Council described as a “criminal massacre,” and the ranking of the Sabra and Shatila massacres in humankind’s collective memory as among the most heinous crimes of the 20th century, the man found “personally responsible” for these crimes, as well as his associates and the people who carried out the massacres, have never been pursued or punished. In 1984, Israeli journalists [Ze’ev] Schiff and [Ehud] Ya’ari concluded their chapter on the massacre with this sobering reflection: “If there is a moral to the painful episode of Sabra and Shatila, it has yet to be acknowledged.”15 The reality of this impunity remains true to this day. The United Nations Security Council condemned the massacre with Resolution 521 (19 September 1982). This condemnation was followed by a 16 December 1982 General Assembly resolution qualifying the massacre as an “act of genocide.”

B.

Specifics

B1.

Plaintiffs, survivors of Sabra and Shatila.

In an annex to the present charges, the plaintiffs submit a statement of their personal suffering. The originals are in Arabic; each statement has been translated into French [and now English]. 1. Samiha Abbas Hijazi: On Thursday, there was shelling when the Israelis came, then it got worse so we went down into the shelter… We learned on Friday that there had been a massacre. I went to my neighbours’ house. I saw our neighbour Mustapha Al Habarat; he was injured and lying in a bath of his own blood. His wife and children were dead. We took him to the Gaza hospital and then we fled. When things had calmed down, I came back and searched for my daughter and my husband for four days. I spent four days looking for

13

Emile Grunzweig. Avraham Burg, the current Speaker of the Knesset, was hurt during this demonstration.

14

The most well known works are the reports of the Kahan Commission, the MacBride Commission and the Nordic Commission, and the books of Robert Fisk, Ze’ev Schiff and Ehud Ya’ari, Amnon Kapeliouk, Thomas Friedman, Jonathan Randall and others. An enquiry by the Lebanese military prosecutor, which concluded that no responsibility lay with the executors of the massacre, has never been published. Tabitha Petran, The Struggle Over Lebanon, New York, Monthly Review Press, 1987, p. 289.

15

Schiff and Ya’ari, p 285.

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them through all the dead bodies. I found Zeinab dead, her face burnt. Her husband had been cut in two and had no head. I took them and buried them. Madame Abbas Hijazi lost her daughter, her son-in-law, her daughter’s godmother and other loved ones. 2. Abdel Nasser Alameh: On the night of the carnage, we were at home and we heard that there was a massacre at Shatila… We kept watch on the road all night, taking turns to sleep a few hours, until daybreak when some people managed to escape. I thought my brother had gone ahead of us to West Beirut. We waited for him but he didn’t come. In fact my brother was one of the ones they took away, and we never even found his body. Mr. Alameh lost his brother, who was 19 years old. 3. Wadha Hassan Al Sabeq: We were at home on Friday, 17 September; the neighbours came and they started to say: “Israel has come in, go to the Israelis, they are taking papers and stamping them.” We went out to surrender ourselves to the Israelis. When we got there, the tanks and the Israeli soldiers were there, but we were surprised to see that they had Lebanese forces with them. They took the men and left us women and children together. When they took the children and all the men from me, they said to us, “Go to the Sports Centre,” and they took us there. They left us there until 7 p.m., then they told us, “Go to Fakhani and don’t go back to your house.” Then they started firing shells and bullets at us. On one side there were some men who had been arrested; they took them and we have never found out what happened to them. To this day we know nothing about what happened to them; they just disappeared. Mrs. Al Sabeq lost two sons (aged 16 and 19), a brother and about 15 other relatives. 4. Mahmoud Younis: I was 11 years old. It was night and we could hear shelling and gunfire… We took refuge in the bedroom and stayed there. As soon as they arrived, they went straight to the living room, and they shot at the photos on the walls, especially the one of my brother who was killed in “Black September.” They ransacked the living room, cursing and swearing. After having looked for us in vain, they went up to the roof and stayed there all night long. We spent that night in terror in our hiding place, listening to the shooting and people screaming, while Israel fired flares to light the sky until dawn. The next morning they started saying, “give yourself up and your life will be spared.” My nephew was 18 months old. He was hungry and we were far from the kitchen. My sister wanted him to quieten down, and she put her hand over his mouth, fearing that they would hear his cries. Her husband decided that we would have to give ourselves up, adding that each person’s fate was preordained by God anyway. The women went out first, my brothers, my father, my brother-in-law and other members of the family followed. My brother was ill. As soon as they heard our voices, they shot in our direction and came straight back inside the house. They asked us where we had been the day before when they had come in and not found anyone there. Then they 226


ordered the women and children to go out. My brother-in-law started kissing his little girl as if he were saying goodbye. An armed man came towards my niece, tied a rope around her neck and threatened to strangle her if her father didn’t let go of her. He let go of her and gave her to me. They wanted to take me too but my mother told them I was a girl. They made my mother and the women walk to the Sports Centre. While I was walking I saw my aunt’s husband, Abu Nayef, being murdered near his house with blows of an axe to his head. The dead bodies were disfigured. While I was carrying my niece, I bumped into a dead body that had been hit with an axe and I fell over. They knew then that I was a boy, and one of them put me up against the wall; he wanted to fire a bullet into my head. My mother begged him and kissed his feet so that he would let me go. He pushed her away. When he did that, he heard the clinking of some money she had hidden in her clothes. He asked her what that meant. She replied that he could have all the money he wanted but he had to let me stay with her. In this way we carried on our way and we arrived at the Sports Centre. The Israeli bulldozers were busy digging large trenches. We were told that we all had to get in because they wanted to bury us all alive. My mother started begging him again, and then she asked for a mouthful of water before dying. At the Sports Centre, I saw the Israeli military, as well as tanks, bulldozers and artillery, all Israeli. We also saw groups of Phalangists with the Israelis. The Sports Centre was packed with women and children. We stayed there until sunset. An Israeli then came and he said, “Everyone go to the Cola region. Whoever comes back to the camp will die.” We left, as they fired shots in our direction. Mr. Younis lost his father, three brothers, his maternal uncle, his maternal cousin, two paternal cousins and other members of his family. 5. Fadia Ali Al Doukhi: When the shelling started and we knew that Israel had surrounded the camp, my father told us to run away. We asked him to come with us, but he refused because he wanted to protect the house. We ran away, leaving him in the house. Later, we found out that a massacre had taken place. We found out that my father was dead and we saw his picture in the newspaper. His foot had been cut off. Our neighbour, who lived in the house where my father had sheltered, told us how they killed him. Mrs. Al Doukhi, who was 11 years old at the time, lost her father. 6. Amina Hasan Mohsen: We were at home the Thursday when the shelling started. I didn’t know what was going on outside. When the shelling intensified, I tried to leave the house to save myself and the children. When we went out, we saw dead bodies spread out all over the street. My children were scared. An Israeli told us to go out. Then we saw someone speaking Lebanese. When we went out under cover of the Israelis, they started shouting at us. At that moment I counted my children and I saw that Samir was missing; when he saw the dead people on the ground he got scared and ran away. At that moment I didn’t have the fortitude to go looking for him because the whole area was full of Israeli and Lebanese troops. We escaped, and when the massacre was over I looked for Samir, but the corpses were so mutilated I couldn’t recognise him among them. Mrs. Mohsen lost her 16-year-old son. 227


7. Sana Mahmoud Sersawi: We lived in the Said area of Sabra, and when the shelling started we sought refuge at my parents’ house in Shatila. This happened on the Wednesday. At about midnight, some women who came from the western quarter said that killings were taking place. We escaped once again, towards the middle of the camp. Then, when daybreak came, we hid ourselves in the shelter of the rest home. I was pregnant at the time, and I had two daughters who were still taking milk. We stayed in the rest home for two days, until Saturday. We didn’t have any milk left. My husband went out to get some for the girls. That night was so long, and the Israelis were firing flares to illuminate the sky. This is how my husband went to Sabra. The Israelis had come as far as the Gaza hospital. After that, I went out to look for my husband, and my sister went to look for her husband. We arrived at the entrance to Shatila. There, they had put the men on one side and the women on the other . I started looking among all the men. I saw him, and I said to him, “[y]ou know, these are Phalangists.” He replied, “[w]hat happened at Tel al Zaater is going to happen to us.” The armed men ordered us to walk in front, and the men behind. We walked like this until we got to the communal grave. There, the bulldozer started digging. Among us was a man who was wearing a white nurse’s shirt; they called him and filled him with bullets in front of everyone. The women started screaming. The Israelis posted in front of the Kuwaiti embassy and in front of the Rihab station requested through loudspeakers that we be handed over to them. That’s how we found ourselves in their hands. They took us to the Sports Centre, and the men were supposed to walk behind us. But they took the men’s shirts off and started blindfolding them. At the Sports Centre, the Israelis submitted the young people to an interrogation, and the Phalangists delivered 200 people to them. And that’s how neither my husband nor my sister’s husband ever came back. Mrs. Sersawi lost her 30-year-old husband and her brother-in-law. 8. Nadima Yousef Said Nasser: It was Thursday. Suddenly the street was deserted. My mother went to the neighbours’ house, and the shelling started. About 10 families were gathered at the neighbours’ house. A little while later, a woman came in from the Irsan quarter. She shouted, “[t]hey’ve killed Hassan’s wife!” She was carrying her children and shouting that it was a massacre. I picked up one of my twin daughters, who was a year old, went to my husband and said, “They say that there’s a massacre.” He replied, “Don’t be silly.” I took one of my daughters and gave him the other one, but the shelling got stronger and we went back to the neighbours’ shelter. The shelter was full of women, men and children; a woman from Tel Al Zaater was crying, saying, “This is what happened at Tel Al Zaater.” A little later, I went out of the shelter, and I saw armed men who were putting the men against the walls. I saw a neighbour; they tore open her stomach. Some woman came out of the house opposite and started waving her scarf around, saying, “We must give ourselves up.” Suddenly I heard my sister shouting, “They’ve cut his throat!” I thought that my parents had been killed. I rushed to see them, carrying my daughter. They killed my sister’s husband in front of me. I went up; I saw them shooting at the men. They killed them all. I fled. My other daughter stayed with her father. The armed men left, taking with them the men from the shelter. My husband was among them. On

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entering the camp a Lebanese woman came; she had seen my husband holding my daughter. She had seen how my husband had been killed by a Phalangist, with the blow of an axe to his head. My daughter was covered in blood. The man gave her to the Lebanese woman, who came back to the camp and gave her to some relatives of mine. I fled to Gaza hospital. When they entered the hospital, I escaped once again. Mrs. Said Nasser lost her husband, her father-in-law, three of her husband’s nephews and five other relatives. 9. Mouna Ali Hussein: I was in my house in Horch, I was 4 months pregnant and I had an 8-month-old son. We lived peacefully. We heard the Israeli aeroplanes flying intensively overhead, their noise got louder and then the shooting started. I took my son and I said to my husband, “I want to go to my parents’ house in the Western quarter.” We went, and while we were there, the shooting increased. We stayed with neighbours who had a ground floor 2storey house. When the shelling got worse, we stayed inside. It was six o’clock. We closed the door and stayed inside. There were only women and children there, except for my husband and a young man. We heard people shouting outside, and the armed men saying, “don’t shoot, use the axe. If they hear shooting they will escape.” A bomb exploded near the house, and everyone started screaming. They heard us and started shooting at us. We shouted even louder and a young man was killed in front of us as he was trying to put the candle out. They carried on shooting, and when they heard us they threw a bomb at us. A woman was injured, as was my mother. The bedroom became a river of blood. The soldiers started shouting at us, “Come out! If you don’t come out we will dynamite the house!” They insulted us. My mother opened the door, saying that she wanted to sacrifice herself. She saw ten armed men. She said to one of them, “Don’t kill us.” He replied, “Everyone out, get in a line.” One after the other we went out. I stayed with my husband and with my other son, and then we went out. They said to my husband, “Come here, you.” My husband was carrying our son, so he gave him to me. The armed man said to him, “Get back.” My husband thought he wanted his ID card. As he was backing away, they machine-gunned him down in front of me. He didn’t say a word; he fell. I waited for my turn. They insulted me. I followed my mother and my sister to the orphanage, and we fled. The children lived alone, their father didn’t have any brothers or close relatives. They had no one at their side. Other orphans will find an uncle, but my children have only me. God help us. My son, even at his age, really needs a father to help him, someone he can talk to about his problems. When you’re an only child, what a huge empty space that leaves. Mrs. Ali Hussein lost her husband and her brother-in-law. 10. Shaker Abdel Ghani Natat: It was Saturday, 18 September and we were at home when I went to check the car outside. That’s when I saw some soldiers; I thought they were from the Lebanese army. They demanded to search the house. The family was asleep so I woke them up and we all went outside. They took us towards Shatila camp. As we were walking, we passed people who had been killed and corpses and it was then that I realised that there was a massacre going on. They drove us to the Rihab station; they wanted to take us to the Kuwaiti embassy. That’s when the cars stopped and loaded up with youths, no one but youths, including my son.

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As for us, they delivered us to the Israelis and the Israelis took us to the Sports Centre, where they kept us. That’s how they took some people away, while they left others. My son was put in a car in front of me; I saw them take him, but I have no idea what became of him that day. Mr. Abdel Gahni Natat’s son was 22 years old at the time. 11. Su’ad Srour Meri: On Wednesday, after Bashir [Gemayel] had been killed, we heard Israeli helicopters flying low overhead , and on Wednesday night the Israelis started firing illumination flares, which lit up the camp as though it were day. Some of my friends went down into the shelter. On Thursday evening I went with my brother Maher to see some friends and tell them to come and sleep at our house; on the way the road was full of corpses. I went into the shelter but I didn’t find anyone there, so we went back. Suddenly I saw our neighbour, who was injured and had been thrown on the ground. I asked him where our friends were; he replied that they had taken the girls and asked me to help him, but I was not able to rescue him and I went straight back home with my brother. Maher immediately told my father that there was a massacre. I found out from our neighbour that the Phalangists were there. When my father found out, he said that we had to stay inside the house. Our neighbour was also there. We stayed in the house all night long. On Friday morning my brother Bassam and our neighbour climbed up to the roof to see what was happening, but the Phalangists spotted them straight away. A few moments later, about thirteen men knocked on the front door. My father asked who they were, they said, “Israelis.” We got up to see what they wanted; they said, “You’re still here,” and then they asked my father if he had anything. He said he had some money. They took the money and hit my father. I asked them, “How can you hit an old man?” Then they hit me. They lined us up in the living room and they started discussing whether or not to kill us. Then they lined us up against the wall and shot us. Those who died died; I survived with my mother. My brothers Maher and Ismail were hiding in the bathroom. When they [the soldiers] left the house, I started to call my brothers’ names; when one of them replied I knew he wasn’t dead. My mother and my sister were able to escape from the house, but I was not able to. A few moments later while I was moving, they [the soldiers] came back, they said to me, “you’re still alive?” and shot me again. I pretended to be dead. That night I got up and I stayed there until Saturday. I pulled myself along crawling into the middle of the room and I covered the bodies. As I put out my hand to reach for the water jug they shot at me immediately. I only felt a bullet in my hand and the man started swearing. The second man came and he hit me on the head with his gun; I fainted. I stayed like that until Sunday, when our neighbour came and rescued me. Mrs. Al Meri lost her father, three brothers (aged 11, 6 and 3) and two sisters (18 months and 9 months). 12. Akram Ahmad Hussein: [The twelfth plaintiff, Mr. Akram Ahmad Hussein, was not at Sabra and Shatila at the time of the events, cf. infra, part B3 of this submission.]

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13. Bahija Zrein: We were at home and we got wind of a massacre, but we didn’t believe it. In the night, two young men came to our house and told us that there was a massacre in the camp. We then went outside to see what was happening. We saw the Lebanese Forces standing outside; they called us. There were a lot of people and we thought they were Israelis. When we heard their Lebanese accents I ran away, but they followed me and arrested us young people, both men and women. All this happened at about 5 o’clock in the morning. They went into the area and took away about 18 young people, while confining us – men, women and children – to the camp. I saw my brothers and some children among the men they took away. While we were walking, we saw people who had been killed with axes. Among them were doctors from Gaza hospital. They lined them up and slaughtered them; then they started shooting at us and killed a large number of people, including 18 of our neighbours’ sons. While they were shooting, the whole camp was surrounded by Israeli tanks and all the diggers were Israeli. An Israeli patrol presented itself to us and asked us to go to the Sports Centre. The men went, while we women were taken to the Kuwaiti embassy. That’s how we saw them loading the young people into the cars. Among those young people was my brother. They blindfolded them and they loaded my brother in the car. That’s how he disappeared and I have never seen him again since. Mrs. Zrein’s brother was 22 years old at the time of the events. 14. Mohammed Ibrahim Faqih: That morning, they started shelling around the outside of the camps, including Shatila, and we could hear the sustained shooting. The shelling reached the main roads and we didn’t know what the reason for it was. We could not believe it. We couldn’t even move from one place to another or escape because of the shelling and machine-gun fire. We stayed at home and suddenly a shell hit our neighbour’s house. Some of the shrapnel hit my son in the chest and the leg. We took him to Akka hospital, but they wouldn’t admit him because of the large number of injured people already there. We took him to Gaza hospital. My brother and I stayed with him at the hospital, and meanwhile the shelling of Sabra and Shatila camps intensified. A woman came to tell us that she had seen them coming. I fled, but I saw how they entered and took away all the injured and sick people. So I ran away and I came back three hours later. They had taken away many people and the only one left was my injured son. I don’t know how many people they took away alive. Then we took my son to a hospital in Hamra, and the next day I heard that they had come to Sabra and they had taken away the girls. When I came back here I saw my daughter Fatima had been hit with an axe, along with my little girl. I noticed that they had dug a ditch in the ground and they had buried them alive in the ditch. The baby’s throat had been slit. I also saw people who had been killed and pregnant women with their stomachs ripped open. About thirty young people had been massacred near our house, both Lebanese and Palestinian. They didn’t spare anyone; they killed everyone they came across. In the home of our neighbour Ali Salim Fayad, they had killed his wife and children.

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My God, what can I say, what can I tell you? They had demolished the shops in Sabra road and dug large ditches where they had buried the victims. I saw about 400 children’s corpses. They upturned the earth and buried them. From the twelve members of our neighbour’s family, eleven were killed and only one escaped. Mr. Faqih’s two daughters were aged 21/2 and 14 at the time of the events. 15. Mohammed Shawqat Abu Roudeina: I was at home with my father, my mother and my sister. When the shelling started, we were at the home of my father’s uncle. There, the shelling started again, and we went into the bedroom, the men staying in the living room. Then we went to a neighbour’s house. There were about 25 or more of us. A little while later, we heard the cries of a girl who had been injured in the back. Armed men had stationed themselves in the area. Then we heard shooting, screams and strange voices. Aida, my cousin, went up to the shop and turned on the light. A man slit her throat and they dragged her by her hair. She started screaming “Daddy!” then her voice went dead. Her father went to follow her. They killed him immediately. That’s how they realised that we were in the house. They came down to the floor above us, where they broke and ransacked everything and we heard them calling out to each other, “George, Tony…” When we heard them breaking everything our voices rose, and that’s how they knew that we were on the floor below. One of them came down and saw us. He immediately told the others, and they all came down. My father was sitting on a chair, and as soon as he saw them, he kissed me, put some cologne on me and told my mother to take good care of the children. My father’s cousin said to his wife, “the children are your responsibility.” I will never forget. The image of that day is engraved in my memory. They ordered the men to stand against the wall. They made us go out behind them into the road. When I got to the door, I looked up at the red sky, red streaked with flare grenades. Once we arrived at the beginning of the road, we heard the shots fired at my father and my uncle, as well as some shouting. We walked several metres, flanked by armed men. My cousin saw her father and she started screaming. I saw my father’s car, which they had opened and were sitting in. That image is also engraved in my memory, because I asked my mother what they were doing with my father’s car but she didn’t reply. As we walked along we saw the dead people. They took us to the Sports Centre, and they placed us there in a room where there was a woman and her children. They brought people there. They took some of them away in cars and killed the others. At that moment, the Israeli tanks were there. Suddenly a mine which had been there since the beginning of the Israeli invasion exploded. They ran away, and so did we. Mr. Abu Roudeina lost his father, his (pregnant) sister, his brother-in-law and three other members of his family. 16. Fadi Abdel Qader Al Sakka: We had spent the whole of Friday hidden in the house, thinking that the Israelis were going to penetrate the camp. On Saturday at about midday, while we were still at home, we saw the Israelis arriving at our house. They told us all to come out. I was a little boy of 6 at the time. We came out and they took us to the road to the western side. My father was carrying 232


my little brother; they told him to give the child to my grandmother, who was also with us. They wanted to take away my father and my uncle, so my grandmother asked where they were taking them. Someone told her that they would be back soon. While we were walking, the roads were strewn with dead people and I saw how they were treating people. My father and my uncle never came back after that day when they were taken away. Mr. Al Sakka lost his father and an uncle. 17. Adnan Ali Al Mekdad: At about 3 p.m. on Thursday, after the death of Bashir, Sharon made some worrying moves. There were foreign men surrounding the region. Some people found out about this and fled. My mother saw the armed men, made them some tea and told them she was Lebanese. They told her that they were only after the Palestinians, and that, being Lebanese, she could stay in the area, no one would bother her, she just had to keep her ID papers with her. We were looking for family members, when I saw her hanging from a tree. After that we set about gathering the corpses and burying them. Mr. Adnan Ali Al Mekdad lost his father, his mother and more than forty members of his extended family. 18. Amal Hussein: On the Wednesday, Israeli aeroplanes started flying over the area and the shooting and shelling began. My brothers and sisters were scared. Those who were scared went down into the shelter next to our house. Thus, one group slept in the shelter and the other group slept in the house. The aeroplanes continued hovering, and there were more and more of them. My three-month-old nephew, who was with my sister in the shelter, started crying. He wanted to eat. She came out with him and four others, and they all came into the house. As soon as she came in – this was on the Thursday – we heard shouting, it was coming from the children and women in the shelter which we could see from our bathroom window. All of a sudden, the armed Phalangists invaded the area. No one could leave the house. All we could hear was the screaming of babies and women . They started killing people. We stayed in the house; we opened the doors and then went into the bathroom with my little nephew. We had gagged his mouth for fear that they would hear his voice and come to kill us. We stayed in the bathroom; they came in and searched the house, but they didn’t find us. We heard the screams and the massacre through the bathroom window. That’s how we knew that they had gone into the shelter and taken everyone they found there, including my relatives. On the Saturday, we escaped into the inside of the camp. After that, my mother went back to see my brothers and sisters, but she couldn’t recognise them because they were so disfigured. All we knew was that they had been buried in the mass grave. My father taught the child who survived (my father’s nephew) to call him Daddy. Mrs. Amal Hussein lost a brother, two sisters and several other relatives. 19. Noufa Ahmad Al Khatib: Two days before the massacre, the Israelis came to our area. They came, took us, lined us up and then let us go. The next day they withdrew and went into a hospital. We fled, and the day after that I learnt that there had been a massacre. Then the next day I was 233


told the story of the massacre. I was in Shatila, I saw the victims, and I started to look for my relatives. I saw my mother, she was dead and I saw her and recognised her. I saw all the victims who died and those who were still lined up against the walls. Mrs. Noufa Ahmad Al Khatib lost her mother, her sister, and several other close relatives. 20. Ali Salim Fayad: We were in the house and we had some people there. There was a car across the way and we went to move it. As we were coming back that Thursday, there were some armed men in front of the house. They ordered the separation of the men from the women and children. They lined up the men as well as our Palestinian neighbour and his family, against the wall and they shot them. The women and children were slaughtered in the road. Before shooting, they asked for their identity cards and they kept those. The Phalangists searched the house and the Israelis protected them with their tanks and their flares. When they shot us, I was hit in the back, the thigh and the hand. The night was lit up by the flares. I remained laid out on the ground. Later I called out to someone who was passing and asked him to call an ambulance. A short while later my daughter came and took me to Akka hospital. The next day the Phalangists came to the hospital and asked my son, who was in the room next door, about me. They took away some of the injured Palestinians. I saw them dragging a wounded man out of his bed and hitting him on the head with an axe. He was young, and they killed him. Mr. Ali Salim Fayad lost his wife, his two daughters, his son and his sister-in-law. 21. Ahmad Ali Al Khatib: It was between five and six p.m. on Thursday. We were in the area and there was some shooting. A young man from our area was injured. We took him to Gaza hospital. While the massacres were taking place, we tried to go back but the road was closed. I spent three days away from home. Mr. Ahmad Ali Al Khatib lost his father, his mother, four brothers, three sisters and his grandmother. 22, Nazek Abdel Rahman Al Jamal: My eldest son went to get the car so we could escape; they came and arrested him at Sabra Square. My second son went to get bread and food We were at home, and the Israelis and the Phalangists took us away from the house and made us walk in a line to Sabra. While we were walking, I saw my eldest son walking in another line and my sisters saw my other son. They made us walk as far as the Kuwaiti embassy, and when we got there they said, “Women go home.” There was an explosion and the people ran, on the way back I saw dead bodies on both sides of the road, women and old people. They had blown up the corpses and the children were dead. I went home and the children weren’t there. I spent four days looking for the children. My brother brought my youngest son’s dead body; I had already seen my eldest son dead in the pit. Mrs. Nazek Abdel Rahman Al Jamal lost her two sons aged 20 and 22.

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B2.

Testimonies, survivors of Sabra and Shatila.

In addition to their own statements, the plaintiffs present a series of statements from other survivors of the massacre. 1. Mohammed Raad: On Wednesday, we were at home waiting for a visit. I was at Sabra and the roads were empty. When I arrived at Ali Hender’s cafe, I met some young men who called me over and asked if I knew. I said no. They said that the Israelis had entered with the Phalangists and that they were destroying things. I went straight home, got my wife and we went to her brother’s house. We said to him, “Abu Suheil, let’s get away from here.” He replied, “We are Lebanese, they won’t bother us.” I was with another relative and I said to him, “Leave your children and go.” He called me a coward. My wife and I started walking until we reached the bridge that leads to the airport, and from there I saw the Israelis surrounding the area. An Israeli soldier shouted at me. The Israelis started asking me where I had come from and where I was going; then they said to my wife and to another woman passing by to stay where they were before ordering me to follow them and wait by the mountain. But I was directly behind Harat Horeik and we escaped to Ghobeireh. On Saturday we went back to see my relatives. What can I say: people were on their backs, black. I found my brother-in-law dead, he had been hit on the head with an axe; we found thirty other members of the family dead. 2. Jamila Mohammed Khalife: On the Thursday at about 4 o’clock p.m., they were at Al Horch, and we knew that there was a massacre. We also knew that the Israelis were in the Sports Centre, but we were asked not to do anything. A short while later, the shelling intensified but we thought that things would quieten down soon after. We went to seek shelter at our neighbours’ house. Looking towards the Sports Centre, we saw hundreds of armed elements descending upon it and in just a few moments they appeared in front of the house full of people. We started shouting that the Israelis had attacked us. When they reached the house they started insulting us, blaspheming, and then our neighbours’ son shut the door in their faces and we fled through another door to hide in the shelter, which was full of people. The Israelis and the Phalangists came back a short while later with a loudspeaker, through which they asked us to give ourselves up, promising that our lives would be spared if we came out of the shelter. We waved a white flag, but when we came out of the shelter my father said that our lives would not be spared and that they were going to kill us. I told him not to be scared and to come with us. They dragged us all along; women, children and men. My father tried to escape and they killed him in front of my mother and my little sister. They made us all walk; our injured neighbour was with us, carrying her intestines and haemorrhaging. She and I escaped into the Shatila camp, and from there we sought refuge in the Gaza hospital. When they arrived near the Gaza hospital, we ran away once again.

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When the massacre was over, we went back and saw the corpses of the dead, including that of our neighbours’ son Samir, who had been murdered. And under the corpses, they had placed bombs as booby-traps. 3. Shahira Abu Roudeina: On Thursday, 15 September, after sunset, the Israeli air force carried out some raids against us. We lived in the western part of the camp, and when the shelling started drawing nearer, we – my husband, my children and I – went to my parents’ home at the entrance of the camp, to see where they wanted to go. But we all stayed at my parents’ house until 7 p.m., at which time, seeing as the shelling kept intensifying, my sister went to see what was happening outside. They immediately shot at her. She shouted, “Daddy!” and didn’t come back. Hearing her cry, my father went out. He saw her and said, “Our little girl is dead.” Then they shot at him, and he fell. The whole camp was lit up by light flares, and none of us could go outside. We stayed locked in like that until 2 a.m. Then we understood that there had been a massacre. The noise of the killing and the screams haunted us until dawn. At five in the morning, they came down through the roof, and suddenly we saw them on the stairs in front of the door of the bedroom where we were. About fifteen armed men positioned themselves at the window, and four of them came in. The children screamed and cried, and we women screamed, too. They put the men against the wall – my husband, my paternal cousin and my brother – and they pumped them full of bullets in front of us. They made us come out and lined us up in our turn against the wall, wanting to pump bullets into us as well, but then they started arguing about who would be the first to shoot. Then they took us to the Sports Centre and took us into a room full of men, women and children. While guarding that room, they were also sharpening their axes and preparing their guns. It was Friday, at about five a.m. At midday, they brought back the young men and the women from the rest house, as well as some people from the Kuwaiti embassy. In the middle of the Sports Centre there were mines which had been there since the beginning of the Israeli invasion. One of the mines exploded. People fled, and we were among them. What can I say? When we were at the Sports Centre, the Israelis were securing the protection of the Phalangists, and Israeli tanks were stationed there. Also, it was the Israelis who shouted into the loudspeakers, “Give yourselves up and your lives will be spared.” 4. Hamad Mohammed Shamas: On Wednesday, when the Israeli army arrived at the Sports Centre with its tanks, and when we found out that the Israelis were there, I went with a friend to ask them what was going on. They asked me if I was a terrorist, I said “no.” Then they said to us, “stay at home, there’s nothing going on.” I went home. It was 15 September. On Thursday, 16 September, I was talking to Abu Merhef and Abu Nabil when suddenly we heard the sound of bombs falling on the houses and the screams of injured people. We ran to help the wounded and to drive them to the Akka and Gaza hospitals. Afterwards, I suggested to my father that he go down into the shelter. The shelling kept intensifying, and we went down into the shelter. The children were thirsty. I went to get some water and blankets. My brother had been away from the house for 15 days because he was working. He came, and stood with us at the door to the shelter. 236


Suddenly, we saw some Israelis and some Phalangists coming towards us, swearing and cursing. They told us to come out. We did. They placed us against the wall and pointed at Abu Merhef; he had 500 pounds in his pocket. Abu Merhef told them to take 250 pounds and to leave him with 250 pounds for the children. When they heard that, they immediately shot at the men. I was hit and I pretended to be dead. Three or four others fell on top of me. They were dead – Abu Hassan Al Bourgi, Kassem Al Bourgi, Abu Nabil and Ali Mehanna. I remember that Ali Mehanna survived his injuries for at least an hour; when he regained consciousness he started calling for help and asking if there was anyone still alive. I said, “I am,” and he said, “who?” I said, “Hamad.” He said, “Please, Hamad, I am injured in the stomach and in the hand. Say hello to my mother, my sister, so-and-so, and tell them Ali sends his love.” I said, “How do you know that I’m going to live? Is there anyone else alive near you?” He was sitting up and I was still lying down. A little while later they came back and said to Ali, “Are you still calling?” They insulted him and hit him on the head. But he got up again and he said to them, “Is that how you treat us, you sons of bitches?” because he thought they weren’t supposed to attack the Lebanese. They then resumed their task, five or six times. They fired more shots to make sure that everyone was dead. They pointed the gun at my thigh and fired. They had come back to make sure everyone was dead. At about five in the morning, I tried to get up from where I was. There was a wall next to me. I moved along the road and I heard the sound of the tanks. I went to hide in the home of Osman Houhou, which had been destroyed. Suddenly I heard an Israeli on a microphone saying, “Give up your weapons, you will have your lives spared and those of your family.” I tried to climb up the slope in order to give myself up like they said. When I was almost there, I looked and I saw them placing the men on one side and the women on the other. Then I saw them shooting them. That’s why I went back to hide in the house I had left a little while earlier. I stayed there until the evening. They were sitting around a table drinking alcohol; there was only a wall separating me from them. The wall was cracked; I could see what was happening. They were saying to each other, “Don’t leave anything that moves.” In that way I remained in the house until 10 o’clock on Sunday morning. I lost hope and I couldn’t handle any more. I decided to go out even if it meant being killed. I tried to go back to our house, but I found it destroyed. I couldn’t walk because of all the dead people strewn over the road. And every time my hand touched one of them, I felt their flesh between my fingers. I saw Um Bashir who had been killed with her seven children. It was as if she was sleeping with her seven children around her. I went back home and sat down with the dead. The Makdad girl came to call for help, and that’s how I got taken to the hospital. 5. Milaneh Boutros: We were at home that Thursday. There was shelling, and we went into the shelter. The place was packed with men, women and children. A little later, someone from, I believe, the Rashidiya camp came to take his family. Mohammed Shamas’ brother also came and suggested that he leave. But Mohammed refused and we stayed in the shelter. I picked up my 2-year-old daughter and went out. I saw armed men and Israeli soldiers calling for people.

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I went out first, thinking that they were there to protect us. I said to one of them, “You’re here to protect us.” He said “shut up!” and started insulting and swearing. “Shut up! Are you pretending to be Lebanese now?” I told him that I was from Zghorta and that my husband was Lebanese. He took us away. I was carrying one of my daughters, another one was holding my hand, and the other children were clinging to my clothes. We stepped over the corpses. The area was as light as day because of the illumination flares. When we got to the Kuwaiti embassy, they took Ali, my husband’s nephew, and they loaded us into trucks. We headed towards Dora and then Bikfaya. There, a woman stood on a balcony and said, “You’re bringing me women; I want men.” With us was a small boy of 13, Ali Zayyoun, who was cowering in a corner of the bus. As soon as they saw him, they took him and killed him. Then they took us to Ouzai. The next day they asked us to go back to our houses. There were Israeli patrols and Phalangist blockades everywhere. The ground was littered with corpses. At the door of the shelter I saw my husband, my son and other murdered people. Another corpse had been thrown on top of my son, who had been killed by an axe to his head. 6. Najib Abdel Rahman Al Khatib: Before entering our house, the Israelis started firing flares to light the sky. When the shelling got nearer, my father took us into the shelter until the shelling calmed down a little. We went to Akka hospital, where we slept one night. But at about 5 in the morning, they penetrated the hospital and we fled again. On the Saturday, I came back to the house to pick up some things. I saw only dead bodies on the ground, and I saw the Israelis and the Phalangists passing by. I went back again and I went in through the garden of our house; that’s when I saw my dead father. I went to the house and I saw a basin. It was full of people’s heads. I fled. The plaintiffs also present the testimonies of survivors gathered by journalists, and the accounts of eyewitnesses, in particular: 7. Ellen SIEGEL, U.S. national nurse in Beirut in 1982, currently lives in Washington D.C. (U.S.A.). 8. Robert FISK, British national journalist, one of the first journalists to visit the camps after the massacre. 9. Nabil AHMED, survivor. 10. Jean GENET, French national, poet and playwright, visited the camps immediately after the massacre. 11. Dr. Swee CHAI ANG, Singaporean national, doctor in Gaza hospital, Sabra, at the time of the massacre. 12. Dr. Per MIEHLUMSHAGEN, Norwegian national, doctor in Gaza hospital, Sabra, at the time of the massacre. 13. Dr. Ben ALOFS, Dutch national, nurse in the Gaza hospital, Sabra, at the time of the massacre, currently lives in Great Britain

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14. Dr. David GREY, British national, doctor in Gaza hospital, Sabra, at the time of the massacre (one of the three doctors who returned to the hospital after the initial evacuation with an official “laissez-passer” from the Israeli army,) currently lives in Great Britain.

B3.

Other plaintiffs:

12. Akram Ahmad Hussein: Mr. Hussein was in Tripoli at the time of the events. He lost his entire family: his mother, five brothers (aged 17, 13, 12, 11 and 11) and two sisters (aged 10 and 9).

II.

Applicable Law A.

The Crime of Genocide

At the time of the massacre of Sabra and Shatila, the Security Council adopted Resolution 521 (September 1982) which, in relevant part, “Condemns the criminal massacre of Palestinian civilians in Beirut…” On 16 December 1982, the United Nations General Assembly adopted, with an overwhelming majority,16 the following resolution (37/123D): “The General Assembly, Recalling its resolution 95 (I) of 11 December 1946, Recalling also its resolution 96 (I) of 11 December 1946, in which it, inter alia, affirmed that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices - whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds - are punishable, Referring to the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly on 9 December 1948, Recalling the relevant provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, Appalled at the large-scale massacre of Palestinian civilians in the Sabra and Shatila refugee camps situated at Beirut, Recognizing the universal outrage and condemnation of that massacre, Recalling its resolution ES-7/9 of 24 September 1982, 1. Condemns in the strongest terms the large-scale massacre of Palestinian civilians in the Sabra and Shatila refugee camps; 2. Resolves that the massacre was an act of genocide.”

16

Resolution 37/123D was passed with 124 votes in favour, no votes against and 22 abstentions.

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This conclusion merits consideration. In effect, Article 2 of the 9 December 1948 Genocide Convention, incorporated by the [Belgian] law of 26 June 1951,17 provides the following definition of the crime: “...genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 1) Killing members of the group; 2) Causing serious bodily or mental harm to members of the group;…”18 The facts clearly demonstrate that the attack against the refugees at Sabra and Shatila rested upon a profound hatred of Palestinians because of their national origin. The intention to harm them was clearly fueled by the fact that they were Palestinians. The American journalist Thomas Friedman, who was one of the first witnesses on the scene after the massacre, captures this phenomenon in his book: Afterward, the Israeli soldiers would claim they did not know what was happening in the camps. They did not hear the screams and shouts of people being massacred. They did not see the wanton murder of innocents through their telescopic binoculars. Had they seen, they would have stopped it immediately. All of this is true. The Israeli soldiers did not see innocent civilians being massacred and they did not hear the screams of innocent children going to their graves. What they saw was a “terrorist infestation” being “mopped up” and “terrorist nurses” scurrying about and “terrorist teenagers” trying to defend them, and what they heard were “terrorist women” screaming. In the Israeli psyche you don’t come to the rescue of “terrorists.” There is no such thing as “terrorists” being massacred. Many Israelis had so dehumanised the Palestinians in their own minds and had so intimately equated the words “Palestinian,” “PLO,” and “terrorists” on their radio and television for so long, actually referring to “terrorist tanks” and “terrorist hospitals,” that they simply lost track of the distinction between Palestinian fighters and Palestinian civilians, combatants and non-combatants. The Kahan commission, the Israeli government inquiry board that later investigated the events in Sabra and Shatila, uncovered repeated instances within the first hours of the massacre in which Israeli officials overheard Phalangists referring to the killing of Palestinian civilians. Some Israeli officers even conveyed this information to their superiors, but they did not respond. The most egregious case was when, two hours after the operation began on Thursday evening, the commander of the Israeli troops around Sabra and Shatila, Brigadier General Amos Yaron, was informed by an intelligence officer that a Phalangist militiaman within the camp had radioed the Phalangist officer responsible for liaison with Israeli troops and told him that he was holding forty-five Palestinians. He asked for orders on what to do with them. The liaison officer’s reply was, “Do the will of God.” Even upon hearing such a report, Yaron did not halt the operation.19

17

Moniteur Belge, 11 February 1952.

18

[Translated from the French].

19

Thomas Friedman, From Beirut to Jerusalem, New York, Farrar, 1989, p. 163.

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This collective “demonisation” of Palestinians described by Mr. Friedman is also evidenced in Ariel Sharon’s autobiography, titled Warrior. The objective of the attack on Sabra and Shatila was “to clean the PLO cadres out of West Beirut.”20 In another passage from the same book, Mr. Sharon explains the purpose of Israel’s invasion of Lebanon in the following terms: “Any effective approach … would have to look not just at specific local targets but at the entire PLO military and political infrastructure in Lebanon. And this, whether we liked it or not, would force us to take into account the entire Lebanese tangle.” It also squares with the infamous comments of the Israeli Prime Minister at the time, who referred to Palestinians as “two-legged animals,” and with those of Rafael Eitan, who, according to the Kahan commission, shared responsibility for the massacre, and who once compared Palestinians to “drugged cockroaches.” Furthermore, it is clear from the testimony of the plaintiffs and other survivors of the massacre that, in addition to the Israeli commanders, those who actually carried out the massacre exhibited a similar hatred for Palestinians as a national group. Although it is true that a large number of Lebanese were also killed, the ethnic nature of the killings is clear from many plaintiffs’ accounts of formal or intended distinctions being made between Lebanese and Palestinians. As plaintiff Adnan Ali Mekdad recounts: “My mother saw the armed men, made them some tea and told them she was Lebanese. They told her that they were only after the Palestinians, and that, being Lebanese, she could stay in the area, no one would bother her, she just had to keep her ID papers with her.” The hatred of Palestinians as an ethnic group, on the part of the Israeli military command as much as on behalf of the Phalangist perpetrators, was clearly noted by several journalists, including Thomas Friedman: The Israelis had so demonised Sabra and Shatila as nests of Palestinian terrorism and nothing more that they didn’t even know that probably one quarter of the Sabra and Shatila neighbourhoods were inhabited by poor Lebanese Shiites who had come to Beirut from the countryside… A picture in the As-Safir paper the day after the massacre was exposed captured the blind tribal rage of the Phalangists who tore through the camps. The picture, which occupied most of the top of the front page, consisted of a single hand. The fingers of this hand were locked around an identity card that could easily be read. The card belonged to Ilham Dakir Mikdaad, age thirty-two. She was a Shiite woman whose entire family, estimated to be forty individuals, was wiped out by the Phalangists. Her body was found lying on the main street in Shatila, with a row of bullets running across her breasts. It was clear what had happened: she must have been holding up her identity card to a Phalangist, trying to tell him she was a Lebanese Muslim, not a Palestinian, when he emptied his bullet clip into her chest.21 These conclusions are supported by the notorious assertions taken up in the enquiries and reports of the day regarding the collective dimension of the massacre (women and children, as well as men), and the particular vindictiveness against pregnant women (see for example the testimonies of Mohammed Ibrahim Faqih and of Shawqat Abu Roudeina) and

20

Sharon, p. 498.

21

Friedman, p. 164

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babies. From these numerous reports and testimonies, several instances stand out: a baby being trampled to death,22 the assertions of Lieutenant Avi Grabowski (who was present during the massacres but was ignored by the superiors to whom he reported what he saw),23 and, especially, confirmation of the collaboration between the killers and the Israeli Ministry of Defence: At one point,24 Sharon began to stress the need to destroy whatever was left of the PLO’s infrastructure in West Beirut and emphasised the danger of letting terrorists remain free in the city: “I don’t want a single one of them left!” he was quoted as saying in a session with [Elie] Hobeika, a Phalangist militia head. “How do you single them out?” Hobeika asked. It was an odd question for a high-ranking officer in a militia known for its talent at ferreting out terrorists, and Sharon decided to evade it. “I’m off to Bekfaya now,” was his reply. “We’ll discuss that at a more restricted session.”25 To that note, which Israeli authors qualified as “sinister,” it must be added that, in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (“ICTY”),26 the “specific intention of the crime of genocide does not have to be clearly expressed… it can be inferred from a certain number of elements, such as the general doctrine of the political project … or the repetition of discriminatory destructive acts (or) the perpetration of acts undermining the foundation of the group.”27 In the Akayesu case, the tribunal concluded that, “[t]his intention can be deduced from a certain number of elements, relevant to genocide, crimes against humanity and war crimes, for example by the massive and/or systematic character of the atrocity …”28 In conclusion, all the constituent elements of the crime of genocide, as defined in the 1948 Genocide Convention and as reproduced in Article 6 of the Rome Statute of the International Criminal Court (“ICC”) and in Article 1 § 1 of the [Belgian] law of 16 June 1993,29 are present.

22

Schiff and Ya’ari, p. 264; “Infant trampled to death by a man wearing spiked shoes.”

23

“I saw Phalangists killing civilians… One of them said to me: ‘Pregnant women will give birth to terrorists’.” Kapeliouk, p. 60. On the orders, idem.: “A parachute sergeant hears his officer announcing on his radio at 11h: ‘It may not please us, but I forbid you all to intervene in what happens in the camps’.”

24

Thursday, 16 September, just before the entry of the militia into the camps.

25

Schiff and Ya’ari, p. 255. Hobeika was the militia head responsible for the first “mopping up” operation.

26

IT 95-5/18, Karadic and Mladic.

27

David, E., Legal Principles of Armed Conflict, Brussels, Bruylant, 1999, p. 661. ICTR, Akayesu case, verdict of 2.9.1998, in particular §478: “This intention can be deduced from a certain number of elements, concerning genocide, of the crime against humanity and war crimes, by example of their massive and/or systematic character or of their atrocity …”

28

ICTR, Akayesu case, verdict of 2.9.1998, §478.

29

Law of 16 June 1993 relative to the repression of grave violations of international humanitarian law, as modified by the law of 10 February 1999, article 1§1.

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B.

Crimes Against Humanity

B1.

Definition and source(s) of incrimination

According to the Rome Statute of the ICC, as approved by the [Belgian] law of 25 May 2000, crimes against humanity occur whenever certain acts30 are committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Art. 7(1)). Article 7.2 specifies that the term “[a]ttack directed against any civilian population” means “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” It is clear from the travaux préparatoires of the Rome Statute that the definition of Article 7.1, as well as the specification of Article 7.2, was conceived in a very broad manner.31 The definition of Article 7.1 was taken up again in article 1 § 2 of the [Belgian] law of 16 June 1993 relative to the repression of grave violations of international humanitarian law, as modified by the law of 10 February 1999. It is important to underline that, in the strictest sense of the term, these legislative texts do not incriminate crimes against humanity but rather confirm their pre-existent incrimination. The Rome Statute makes this clear in Article 10.32 The Belgian legislator expressed this unequivocally in the travaux préparatoires for the law of 1999.33

30

Notably murder, torture, rape and all forms of sexual violence of comparable gravity, all of which occurred at Sabra and Shatila.

31

It must be known in effect that in the last report of the preparatory committee for the creation of an international criminal court, published on 14 April 1998, several options were retained for the definition of a crime against humanity. One of these options imposed the condition that the crime was committed “in the context of a generalised or systematic campaign against a population,” another added the condition that the crime be “perpetrated on a large scale,” and a third added that the crimes must be “inspired by political, philosophical, racial, ethnic or religious motives, or resting upon any other arbitrary criterion.” Not one of these variations, which limited in some way the notion of crimes against humanity, was retained.

32

Article 10: “Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”

33

Belgian Senate 1998-1999, document 1-749/3, page 19 onwards. In a note to the commission, the Minister of Justice specified that according to Belgian law, incrimination for a crime against humanity comes from the application of international custom, expressly recognised as a legal source in the International Covenant on Civil and Political Rights (ICCPR, article 15.2) and in the European Convention on Human Rights (ECHR, article 7.2). In this context, the Minister concludes, “The introduction of an explicit incrimination for crimes of genocide and crimes against humanity constitutes therefore only a confirmation of the existing law, while assuring a higher visibility…(ibid, p. 20 [unofficial translation]).

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Once again34 it is clear that international customary law and ius cogens35 are the sources of incrimination for crimes against humanity. Several judicial decisions have explicitly confirmed this source of incrimination,36 including the ICTY.37 Particularly interesting in this case are, on the one hand, the Israeli Supreme Court’s decision in the Eichmann case, which is explicitly based upon “the laws of humanity” and “the dictates of public conscience,”38 and, on the other hand, the decision rendered by Judge Vandermeersch in the Pinochet case, according to which, “It is to be considered that before being codified in treaties or laws, crimes against humanity are established in international custom and as such fall under international ‘ius cogens,’ which is imposed in internal jurisdiction with the effect of constraining ‘erga omnes’.”39 Thus, every definition of “crimes against humanity” is – by definition – always incomplete. It is also important to note that the definition in the Rome Statute (and in Belgian law) is more restrictive than that of Nuremberg,40 which to this day remains a primary source of customary law (as applied in the Eichmann and Pinochet affairs). The facts of this case clearly indicate the commission of crimes against humanity in the sense of both definitions (Nuremberg and the ICC). The following analysis, based on the strictest definition (that of the ICC), demonstrates this sufficiently.

34

Another important legal reference is article 7.2 of the European Convention on Human Rights affirming that the imperative of legality, as well as the principle of non-retroactivity that is derived from this imperative, does not in any way oppose the pursuit and the condemnation of persons reputed to be “criminals according to the wide principles of law recognised by the ensemble of nations.” [unofficial translation.] An entirely analogous provision is found in the 1966 Convention on Civil and Political Rights (article 15.2).

35

This idea was enshrined in the 1969 Vienna Convention on the Law of Treaties (article 53). It concerns customary laws, accepted and recognised by the international community of states, and unconditionally applicable to all.

36

Among others, the Barbie case (with the important decision of principles rendered by the French Court of Cassation, 20.12.1985).

37

ICTY, Tadic case, nº IY-94-I-T, judgment of 7.5.1997, §§622-623. In this regard, it is also worth noting that the jurisprudence for the two ad hoc international criminal tribunals has been an important source for the writers of the Rome Statute. This is illustrated in the exposé of the motives of the Belgian government regarding the incorporating law for the Rome Statute.

38

Cited by: DAVID, E., Principles of the Law of Armed Conflict, Brussels, Bruylant, 1999, p. 653.

39

Investigative judge in Brussels, 6 November 1998, R.D.P.C. 1999, pp. 278 ff., J.T., 99, pp. 308 ff.

40

Given that “the systematic and/or organised nature” was not a constituent element at the time, cf. the London Accord, which contains the following definition: “‘Crimes against humanity’ means murder, extermination, reduction to slavery, deportation and every inhumane act committed against any civilian population, before or during a war, or even persecution for political, racial or religious motives, when these acts or persecutions were committed following any crime that comes under the competence of the Tribunal, or in liaison with that crime, whether or not they constitute a violation of the internal laws of the country where they are perpetrated.”

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B2.

First and most essential constituent element: an attack against a civilian population.

It is undeniable that the population of Sabra and Shatila was a civilian one. If in the past a limited number of armed resistance fighters were in the camps, these groups had been evacuated several days earlier in conformity with the aforementioned “Habib Accords.” If Israeli reports mentioned isolated acts of resistance, there is every indication that these constituted legitimate acts of resistance on the part of civilians, and such acts in no way alter the civilian nature of the population. According to the jurisprudence of the ICTY, even the presence of a minority of armed people in a group comprised primarily of civilians does not modify the civilian character of the group.41 This jurisprudence conforms to the commentaries of the ICRC on the First Additional Protocol (Protocol I) of 8 June 197742 to the four Geneva Convention of 12 August 1949 relating to the protection of victims of international armed conflicts. The concept of protecting the life and integrity of civilians is based on empirical and dramatic historical experience, as is expressed very well in the preamble of the Rome Statute: “Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity…” Therefore, every attack that targets civilians as such is eminently grave. The exclusively civilian presence in the two refugee camps is confirmed by the ensemble of testimonies and reports. The most revealing testimony came from an (unnamed) information services officer on the evening of the first day of the massacre, Thursday, 16 September, at 20:40: “There are evidently no terrorists in the camp.”43 Not only were the camps exclusively populated by civilians but the Israeli commander had even been aware of this since the previous day. As indicated above, Article 7.2 of the Rome Statute specifies the notion of an attack against a civilian population by adding two additional sub-criteria, which shall now be addressed.

41

ICTY, Kordik case, nº IT-95-14/2-T, verdict of 12.2.2001, §178ss. ICTY, Blaskic case, nº IT-95-14-T, verdict of 3.3.2000. In the verdict, the Tribunal stated (§214): “Crimes against humanity are therefore not only concerned with acts committed against civilians in the strictest sense of the term, but equally incorporates abuse against two categories of people: those who belong to a resistance movement or who were combatants, whether in uniform or not, but who are not participating in hostilities at the moment of perpetration of the crimes, whether because they have left the army, are no longer carrying weapons, or finally they have been placed out of combat, notably through injury or detention. It follows equally that the concrete situation of the victim at the moment of the crime, more than his or her status, must be taken into account in order to determine whether he or she is a civilian. The result is that the presence of a military in the midst of a civilian population does not change its civilian character.”

42

Commentaries of the ICRC (<www.icrc.org/dih.nsf/>): “(…) In times of war, it is inevitable that individuals belonging to the category of ‘combatants’ will be found mixed in with the civilian population, for example soldiers visiting their families on leave. However, provided that they do not constitute numerous units, this in no way changes the civilian character of a population.”

43

Schiff and Ya’ari, p 262. General Yaron interrupts him as he reports his fear that women, children and old people will be massacred.

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B2.1. First sub-criterion: multiple crimes The first sub-criterion refers to the number of crimes (multiple commissions). The classic doctrine that the crime be committed on a massive scale is not necessarily to be measured statistically. There are no abstract criteria or specific figures for qualifying these terms.44 In addition, as mentioned above, the large-scale criterion is not retained as an element in the Rome Statute’s definition and neither, therefore, in the Belgian law of 10 February 1999. On the contrary, a proposal to include as a condition that the crime be “perpetrated on a large scale” was rejected.45 In any case, multiple murders, rapes and other crimes specified by the above definition were committed at Sabra and Shatila between 16-18 September 1982, as evidenced by the testimonies of the plaintiffs and witnesses, who constitute only some of the survivors of the massacres. The references to rape are particularly systematic. The rape and murder of a young woman of nineteen who worked at the hospital is well known (cf. the testimony of Ben Alofs), but the phenomenon’s recurrence can be found in several passages, for example by [Amnon] Kapeliouk.46

44

In this sense: ICTY, Vukovar hospital case, nº IT-95-13-R61, in particular paragraph 30 of the verdict.

45

Cf. the report of the preparatory committee of 14.4.1998 doc. UN: A/CONF. 183/2/Add1, page 26. Also see: Human Rights Watch, Justice in Balance – Recommendations for an Independent and Effective International Criminal Court, June 1998, pp. 36-37: “… to require that crimes against humanity be committed as part of both a widespread and systematic attack imposes too high a threshold and is inconsistent with existing international standards. The same applies to the words ‘on a massive scale’ …, which should be deleted… The requirement that the enumerated acts be committed as part of a widespread or systematic attack is consistent with the state of current international law.”

46

Kapeliouk, p. 47: “They crush the heads of children and babies against the walls. Women, and even girls, are raped before being killed with an axe…In the same area, several other women are raped before being killed. They are then undressed and their bodies lain out in the shape of a cross. One of the young girls raped, from the Mikdad family, is only seven years old…” p. 60: “The entrances to the camp are blocked and again and again the Israeli soldiers order the refugees trying to leave to turn back. The most striking case is a group of 500 people, who had found refuge in the Gaza hospital in Sabra, and who escape during the course of the afternoon when they hear that the militia have entered the hospital killing, wounding and raping everything in their path. Waving white flags, the unfortunate people arrived as far as the Al Mazraa coastal road… They are then stopped by Israeli soldiers. Their spokesperson explains that the people from Saad Haddad are murdering everyone. They receive nonetheless an order to return to the camp. Countering their hesitation, an Israeli tank points its cannon at them and obliges them to turn around.” p. 64: “They tell of the torture, the women raped three, four or five times in a row, whose breasts were cut off before they were killed.” p. 84: “My neighbour…lived opposite. She and her family stayed at home; no doubt they had not fully understood what was happening, so long have we been living with the noise of fighting and shelling. When we came back we found her, her hands and feet bound and her throat having been slit with a knife. Her underwear had been torn off and I think she had been raped.”

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B2.2. Second sub-criterion: organisation and/or agreement The second sub-criterion in the definition of the Rome Statute is that the acts must be committed in the application or the pursuit of a political objective (of a state or an organisation). The notion “political” demands a certain degree of co-ordination in the organisation, state or otherwise, to which the perpetrators belong. The importance of this second sub-criterion must, however, be qualified further: the recent developments from the jurisprudence of the ICTY show that the criterion of cooperation is no longer considered a constituent element of crimes against humanity but rather as an index of the systematic nature of the crime.47 The reverse is already accepted by doctrine and precedents: the general or systematic character in itself constitutes evidence of prior planning. In any case, even if we set aside the most recent developments on the subject, the present facts sufficiently demonstrate that the massacres were planned and organised. First of all, the highly efficient co-operation between the Phalangist forces and the regular Israeli army (Israel Defence Forces, or “IDF”) clearly indicates the existence of prior planning, or at least organisation, without which the massacre at Sabra and Shatila could not have taken place. Israeli forces completely sealed off the camps, and several reports emphasise how those who attempted to escape the massacre were turned back, often at gunpoint, by the Israeli soldiers who had been commanded to “seal off ” the camp.48 Several testimonies of foreigners confirm these facts. The testimony of Astrid Barkved before the Nordic Commission is particularly clear on this point: “Nordic Commission: Did I understand you correctly that all Thursday, that is the day between those two days which we have been speaking about, soldiers forced people back into the two camps? People were trying to flee from the camps? Astrid Barkved: People tried to flee from the camp and some carried white flags. They went to the Israelis to tell them to stop shooting but they were sent back again to the hospital. Nordic Commission: By Israeli soldiers or by other soldiers? Astrid Barkved: By the Israelis.

47

See, in particular, ICTY, Kordic case, nº IT-95-14/2-T, verdict of 26.2.2001, §182: The Trial Chamber agrees that it is not appropriate to adopt a strict view in relation to the plan or policy requirement. In particular, it endorses the Kupreskic finding that “although the concept of crimes against humanity necessarily implies a policy element, there is some doubt as to whether it is strictly a requirement, as such, for crimes against humanity.” In the Chamber’s view, the existence of a plan or policy should better be regarded as indicative of the systematic character of offences charged as crimes against humanity.

48

The episode of the delegation of four men aged between 55 and 62 years and carrying a white flag is well known. It was Thursday night, at the beginning of the killing: “They went towards the Israeli post beside the Kuwait embassy, in order to explain that in the camp were neither weapons nor fighters and that its inhabitants would give themselves up… they were seen advancing towards the south side of the camp and then they disappeared. Two days later, three of their corpses were found…” Kapeliouk, p. 51.

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Nordic Commission: So they were forced back into the camp on Thursday? Astrid Barkved: Yes.”49 In addition to the facts detailed in the first part of this complaint, the premeditated and coordinated nature of the massacre is evidenced by the following incidents: •

Minister Sharon and Lebanese president-elect Bashir Gemayel had several meetings about, among other things, the expulsion of Palestinians from Lebanon. According to various sources,50 one of these meetings took place in the night of 12-13 September and was about the “cleaning” of the camps.

•

On 9 July 1982, Sharon proposed to Habib to send the Phalangists into West Beirut,51 thus evidencing the fact that he had effective influence and control over them; none would doubt that the militia acted “under the supervision” of the Israeli army (cf. infra).

•

Several passages in Sharon’s own autobiography, entitled Warrior, deal with his intention to “cleanse” Lebanon of everyone involved with or linked to the PLO. It is in accord with this intention that Israeli journalists explain the ensemble of the operation as a grand design of Mr. Sharon, which included the “transfer” of Palestinians from South Lebanon, if not from the entire country.52

•

In his testimony before the official Israeli Commission of Inquiry, General Yaron declared that he completely approved the decision to send the Phalangist forces into the camps of Sabra and Shatila, particularly because: “The fighting serves their purposes well, so let them participate and not let the IDF do everything.”

•

The MacBride Commission posits that the Israeli authorities bear responsibility for the massacres at Sabra and Shatila because they were implicated in their planning and preparation and because these authorities facilitated the perpetration of the crimes.53

•

In the same MacBride report, the international commission also placed the massacres of Sabra and Shatila in the larger context of a policy of destruction – including by shelling – of a series of buildings of clearly civilian character (hospitals, schools, etc).54

49

Nordic Commission report, pp. 117-8.

50

Alia, J. “Lebanon: What Sharon will never say…”, the Nouvel Observateur, 6 November 1982; Morris, B., The Righteous Victims, New York, Alfred Knopf, 1999, p. 540.

51

Schiff and Ya’ari, Israel’s Lebanon War, New York, Simon and Schuster, 1984, p. 251.

52

Idem., for various quotes see pp. 240-241.

53

Report of the International Commission to Enquire into Reported Violations of International Law by Israel During its Invasion of the Lebanon, presided over by Sean MacBride. Concerning the implication of the (armed) Israeli forces, the report concludes: “The commission concludes that the Israeli authorities bear a heavy legal responsibility, as the occupying power, for the massacres at Sabra and Shatila. From the evidence disclosed, Israel was involved in the planning and the preparation of the massacres and played a facilitative role in the actual killings”; and “8. Israeli authorities or forces were involved, directly or indirectly, in the massacres and other killings reported to have been carried out by Lebanese militiamen in the refugee camps of Sabra and Shatila ...”

54

Cf. in particular conclusions 4 and 5: “4. There has been deliberate or indiscriminate or reckless bombardment of a civilian character, of hospitals, schools and other non-military targets. 5. There has been systematic bombardment and other destruction of towns, cities, villages and refugee camps.”

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•

Finally, various sources,55 as well as the testimonies of the plaintiffs, demonstrate that the armed Israeli forces not only instigated and facilitated the actions of the Phalangists but also that IDF soldiers participated in them on site. This is confirmed by the crucial testimony of a Dutch doctor (then a nurse) who was present at Sabra and Shatila at the time of the massacre and who, among others, confirms having personally witnessed the close co-ordination between the armed Israeli forces and the Phalangists in the camps.56

It is necessary to wait for the convergence of testimonies on this subject, which for the first time are to be heard before a tribunal.57 From the statements of the plaintiffs and witnesses arise two important new elements: the first is the presence of Israeli soldiers at the scene of the crime, inside the zone of the camps. The second is the collaboration of the Israelis and the Phalangists, if not in the actual killing, then certainly in the segregation, interrogation and conducting of dozens of civilians to destinations from which they would never return. It is difficult to imagine that not a single Israeli soldier, whether from the army or from the secret services, penetrated the camps during the three days of the massacres.58 It must be remembered that the militia were directly solicited for the “mopping up” work, that the various logistical aspects, including using an Israeli bulldozer to raze houses and dig mass graves, as well as the continuous illumination of the night skies by Israeli flares and the delivery of “fresh” militia on the afternoon of the second day, all hinged upon direct orders from the Israeli command. Mr. Ariel Sharon himself gave the order to allow the Phalangists to enter the camps “under the supervision” of his own army: [Wednesday, 15 September]: At 9:00 A.M. Sharon arrived at the forward command post together with Saguy. After being told of the Phalange’s willingness to enter the camps, he repeated his order to send them in “under the IDF’s supervision.”59 It is thus not surprising that different testimonies recount the presence of Israelis inside the camps. In the reports and the inquiries, the names of soldiers who saw the killing and protested to their superiors are numerous.60 Only a few soldiers made the first move and confided their experiences and concerns to journalists and investigators, but naturally those who were with the militia did not do so, and the inquiry should determine how the claim that no Israeli military personnel ever entered the camps can still be maintained.

55

Cf. MacBride report: In the report, it is alleged that an ID card belonging to an IDF sergeant was found in the ruins of a house in Shatila, as well as a “laissez-passer” written in Hebrew, giving a doctor access to the camps. The latter is confirmed in the testimony of Dr. Ben ALOFS (annexed).

56

Testimony of Dr. Ben ALOFS annexed.

57

Some commendable attempts, including certain extremely persuasive ones, were made to gather the testimonies of victims, but the Kahan Commission did not consider the testimonies of any of the massacre survivors. Even the testimonies of the hospital personnel were considered suspect in the Kahan report.

58

It is worth noting that the information officers are not named, and that the Kahan commission report had a secret appendix, the contents of which have never been divulged.

59

Schiff and Ya’ari, p. 254.

60

Lieutenant Grabowitz and others.

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Even if an inquiry into the presence of Israelis in the camps during the massacre did not come to fruition, there is no doubt (particularly on Friday, 17 and Saturday, 18 September) that dozens of civilians, mainly men, disappeared after a “screening” process had been completed in the presence of the Israeli army. There are numerous testimonies about these lethal selections, particularly those that took place at the Sports Centre adjoining the camps, where the Israeli army was present in force. Following are excerpts from some of the testimonies that support these two new elements, which demand a fuller investigation: 1. Wadha Hassan Al Sabeq: We were at home on Friday, 17 September; the neighbours came and they started to say: Israel had come in, go to the Israelis, they are taking papers and stamping them. Suddenly, after having gone out to see the Israelis, when we got there, the tanks and the Israeli soldiers were there, we were surprised to see that they had the Lebanese forces with them. They took the men and left us, women and children, together. When they took the children and all the men from me, they said to us, “Go to the Sports Centre,” and they took us there. They left us there until 7 p.m., then they told us, “Go to Fakhani and don’t go back to your house,” then they started firing shells and bullets at us. There were some men standing to one side; they took them and we have never found out what happened to them. To this day we know nothing about them and they are still considered disappeared. 2. Mahmoud Younis: At the Sports Centre, I saw the Israeli military, as well as tanks, bulldozers and artillery, all Israeli. We also saw groups of Phalangists reunited with the Israelis. 3. Jamila Mohammed Khalife: The Israelis and the Phalangists came back a short while later with a loudspeaker, through which they asked us to give ourselves up, promising that our lives would be spared if we came out of the shelter. We waved a white flag, but when we came out of the shelter my father said that our lives would not be spared and that they were going to kill us. I told him not to be scared and to come with us. They dragged us all along; women, children and men. My father tried to escape and they killed him in front of my mother and my little sister. They made us all walk; our injured neighbour was with us, carrying her intestines and haemorrhaging. 4. Amina Hassan Mohsen: An Israeli told us to go out. Then we saw a person speaking Lebanese. When we went out under cover of the Israelis, they started shouting at us. At that moment I counted my children and I saw that Samir was missing… 5. Shahira Abu Roudeina: What can I say? When we were at the Sports Centre, the Israelis were securing the protection of the Phalangists, and Israeli tanks were stationed there. Also, it was the Israelis who shouted into the loudspeakers, “Give yourselves up and your lives will be spared.”

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6. Bahija Zrein: An Israeli patrol presented itself to us and asked us to go to the Sports Centre. The men went, while we women were taken to the Kuwaiti embassy. That’s how we saw them loading the young people into the cars. Among those young people was my brother. They blindfolded them and they loaded my brother in the car. That’s how he disappeared and I have never seen him again since. 7. Fadi Al Sakka: On Saturday at about midday, while we were still at home, we saw the Israelis arriving at our house. They told us all to come out. I was a little boy of 6 at the time. We came out and they took us to the road to the western side. My father was carrying my little brother; they told him to give the child to my grandmother, who was also with us. They wanted to take away my father and my uncle, so my grandmother asked where they were taking them. Someone told her that they would be back soon. The indications of planning and co-ordination are numerous and convincing. The proof of this constituent element, as well as proof of intention required for the crime of genocide, can be gleaned from the objective circumstances of the event.61

B3.

Second constituent element: The generalised or systematic character of the attack:

On this point, customary law has also evolved since the Nuremberg and Tokyo trials: currently it is no longer necessary for the attack against a civilian population to be generalised and systematic. Yet the murders and other criminal actions committed at Sabra and Shatila were generalised and systematic. The fact that access to the camps was closed and that groups of killers “mopped up” area after area over the course of three days indicates systematic planning.

B4.

Third constituent element: The moral element

Finally, the crimes must be committed in the knowledge of a generalised or systematic attack against a civilian population. As demonstrated in the Rome Statute, it is no longer necessary that a perpetrator of a crime against humanity must have acted according to a policy of persecution, repression or extermination. It is sufficient for the perpetrator to have acted with knowledge and intent (sciens et volens, cf. Article 30 of the Rome Statute). This requirement is founded in customary law as well as in the relevant conventional law.

61

David, E., op. cit., p. 661, citing the jurisprudence of the ICTY and the ICTR as well as the jurisprudence of the ICJ.

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Nonetheless, not only did the persons identified in the present complaint as responsible for the Sabra and Shatila massacres commit or participate in this massacre, but they also acted in the context of a policy of persecution, repression and even extermination. Finally, it is important here to reiterate U.N. General Assembly resolution 37/123D, whereby the Sabra and Shatila massacres were qualified as an act of genocide. Given that, by definition, every act of genocide in the sense of the 1948 Genocide Convention constitutes a species of the same genus, that is, a crime against humanity, the acceptance of the qualification of “genocide” automatically implies that all the criteria for the qualification of a crime against humanity are fulfilled. This moral element will be developed further during the discussion of the individual penal responsibility for the Sabra and Shatila massacres (cf. infra, section IV).

C.

War Crimes

Committed in violation of the provisions of the Fourth Geneva Convention of 1949 relative to the protection of civilians in time of war (ratified by Israel62 and by Belgium),63 the Sabra and Shatila massacres must equally be qualified as war crimes, according to the terms of Article 8 of the Rome Statute, and as grave violations against persons and property protected by the terms of the 1949 Geneva Conventions and by Article 1 § 3 of the 16 June 1993 law. These massacres having been perpetrated within the framework of an aggressive invasion by the Israeli army into Lebanese territory, an international character is thus introduced, in the sense of the fourth Geneva Convention. The victims of Sabra and Shatila must all be considered as protected persons as defined in the Fourth Geneva Convention, particularly in Article 147. Mr. Sharon’s allegations that 2,000 armed persons were inside the camps64 are patently contradicted by the facts. Very few of the Sabra and Shatila refugees put up the slightest resistance. Numerous people were found murdered with their identity cards in their hands, dramatically illustrating their faith in the protection that should have been accorded to them as civilians (see supra, B2). The Israeli army was, at the time of the massacres, an occupation force in the sense of Article 4 of the same Fourth Geneva Convention. Consequently, this army had a clear responsibility towards the protected persons. War crimes consist of, notably: wilful killing, torture or other inhuman treatment; the destruction of property not justified by military necessity, as well as generally subjecting a civilian population or individual civilians to attack, and subjecting undefended localities

62

Israel ratified the four 1949 conventions on 6 July 1951. The only reservations formulated in relation to this ratification concerned the use of the Red Shield of David as an emblem and distinctive sign (cf. the list on the ICRC website: .)

63

On 3 September 1952, Belgium ratified the four 1949 conventions. Additional Protocols I and II were ratified on 20 May 1986.

64

Sharon’s declaration, 11 September 1982.

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to attack. All these crimes were committed at Sabra and Shatila by the Phalangist militia with the active support of the Israel Defense Forces, who had given them control of the camps “under their supervision.”65

D.

Combination of Violations

In light of the preceding qualifications, we must conclude that the actions of the different perpetrators of the massacres at Sabra and Shatila constitute a combination of substantive and intentional violations. The same facts constitute war crimes, crimes against humanity and the crime of genocide. There is no restriction in either customary or conventional law to oppose the application of several qualifications to the same fact or combination of facts. On the contrary: in the first case judged by the International Criminal Tribunal for Rwanda (“ICTR”) in Arusha (the Akayesu case), a combination of violations was established.66 A combination of violations was also established by the French Court of Cassation in the Barbie67 case.

E.

Conclusion

The actions committed at Sabra and Shatila together constitute a crime of genocide, a crime against humanity, war crimes and grave violations of the Fourth Geneva Convention of 1949. The present complaint is based on the aforementioned qualifications, which are punishable in international customary law (ius cogens) as well as in positive Belgian law.

65

The MacBride Commission developed all these arguments almost twenty years ago to demand the establishment of a Special Tribunal for judging the crimes at Sabra and Shatila: “The Commission recommends that the United Nations set up a special international tribunal to investigate and prosecute individuals charged with crimes of state, especially in connection with the Shatila and Sabra massacres. Such prosecutions should be carried by due legal process and with fairness to the accused.” (Recommendation 8, p. 193).

66

ICTR, first chamber, ICTR-96-4-T of 2 September 1998, §§468 and following. See in particular §496, treating the problem of combination of crimes: “With regard to its Statute, the Chamber is of the opinion that the violations targeted in the Statute – genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions and its Additional Protocol II – include different constituent elements and, above all, their suppression aims at protecting distinct interests. There is then reason to retain them for similar facts. Moreover, following the case, it may be necessary to obtain condemnation of more than one of the infractions in order to give the measure of crimes committed by the accused. For example, the general who gave the order to kill all prisoners of war belonging to a given ethnic group, with the intention of eliminating that group, would be guilty at the same time of genocide and of violating article 3, although not necessarily of crimes against humanity. A condemnation for genocide and for violations of article 3 would then give the measure of comportment of the accused general.”

67

Judgment of 20 December 1985; Bulletin of Judgments of the Cassation Court, 1985, pp. 1038 ff.

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III. A.

Universal Jurisdiction of Belgian Courts Genocide

Universal jurisdiction to pursue and punish the crime of genocide stems primarily from ius cogens, and notably from the 1948 Genocide Convention. In its 8 April 1993 decision, the International Court of Justice declared, “all parties have assumed the obligation to prevent and to punish the crime of genocide” 68 and, “the rights and obligations established by the 1948 Convention are rights and obligations erga omnes.” The ICTY Appeals Chamber declared in the case that the obligation for each national jurisdiction “to judge or to extradite the persons presumed responsible for grave violations of international humanitarian law”69 was customary in character. If it is true that Article VI of the Genocide Convention effectively expresses preference for the jurisdiction of the tribunals of the state directly concerned with the events, this competence is, however, not exclusive.70 From the preceding considerations there follows the observation that the [Belgian] law of 10 February 1999 (modifying the law of 16 June 1993) is a procedural law relating to universal jurisdiction for crimes of genocide. This law is therefore automatically applicable, whatever the date of the violation.71 The Belgian legislator has also clearly applied the same principle in the same domain with the 22 March 1996 law relating to recognition of the international tribunals for the former Yugoslavia and Rwanda; this recognition rests, in effect, on a formal competence in positive Belgian law in relation to deeds committed since 1991, i.e., well before the law of 22 March 1996.

B.


The civil parties fully adhere to the reasoning developed in the order rendered on 6 November 1998 in the Pinochet case,72 and in particular the observation that the category of crime against humanity is grounded in ius cogens.

68

ICJ 8 April 1993, cited by David, op. cit., p. 667.

69

ICTY, 29 October 1997, case IT-95-14-AR, §29: “… The International Tribunal does not have the mission of replacing the jurisdiction of any State. By virtue of Article 9 of the Statute, the International Tribunal and the national jurisdictions are concurrently competent. The national jurisdictions of the States of Ex-Yugoslavia, as those of all States, are required by customary law to judge or to extradite those persons presumed responsible for grave violations of international humanitarian law. The primacy of the Tribunal foreseen in article 9 2) is applicable to all national jurisdictions or, if these jurisdictions lack this customary obligation, it can intervene and judge.” (emphasis added)

70

David, op. cit., p. 666.

71

Penal jurisdiction is in effect subject to the same regulations as civil jurisdiction, cf. article 3 of the Judicial Code and the general principle on which it is based. (Cass., 24-12-1973, Pas., 1974, I, 447; Cass., 16-101985, RDPC., 1986, pp 410-414; Brussels 01-03-1995, RDPC., 1995, p. 756). In the same sense: ClossetMarchal, G., The Application in time of the laws of civil judicial law, Bruylant, 1983, p. 29; Tulkens, F. and Van De Kerckhove, M, Introduction to Penal Law, Story-Scientia, 1998, p. 208; Verhaegen, J. & Hennau, C., General Penal Law, Bruylant, 1995, p. 88, nº 90.

72

Brussels Investigation and hearing judge, 6 November 1998, RDPC, 1999, p. 278, JT 99, p. 308.

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This same reasoning can be found in a number of decisions pronounced in other countries, as, for example, in the Demjanjuk decision, in which a United States federal court decided: “The universality principle is based on the assumption that some crimes are so universally condemned that the perpetrators are the enemies of all people. Therefore, any nation which has custody of the perpetrators may punish them according to its law applicable to such offences ... Israel or any other nation ... may undertake to vindicate the interest of all nations by seeking to punish the perpetrators of such crimes.”73 In addition, the civil parties emphasise that the Belgian government and legislature expressly approved this reasoning in the preparation of the [Belgian] law of 19 February 1999, modifying the law of 16 June 1993.74 In confirming ius cogens as a source for incrimination, the government and legislator also evidenced the procedural character of the law of 10 February 1999. As such, and particularly with regard to universal jurisdiction, it is thus (as with the crime of genocide) of automatic applicability, whatever the date of the violation.75

C.

War Crimes

According to Article 146 of the Fourth Geneva Convention of 1949, “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.” Hence, the Military Code of the United States of America contains an express provision concerning universal jurisdiction for crimes against humanity.76 The law of 16 June 1993 constitutes, in domestic Belgian law, the implementation of this international obligation in terms of universal jurisdiction. Also according to these terms, the law of 16 June 1993 must be automatically applied, whatever the date of the violation (cf. supra).

73

U.S. Appeals Chambers, 6th Circuit, 31.10.1985, cited by David, E., op. cit., p. 634.

74

The customary character of the incrimination of crimes against humanity has already been illustrated with the same preparatory works, in particular: Doc.Parl.Sénat, session 1998-1999, doc. 1-749/3, page 19 onwards.

75

Cf. Cass., 30-06-1993, Pas., 1993, I, 635. Verhaegen, J. and Hennau, C., General Penal Law, Bruylant, 1995, p. 88, nº 90.

76

U.S. Army Field Manual 27-10, §507(a): “The jurisdiction of United States military tribunals in connection with war crimes … extends also to all offences of this nature committed against nationals of allies and of cobelligerents and stateless persons.”

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IV.

Responsibility

Until the completion of an in-depth investigation, it will not be possible to determine the exact responsibility of the protagonists of these crimes. The Kahan Commission Report concluded that Defence Minister Ariel Sharon bore personal responsibility for the Sabra and Shatila massacres. It also indicated the responsibility of Lieutenant General Rafael Eitan, Commandant Brigadier General Amos Yaron and Commandant Major General Drori, as well as that of the Phalangist leaders. The central figure is unquestionably General Ariel Sharon, then Israeli Defence Minister, who personally directed the military operations in Lebanon and who was in Beirut at the time of the events. Mr. Sharon is currently Prime Minister of Israel. Certain information indicates that Mr. Sharon, although preferring to allow his local collaborators to perform the massacre in the camps, might have planned it with a view to terrorising the entirety of the Palestinian population of the Lebanon into leaving or retreating to the north of the country. The constituent elements of these indications are Sharon’s public announcement that “2,000 terrorists remain in the camps” and his declaration before an assembly of Phalangists after the assassination of their leader, Gemayel, that they “shouldn’t cry like women,” but rather that they must “act like men,” making explicit reference to the Palestinian camps. It is noteworthy that in the weeks leading up to the massacre, other war crimes were committed against the civilian Palestinian population of South Lebanon, notably in Tyre and Sydon.77 Concerning the Phalangist militia, they could be considered de facto auxiliary forces of the military power occupying South Lebanon and Beirut at the time. These militia were armed and trained by Israel. Their leaders would not have been able to take any initiative that contradicted the will of the occupying power, and the operations they carried out were devised and prepared in collaboration with the Israeli military leaders.78 Finally, it was the Israeli army that created the necessary environment for the crime to take place, notably by surrounding the camps with troops, providing logistical support to the militia and illuminating the camps throughout each night. As for the main executioners, one can refer to the names cited in the Kahan reports and in the works of Kapeliouk and Schiff and Ya’ari.79

77

S. MacBride, Report of the International Commission to enquire into reported violations of International Law by Israel during its invasion of the Lebanon, conclusion 6.

78

See, among others, the 12 February 1983 article in Der Spiegel, in which a soldier from the Phalangist militia claims that there was a strategic meeting in the early afternoon of Wednesday 15 September 1982. According to the same soldier, about a dozen Israeli soldiers (in uniform) participated in this meeting. Also according to the same source, the Israeli soldiers clearly controlled the strategy for the attack on Sabra and Shatila.

79

The directors of the killing units are also named in R. Hatem’s book, published in the U.S. by Pride Publications and entitled From Israel to Damascus.

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It is worth considering Article 4 of the law of 16 June 1993 concerning the inclusion of participatory acts to the crime in the sense of Articles 66 and 67 of the Penal Code, and failing actively to intervene to prevent or to put an end to the offence in the event that it is possible to do so. This last incrimination – that of the responsibility of the superior [or “command responsibility”]80 – has its origin in the jurisprudence of the Nuremberg tribunals and was clearly enumerated in Articles 86 and 87 of the First Additional Protocol (Protocol I) of 8 June 1977 to the four Geneva Conventions of 12 August 1949. These principles relating to the responsibility of the superior are also present in customary law.81 Related to this point is the fact that the law of 16 June 1993 has not created a new incrimination. Article 4 of this law states and confirms a pre-existing principle in international customary law. As such, and in light of Articles 7(2) of the European Convention for the Protection of Human Rights and Fundament Freedoms, (“European Convention on Human Rights” or “ECHR”) and Article 15(2) of the 1966 International Covenant on Civil and Political Rights, this principle can be applied to the facts of the present case. Regarding the responsibility of the superior, it is necessary to add that it applies not only to offences committed by persons in a formally subordinate relationship, but also to all other persons – whether soldiers or not – who, at the time of the offence find themselves under the control of the superior. The tie of subordination is evaluated both de jure and de facto.82 The plaintiffs bring a civil indictment against: Ariel SHARON, Israeli Defence Minister at the time of the events and currently Prime Minister; against Amos YARON, commander of the division and Brigadier General at the time of the events and currently Director General of the Defence Ministry; and against all other persons, whether Lebanese or Israeli, whose responsibility will be established during the course of the investigation.

80

ICTY, Delalic case, IT-96-21-A, Court of Appeal judgment of 20-02-2001, §§ 215-241. As the Appeals Chamber expressly indicated in this judgment, the question of the origin of the “responsibility of the superior” is dealt with in terms of principle and with the aim of fixing the jurisprudence of the ICTY. (cf. §221) In its conclusion, the Appeals Chamber decided that – according to customary law – superiors are legally responsible for the offences committed by their subordinates, if they know about them or are in possession of information on the basis of which they should know about them. (§241)

81

The circumstance that Israel is not a party to Protocol 1 (1977) is not an obstacle to the declaration of a customary incrimination of universal impact. At the time of the Kuwait war, the U.S. qualified certain attacks by the Iraqi army as “war crimes,” including the Scud missile attacks on Israel. According to professor E. David, this incrimination has its source in Additional Protocol 1 of 1977. In view of the fact that the U.S. is not a party to the Additional Protocols, he concludes that the incrimination with reference to the Scud attack has its origins in customary law. (David, E., op. cit., p. 582).

82

ICTY, Delalic case, IT-96-21-A, Appeals Chamber judgement of 20.2.2001, §195 onwards, in particular §197: “In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles... The Appeals Chamber considers that the ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility and thus agrees with the Trial Chamber that the absence of formal appointment is not fatal to a finding of criminal responsibility.”

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V.

Damages

The plaintiffs claim compensation for all the crimes encompassed in the present complaint that caused them harm. Awaiting the results of the investigation, they have provisionally estimated their damages, per plaintiff, at the sum of €1 for moral damages and €1for material damages.

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5. CONCLUSION TO PRE-TRIAL HEARINGS FILED IN BELGIUM BEFORE THE BRUSSELS COURT OF APPEALS CHAMBRE DES MISES EN ACCUSATION (January 30, 2002)* [EXCERPT]

I.

[The Parties].......................................................................................................

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II. Principal Arguments...........................................................................................

261

A. Nature and Scope of Universal Jurisdiction ................................................

262

B. Lack of Immunity for Heads of Government ..............................................

262

C. Non-Applicability of the Non Bis in Idem Principle ...................................

262

D. Irrelevance of Foreign Amnesty Laws .........................................................

263

E. The Principle of Non-Retroactivity of Penal Laws: Non-Applicable..........

263

F. Lack of Jurisdictional Privilege ...................................................................

263

III. Introduction: Response to the Accused’s Statement of Facts ............................

264

A. Objective of the Criminal and Civil Action.................................................

264

B. Establishing the Facts of the Matter ............................................................

265

C. The Kahan Commission’s Examination of the Facts ...................................

269

D. Ariel Sharon’s “Personal Responsibility” ....................................................

272

D.1. The Doctrine of Superior Responsibility Was an Integral Part of Customary International Law Long before the Sabra-Shatila Massacres in 1982. ..............................................................................

273

D.2. Israeli Courts Recognized and Applied the Doctrine of Superior Responsibility Prior to 1982................................................................

276

*

The original 143-page document submitted by the plaintiffs to the court was written in French. It is available on the web site of the International Campaign for Justice for the Victims of Sabra and Shatila at . Translation of this excerpt into English for the Yearbook, with permission of the International Campaign for Justice for the Victims of Sabra and Shatila; only minor stylistic changes have been made.


CONCLUSION TO PRE-TRIAL HEARINGS FILED IN BELGIUM

Conclusions I.

[The Parties] FOR:

1. Ms. Samiha Abbas Hijazi, Lebanese nationality (no passport, document 5496895/90). 2. Mr. Abd el Nasser Alameh, Lebanese nationality (passport #0473395). 3. Ms. Ouadha Hassan el-Sabeq, Palestinian nationality (special refugee document #205963). 4. Mr. Mahmoud Younes, Palestinian nationality (special refugee document #217163). 5. Ms. Fadi Ali El Doukhi, Palestinian nationality (special refugee document # 68624). 6. Ms. Amina Hasan Mohsen, Palestinian nationality (special refugee document #912/4969). 7. Ms. Sana Mahmoud Sersaoui, Palestinian nationality (special refugee document #76/6931). 8. Ms. Nadima Youssef Said Naser, Palestinian nationality (no passport, document #602/7382). 9. Ms. Mouna Ali Hussein, Palestinian nationality (special refugee document #214057). 10. Ms. Chaker Abd-el-Ghani Tatat, Palestinian nationality (no passport, document #842/2992). 11. Mr. Akram Ahmad Hussein, Palestinian nationality (special refugee document #902/9265). 12. Ms. Bahija Zrein, Palestinian nationality (document #108642). 13. Mr. Muhammad Ibrahim Faqih, Lebanese nationality (Lebanese passport #322903). 14. Mr. Mohammed Chawkat Abou Roudeina, Palestinian nationality (special refugee document #161877). 15. Mr. Fady Abdel Qader El Sakka, Palestinian nationality (no passport, document #471/1144). 16. Mr. Adnan Ali al-Mekdad, Lebanese nationality (no passport). 17. Ms. Amale Hussein, Palestinian nationality (no passport). 18. Ms. Noufa Ahmad el-Khatib, Lebanese nationality. 19. Mr. Najib Abd-el-Rahman Al-Khatib, Palestinian nationality (no passport). 20. Mr. Ali Salim Fayad, Lebanese nationality (no passport). 21. Mr. Ahmad Ali el-Khatib, Lebanese nationality. 22. Ms. Nazek Abedl-Rahman al-Jammal, Lebanese nationality (no passport). 23. Mr. Khalil Hammo, Palestinian nationality.

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Represented by their attorneys: Mr. Luc Walleyn, Esq., 1030 Brussels, rue des Palais 154; Mr. Michaël Verhaeghe, Esq., 3090 Overijse, Waversesteenweg 60; and Mr. Chibli Mallat, Esq., Beirut (Lebanon). All of whom elect domicile at Mr. Walleyn’s aforementioned office. AGAINST: 1. Mr. Ariel Sharon, Israeli nationality, Prime Minister of the State of Israel, residing abroad but electing domicile at the office of Mr. Adrien MASSET, Esq., 4650 HERVE, rue Bê Pâki 16. Accused 2. Mr. Amos Yaron, Israeli nationality, head of the Israeli Defense Ministry, residing abroad but electing domicile at the office of Mr. Adrien MASSET, Esq., 4650 HERVE, rue Bê Pâki 16. Accused Both represented by their attorney: Mr. Adrien Masset, 4650 HERVE, rue Bê Pâki 16. 3. X [Elias Hobeika’s name was previously given here.] IN THE PRESENCE OF: The Prosecutor General at the Brussels Court of Appeals, represented by the Solicitor General, Mr. Pierre MORLET, Esq. Brussels Court of Appeals Chambre des Mises en Accusation Pen. 1632/01 Whereas the Prosecutor General at the Brussels Court of Appeals has provided not only a written statement of charges, dated September 28, 2001, but a verbal statement of charges, together with statements at hearings by the court on November 28, 2001 and January 23, 2002. Whereas the accused, Messrs. Sharon and Yaron, have set forth certain conclusions of their own.

II.

Principal Arguments

The principal arguments presented in the various sections of the conclusions contained herein may be summarized as follows:

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A.

Nature and Scope of Universal Jurisdiction

Principally, the legal provisions are clear and do not require interpretation. In the first place, Article 7 of the [Belgian] law of June 16, 1993 [on the Punishment of Grave Breaches of the Geneva Conventions of August 12, 1949 and their Additional Protocols I and II of June 18, 1977] sets out no conditions restricting the exercise of universal jurisdiction. Moreover, Article 12 of the Preliminary Title [of the Code of Criminal Procedure] applies only to cases described in the chapter in question and thus does not apply to the specific laws. In the alternative, if an interpretation does prove necessary, it should take into account not only the special legal characteristics of the law of June 16, 1993 but also the legislators’ intentions. The examining magistrate’s order of September 7, 2001 did provide an interpretation. This interpretation, which flowed by analogy from Article 12 of the Preliminary Title and was supported by the principle of in dubio pro reo and an amendment to Article 12(b) of the Preliminary Title, is legally incomplete. In the aforementioned magistrate’s order, the reference to Belgium’s position in the Yerodia case before the International Court of Justice is factually incomplete. Under either argument, international law does not prevent national legislation from providing for absolute universal jurisdiction. Lastly, in the alternative, and under either argument, Article 12 of the Preliminary Title contains no obstacles to opening criminal investigations relating to suspects who are not present in Belgian territory.

B.

Lack of Immunity for Heads of Government

In international, Belgian and even Israeli law, the granting of immunity to heads of state or governmental entities is not an obstacle to indicting individuals for crimes against humanity, crimes of genocide or war crimes. The state of Israel’s proposed distinction between certain situations in which heads of state or governmental entities commit crimes on a qualitate qua basis and situations in which perpetrators of crimes subsequently become heads of state is irrelevant. The refusal to grant immunity is justified by the serious nature of these crimes and by the need to punish the perpetrators thereof, regardless of their official capacity. Legal arguments relating to heads of states’ official capacities and any other obstacles to the proper functioning of legal proceedings should thus be set aside. In the alternative, if one of the accused is granted immunity, this does not preclude bringing indictments against the others.

C.

Non-Applicability of the Non Bis in Idem Principle

The non bis in idem principle applies only in the event of definitive decisions handed down by penal jurisdictions. However, despite the state of Israel’s references to the Kahan Commission, this commission was not a jurisdictional organ, but rather a commission of

262


inquiry. Moreover, this commission did not issue any legally-binding decisions; instead, it merely provided the [Israeli] government with an opinion. Insofar as it is based on the statute for the future International Criminal Court (“ICC”), the state of Israel’s additional argument is irrelevant because this statute sets out procedural rules particular to the ICC.

D.

Irrelevance of Foreign Amnesty Laws

First, the state of Israel’s argument concerning Lebanon’s amnesty law [for crimes committed during Lebanon’s civil war] raises a constitutional issue. In fact, only Belgian legislators have the authority to suspend the effect of Belgian statutes. Moreover, international law prohibits the application of general amnesty laws to crimes against humanity, crimes of genocide or war crimes. Lastly, the provisions of the Lebanese law of 1991 do not apply to war crimes committed by the Israeli army and its collaborators.

E.

The Principle of Non-Retroactivity of Penal Laws: Non-Applicable

Whether in its original version or in the amended version of February 10, 1999, the [Belgian] law of June 16, 1993 sets out no new grounds for indictment. The legislators simply confirmed preexisting offenses in customary international law relating to crimes of genocide, crimes against humanity and war crimes. Neither international law nor Belgian national law opposes retrospective legislation of this kind. Moreover, there are no constitutional obstacles to such legislation. According to well-established jurisprudence of the Cour de Cassation, legislative intent alone is enough to exclude the application of Article 2 of the Criminal Code, even in the absence of a formal statute. As a procedural matter, the law of June 16, 1993 is immediately applicable. This law also covers crimes committed before the law came into effect and that have yet to be judged. Moreover, it is important to note that the law of June 16, 1993, is in complete accordance with the requirements of the temporary application of penal laws as set out by the European Court of Human Rights and the 1966 U.N. Covenant [on Civil and Political Rights]. The same conclusion pertains to the imprescriptibility of human rights crimes because imprescriptibility was expressly confirmed by legislators when the law was amended in 1999.

F.

Lack of Jurisdictional Privilege

The primary accused cannot benefit from jurisdictional privilege in Belgium. The fact that the Constitution grants jurisdictional privileges to certain Belgian officials without extending these same privileges to other individuals carrying out similar functions in other countries does not violate Articles 10 and 11 of the Constitution. There are thus no grounds for requesting a preliminary ruling from the Cour d’Arbitrage. 263


In the alternative, referring to another court for a preliminary ruling on a question of procedure to which one of the accused might be entitled is not an obstacle to pursuing the judicial examination.

III. A.

Introduction: Response to the Accused’s Statement of Facts Objective of the Criminal and Civil Action

1. The Court should only pronounce on procedural matters. Nevertheless, this consideration did not prevent the accused from expounding at length on their conclusions in the first twelve pages or from claiming that that the charges against them were truncated, “unduly harsh” and intended to “tarnish the reputation of the Israeli army.”1 The accused intend to “demonstrate” that “the parties to the civil case and the prosecution are pursuing the aforementioned objective” and that “this represents an attempt to use judicial power as a tool to further strictly political motivations.”2 2. Even though other legal fora may have jurisdiction to rule on matters involving state responsibility and state entities, such as the International Court of Justice, this does not apply to the case at hand. Therefore, in addressing the criticisms set out in the accused’s “statement of facts,” we must bear in mind the following considerations. The complaint of June 18 was filed by survivors and legal persons; the accused are physical persons; and the facts giving rise to this case constitute one of the gravest crimes against humanity committed in the latter half of the 20th century. In light of such crimes, the international community, of which Belgium’s legal system forms a part, has a duty to bring charges. The need to prosecute grave crimes against humanity was recently underscored by Professor Van den Wyngaert when she took up her duties as Belgium’s judge ad hoc at the International Court of Justice: In the absence of supranational enforcement mechanisms, national criminal prosecution before domestic courts is the only means to enforce international criminal law. States have not only a moral, but also a legal obligation under international law to ensure that they are able to prosecute international core crimes domestically.3 3. A number of the plaintiffs lost more than thirty relatives within the space of several hours [at Sabra and Shatila], while others remain severely handicapped to this day. They

1

Conclusions to Pre-Trial Hearings filed by defendants Sharon and Yaron, on file with the Brussels Court of Appeals; also on file with the attorneys for the plaintiffs, pp. 5-6 [hereinafter Conclusions/Sharon] (unofficial translation from the French).

2

Conclusions/Sharon, p. 7 (unofficial translation from the French).

3

Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14) (dissenting opinion of Judge ad hoc Christine Van den Wyngaert).

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have filed a complaint concerning crimes against humanity that have never been the object of a judicial examination. The plaintiffs have taken this initiative at a time when the man they view as the main perpetrator of the massacre is serving as the prime minister of his country. Their timing points not only to their thirst for justice but also to their legitimate fear that subsequent crimes may be committed. For the victims, Mr. Sharon’s election as prime minister underscores the cruel injustice of his continuing impunity.

B.

Establishing the Facts of the Matter

4. In addition to the “political” trial that the plaintiffs have had to endure, we should point out that the version of events provided by Messrs. Sharon and Yaron is extremely polarized. This version of events, known as the “narrative,” is a problematic part of the history of the Palestinian conflict.4 Until recent years, this narrative gave rise to two diametrically opposed accounts, to which the adversaries clung with all their might. Nevertheless, the passage of time sometimes allows for a more complete version of the truth to emerge, especially among those who care deeply about knowledge and justice. For that reason, the most recent findings from Israel’s top researchers have put an end to such polarization. Although we do not seek to analyze in any great detail the academic debate launched by Israel’s “new historians,” we would emphasize this debate’s importance as it relates to the statement of facts laid out in the conclusions submitted by Messrs. Sharon and Yaron. Our complaint refers to a variety of published sources, including documents published by respected observers and noted journalists (Israelis and others), in addition to reports by neutral commissions of inquiry such as the Nordic Commission and the MacBride Commission. Mr. Sharon ignores all of these documents on the pretext that they “rewrite” history. However, he does cite a few passages from the Kahan Commission’s report, either to reinforce his claim that he has already been “judged” by the commission5 or to quote from the commission’s conclusions, which he mistakenly claims absolve him from responsibility. 5. The accused have chosen to ignore the raft of supporting documents filed along with the complaint – documents that were available for consultation. Moreover, their arguments refer exclusively to the Kahan Commission’s findings. As a result, we must analyze the selective nature of their arguments in law and in fact, in light of the commission and the limited nature of its mandate.6

4

Raja Shehadeh, “The Weight of Legal History,” in Cotran and Mallat (eds.), The Arab-Israeli Accords: Legal Perspectives, Kluwer, London, 1996, pp. 3-20 (p. 3: “The Palestinian Narrative”; p.10: “The Israeli Narrative”).

5

Conclusions/Sharon, p. 5 (“The state of Israel was the only state to judge in such a way, while it was at war, its own nationals for crimes committed during this war.”) (unofficial translation from the French).

6

Complaint with “Constitution de Partie Civile,” June 18, 2001, p. 8 (see document #4 in this “Special Dossier” section).

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Mr. Sharon and Mr. Yaron’s version of events describes Palestinian refugee camps as “villages.” This is instructive; by referring euphemistically to the camps as “villages,” the accused are in effect redefining the camps to suit their own purposes.7 Such euphemisms aim to conceal the fact that natives of Palestine fled or were expelled after Israel occupied their country. As a result, these individuals sought refuge in refugee camps in a number of foreign countries, including Lebanon. The Kahan Commission subsequently becomes a “judicial” commission. Once again, this alternative translation implies that Mr. Sharon has already been “judged,” thereby bolstering the non bis in idem argument. Mr. Sharon also claims that the “judicial commission” was made up of the most prominent figures in the legal world; he fails to mention that the commission also had a military member, Major General Yona Efrat, whom it would be hard to describe as a “prominent jurist.” Lastly, the accused point out that the commission of inquiry traveled to Beirut. However, they fail to mention that the commission did not actually visit the site of the massacre. When this fact finally emerges as part of their non bis in idem argument, the accused claim that an “impediment” prevented the commission from visiting the site. They neglect to mention that this “impediment” was created by their Phalangist allies at that time (the Phalangists held power in 1982-83). Most important, the commission’s report states that “all necessary steps were taken to bring witnesses from outside of Israel, when this was possible”; the accused repeat this claim in their own conclusions.8 This sheds light on one of the commission’s fundamental flaws and illustrates why its findings were tainted: no victims testified before the commission. The reason for this is both simple and tragic. Like all Palestinians, those massacred in Lebanon “do not exist,” in Golda Meir’s famous quote from 1970. In 1982, Palestinians only existed in Mr. Sharon’s mind as “terrorists,” as U.S. journalist Thomas Friedman makes clear.9 If the Kahan Commission had wanted to bring Palestinians from outside of Israel to appear as “foreign witnesses,” it would have had to change the state of Israel’s constitutional framework and to recognize the Palestinians’ right of return, as set out in U.N. General Assembly Resolution 194 (December 11, 1948).10 Therefore, “foreign witnesses” could not possibly include victims returning to Israel to serve as witnesses, even less victims appearing in their capacity as victims. It was impossible to hear these witnesses’ testimony then, and it is impossible today because it is still against the law. We should thus reconsider Mr.

7

Even the official name of the commission and its assigned mandate speak of “refugee camps.” The official English-language name of the commission is “The Commission of Inquiry into the Events at the Refugee Camps in Beirut,” which is the name we have used here. Significantly, in his conclusions, Mr. Sharon finds it very difficult to speak of “Palestinians” or “refugees.”

8

Conclusions/Sharon, p. 5.

9

Complaint of June 18, 2001, supra note 6, p. 28.

10

U.N. General Assembly Resolution 194 (III), December 11, 1948, para. 11(1) (stating that the General Assembly “Resolves that the refugees wishing to return to their homes … should be permitted to do so….”).

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Sharon’s notion of “rewriting history” in relation to one of the most disturbing testimonials from that era, filmed in the aftermath of the massacres. This involved an exchange between an Israeli soldier and a female survivor. The woman asked to return home to Israel/Palestine; her request met with embarrassed silence since the soldier knew it would be impossible to grant, as was borne out by the Kahan Commission’s reference to “foreign” witnesses. 6. In light of the fact that victims did not testify before the Kahan Commission, we will now consider Mr. Sharon’s reference to his 1983 lawsuit against Time, the New Yorkbased weekly newsmagazine. We note that Mr. Sharon does not mention this suit in the non bis in idem section [of his conclusions], and for good reason. In fact, Mr. Sharon’s suit against Time was extremely limited in scope because it pertained to a highly specific point relating to his meeting with Phalangist leaders in the village of Bikfaya just before he gave orders to the army to “encircle” the refugee camps and to the Phalangist militias to “cleanse” them. Mr. Sharon’s suit against Time was subsequently abandoned at the insistence of the judge, who convinced both parties not to pursue the matter any further. He said: “The parties should resist the temptation to express their increasingly inflammatory views of each other in a drama that could be a major disaster for at least one of the parties.”11 Why was Mr. Sharon, then the plaintiff, courting the risk of major disaster? The judge offered these prophetic words: “The plaintiff stands to lose on the basis of substantial truth, even if he does manage to prove that the news report published about him was false.”12 Hence, the issue at hand is the substantial truth of Mr. Sharon’s legal responsibility in the Sabra-Shatila massacres. After all, if Mr. Sharon’s “personal responsibility,” which the Kahan Commission established as a fact, had been legally determined as part of a criminal judgment, Mr. Sharon would never have been elected to the position that he holds today. However, the accused managed to avoid a criminal conviction and took part in a cabinet vote on the commission’s findings, in accordance with Israel’s law of 1968 governing commissions of inquiry.… Unlike the rest of his cabinet colleagues, Mr. Sharon voted to reject the Kahan Commission’s report. With reference to the case at hand, Mr. Sharon’s extensive quotations from the commission’s findings in support of his non bis in idem argument is all the more galling given Mr. Sharon’s previous decision to reject the commission’s report. This decision is referred to in numerous documents and statements, including Mr. Sharon’s own memoirs, entitled Warrior: An Autobiography.13 In his memoirs, Mr. Sharon’s decision to reject the commission’s report is accompanied by scathing denunciations of his colleagues, whom he describes

11

Time, 1985, p. 6. (unofficial translation from the French).

12

Id., (unofficial translation from the French).

13

Note how Mr. Sharon claims in his conclusions that he had decided to resign “spontaneously.” See the neutral version of events given in Keesing’s Contemporary Archives, Record of World Events, 1983, xix, 3, 32045. It is not at all a given, as he claims in his conclusions (p. 10), that he “spontaneously” handed in his resignation to the Prime Minister.

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as Jews “turning Jews over (!),” most notably then Prime Minister Menachem Begin, whom Sharon accuses of having “handed me over.”14 7. Ten years later, Mr. Sharon wrote an open letter in the press to Judge Barak. In this letter, Mr. Sharon repeated the same line of defense he has used from the outset: he himself bore no responsibility whatsoever. Christians had killed Muslims in Beirut and he had nothing to answer for. “My complaint,” he wrote in 1993, “is against those who act as guardians of morality,” such as Judge Barak. Mr. Sharon made this promise: “[The] day will come when I will – democratically and through the law – erase the conclusions of the Kahan Commission.”15 If any doubt remains concerning Mr. Sharon’s animosity toward the Kahan Commission and his cabinet colleagues, or concerning his decision to reject the commission’s report, even though the arguments set out in his defense rely exclusively on this report to absolve himself from any de facto responsibility, the following passage from Mr. Sharon’s autobiography is instructive: As we walked toward the open grave [during the funeral services for Menachem Begin’s wife], I happened to turn my head and saw behind me two men in black hats, black ties, and black overcoats walking together and staring at me with the blackest of looks. The eyes belonged to Judge Kahan and Judge Barak. From the cemetery that day I went directly to the Knesset, where I was scheduled to give a report. Reading from the podium, at one point I looked up into the visitors’ gallery directly in front of me and once again saw Judge Kahan and Judge Barak, regarding me with the same intense and unfriendly looks, like two black ravens, I thought.16

14

Ariel Sharon, Warrior: An Autobiography, Simon & Schuster, New York, 1989, pp. 520-22: “Even without the shouting outside and the heat inside, the meeting would have been tense enough. That night the cabinet had to decide either to reject the Kahan report in whole or part or to accept it. Rejecting it would have meant resigning as a government and calling for new elections. That would have brought, I believed, the greatest victory in Likud history. On the other side, accepting it meant in effect forcing my resignation. But it also meant a good deal more than that. It meant confirming a verdict that an Israeli government was guilty of murder. ‘If you accept the conclusions of the Kahan Commission,’ I warned them, ‘you will be branding the mark of Cain on the foreheads of the Jewish people and on the State of Israel with your own hands.’(...) It was such an irony, I thought, that these loyal people [proSharon demonstrators] who had gathered there to help were in effect sealing my fate. The cabinet members did not like hearing those shouts. They hated it. You could see the jealousy and anger in their faces.” In reference to one of his father’s enduring memories, Mr. Sharon continues: “Working there in the earth among the trees he had told me, ‘Arik, you can do anything you want, but one thing you must promise me. Never turn Jews over. Never do it.’ And now, I said to myself, look what has happened. Those very people who were the victims then, they have handed me over to the mob, they have done it to me.’ In the weeks and months that followed, that scene stayed with me. And later, when the emotions of the moment had passed, I found myself one day sitting with Menachem Begin in his office, and I felt the need to tell him what I had experienced that day. ‘I want to tell you something,’ I started. ‘I don’t know how you see what has happened. But I want you to know how I feel about it.’ Then I told him about the parade, about what I had wanted to remember, and about what I did remember. ‘Menachem,’ I said, ‘it was you who handed me over to them. You are the one who did it.’ ”

15

Jerusalem Post, August 12, 1993.

16

Ariel Sharon, Warrior, pp. 510.

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C.

The Kahan Commission’s Examination of the Facts

8. In light of the facts established by the Kahan Commission, we note the accused’s highly selective attempts to absolve themselves of any form of responsibility, even moral. The Kahan Commission, however, committed various sins of omission, most notably concerning Sabra and Shatila’s “disappeared” (these include several plaintiffs’ family members). That dossier had been forgotten until this complaint was filed. The judicial examination may consider evidence compiled by the commission (mainly statements from Israeli military personnel and agents), supplemented by other materials. These include testimonials appended to the complaint and several dozen neutral witnesses’ depositions submitted to independent commissions of inquiry, including more than sixty hours of video footage of witnesses’ testimony before the Nordic Commission. The examining magistrate may also choose to analyze documents submitted by the plaintiffs in July [2001], including extracts from Israeli cabinet meetings, secret service reports, minutes of meetings and hearings, etc. Although these documents’ authenticity has yet to be verified, it has not been challenged.17 In general, the evidence already submitted by the plaintiffs shows that the information available to the Kahan Commission was fragmentary. Moreover, some evidence was analyzed in a one-sided fashion, for a number of reasons, including the lack of contradictory testimony. 9. Previously unknown documents and other evidence have come to light since the complaint was filed. The Kahan Commission maintained that there were no grounds to believe that Phalangist militias were motivated by vengeance toward the Palestinians because the Palestinians had not been implicated in the assassination of Phalangist leader Bashir Gemayel. However, the plaintiffs submitted an Associated Press dispatch dated September 15 [1982], that is, just before the accused ordered the camps occupied and “cleansed.” Ms. Shifra Stern, a researcher in New York, tracked down this document, which includes the following passage: Defense Minister Ariel Sharon, in a statement, tied the killing to the P.L.O., saying “it symbolizes the terrorist murderousness threatening all people of peace from the hands of the P.L.O. terrorist organizations and their supporters.”18

17

In any case, the publication of excerpts in one British and two Belgian newspapers (November 27, 2001) led to no challenges from Israeli authorities, who no doubt have access to the documents in question, or from the individuals involved.

18

Associated Press dispatch, September 15, 1982, Marcus Eliason, Tel Aviv. In his conclusions, Mr. Sharon condemns the quote according to which he urged the Phalangists “not to cry like women, but to act like men.” Such a comment is easy to account for since it fuelled reprisals by extremist militias against the Palestinian refugee camps. The initial quote reads as follows: “Why cry like women? You should seek revenge, like men.” This quote appears in a document prepared by Dr. Rosemary Sayegh and appended to the complaint of June 18, 2001, Part IV, Analysis and Commentary, Document 2, “The Sabra and Shatila Massacre Re-Examined.” The quote itself appears on p. 2; a footnote refers to an interview (March 3, 2001) with Bashir Gemayel’s closest advisor, Mr. Karim Pakradouni. This document was subsequently published in the magazine Middle East International (London), July 13, 2001, and the quote appears on p. 22. Dr. Sayegh is a noted specialist in contemporary Palestinian history.

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As regards the crime of forced disappearances, it is important to note that in their conclusions, the accused invariably mention the precise timing of the massacres (“Thursday, September 16, at 6 p.m., until Saturday, September 18, at 8 a.m.”). Such attempts at precision are in no way innocent. Instead, they are a clumsy attempt to rule out disappearances stemming from the occupation of the refugee camps. This particular issue was raised in the complaint via the testimony of numerous plaintiffs and was recently taken up by two world-renowned journalists, Julie Flint19 and Robert Fisk.20 Here is an excerpt from one of Mr. Fisk’s articles, published in The Independent (November 28, 2001): The evidence centres on the Camille Chamoun Sports Stadium – the “Cité Sportif.” Only two miles from Beirut airport, the damaged stadium was a natural holding centre for prisoners.… It was a familiar landmark to all of us who lived in Beirut. At mid-morning on 18 September 1982 – about the time Sana Sersawi says she was brought to the stadium – I saw hundreds of Palestinian and Lebanese prisoners, probably well over 1,000, sitting in its gloomy, dark interior, squatting in the dust, watched over by Israeli soldiers and plain-clothes Shin Beth (Israeli secret service) agents and men who I suspected were Lebanese collaborators. The men sat in silence, obviously in fear. From time to time, I noted, a few were taken away. They were put into Israeli army trucks or jeeps or Phalangist vehicles – for further “interrogation”.… A few hundred metres away, inside the Sabra and Chatila Palestinian refugee camps, up to 600 massacre victims rotted in the sun, the stench of decomposition drifting over the prisoners and their captors alike. It was suffocatingly hot. Loren Jenkins of The Washington Post, Paul Eedle of Reuters and I had only got into the cells because the Israelis assumed – given our Western appearance – that we must have been members of Shin Beth. Many of the prisoners had their heads bowed. But Israel’s Phalangist militiamen – still raging at the murder of their leader and president-elect Bashir Gemayel – had been withdrawn from the camps, their slaughter over, and at least the Israeli army was now in charge. So what did these men have to fear? Looking back – and listening to Sana Sersawi today – I shudder now at our innocence. My notes of the time, subsequently written into a book about Israel’s 1982 invasion and its war with the PLO, contain some ominous clues. We found a Lebanese employee of Reuters, Abdullah Mattar, among the prisoners and obtained his release, Paul leading him away with his arm around the man’s shoulders. “They take us away, one by one, for interrogation,” one of the prisoners muttered to me. “They are Haddad [Christian militia] men. Usually they bring the people back after interrogation, but not always. Sometimes the people do not return them.” Then an Israeli officer ordered me to leave. Why couldn’t the prisoners talk to me, I asked? “They can talk if they want,” he replied. “But they have nothing to say.”

19

The Observer, November 25, 2001.

20

The Independent, November 28, 2001.

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All the Israelis knew what had happened inside the camps. The smell of the corpses was now overpowering.… A few television crews had turned up. One filmed the Lebanese Christian militiamen outside the Cité Sportif. He also filmed a woman pleading to an Israeli army colonel called “Yahya” for the release of her husband. (The colonel has now been positively identified by The Independent. Today, he is a general in the Israeli army.) Along the main road opposite the stadium there was a line of Israeli Merkava tanks, their crews sitting on the turrets, smoking, watching the men being led from the stadium in ones or twos, some being set free, others being led away by Shin Beth men or by Lebanese men in drab khaki overalls.… One of the members of the tank crews, Lt. Avi Grabovsky – he was later to testify to the Israeli Kahan Commission – had even witnessed the murder of several civilians the previous day and had been told not to “interfere.” And in the days that followed, strange reports reached us.… There were other vague rumours of “disappeared” people. I wrote in my notes at the time that “even after Chatila, Israel’s ‘terrorist’ enemies were being liquidated in West Beirut.” But I had not directly associated this dark conviction with the Cité Sportif. I had not even reflected on the fearful precedents of a sports stadium in time of war. Hadn’t there been a sports stadium in Santiago a few years before, packed with prisoners after Pinochet’s coup d’état, a stadium from which many prisoners never returned? Among the testimonies gathered by lawyers seeking to indict Ariel Sharon for war crimes is that of Wadha al-Sabeq. On Friday, 17 September 1982, she said, while the massacre was still (unknown to her) underway inside Sabra and Chatila, she was in her home with her family in Bir Hassan, just opposite the camps. “Neighbours came and said the Israelis wanted to stamp our ID cards, so we went downstairs and we saw both Israelis and Lebanese Forces [Phalangists] on the road. The men were separated from the women”…. “We were told to go to the Cité Sportif. The men stayed put.” Among the men were Wadha’s two sons, 19-year-old Mohamed and 16-year-old Ali and her brother Mohamed. “We went to the Cité Sportif, as the Israelis told us,” she says. “I never saw my sons or brother again.” The survivors tell distressingly similar stories.… It was only a few days afterwards that we journalists began to notice a discrepancy in the figures of dead. While up to 600 bodies had been found inside Sabra and Chatila, 1,800 civilians had been reported as “missing.” We assumed … that they had been killed in the three days between 16 September 1982 and the withdrawal of the Phalangist killers on the 18th, that their corpses had been secretly buried outside the camp.… The idea that many of these young people had been murdered outside the camps or after the 18th, that the killings were still going on while we walked through the camps, never occurred to us. Why did we not think of this at the time? The following year, the Israeli Kahan Commission published its report, condemning Sharon but ending its own inquiry of the atrocity on 18 September, with just a one-line hint – unexplained – that several hundred people may have “disappeared” at about the

271


same time.… The idea that the Israelis went on handing over prisoners to their bloodthirsty militia allies never occurred to us. The Palestinians of Sabra and Chatila are now giving evidence that this is exactly what happened.… Even before the slaughter inside the camps had ended, Shahira Abu Rudeina says she was taken to the Cité Sportif where, in one of the underground “holding centres,” she saw a retarded man, watched by Israeli soldiers, burying bodies in a pit. Her evidence might be rejected were it not for the fact that she also expressed her gratitude for an Israeli soldier – inside the Chatila camp, against all the evidence given by the Israelis – who prevented the murder of her daughters by the Phalange. Long after the war, the ruins of the Cité Sportif were torn down and a brand new marble stadium was built in its place, partly by the British. Pavarotti has sung there. But the testimony of what may lie beneath its foundations – and its frightful implications – might give Ariel Sharon further reason to fear an indictment.21 It is clear that, in their conclusions, the accused adjusted the specific “timing” of events at Sabra and Shatila to rule out one of the gravest crimes committed at that time: the forced “disappearances,” which the Kahan Commission covered up. However, numerous testimonials, which we will provide as part of the subsequent judicial examination, offer fresh evidence of cover-ups, including systematic rapes. This shows that we should not rely exclusively on the Kahan Commission’s report; rather, we need a fairer and more complete “narrative” of the truth.

D.

Ariel Sharon’s “Personal Responsibility”

10. In his conclusions, the primary accused disavows any criminal responsibility for his actions.22 Aside from the other charges against him, he appears to ignore the Kahan Commission’s conclusion that he bore personal responsibility for the massacre; this should be viewed as an additional adverse inference. In one of the most important passages of his memoirs, Mr. Sharon writes: Although I was expecting a conclusion of this sort [from the Kahan Commission], I was outraged by the imputation of “indirect responsibility.” The concept had no basis in Israeli law.23 Given that the Kahan Commission was not empowered legally to establish criminal responsibility, Mr. Sharon’s statement may be correct at first glance. Taking it as proof of his innocence, however, is another matter entirely.

21

Robert Fisk, “After 19 Years, the Truth at Last,” The Independent, November 28, 2001.

22

Conclusions/Sharon, pp. 11-14.

23

Ariel Sharon, Warrior, p. 519.

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11. In his statement of facts, the accused writes: “To make a long story short, the commission’s findings do not mention the slightest indication of any criminal infractions of human rights, whether in Israeli, European, or, in particular, Belgian law.”24 He goes on to claim that there were no infractions of international criminal law either. In fact, such statements are quite reckless.25 The responsibility of the commanding or superior officer – the legal equivalent of the “indirect responsibility” retained by the Kahan Commission – is a well-established doctrine in international law. Dating back to the first half of the 20th century, this doctrine became a solid legal instrument used to prosecute the most serious offenses against international humanitarian law in the aftermath of the Second World War. Moreover, Israeli courts and commissions of enquiry applied this same doctrine prior to 1982.

D.1.

The Doctrine of Superior Responsibility Was an Integral Part of Customary International Law Long before the Sabra and Shatila Massacres in 1982.

12. Although the doctrine of superior responsibility was not formally codified until the adoption in 1977 of Protocol I additional to the Geneva Conventions of 12 August 1949,26 international law has consistently recognized and applied this doctrine to those whose acts, or omissions, lead to serious violations of international law. Article 19 of the [Tenth] Hague Convention of 1907 assigns to superior officers the responsibilities and obligations relating to the conduct of their subordinates: The commanders-in-chief of the belligerent fleets must see that the above Articles are properly carried out; they will have also to see to cases not covered thereby, in accordance with the instructions of their respective Governments and in conformity with the general principles of the present Convention.27 As early as 1917, the German Supreme Court held that German officers bore responsibility for atrocities committed during the First World War, in accordance with the doctrinal principles set out in the Hague Conventions.28 Since the Second World War, many countries have codified and/or applied even stricter versions of this doctrine.

24

Conclusions/Sharon, p. 11 (unofficial translation from the French).

25

The following study is based in part on work by a team from Yale University’s Human Rights Clinic (Dr. Deena Hurwitz, director), which appears in the appendix. Written in English and appended to the complaint, the study examines the retroactivity and responsibility of superior officers (or commanders).

26

Articles 86 and 87, Protocol I additional to the Geneva Conventions of 1949 (1977).

27

Article 19, [Tenth] Hague Convention, 1907.

28

See Ilias Bantekas, “The Contemporary Law of Superior Responsibility,” American Journal of International Law, July 1999, vol. 93, no. 3, pp. 573-74.

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Following the Second World War, China, Luxemburg and France were among those countries that adopted laws governing the responsibility of superior officers.29 In 1946, the U.S. Supreme Court referred to the doctrine of superior responsibility when it upheld an American military tribunal’s decision. The court also confirmed that such responsibility also stemmed from a failure to take action, as established in international law: [The] law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who to some extent are responsible for their subordinates…. [The commanding officer was under] an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized, by our own military tribunals.30 In addition, the U.S. Department of Army Field Manual (1956) stated that commanding officers should be held responsible for acts or omissions: The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.31 In the Abbaye Ardenne case, also known as “The Trial of S.S. Brigadeführer Kurt Meyer,” a Canadian military court found as follows: Where the evidence that more than one war crime has been committed by members of a formation, unit, body, or group while under the command of a single commander, the court may receive that evidence as prima facie evidence of the responsibility of the commander for those crimes. Where there is evidence that a war crime has been committed by members of a formation, unit, body or group and that an officer or non-commissioned officer was present at or immediately before the time when such a crime was committed, the court may receive that evidence as prima facie evidence of the responsibility of such officer or non-commissioned officer, and of the commander of such formation, unit, body, or group, for that crime.32

29

Yamashita, United Nations War Crimes Commission, 4 Law Reports of Trials of War Criminals, 1, pp. 87-88 (1945).

30

In re Yamashita 327 U.S. 1, pp. 15-16 (1946).

31

U.S. Department of Army Field Manual, no. 27-10, “Responsibility for Acts of Subordinates in the Law of Land Warfare,” 501, 507(b) (1956).

32

War Crimes Regulations (Canada), P.C. 5831, August 30, 1945, Abbaye Ardenne (also known as “The Trial of S.S. Brigadeführer Kurt Meyer”).

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In addition, a number of military tribunals and national jurisdictions recognized and applied the same doctrine following the Second World War. The authors of the charters of the international military tribunals in Nuremberg and Tokyo applied the principle of superior responsibility. Both tribunals recognized and applied this doctrine.33 In the trial known as the Hostage case, the Nuremberg tribunal found as follows: [If a commander] fails to require and obtain complete information, the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a defence…. Want of knowledge of reports made to him is not a defence. Reports to commanding generals are made for their special benefit. Any failure to acquaint themselves with the contents of such reports, or a failure to require additional reports where inadequacy appears on their face, constitutes a dereliction of duty which he cannot use in his own behalf.34 In the Toyoda case, the Tokyo tribunal reached this conclusion: In the simplest language it may be said that this Tribunal believes that the principle of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would countenance such, and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished.35

33

See, in general, Ilias Bantekas, supra note 28.

34

United States v. List, 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 308 (1952). See also United States v. Von Leeb, 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 at 1, 462 (1950); United States v. von Weizsaecker, 14 Trials 308 (1952); and Government Commissioner of the General Tribunal of the Military Government for the French Zone of Occupation in Germany v. Roechling, Judgment on Appeal to the Superior Military Government Court of the French Occupation Zone in Germany, 14 Trials 1097 (convicting “superiors” for having permitted slave labor and ill-treatment and for not exercising due diligence to end and/or prevent the abuses).

35

United States v. Soemu Toyoda, Official Transcript of Record of Trial, p. 5006, quoted in The Prosecutor v. Zejnil Delalic, ICTY 96-21-A (1998). In greater detail, the tribunal declared the essential elements of command responsibility to be: “1) … that atrocities were actually committed. 2) Notice of the commission thereof. This notice may be either: (a) Actual, as in the case of an accused who sees their commission or who is informed thereof shortly thereafter; or (b) Constructive. That is, the commission of such a great number of offences within his command that a reasonable man could come to no other conclusion than that the accused must have known of the offences or of the existence of an understood and acknowledged routine for their commission. 3) Power of command. That is, the accused must be proved to have actual authority over the offenders to issue orders to them not to commit illegal acts, and to punish offenders. 4) Failure to take such appropriate measures as are within his power to control the troops under his command and to prevent acts which are violations to the laws of war; 5) Failure to punish offenders” (pp. 5005-06).

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13. The international community has clearly embraced the doctrine of superior responsibility while assigning individual responsibility to superior officers whose acts and omissions result in serious violations of international law. In this way, modern legal commentators have ensured that commanding officers will be held responsible for their acts and omissions if they knew or should have known that such acts were illegal. This has been a doctrine of customary international law since the end of the Second World War.36 This doctrine was codified in Articles 86 and 87 of Protocol I additional to the Geneva Conventions of 12 August 1949 (1977). Article 86(2) reads as follows: The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.37 Israel is not a party to Protocol I. Nevertheless, the authors of the protocol viewed its provisions as reflecting existing norms of customary international law, not as creating or aspiring to new laws.38

D.2.

Israeli Courts Recognized and Applied the Doctrine of Superior Responsibility Prior to 1982

14. Because Israeli courts recognized and applied the doctrine of superior responsibility prior to 1982, Israeli commanders in Lebanon should have known that they could be charged with serious violations of the laws of warfare. As a frequently cited example, Israel’s Supreme Court held Nazi military commander Adolf Eichmann responsible for his own acts and omissions, in addition to those of his subordinates.39 In a lesser-known decision from 1959, the Israeli Military Court of Appeal found an Israeli commanding officer criminally responsible for massacres committed in the village of Kafr Qassem [in 1956]. Major Shmuel Melinki was found guilty of ordering his troops to fire on civilians who had [inadvertently] violated an Israeli-imposed

36

See Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, p. 390 n. 67.

37

Protocol I additional to the Geneva Conventions of 12 August 1949 (1977), Article 86(2).

38

See Ilias Bantekas, The Contemporary Law of Superior Responsibility, supra note 28, p. 574.

39

Attorney General of the Government of Israel v. Eichmann, Criminal Case no. 40/61 (December 11, 1961), reprinted in American Journal of International Law, vol. 56, pp. 805, 822 (official translation).

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curfew on their village (43 civilians were killed), and of failing to prevent his subordinates from carrying out his order when he knew, or should have known, that his order would be carried out.40 The reasons adduced by the court stated as follows: Although [Major Melinki] was not present [when the] squad committed the murders… his omission to act to stop the killings is the same as being accessory to the offence…. This is a sufficient ground to convict [the defendant] as an accomplice… besides his responsibility for procuring the offence.41 Both decisions clearly prove that Israeli courts recognized and applied the doctrine of superior responsibility long before 1982. These decisions were consistent with the findings of several national and international courts in other countries. 15. The logic of criminal responsibility colored the Kahan Commission’s conclusions concerning the indirect responsibility of Israeli officials, including Messrs. Sharon and Yaron, as well as other participants yet to be determined by the judicial examination. Moreover, the commission emphasized the personal responsibility of the primary accused: If it indeed becomes clear that those who decided on the entry of the Phalangists into the camps should have foreseen – from the information at their disposal and from things which were common knowledge – that there was danger of a massacre, and no steps were taken which might have prevented this danger or at least greatly reduced the possibility that deeds of this type might be done, then those who made the decisions and those who implemented them are indirectly responsible for what ultimately occurred, even if they did not intend this to happen and merely disregarded the anticipated danger.42 It would be hard to be any clearer. In conclusion, we note that immediately following the above-quoted passage, the commission stated that “[it] is not our function as a commission of inquiry to lay a precise legal foundation for such indirect responsibility.” This offers additional proof, if any were required, that the commission was not a tribunal. We also note that Mr. Sharon cannot claim that there were defects or faults in the chain of command since he himself admits that he “gave the order for the Phalangist forces to withdraw.”43

40

Leslie C. Green, War Crimes, Crimes Against Humanity, and Command Responsibility, available at . More detailed analysis and information on the Kafr Qassem massacre is available in Melinki v. Chief Military Prosecutor, published and translated in “Kafr Qassem: A Civilian Massacre,” Palestine Yearbook of International Law, 1985, vol. 2, p. 69.

41

English text as quoted in original French version of Conclusion to Pre-Trial Hearings.

42

Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut (The Kahan Commission), February 8, 1983, p. 36.

43

Conclusions/Sharon, p. 7.

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6. BRUSSELS COURT OF CASSATION DECISION ON APPEALS FROM A 26 JUNE 2002 RULING BY THE BRUSSELS COURT OF APPEALS, CHAMBRE DES MISES EN ACCUSATION (February 12, 2003)*

No. P.02.1139.F/1

I. 1. H. S. A.,

13. F. M. I

2. A. A. e. N.

14. R. M. C. A.

3. E. S. O. H.

15. E. S. F. A. Q

4. Y. M.

16. A.-M. A. A.

5. E. D. F. A.

17. H. A.

6. M. A. H.

18. E.-K. N. A.

7. S. S. M.

19. A.-K. N. A.-e.-R.

8. N. N. Y. S.

20. F. A. S.

9. H. M. A.

21. E.-K. A. A.

10. T. C. A.-e.-G.

22. A.-J. N. A.-R.

11. H. A. A.

23. H. K.

12. Z. B. civil parties, having for counsel Maîtres Luc Walleyn, whose office is located in Schaerbeek, rue des Palais, 154, which serves as the registered address of choice, and Michaël Verhaeghe, attorneys admitted to the Brussels Bar, as well as Chibli Mallat, attorney in Beirut (Lebanon), applicants on appeal,

*

The original decision issued by the Second Chamber of the Court of Cassation in Brussels on February 12, 2003 was written in French. This English translation is available on the web site of the International Campaign for Justice for the Victims of Sabra and Shatila at: . It it reproduced here by permission, with only minor stylistic changes.


BRUSSELS COURT OF CASSATION DECISION ON APPEALS FROM A 26 JUNE 2002

AGAINST: 1.

S. A.

2.

Y. A.

persons against whom the public action is engaged, represented by Maître Philippe Gérard, attorney at the Court of Cassation and having for counsel Maître Adrien Masset, attorney admitted to the Verviers Bar, whose office is located in Herve, rue Bê Pâki, 16, which serves as the registered address of choice,

II S. E.-M. S. civil party, applicant on appeal, having for council Maîtres Alexandre Sachem and Michaël Verstraeten, attorneys admitted to the Gand Bar, AGAINST: 1.

S. A.

2.

Y. A.

persons against whom the public action is engaged, represented by Maître Philippe Gérard, attorney at the Court of Cassation and having for council Maître Adrien Masset, attorney admitted to the Verviers Bar, whose office is located in Herve, rue Bê Pâki, 16, which serves as the registered address of choice.

I.

The Contested Decision

The appeals are directed against a ruling delivered June 26th, 2002, by the Court of Appeals in Brussels, Chambre des Mises en Accusation.

II.

Proceedings before the Court

Judge Jean de Codt reported. Public Prosecutor Jean du Jardin gave his conclusions. Attorneys Luc Walleyn, Michaël Verhaeghe, Chibli Mallat and Raf Verstraeten, on behalf of Plaintiffs sub I, responded to the conclusions of the prosecuting magistrate and provided one document.

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III.

Grounds for Appeal

Plaintiffs sub I claim three bases for appeal (cassation). Their submission is attached to the present ruling, certified by the Court. Plaintiff sub II invokes one ground for appeal in her certified submission attached to the present ruling.

IV.

Decision of the Court

A. Regarding appeals to the decision related to the criminal action against defendant A. Y. and others unknown: On the first basis of appeal, and on the third part of the second basis of appeal asserted by applicants sub I, and the similar basis of appeal alleged by applicant sub II: Whereas the statute of June 16, 1993 relating to the repression of grave violations of international humanitarian law, amended by the statute of February 10, 1999, describes crimes of international law and officially recognizes as such acts of genocide, as defined in the International Convention on the Prevention and Repression of the Crime of Genocide, adopted in Paris on December 9, 1948 and ratified by the statute of June 26, 1951, crimes against humanity as defined in the Rome Statute of the International Criminal Court, adopted in Rome on July 17, 1998, ratified by the law of May 25, 2000, and war crimes as defined by the Four Geneva Conventions of 12 August 1949, ratified by the law of September 3, 1952, as well as by the Additional Protocols I and II to those Conventions, adopted in Geneva on June 8, 1977 and ratified by the law of April 16, 1986; Whereas Article 7, paragraph 1, of the aforementioned statute of June 16, 1993 states that Belgian Courts enjoy jurisdiction to prosecute these crimes, regardless of where they were committed; Whereas the contested ruling holds that the condition of admissibility of a criminal action as provided for in Article 12 of the law of April 17, 1878 enforcing the Preliminary Title of the Code of Criminal Procedure applies to the prosecution in Belgium of crimes under international law committed outside its territory; But, whereas, Article 12, paragraph 1 (previously cited), only requires the presence of the accused on Belgian territory for the prosecution of the crimes codified in Articles 6, 3º, 7, §§1er and 2, 9, 10, 3º through 5º, 10 ter, 10 quater, 11 and 12bis of the law of April 17, 1878; Whereas acts of genocide, crimes against humanity and grave violations committed against persons or property protected under the August 12, 1949 Geneva Conventions are neither offenses, envisaged by the Penal Code or by certain specific laws, enumerated in the aforementioned Chapter II of the Preliminary Title of the Code of Criminal Procedure, nor offenses for which this Chapter requires punishment as provided for by the laws of the state in which the act was committed, nor are they crimes and offenses for which the statute makes the admissibility of a criminal action dependent upon the existence of a complaint, a denunciation, or a condition precedent of nationality;

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Whereas, admittedly, pursuant to Article 12bis of the April 17, 1878 law, amended by the law of July 18, 2001 – a clause which must be read in combination with the preceding clause – Belgian courts may also claim jurisdiction to try crimes committed outside the territory of the Kingdom, which are the subject of international conventions to which Belgium is a party, if the convention imposes the duty on Belgium, in whatever way, to prosecute these crimes; Whereas, it follows from the text of Article 12bis itself, previously cited, that jurisdiction conferred on Belgian tribunals concerns the crimes codified in every treaty ratified by Belgium that contains an obligatory rule that extends jurisdiction by derogating from the principle of territoriality in criminal law; Whereas, neither Articles V and VI of the Convention on the Prevention and Repression of Genocide, nor the Rome Statute, nor Articles 49, 50, 129 and 146 of the four Geneva Conventions of 12 August 1949 include such a rule; That crimes under international law, targeted by the June 16, 1993 statute amended February 10, 1999, are irrelevant to Chapter II of the Preliminary Title of the Code of Penal Procedure and so do not constitute crimes for which prosecution requires the presence of the accused in Belgium if the acts in question were committed outside Belgian territory; That, having held the opposite, the contested ruling is not legally supported; Accordingly, the first basis for the appeal and the third part of the second basis for appeal alleged by the applicants sub I and the similar grounds asserted by the applicant sub II are well-founded; B. Regarding appeals to the decision related to the criminal action against the defendant A. S.: On all the bases of appeal invoked by each applicant: Whereas, for reasons discussed below, the Chamber of Indictment did not legally justify its decision; Whereas, however, the Court can replace a criticized rationale, and upon which the contested ruling was based, by another legal basis that justifies the holding; Whereas, the findings of the ruling show that the plaintiffs initiated the action on the counts of genocide, crimes against humanity and war crimes in particular against the defendant, while at the time this criminal action was initiated the defendant was the prime minister of a foreign state, a role he still held when the contested ruling was delivered; Whereas international custom bars acting heads of state and government – absent contrary international provisions binding the relevant states – from becoming the object of proceedings before criminal tribunals in foreign states;

282


Whereas, admittedly, Article IV of the Convention on the Prevention and Repression of the Crime of Genocide stipulates that persons who have committed acts criminalized in the Convention shall be punished irrespective of their official capacity; That, however, Article VI of the same Convention only provides for prosecution of these persons before appropriate tribunals in the state on whose territory the act was committed or before the International Criminal Court; That, taken together, these two clauses assert that jurisdictional immunity is excluded in the case of proceedings before tribunals enumerated in Article VI, previously cited, but that immunity is not excluded if the accused is brought before the courts of a third state claiming jurisdiction not provided for by conventional international law; Whereas, elsewhere, Article 27(2) of the Rome Statute of the International Criminal Court stipulates that immunities which might attach to the official capacity of a person, pursuant to either domestic or international law, do not raise a jurisdictional barrier to the aforementioned court for such a person; That this clause does not threaten the principle of customary international criminal law relating to jurisdictional immunity when the protected person is prosecuted, as in this case, before national courts of a state which asserts universal jurisdiction in absentia; Whereas, finally, the Geneva Conventions of August 12, 1949 and Additional Protocols I and II to these Conventions contain no provisions that would pose an obstacle to the jurisdictional immunity the defendant can invoke before the Belgian courts; Whereas, without doubt, in pursuance of Article 5, §3 of the statute of June 16, 1993, relating to the suppression of grave violations of international humanitarian law, immunity attaching to a person’s official status does not prevent application of the aforementioned statute; Whereas, however, if this provision of Belgian domestic law were interpreted as setting aside the immunity principle of customary international criminal law, this provision would contravene the aforementioned principle; that the aforementioned rule cannot therefore be considered to have such a meaning, but instead must be understood as only excluding the official capacity of a person as a basis for penal nonaccountability for the crimes enumerated in this statute; Whereas the ruling holds that these proceedings are not admissible; That, based on the grounds given by the Court – which replace the ones the applicants contest – the criminal action for the counts of genocide, crimes against humanity and war crimes is indeed inadmissible with regards to the defendant; That even well founded, the bases for appeal could not justify cassation and are thus not admissible as without benefit.

283


FOR THESE REASONS, THE COURT Overturns the appealed ruling insofar as it held inadmissible the criminal action against A. Y. and others unknown; Rejects the other motions, Orders that mention of the present ruling be made alongside the partially overturned ruling; Fines the defendant A. Y. half of the Court’s fees for the appeal; Fines each of the plaintiffs 1/48 of the fees mentioned above; Remands the case, as limited, to the Court of Appeals in Brussels, Chamber of Indictment, comprised of different judges from those who previously heard the case. [...] [paragraph on the exact sums to be paid by relevant parties] This appeal was decided by the Second Chamber of the Court of Cassation in Brussels, by Justices Marc Lahousse, President, Francis Fischer, Jean de Codt, Frédéric Close and Paul Mathieu, judges, and pronounced in a public hearing on February 12, 2003 by the President Marc Lahousse, in the presence of Jean du Jardin, General Prosecutor and Fabienne Gobert, registrar of the Court.

284

7. JUDGMENT OF THE BRUSSELS COURT OF APPEALS, CHAMBRE DES MISES EN ACCUSATION (June 10, 2003)*

In light of the evidence brought forward in the case involving: 1) Mr. Amos YARON, whose official residence has been established in the offices of the Ministry of Defense, Legal Office, Ha-Kiriya, Kaplan Street, Tel Aviv, 61909, Israel; This person, against whom this case was brought, is neither present nor represented; 2) and X… (one or more unknown persons to be identified); FOR: – crimes under international law punishable by the Law of 16 June 1993 concerning the punishment of grave breaches of the Geneva Conventions of 12 August 1949 and of the additional Protocols I and II thereto of 8 June 1977; – crimes against humanity; – acts of genocide; AND: 1) Ms. Samiha Abbas Hijazi, Lebanese nationality, residing at Beirut, Al Horch, near the Austrian school; 2) Mr. Abd el Nasser Alameh, Lebanese nationality, residing at Beirut, Sabra, El Dik Lane; 3) Ms. Ouadha Hassan el-Sabeq, Palestinian nationality, residing at Beirut, Bir Hassan; 4) Mr. Mahmoud Younes, Palestinian nationality, residing at Beirut, Shatila refugee camp; 5) Ms. Fadi Ali El Doukhi, Palestinian nationality, residing at Saida, Miyeh Miyeh refugee camp; 6) Ms. Amina Hasan Mohsen, Palestinian nationality, residing at Saida, El-Hamtari Road, Hiba complex;

*

Original decision issued in French. Translation into English for the Yearbook.


JUDGMENT OF THE BRUSSELS COURT OF APPEALS

7)

Ms. Sana Mahmoud Sersaoui, Palestinian nationality, residing at Beirut, Sabra, Ali el Bacha, Houssi building;

8)

Ms. Nadima Youssef Said Naser, Palestinian nationality, residing at Beirut, Sabra, Gaza building, no. 1;

9)

Ms. Mouna Ali Hussein, Palestinian nationality, residing at Beirut, Sabra, Ghazza building, no. 1;

10) Ms. Chaker Abd-el-Ghani Tatat, Palestinian nationality, residing at Beirut, Sabra, AlBacha district; 11) Mr. Akram Ahmad Hussein, Palestinian nationality, residing at Beirut, Shatila refugee camp; 12) Ms. Bahija Zrein, Palestinian nationality, residing at Beirut, Sabra, El-Dik Lane; 13) Mr. Muhammad Ibrahim Faqih, Lebanese nationality, residing at Beirut, Bir Hasan; 14) Mr. Mohammed Chawkat Abou Roudeina, Palestinian nationality, residing at Beirut, Shatila refugee camp; 15) Mr. Fady Abdel Qader El Sakka, Palestinian nationality, residing at Beirut, Shatila refugee camp; 16) Mr. Adnan Ali al-Mekdad, Lebanese nationality, residing at Shatila, El Rihab station; 17) Ms. Amale Hussein, Palestinian nationality, residing at Beirut, Shatila refugee camp; 18) Ms. Noufa Ahmad el-Khatib, Lebanese nationality, residing at Beirut, Bir Hassan; 19) Mr. Najib Abd-el-Rahman Al-Khatib, Palestinian nationality, residing at Beirut, Shatila refugee camp; 20) Mr. Ali Salim Fayad, Lebanese nationality, residing at Beirut/al-Horch, southern entrance to Sabra; 21) Mr. Ahmad Ali el-Khatib, Lebanese nationality, residing at Beirut, Bir Hassan district; 22) Ms. Nazek Abdel-Rahman al-Jammal, Lebanese nationality, residing at Beirut, Sabra, El-Dik Lane; 23) Mr. Khalil Hammo, Palestinian nationality, currently residing at 2590 Berlaar, Markt 76/B 2; plaintiffs claiming damages, represented by their attorneys: Luc Walleyn, Esq., 1030 Brussels, rue des Palais 154, and Michael Verhaeghe, Esq., 3090 Overijse, Waversesteenweg 60, both of whom elect domicile at the aforementioned offices of Mr. Walleyn, Esq.;

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24) Ms. Souad Srour el-Meri, Palestinian nationality, residing at Beirut, el-Horch region, Shatila, and currently residing at 2100 Deurne, Herentalsebaan, 440; plaintiff, not appearing in person; In light of the judgment of 6 May 2003 and the evidence referred to therein. **** Whereas the crimes under international law contemplated by the Law of 16 June 1993 are extraneous to the provisions set forth in Chapter II of the Preliminary Title of the Code of Criminal Procedure, said crimes do not constitute offenses, even though committed outside of Belgian territory, whose prosecution would require the accused to have been present in Belgium (Court of Cassation, 12 February 2003). Notwithstanding the preceding, the new Article 7, Paragraph 1 of the Law of 16 June 1993, as modified by the Law of 23 April 2003 (Moniteur Belge, 7 May 2003), clearly states that “subject to the disclaiming of jurisdiction in one of the cases provided for in the following paragraphs, Belgian courts shall have jurisdiction to recognize the offenses provided for in the present Act, irrespective of where such offenses were committed and even if the alleged offender is not present in Belgium”; Whereas Belgium’s Court of Cassation stated in its judgment of 12 February 2003 that the Court may replace a criticized rationale, and upon which the contested ruling was based, with another legal basis that justifies the decision, as the Court did by finding in favor of Ariel Sharon that his immunity stemmed from his capacity as prime minister of a foreign state. Consequently, by not accepting any other legal basis to justify the contested judgment, the Court implicitly but definitively rejected all other arguments in favor of inadmissibility, whether raised by the parties or not; Whereas the new Article 7 of the Law of 16 June 1993 has thus far had no bearing on the present proceedings; in fact, the new Article 7, §1, subparagraph 2 cannot apply to the legal complaint because the prosecution was brought at the request of the competent crown prosecutor prior to the effective date of said Article and because the matter was properly before the investigating magistrate (cf. Article 3 of the Judicial Code); furthermore, the Minister of Justice has thus far taken no steps with a view to disclaiming Belgian jurisdiction over the case, pursuant to the new Article 7, §§2, 3 and 4 of the Law of 16 June 1993; And in light of the following: – Article 136(b), subparagraph 2 and Article 235(b) of the Code of Criminal Investigation; – Articles 11, 12, 13, 16, 24, 31 to 37 and 41 of the Law of 15 June 1935;

287

JUDGMENT OF THE BRUSSELS COURT OF APPEALS

FOR THESE REASONS THE COURT CHAMBRE DES MISES EN ACCUSATION, Ruling in the absence of the persons against whom the case was brought and of plaintiff #24, and after due hearing of all other parties; Notes that, in the present state of the proceedings, there is no cause for nullity, inadmissibility or extinguishment of the case brought against Amos YARON and other parties unknown; Reserves costs. Proceedings were held in camera; Exclusive use was made of the French language. Done in Brussels, 10 June 2003 Mr. van der Eecken

President

Mr. Van der Steen

Counselor

Mr. de Clippel

Deputy Counselor

Mr. Houben

Clerk of the Court

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8. STATEMENT BY THE LAWYERS FOR THE SABRA AND SHATILA SURVIVORS CONCERNING [THE 24 SEPTEMBER 2003 ] RULING BY THE BELGIUM SUPREME COURT (24 September 2003)1

Today, 24 September 2003, the Belgian Cour de Cassation (Belgium’s Supreme Court) ordered the cessation of all cases filed concerning the massacre perpetrated in September 1982 in the Sabra and Shatila refugee camps in Beirut. Although the same court had previously confirmed, with its decision of 12 February 2003, the legality of pursuing this case in Belgium, and despite the fact that the Brussels Appeals Court followed up with its 10 May 2003 decision to pursue justice in this case, today’s decision came as a result of a recent legislative modification to Belgium’s Universal Jurisdiction law. The new law has effectively suppressed Belgium’s universal jurisdiction law under considerable pressure from the government of the United States of America. For the Palestinian and Lebanese survivors of Sabra and Shatila, who have struggled for 21 years against impunity for this crime against humanity, this Belgian reversal is a cruel deception. Although the Belgian State had clearly offered up its courts for the prosecution of crimes against international humanitarian law in order to combat impunity, it has not respected its commitments, particularly to the victims of these crimes. With their lawyers, the survivors will examine possibilities for recourse at the national and international levels to oppose today’s decision, just as they will also study the outcome of other judicial initiatives. On behalf of our clients, we would like to thank all those who have supported our fight for justice. The case in Belgium prompted several people to come forward as witnesses. Also, documents that were previously unknown were delivered and revealed. Thus, from a historical perspective alone, these are some of the important achievements of this case. Today’s decision by Belgium’s Cour de Cassation does not put an end to the victims’ legal fight. The persistent problem of the impunity of those guilty of what the United Nations defined as genocide is more than ever on the agenda of the international community. Bruxelles-Beyrouth 24 September 2003 Chibli Mallat Michael Verhaeghe Luc Walleyn 1

This press release was distributed by the International Campaign for Justice for the Victims of Sabra and Shatila. It is available from the campaign’s web site at .

The Palestine Yearbook of International Law, Vol. XII, 2002/2003, pp. 289. © 2005 Koninklijke Brill NV.

LAW REPORTS JUDICIAL DECISIONS

I. Israeli Cases 1. The Katzir Case (March 8, 2000)* The Supreme Court of Israel sitting as the High Court of Justice HCJ 6698/95 Before: The Honorable Chief Justice A. Barak The Honorable Justice T. Or The Honorable Justice M. Cheshin The Honorable Justice Y. Kedmi The Honorable Justice I. Zamir Petitioners: 1. Adel Kaadan 2. Iman Kaadan v. Respondents: 1. The Israel Lands Administration 2. The Ministry of Construction and Housing 3. The Local Council Tal-Eron 4. The Jewish Agency for Israel 5. Katzir Cooperative Society for Communal Settlement in Samaria Ltd. 6. Israel Farmers’ Association

*

Translation into English for the Yearbook.


THE KATZIR CASE

Objection to Order Nisi Dates of sessions: Tishrei 30, 5757 (October 13, 1996); Adar II 10, 5757 (March 19, 1997); Shvat 21, 5758 (February 17, 1998) Adv. Neta Ziv; Adv. Dan Yakir

for the Petitioners

Adv. Uzi Fogelman

for the First and Second Respondents

Adv. Ilan Porat

for the Third Respondent

Adv. Amnon Goldenberg

for the Fourth Respondent

Adv. Gad Schtillman

for the Fifth and Sixth Respondents

Judgment Chief Justice A. Barak: The state of Israel allocated land to the Jewish Agency for Israel. The Agency founded a rural communal settlement on the land. This was performed through a cooperative society. According to its objectives, the Jewish Agency engages in the settlement of Jews in the state of Israel. The cooperative society, on its part, accepts in practice only Jews as members. The result is that in this state of affairs, an Arab cannot build his home on state land that is allocated to the Agency. Under these conditions – and considering the circumstances of the case – is the decision of the state to allocate land to the Agency illegal, due to the wrongful discrimination of Arabs? This is the question with which we are faced in this petition. The Facts 1. The state of Israel owns land in the Eron River area. On one part thereof, it is building a large urban settlement by the name of Harish. On the other part, which is located some distance away from Harish, two adjacent hills constituting together the settlement Katzir, have been settled. On one of the hills, known as the “Central Hill,” the state (the Ministry of Construction and Housing, the Second Respondent), has built a residential neighborhood. The state constructed the residential units. It is allocating them to the general public according to the usual rules of the Ministry of Construction and Housing. Both Jews and Arabs are entitled to buy residential units in this neighborhood. The area of the second hill (known as the “Western Hill”) was allocated by the state of Israel (the Israel Lands Administration, the First Respondent, hereinafter the “ILA”), within the framework of a development “authorization agreement” – to the Jewish Agency for Israel, the Fourth Respondent (hereinafter the “Jewish Agency”). The agreement, entered into in 1986, is for seven years. It is extended from time to time. The last agreement (of September 1, 1993) is until the year 2000. 2. The Jewish Agency decided to found a rural communal settlement on the land it received from the state (on the Western Hill). It founded (in 1982) the communal settlement Katzir (hereinafter the “Communal Settlement”). The Jewish Agency made considerable investments at the place in infrastructure and buildings. Katzir is a coop292


erative society for communal settlement (the Fifth Respondent, hereinafter “Katzir Cooperative Society”). It was incorporated (in 1981) with the assistance of the Israel Farmers’ Association (namely the Sixth Respondent). The objectives of Katzir Cooperative Society are, inter alia, to found, maintain and manage a rural communal settlement based on the organization of its members as a community whose members practice collaboration. The Cooperative Society numbers more than 250 families. They built their homes in Katzir, while maintaining a way of life within a communal and cooperative framework, as provided in the regulations of the society. These regulations determine, inter alia, that the society shall accept as a member only a person who, inter alia, “completed (the) [sic] mandatory service pursuant to the Military Service Law, 5719-1959 [Consolidated Version] or was released from mandatory service pursuant to the said law or whose military service had been deferred pursuant to the said law” (Chapter C, Section 6(e) of the regulations, as amended on February 8, 1982). In practice, no Arabs are accepted as members of the Cooperative Society. 3. From the municipal perspective, the Communal Settlement Katzir is managed by a local board. It is located within the jurisdiction of the local council Tal-Eron (the Third Respondent). The latter’s jurisdiction covers also the urban settlement Harish. 4. The Petitioners are a couple who have two daughters. They are Arabs currently residing in an Arab settlement. They have sought – as they still do – to live in a place with a different quality of life and standard of living than that which they currently have. The Petitioner turned (in April 1995) to the Katzir Cooperative Society. He wished to explore the possibilities available to him to buy a house or a plot in the communal settlement Katzir. He claims to have been told right there and then that he would not be accepted to the Communal Settlement due to his being an Arab, since the lands of the Communal Settlement were designated for Jews only. In view of the aforesaid, the Association for Civil Rights in Israel turned (on July 4, 1995), on behalf of the Petitioners, to the local council Tal Eron with a grievance on the response given to the Petitioners. The council replied (on July 16, 1995) that the procedures for acceptance to the Communal Settlement were controlled by the Cooperative Society, and that the Petitioners could buy a residential unit in the urban settlement Harish. The Association for Civil Rights in Israel complained of this to the Minister of Construction and Housing and to the Director of the ILA. Its letters were not answered by the date of filing of the petition. 5. When the petition was filed, an order nisi was issued therein (on October 30, 1995). The Respondents were asked to give reasons: “1. Why they (the ILA, the Ministry of Construction and Housing and the local council – A.B.) or any one of them would not offer the public plots for private building in the settlement Katzir, either by way of a tender or in another manner preserving the equality of opportunities among the persons seeking to settle in the settlement; and 2. Why they would not change their policy or decision whereby plots for private building in the settlement Katzir were allocated only after receipt of approval from (the Jewish Agency and the Katzir Cooperative Society – A.B.) for the acceptance of a candidate for residence in the settlement as a member (of the Cooperative Society – A.B.), and why they would not take all the measures called for by such a change; and

293

THE KATZIR CASE

3. Why they would not allow the Petitioners to buy a plot for private building in the settlement Katzir, on which they could build a house for themselves and for their children, directly from (the ILA, the Ministry of Construction and Housing or the local council – A.B.) or from any one of them.” The petition was heard (on October 13, 1996) before a panel of three judges (Justices Goldberg, Kedmi and Zamir). This panel decided that in view of the questions presented by the petition, the panel hearing the same should be expanded. We held (on March 19, 1997) an oral hearing, and asked for the parties’ arguments by way of written summations. Upon conclusion of the round of summations (on February 17, 1998), I recommended to the parties that they make an effort to find a practical solution for the Petitioners’ problem. I stated that such a solution could be found within the framework of the urban settlement Harish or the Communal Settlement Katzir, with the Petitioners presenting their candidacy to the Cooperative Society. Adv. Bar Sela was appointed as conciliator. His efforts have failed. The Petitioners notified us (on December 17, 1998) thereof, and asked that a judgment be given in their petition. The Petitioners’ Arguments 6. The Petitioners’ main argument is directed against the policy under which settlements which are designated solely for Jews are established. They claim that the establishment of such settlements, as well as the allocation of land on the basis of nationality or religion (either directly or by way of allocation to entities which base their activity on such criteria), is inconsistent with the principle of equality and therefore cannot stand. The majority of the Petitioners’ arguments on this matter are aimed at the ILA. They claim that the ILA is breaching its commitment to act as trustee for all of the state’s citizens and residents and to treat them with equality, by allocating state land to entities (such as the Jewish Agency, the Farmers’ Association and the Katzir Cooperative Society) which make discriminatory and inegalitarian use of the land. 7. The Petitioners do not ignore the Jewish element in the identity of the state of Israel, nor the settlement history of Israel. Their petition is forward-looking. According to them, the Jewish element in the identity of the state carries decisive weight only in matters which go to the root of the Jewish nature of the state – such as the Law of Return, 5710-1950. Nor do the Petitioners entirely deny the right of a closed community to determine unique conditions for joining its ranks – provided, however, that the community is indeed unique, with distinct characteristics and a high level of solidarity and cooperation among its members. These characteristics are not, according to the Petitioners, present in the Communal Settlement Katzir. The Respondents’ Arguments 8. The Respondents have two preliminary arguments. They assert considerable laches, since the land occupied by the Communal Settlement was allocated to the Jewish Agency many years ago, and the Respondents have since made considerable investments in development and infrastructures. The Respondents further claim that the modification of the situation currently sought by the Petitioners would also deal a severe blow to the autonomy and interfere with the social fabric of the settlement that was chosen by the members of the society. 294


On this matter, the Respondents further claim that if the Petitioners wished to change the status quo, they could wait until September 1, 2000, at which time the development authorization agreement will expire. The petition is therefore both tardy and premature. Another preliminary argument raised by the Katzir Cooperative Society relates to the fact that the Petitioners never submitted an application to be accepted as members of the Cooperative Society. Their application was never discussed on its merits, and hence never rejected. Therefore, the Cooperative Society claims that the petition was filed prematurely. Furthermore, the Cooperative Society claims that it has the autonomous power to decide which candidate shall be accepted as a member thereof and which will be denied, and that the authority to review its discretion lies with the general court, and not with the High Court of Justice. 9. On the merits of the petition, the First and Second Respondents (the ILA and the Ministry of Construction and Housing) claim that they acted lawfully in allocating land to the Jewish Agency, based on the Law on the Status of the World Zionist Organization and the Jewish Agency for Israel, 5713-1952 (hereinafter the “Agency Status Law”) and on the “Convention between the State of Israel and the Jewish Agency for Israel” of June 28, 1979 (Official Gazette 5739, 2565, p. 2172, hereinafter the “Convention”; the Convention superceded a previous convention from 57151954). In the specific circumstances of the case and in view of the restrictive language of the order nisi that was issued, the court is not required to delve into the general constitutional issues raised by the Petitioners apropos their specific petition. 10. The Jewish Agency has clarified that its goal is to settle Jews around the country in general, and in border areas, as well as in areas with a sparse Jewish presence, in particular. According to the Jewish Agency, this goal, along with the other goals it has set for itself, is a legitimate goal which is fixed in the Agency Status Law and in the provisions of the Convention, and is consistent with the actual existence of the state of Israel as a Jewish and democratic state. Granting the petition would, in practice, put an end to the extensive settlement enterprise undertaken by the Agency since the beginning of the century, infringe its freedom of incorporation and thwart one of the main objectives underlying its very existence. Furthermore, no one disputes the rights of the Petitioners (or of any other person or entity) to found a new settlement or to join an existing settlement. This, however, is not to say that the Petitioners can demand to settle in, of all places, a settlement founded by the Jewish Agency and to enjoy, directly or indirectly, the Jewish Agency’s investment. On this matter, it further claims that the Supreme Court has recognized, in the past, the authority to allocate residential land to a defined population, either on the basis of nationality or on another basis. 11. The Farmers’ Association and the Katzir Cooperative Society, on their part, emphasize the national goals underlying the foundation of the Communal Settlement at the Eron River, of all places. These Respondents too do not deny the right of Israeli Arabs to reside on state land and to enjoy full equality. According to them, however, there is no room for the existence of mixed communal settlements, despite the wishes of the people of the settlement.

295

THE KATZIR CASE

Preliminary Arguments 12. I shall start with the preliminary arguments raised by the Respondents. The argument of laches should be dismissed, since the Petitioners were not tardy. They turned to the Katzir Cooperative Society during the registration period. When they learned then they would not be accepted to the society due to their being Arab, they turned to this court. True, the policy underlying the Respondents’ action is not new, but this does not mean that it cannot be reviewed. Certainly so – as claimed before us by the Petitioners – where the future is concerned. Nor can it be said that the petition is premature because the Petitioners did not make a formal request to be accepted to the society. As the factual foundation lain before us indicates, it is generally agreed that had the Petitioners turned to the Katzir Cooperative Society with a request to be accepted as members therein, their application would have been denied. Under these circumstances, there is no point in making a futile application. The conciliation process, too, produced no results in the matter. Let us now turn to the actual petition. The Questions before Us 13. The legal question before us is whether the state (through the ILA) acted lawfully when allocating to the Jewish Agency the land on which the Communal Settlement Katzir was founded, when the Petitioner (or any other Arab) cannot build his home on this land – which was allocated to a cooperative society which does not accept Arabs. In view of the complexity of this problem, it should be divided into two sub-questions. First, would the state (the Ministry of Construction and Housing, the ILA) have acted lawfully if it itself would have acted directly in fixing for itself a policy whereby it granted authorizations for or leases on state land to the Communal Settlement Katzir, which limited itself to Jews only? If the answer to that is that such a policy would have been unlawful, then the second sub-question arises, namely, whether the state would have ceased acting unlawfully if it itself did not act directly in the Communal Settlement Katzir, but, as was in fact the case, allocated rights to the land to the Jewish Agency which, on its part, transacted with the Katzir Cooperative Society. We shall start with the first sub-question. The State Allocates Land to a Rural Communal Settlement Which Does Not Accept Arabs 14. Would the state of Israel have been entitled to determine a policy whereby it granted direct authorizations to use the land for the foundation of the Communal Settlement Katzir, which was designated for Jews only? Answering this question requires a review of the normative system which governs the allocation of state land. The starting point is the Basic Law: Israel Lands. This basic law determines that the “ownership of Israel lands, namely land in Israel belonging to the state, the Development Authority or the Jewish National Fund, shall not be transferred, either by way of sale or otherwise” (Section 1). We are concerned with Israel land that belongs to the state, and our review is limited to this land only. Israel lands are administered by the Israel Lands Administration (the Israel Lands Administration Law, 5720-1960). The land policy of the ILA is determined by the Israel Lands Council (Section 3 of the Israel Lands Administration Law).

296


15. When setting ILA policy, the Israel Lands Council is required to act for the achievement of the goals which underlie the authority of the ILA and determine the scope of its discretion. These goals – as goals underlying any power fixed in legislation – are of two types: special goals, which derive directly from the law regulating the ILA’s authority, and general goals, which cover legislation on the whole as a normative umbrella. We shall first examine the special goals, and thereafter the general goals. ILA Activities: Special Goals 16. An examination of the special goals underlying the authority of the ILA reveals a complex picture. At the basis of the laws regulating the administration of Israel lands lies the aspiration to achieve a uniform and coordinated administration of all lands. On this matter it was written that: “… what is prominent is the legislator’s aim to ensure that land policy, according to which all acts and transactions pertaining to land in Israel belonging to the state, to the Development Authority and to the Jewish National Fund shall be performed in the future, shall be a national coordinated policy, which shall be subject to the principles determined in the law on the one hand, and fixed, subject to these principles, by a council appointed by the government, on the other hand; and to arrange for the performance of such acts and transactions, in accordance with the policy fixed as aforesaid, to be concentrated, from here on, in the hands of a single administration, an administration appointed by the government and acting under the supervision of the said council, and whose acts are subject, due to the government’s duty of reporting the same, also to the review of the Knesset” (C.A. 55/67 Kaplan v. The State of Israel, PDI 21 (2) 718, 727; see also: Y. Weissman, Property Law – General Part (1993) 216-217 (“Weissman”); R. Alterman, “Can National Land Ownership in Israel be Justified?”, 21 Tel Aviv U. L. Rev. (1998) 535; see also: Basic Law: The People’s Land Bill, Bills 5719 272, Knesset Minutes 27 (5719) 2940, 2952). The problem is that over and above the mere concentration of powers relating to land administration, the relevant laws do not define the goals and objectives for the attainment of which the concentrated authority should be exercised. The Israel Lands Administration Law, 5720-1960 does not define the objectives and the special goals facing the ILA. All that the law says on this matter is that: “The government shall establish the Israel Lands Administration (hereinafter: the “ILA”) to administer Israel lands.” This arrangement has been widely criticized. It was denounced as an act of “lazy legislation,” inconsistent with the concept of the rule of law and prejudicing the principles of proper procedure (see I. Zamir, “The Administrative Power” (Vol. I, 5756), p. 236-237; see also Y. Dotan, “Administrative Guidelines” (5756) 315-316; D. BarakErez “An Acre Here, an Acre There” – Israel Land Administration in the Vise of Interest Groups” 21 Tel Aviv U. L. Rev. (1998) 613, 620). 17. In view of this statutory silence, we must turn to sources outside of it to examine the special goals underlying the same. For this purpose, we will first turn to the Israel Lands Administration bill, 5720-1960 (Bills 34), the explanatory notes to which read as follows: 297

THE KATZIR CASE

“According to the convention which is about to be signed between the state and the Jewish National Fund with the consent of the World Zionist Organization, the Government shall establish an Israel Lands Administration and a council to set the ILA’s land policy, to approve a budget proposal for the ILA and to supervise its actions. The proposed law confers upon the Israel Lands Administration and the Israel Lands Council the statutory status they require to fulfill their duties under the convention. The administration will be a part of the government mechanism.” The said Convention (signed on November 28, 1961 and published in Official Gazette 1456, on p. 1597), provides, in Section 4 thereof, that: “Israel lands shall be administered in accordance with the law, namely the principle that land is not given away but only leased, and pursuant to the land policy to be determined by the council founded pursuant to Section 9. The council will determine the land policy with the aim of enhancing the absorption capacity of the land and preventing the concentration of lands in the hands of individuals. The lands of the Jewish National Fund shall be administered, in addition to the above, subject to the memorandum and articles of incorporation of the Jewish National Fund.” 18. The objectives underlying ILA policy may, further, be inferred from Government Resolution 489 of May 23, 1965, which provides (in Section C of the Resolution), that: “The planning authorities shall promptly complete, and submit to the government for approval, a national plan for the designation, use and utilization of state lands, which shall reflect government policy, including the policy on population dispersal, the security policy, the preservation of agricultural land, and the allocation of green and recreation areas and open spaces for public needs, and the assurance of a land reserve for national and public needs.” This government resolution was brought before the council prior to its adoption by the government, and was passed, as is, (on May 17, 1965) by the council (see, on this matter, Weissman, p. 243, fn. 2). The Israel Lands Council ratified the principles of the ILA policy in Resolution 202 of March 28, 1978, in which it determined that: “… the Israel Lands Administration is the only entity which administers state land in accordance with the land policy determined by the council. In accordance with both the convention between the Government of Israel and the Jewish National Fund and the law, the Israel Lands Administration is the body exclusively authorized to administer Israel lands. The council’s policy is directed by the need to preserve land as a national asset and by the objective of effecting a correct dispersal of the population.” 19. We have learned, therefore, that the special objectives underlying the authority of the ILA are the preservation of Israel lands in state ownership and the concentration of the administration and development of land in Israel in the hands of a single statutory authority. This is designed to prevent the transfer of land ownership into unwanted entities, to effect the security policy and to enable the performance of national projects, such as the absorption of immigrants, the dispersal of the population and agricultural settlement. In addition, the legislation is based on the special goals designed to facilitate the planning mission, by maintaining a land reserve for national needs and for the allocation

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of open spaces for public needs, and all in order to enable the implementation of zoning plans and to prevent speculative trade in state lands (see also Weissman, p. 216218). It should be stated that, insofar as the special goals are explicitly set forth in the law or clearly derive therefrom, the judge is required to express them. Insofar as the special goals are not explicitly set forth in the law and do not clearly derive therefrom – as in the case before us – the court is required to deduce the special goals not only from the law itself, but also from other sources, including the statutory history, the nature of the matter, the nature of the competent authority and the general values of the legal system. Indeed, when establishing the special goals – insofar as they do not explicitly and clearly arise from the law – it is necessary to ensure that such goals are consistent with the values of the system on the whole. ILA Activities: A General Goal of Equality 20. Alongside the special goals underlying the authority and discretion of the ILA, there are also general goals which relate to legislation on the whole, as a normative umbrella. These general goals reflect the basic values of Israeli law and society. Such goals express the fact that every piece of legislation is an integral part of a comprehensive legal system. The basic principles of the system “permeate” into every item of legislation and constitute its general goal (see HCJ 953/87 Poraz v. The Mayor of Tel Aviv Jaffa, PDI 42 (2) 309, 328 – hereinafter the Poraz Affair; HCJ 869/92 Zvili v. Chairman of the Central Committee for Elections to the Thirteenth Knesset, PDI 46 (2) 692 – hereinafter the Zvili Affair; C.A. 105/92 Re’em Contractor Engineers Ltd. v. The City of Upper Nazareth, PDI 47 (5) 189, 198). These basic principles also express the nature of the state of Israel as a Jewish and democratic state. From among these principles, the one that is relevant to our case is the principle of equality. Equality as a Basic Principle 21. Equality is one of the basic principles of the state of Israel. Every authority in Israel – and primarily the state of Israel, its authorities and its workers – is obligated to extend equal treatment to the various individuals in the state (see Zamir and Sobel, “Equality Before the Law,” 5 Law and Government in Israel (1999) 165). It is called for by the Jewish and democratic nature of the state; it is derived from the principle of the rule of law which prevails in the state. An expression thereof appears, inter alia, in the Proclamation of Independence, which provides that: “The state of Israel… will ensure complete equality of social and political rights to all its citizens irrespective of religion, race or sex…” Indeed, the state is obligated to honor and protect the basic right of every individual in the state to equality. Equality lies at the foundation of social existence. It is the “beginning of beginnings” (Justice M. Cheshin in HCJ 7111/95 The Union of Local Authorities v. The Knesset, PDI 50 (3) 485, 501), it is one of the central pillars of the democratic regime. It is vital to the social consent underlying the social structure (the Zvili Affair, p. 707). It is a constitutional basic principle, which is integrated into and interwoven in our basic legal concepts and is an inseparable part thereof (Justice Shamgar in HCJ 114/78 Burkan v. The Minister of Finance, PDI 32 (2) 800, 806).

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I pointed this out in one of the affairs, stating that: “Indeed, equality is a basic value in every democratic society, ‘which the law of every democratic state aspires, on grounds of justice and fairness, to demonstrate’ (Chief Justice Agrenat in F.H. 10/69)… the individual incorporates himself into the overall fabric and bears his share in the building of society, knowing that others too will do the same. The need to ensure equality is natural to man. It is based on considerations of justice and fairness. A person seeking recognition of his right, needs to recognize the other’s right to seek similar recognition. The need to maintain equality is essential to society and to the social consent on which it is founded. Equality safeguards the authorities from arbitrariness. Indeed, there is no more destructive factor in society than the feeling of its members that they are being treated with discrimination. The feeling of inequality is one of the harshest of feelings. It injures the forces which unite society. It injures man’s self identity.” (The Poraz Affair, p. 332). Similarly, Justice M. Cheshin noted that: “a claim of discrimination shall always be heard, and lies in the foundation of foundations. The principle of discrimination is founded upon the deep need that is inherent in us, in every one of us – might we say in the instinct and the needs of man; in man, but not only in him – not to be discriminated against, to be treated with equality, by God above or at least by man… Discrimination (either genuine or imaginary) leads to a feeling of deprivation and frustration; feelings of deprivation and frustration lead to jealousy. And with the onset of jealousy, reason is lost… We are ready to bear burdens, suffering and distress if we know that our fellow men – who are equal to us – are like us and are with us; but we rise up and do not accept that our fellow men – who are our equals – receive that which we do not” (HCJ 1703/92 C.A.L. Cargo Air Lines v. The Prime Minister (not yet published)). As we can see, the “equality of rights and obligations for all the citizens of the state of Israel is part of the essence and character of the state of Israel” (Deputy Chief Justice Alon in E.A. 2/88 Ben Shalom v. The Central Committee for Elections to the Twelfth Knesset, PDI 43 (4) 221, 272; see also the judgment in HCJ 153/87 Shakdiel v. The Minister for Religious Affairs, PDI 42 (2) 221). 22. This duty of the state to act with egalitarianism extends to every one of its actions. It is certainly applicable where the administrative authorities operate in the areas of public law. In a long series of judgments, the Supreme Court reiterated the duty of administrative authorities to treat individuals with equality (see Zamir and Sobel, supra). The duty of equality is applicable also where the state operates in areas of private law. It is therefore applicable to the state’s contractual transactions (see HCJ 840/79 The Center of Contractors and Builders in Israel v. The Government of Israel, PDI 34 (3) 729, 746). Indeed, at the heart of our perception lies the approach whereby the state and its authorities are the trustees of the public. “The authorities receive their power from the public, which elected them in an egalitarian manner, and therefore they too are obligated to exercise that power vis-à-vis the public in an egalitarian manner” (Zamir and Sobel, supra, p. 176). This was articulated by Justice Zussman, in stating that:

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“While private citizens are entitled to ‘discriminate’ between this and another person and to choose those with whom they will transact, even due to unreasonable grounds and motives, discrimination by a public authority is prohibited. The reason for this is that when using its assets or performing its actions, the authority assumes a position of trustee vis-à-vis the public, and as such the authority must extend equal treatment to equals; when it breaches this basic principle and unlawfully discriminates against a citizen, such an act provides grounds for the intervention of this court, irrespective of whether the actual use or act belong in the realm of public or civil law. The position of trust vis-à-vis the citizen and the duties deriving therefrom derive from the law, and in any case are subject to the supervision and review of this court (HCJ 262/62 Peretz v. The Chairman, Local Council Members and Residents of Kefar Shemaryahu, PDI 16, 2101, 2115). 23. The state’s duty of acting with egalitarianism extents to all of its acts. It applies, therefore, also to the allocation of state land. Indeed, the ILA holds the state land “in trust, and consequently is subject to all of the duties applicable to a trustee. Since the ILA is – both in practice and in theory – the state itself, all of the duties applicable to the public authority apply thereto ipso facto” (Justice M. Cheshin in MLA 5817/95 Rosenberg v. The Ministry of Construction and Housing, PDI 50 (1) 221, 231). Therefore, the resolutions of the Israel Lands Council forming the policy for the allocation of state land must be adopted on the basis of equality. Chief Justice Shamgar pointed this out in stating that: “Public land has to be administered according to apolitical criteria; the adoption of such criteria falls within the duty of public authorities in all of their affairs, a fortiori so where the handling of property owned by the entire public is concerned. The translation of the said criteria into modes of behavior points, inter alia, to the duty of acting with fairness and equality and pursuant to the rules of proper administrative conduct” (HCJ 5023/91 Poraz v. The Minister of Construction and Housing, PDI 46 (2) 793, 801). As we can see, the principle of equality requires that the state not discriminate among individuals when making a decision to allocate state lands to such individuals. 24. Equality is a complex concept. Its scope is controversial; and yet, it is generally accepted that equality prohibits differential treatment on grounds of religion or nationality. This prohibition appears in international declarations and conventions (such as the Universal Declaration on Human Rights of 1948, the Convention on Civil and Political Rights of 1966, and the European Convention on Human Rights). It is accepted in most modern constitutions. An expression thereof appears in our own Proclamation of Independence, which determined that the state of Israel “will ensure complete equality of social and political rights to all its citizens irrespective of religion, race or sex.” This court has further ruled – by Justice Shamgar – that “the rule whereby no discrimination may be practiced on grounds of… nationality… (or) religion… is a constitutional basic principle, which is integrated and interwoven into our basic legal concepts and constitutes an inseparable part thereof ” (HCJ 114/78 Burkan v. The Minister of Finance, PDI 32 (2) 800, 806). Justice Berenzon expressed this well by stating that:

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“When we were banished from our country and left our land behind, we became victims of the nations of the world in the midst of which we sat, and down through the generations we tasted the bitterness of persecution, maltreatment and discrimination for the sole reason of our being Jews, ‘whose religion is different than that of all other nations.’ Having experienced these bitter and unfortunate tribulations, which have penetrated deep, deep into our national and human consciousness and cognition, it would be expected that we would not follow the perverse ways of the Gentiles, and upon the revival of our independence in the state of Israel, we must be cautious and steer clear of any hint of discrimination and discriminatory practice against any law-abiding non-Jew in our midst who wishes to live with us in his own way, pursuant to his religion and faith. Xenophobia carries a double curse: it destroys the image of God in the hater, and inflicts hardship on the hated through no fault of his own. We must treat anyone created in His image with humanity and tolerance, and uphold the great rule of equality amongst all human beings, in rights and in duties.” (HCJ 392/72 Berger v. The District Planning and Construction Committee, Haifa District, PDI 27 (2) 764, 771). The practical translation of these basic conceptions with regard to equality is that the (general) goal of all legislation is to ensure equality among humans, irrespective of religion or nationality. Differential treatment due to religion or nationality is “suspect” and is, prima facie, discriminatory (compare HCJ 4541/94 Miller v. The Minister of Defense, PDI 49 (4) 194, 136-137 [sic], hereinafter – the Miller Affair; HCJ 2671/98 Israel Women’s Network v. The Minister of Labor, PDI 52 (3) 630, 659). We say that such treatment is “prima facie” discriminatory, because circumstances may exist – such as in the case of affirmative action (in keeping with the view which regards affirmative action the attainment of, rather than an exception to, the principle of equality: see the opinion of Justice Matza in the Miller Affair) – in which differential treatment on grounds of religion or nationality would not be discriminatory. Furthermore, differential treatment on grounds of religion or nationality could be in accordance with the law. Such a case would occur, for instance, where the express and clear legislative language determines special goals which lead to discriminatory treatment, and in which, in the balance between them and the general goal of equality, the special goals prevail. It is to this balance between special goals and general goals that we shall now proceed. 25. When establishing the goal of legislation, both special goals and general goals have to be considered together. Often, they all lead in one direction and strengthen one another. But at times, discrepancies may be found between the various goals. Thus, for instance, discrepancies are possible between special goals seeking to achieve social ends, and general goals seeking to uphold human rights. When such a collision occurs, a balance (both essential and vertical) between the colliding goals is required. This is the path which this court has taken since the Kol Ha’am affair (HCJ 73/53 “Kol Ha’am” Ltd. v. The Minister of the Interior, PDI 7, 871). In that affair, it was determined that in the balance between the special goals which underlay the legislation discussed there, which concerned public peace and safety, and the general goal of freedom of expression, preference would be given to the special goal (public peace) if there were near certainty that the fulfillment of the general goal (freedom of expression) would cause material, severe and serious damage to the possibility of attaining the special goal (public peace). Since that time, this court has used a similar “balancing formula” in a long series of collisions between special goals and general goals (see

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7128/96 [sic-type of proceeding not mentioned] Temple Mount Faithful Movement v. The Government of Israel, PDI 51 (2) 509; HCJ 5016/96 Horev v. The Minister of Transportation, PDI 51 (4) 1). It is a good question whether this balancing formula should serve us also in the collision between the general goals and the special goals in the case before us. Is there no room for a different balancing formula, such as that of the reasonable possibility? And where equality is concerned, is there no need for a variety of balancing formulas in accordance with the nature of the injury to equality? We do not need to examine these questions in the petition before us, since, as we shall see, in the petition before us there is no collision between the general goals and the special goals at all. We may therefore leave this matter for further consideration in the future. Let us now proceed, therefore, to the examination of the circumstances of the matter before us. Before doing so, let us make two comments. First, we are dealing with the goal underlying the Israel Lands Administration Law. In an ordinary situation, after the goal has been determined – and in the framework of a review of the legality of ILA action – it should also be examined whether the means used to achieve the goal were proportionate. This matter does not arise in the petition before us, and we shall not expand thereon. Second, in special situations – in which the special goals are explicitly determined in the legislation or may be clearly deduced therefrom – it is not sufficient that the balancing formula makes it possible to determine the goal underlying the authorizing law. It must further be examined whether this goal is constitutional, from the point of view of the basic laws on human rights (the Basic Law: Human Dignity and Liberty; the Basic Law: Freedom of Occupation) and of the restrictive clause (Section 8 of the Basic Law: Human Dignity and Liberty; Section 4 of the Basic Law: Freedom of Occupation). This question does not arise before us at all, since the entire issue of the constitutionality of the Israel Lands Administration Law has not been submitted to us for resolution. The only question we have been asked to decide is whether the decision of the ILA, with regard to the allocation of land for the foundation of the Communal Settlement Katzir for Jews only, lies within the framework of the authority conferred upon the ILA in the Israel Lands Administration Law. The Application of the Rule 26. It is acceptable to the state that when it itself founded (through the Ministry of Construction and Housing) the urban settlement Harish, and another neighborhood on the Central Hill in Katzir, the allocation of land was made “to the general public, in accordance with the standard rules of the Ministry of Construction and Housing.” This allocation was egalitarian, and no distinction was drawn between Arabs and Jews. Indeed, the state mentioned in its answer that “we have no dispute with the Petitioners that the entitlement to reside within the boundaries of the local council Tal Eron in the present and in the future shall be similar to any other local council, while giving the general public an opportunity to buy apartments; with the exception, however, of the Cooperative Society, acceptance to which is dependent upon the procedures existing in any cooperative society, in accordance with its articles of association.” But how is the Communal Settlement different from the urban settlement? This question has no answer in the respondent’s affidavit of the state (the ILA and the Ministry of Construction and Housing), other than the mention of the fact that the land was allocated to the Agency, which operates as an arm of the Jewish people in the dias303

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pora. But now we are not dealing with the Jewish Agency but with the state of Israel. We are asking whether the state (namely, the ILA) would have been entitled to determine that it itself would allocate land to the Communal Settlement Katzir which is designated for Jews only, in the jurisdiction of the local council Tal Eron. Such an allocation infringes the Petitioners’ right to equality, since it represents differential treatment on the basis of nationality. What are the special goals, the attainment of which can lawfully infringe the principle of equality? To this question we have had no reply from the state. 27. A reply to these arguments has come from the Jewish Agency, the Israel Farmers’ Association and the Katzir Cooperative Society. In their reply, they noted that the Communal Settlement is “a link in the chain of outpost settlements intended to preserve the expanses of Israel for the Jewish people” (as provided in the Proclamation of Foundation of the Communal Settlement) and that its existence is consistent with the objectives they set for themselves, namely the settlement of Jews around the country in general, and in rural areas and areas with a sparse Jewish presence in particular; population dispersal; and the enhancement of the security of Israel thereby. In this specific context, the Farmers’ Association claims that Arab settlers might face difficulties in discharging the duty of guarding the settlement, which was exposed in the past to various acts of terror. Furthermore, claim the Respondents, the presence of Arab residents in Jewish settlements might cause the Jewish residents to leave and a settlement which was meant to exist as a Jewish settlement to become an Arab settlement. 28. These answers raise difficult and complex general problems. They bear on both the past and the future. However, we have no need to confront them in this petition. This petition does not concern Jewish settlement on the whole, with all of its aspects; this petition does not concern the acts of the Jewish Agency in all of their diversity. The petition before us concerns a particular communal settlement, the foundation of which does not invoke the entirety of the problems raised by the Jewish Agency and the Farmers’ Association. Indeed, the Respondents do not dispute the Petitioners’ right to reside in the Eron River area. They do not exclude the existence of “mixed” settlements, urban or rural, in which Jews and Arabs live in the same settlement, the same neighborhood or the same apartment building. Furthermore, nor do the Respondents dispute the Petitioners’ right to reside in the settlement Katzir itself, in the neighborhood built by the Ministry of Construction and Housing, together with the other residents of the neighborhood, Jews and Arabs alike, under the auspices of the same local council and while maintaining joint educational and social facilities. We cannot understand – and no factual foundation was laid before us – why the Petitioners’ residence in the Communal Settlement, approximately 2 km away from the neighborhood built by the Ministry of Construction and Housing, justifies an injury to the principle of equality. 29. My conclusion is, therefore, this. A decision which the ILA would have made to directly allocate land in Tal Eron for the foundation of a communal settlement for Jews only would have injured the (general) goal underlying the authority of the ILA, namely the attainment of equality. Such a decision would not have attained special goals of the Israel Lands Administration Law which, under the circumstances of the matter – and pursuant to the appropriate balancing formula – would have prevailed. It therefore appears that such a decision, had it been made, would have been illegal. Against this conclusion, the Jewish Agency and the Farmers’ Association have raised before us two essential arguments, to which we shall now turn. 304


30. The first essential argument is this: The decision to allocate land for the establishment of the Communal Settlement Katzir for Jews only is not inegalitarian, since the ILA is prepared to allocate land also for the establishment of a communal settlement for Arabs only. This argument, in legal dress, is that separate but equal treatment is equal treatment. As is well known, this argument was raised in the 1950’s in the United States with regard to educational policy in the United States, which segregated the education of white and Afro-American students. The Supreme Court decided (in the case of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)) that a policy of “separate but equal” was “inherently unequal.” At the basis of this approach lies the conception that segregation sends an offensive message to the excluded minority group; sharpens the difference between it and the others; and fixates feelings of social inferiority. An expression of this approach was made in Section 3 of the International Convention on the Elimination of All Forms of Racial Discrimination. Much was written on this issue over the years, emphasizing that separate treatment might at times be equal treatment or, at least, that segregation may be justified despite the injury to equality. Mainly so, inter alia, where the desire for separate but equal treatment comes from the minority groups that wish to preserve their culture and way of life, and which wish to avoid “forced assimilation” (using the language of Justice Shamgar in the Burkan Affair, p. 808; see Benbenishti, “‘Separate but Equal’ in the Allocation of Residential Israel Land,” 21 Tel Aviv U.L.Rev., 766 (1998) and Days, “Brown Blues: Rethinking the Integrative Ideals,” 34 Wm. & Mary L. Rev 53 (1992); Tein, “The Devaluation of Nonwhite Community in Remedies for Subsidized Housing Discrimination,” 140 U.Pa.L.Rev. 1463 (1992)). Indeed, I am prepared to assume – without ruling on the matter – that there are situations in which separate but equal treatment may be lawful. An example for this could be our judgment in the Avitan affair (HCJ 528/88 Avitan v. Israel Lands Administration, PDI 43 (4) 297). In that case, the Israel Lands Administration decided to lease land only to Bedouins, within the framework of its policy to move Bedouins to permanent settlements. The application of a Jewish applicant to lease the said land was denied by the ILA. The petition against the ILA was dismissed. Explaining the court’s position, Justice Or stated that: “Reference is made to Bedouins, who for many years lived a nomadic life, and whose attempts to make permanent settlements were unsuccessful and involved lawbreaking, to the point that it was in the state’s interest to help them, thus achieving also important public objectives. The nature and way of life of nomads, without orderly permanent settlements, with all that is entailed thereby, are what make the Bedouins members of a unique group, which the Respondents deem worthy of assistance and encouragement, with special and affirmatively discriminating treatment, and not the fact that they are Arabs” (Id., p. 304). This state of affairs – in which separate treatment might be deemed lawful – is not present in our circumstances, for two reasons. First, there is in practice no initiative to establish a communal settlement for Arabs only. In practice, the state of Israel allocates land only to Jewish communal settlements. The effect of the separation policy currently practiced is discriminatory, even if a desire to discriminate is not the motive for the separation. The existence of discrimination is determined, inter alia, by the effect of the decision or the policy and this effect, in our case, is discriminatory (compare

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HCJ 1000/92 Bavli v. The Great Rabbinical Court of Jerusalem, PDI 48 (2) 221, 241; and Justice Matza in HCJ 453/94 Israel Women’s Network v. The Government of Israel, PDI 48 (5) 501). In other words, the current policy of the ILA gives Arabs, in practice, separate and unequal treatment. Second, there are no characteristics which set apart the Jews wishing to build their home in the Communal Settlement via the Katzir Cooperative Society which justify the allocation of state land for Jewish settlement only. The Communal Settlement Katzir is open to every Jew (subject to acceptance conditions which do not appear in the regulations of the Cooperative Society, and the content of which is unknown to us). In any case, the residents of the settlement do not constitute a “unique group” (in the words of Justice Or in the Avitan Affair). On the contrary: every Jew in Israel, as part of the majority of residents, who desires a rural community life is, prima facie, qualified for acceptance to the Cooperative Society. The society, therefore, appeals to the vast majority of the public in Israel. The factor characterizing the group of residents in the settlement is not such or another uniqueness of the group or of the group members but rather the criterion of nationality alone which is, in itself, and under the circumstances of the matter, a discriminatory criterion. Indeed, most of the considerations which were presented before us by the Jewish Agency are based on that same “suspect” classification of national affiliation, and their entire purpose is aimed at nothing but promoting Jewish settlement in the area. Indeed, the combination between the inegalitarian effect of the policy and the inegalitarian reasons underlying the same create a strong “mass” of inequality, a “mass” which is neither eliminated nor reduced by the readiness, in principle, to allocate land for a separate, Arab, rural communal settlement. We therefore dismiss the claim that, under the circumstances of the matter, the principle of equality was not compromised. 31. The second essential claim raised before us is this: Even had the ILA decided to directly allocate, under the circumstances of the case before us, land for the establishment of a communal settlement for Jews only, such a decision would have been lawful, since it would have realized the values of the state of Israel as a Jewish state. These values are of a constitutional nature (see Section 1(A) of the Basic Law: Human Dignity and Liberty) and would have lent lawfulness to the ILA’s decision. This claim raises numerous and important questions. We have no need to decide most of them. The reason for that is twofold. First, insofar as such an argument signifies that the values of the state of Israel as a Jewish state (which constitute a general goal underlying the law) collide with the value of equality, the answer is that no such collision exists. Indeed, we do not accept the concept that the values of the state of Israel as a Jewish state justify – at the level of a general goal – discrimination by the state among citizens of the state on the basis of religion or nationality. The Basic Law: Human Dignity and Liberty provides (in Section 1(A)) that: “The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the state of Israel as a Jewish and democratic state.” The values of the state of Israel as a Jewish and democratic state, inter alia, establish the right of the Jewish people to govern themselves in their sovereign state. In the language of the Proclamation of Independence:

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“The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books.” Indeed, the return of the Jewish people to their land derives from the values of the state of Israel as both a Jewish and a democratic state (see E.A. 1/65 Yeredor v. The Chairman of the Central Committee for Elections to the Sixth Knesset, PDI 19 (3) 365, 385). From these values of the state of Israel – jointly and severally – several conclusions are called for. Thus, for instance, they call for Hebrew to be a principal language in the state and for its principal holidays to reflect the national revival of the Jewish people. They also call for the heritage of Israel to constitute a primary component of its religious and cultural heritage. They also call for additional conclusions which we need not enumerate. But the values of the state of Israel as a Jewish and democratic state do not call for the state to practice discrimination among its citizens at all. Jews and non-Jews are citizens with equal rights and obligations in the state of Israel. “The state – is a Jewish state; its regime – an enlightened democratic regime, which grants rights to all of its citizens, Jews and non-Jews alike” (Justice D. Levin in E.A. 2/88 Ben Shalom v. The Central Committee for Elections to the Twelfth Knesset, PDI 43 (4) 221, 231). I pointed this out in one of the cases, while stating that: “In the state of Israel as a Jewish and democratic state, every person – be his religion and faith what it may and be his nationality what it may – shall enjoy full human rights” (LCA 7504/95 Yassin v. The Registrar of Parties, PDI 50 (2) 45, 70). My colleague, Justice M. Cheshin, stated in another case: “We shall remember and know – how can we forget – that the Jewish people neither has had nor has another state other than the state of Israel, the Jewish state. Within the state, however, all of its citizens have equal rights (LCA 2316/96 Isaacson v. The Registrar of Parties, PDI 50 (2) 529, 549 – hereinafter the “Isaacson Affair”). Furthermore, not only do the values of the state of Israel as a Jewish state not require discrimination on the basis of religion and nationality in the state, such values themselves prohibit discrimination and require equality among religions and nationalities (see HCJ 392/72 Berger v. The District Planning and Construction Committee, PDI 27 (2) 764, 771; HCJ 175/71 The Abu-Gosh Kiryat Yearim Music Festival v. The Minister of Education and Culture, PDI 25 (2) 821). “The principle of equality and the prohibition of discrimination, incorporated in the command ‘you shall have one law for the sojourner and for the native’ (Leviticus 24:22), which was construed by the Sages as one law for all (Ketubot 33:1; Baba Kamma 83:2), has been sanctified in the teachings of Israel since it became a people” (Justice Tirkel in HCJ 200/83 Watad v. The Minster of Finance, PDI 38 (3) 113, 119). Justice Alon pointed out that “a solid foundation in the world of Judaism is the idea of man being created in the image of God (Genesis 1:27). Thus opens the Torah of Israel, and from here the Halacha deduced basic principles on the value of man – any man as such – his equality and love” (E.A. 2/84 Neiman v. The Chairman of the Central Committee for Elections to the Eleventh Knesset, PDI 39 (2) 225, 298). Indeed, “the Jewish people founded the Jewish state, this is the beginning and from here we shall continue down the road” (Justice M.

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Cheshin in the Isaacson Affair, p. 548). But once the state has been established, it treats its citizens with equality. The state of Israel is a Jewish state in which minorities live, including the Arab minority. Each one of the minorities living in Israel enjoys full equality of rights. True, a special key to enter the house was given to those belonging to the Jewish people (see the Law of Return, 5710-1950). But once a person is lawfully in the house as a citizen, he enjoys equal rights similarly to all the other residents of the house. This is expressed in the Proclamation of Independence, which appealed “to the Arab inhabitants of the state of Israel to preserve peace and participate in the upbuilding of the state on the basis of full and equal citizenship.” There is, therefore, no conflict between the values of the state of Israel as a Jewish and democratic state and full equality among all of its citizens. On the contrary: equality of rights among all human beings in Israel, be their religion what it may and be their nationality what it may – is derived from the values of the state of Israel as a Jewish and democratic state. It follows that the second essential claim raised before us, insofar as it is related to the general goal underlying the law, should be dismissed. 32. Another aspect of the argument regarding the values of the state of Israel as a Jewish state concerns the effect of these values on the establishment of the special goals underlying the law. Indeed, it is acceptable to us that the values of the state of Israel as a Jewish state could establish special goals, at various levels of abstraction. As we have seen, in the circumstances of the case (see paragraphs 26-28), there are no such special goals which gain the upper hand. It appears that this aspect, too, of the argument should be dismissed. Interim Summary 33. We have therefore reached the conclusion that if the allocation of a right in land for the establishment of the Communal Settlement in Katzir would have been performed directly by the state, the state would have been imposed with the duty of extending equal treatment to all those seeking a right therefrom to build a house at such a place. The significance of the aforesaid is that every person in Israel, be his nationality what it may, would have been qualified to participate in the contest for the right to build his home in the Communal Settlement Katzir. However, as is known, the state of Israel does not directly allocate land for the construction of houses in the Communal Settlement Katzir. A direct allocation of land by the state was performed in the urban settlement at the place, and there the state has acted with egalitarianism. As for the Communal Settlement, the state allocated land – within the framework of an “authorization agreement” – to the Jewish Agency, which on its part assisted – through the Israel Farmers’ Association – in transferring the land to the Katzir Cooperative Society, which accepts only Jews as members. Did the state of Israel breach its duty of acting with egalitarianism by transferring the land (pursuant to the authorization agreement) to the Jewish Agency? We shall “split up” this question into two sub-questions. First, would the state have breached its duty of acting with egalitarianism by transferring the land (pursuant to an authorization agreement) to any third party (other than the Jewish Agency) which used the land discriminatingly? If the answer to this question shall be affirmative, there shall be room to discuss the second question, namely, should it be said that the state’s duty of acting with egalitarianism is breached if the transfer of land is made to the Jewish Agency, rather than to others? We shall now proceed to the examination of these two questions. 308


Transferring the Land to Any Third Party Which Transacts Only with Jews 34. The state’s duty of acting with egalitarianism when allocating rights to land is breached if the state transfers land to a third party which, on its part, discriminates in the allocation of land on the basis of religion or nationality. The state cannot release itself from its lawful duty of extending equality in the allocation of rights to land by using a third party which practices discrimination. Indeed, what the state cannot do directly, it may not do indirectly. It should be noted that we are not dealing with the question of whether, upon receiving a right to state land, the third party is also imposed with the duty of not discriminating between Jews and Arabs (see Burton v. Wilmington Parking Authority, 365 U.S. 721 [sic] (1961); Eldridge v. B.C. (A.G.) [1997] 3 S.C.R. 624). This question does not arise before us, since it exceeds the scope of the petition. The question with which we are faced is whether the state itself breaches its duty of acting with egalitarianism when a third party to which state land is transferred practices a policy which allocates land to Jews only. To this question our answer is affirmative. Transfer of Land to the Jewish Agency 35. In the petitions [sic] before us, the land was allocated by the state to the Jewish Agency which, on its part, transferred the land to an entity which allocates land to Jews only. By performing the transfer via the Jewish Agency, has the state fulfilled the duty of equality and should it no longer be regarded as violating this principle? The answer to this question is negative. The Law on the Status of the World Zionist Organization and of the Jewish Agency for Israel, 5713-1952 and the Convention between the Government of Israel and the Jewish Agency for Israel do not confer upon the state a permit to discriminate between citizens of the state (see Section 8(b) of the Status Law and Section 2 of the Convention). Indeed, the Agency Status Law is “in essence, solely declaratory. It neither establishes nor delegates governmental authorities” (Deputy Chief Justice Alon in HCJ 4212/91 “Beit Rivka” National-Religious High School for Girls v. The Jewish Agency for Israel, PDI 47 (2) 661, 668, hereinafter the “Beit Rivka Affair”). The Jewish Agency fills important roles. It acts, as provided in the Convention, “on the basis of a plan agreed in advance with the Government” (Section 3 of the Convention). This plan, to which the state is a party, cannot be discriminatory. State action which is discriminatory under its circumstances if performed vis-à-vis any third party does not shed its discriminatory nature if performed via the Jewish Agency. 36. Naturally, one cannot ignore the special status of the Jewish Agency in the state of Israel and the many rights of the Jewish Agency in the development of the country and in the attainment of its destination as a Jewish state, in addition to its being a democratic state. The special status of the Jewish Agency is reflected in the laws of Israel. The Law on the Status of the World Zionist Organization and of the Jewish Agency for Israel, 57131952 determines that the Jewish Agency “operates in the state of Israel in areas it has chosen with the Government’s consent” (Section 2(A)); that the World Zionist Organization and the Jewish Agency “as in the past, diligently promote immigration to Israel and direct absorption and settlement enterprises in the state” (Section 3); that the state of Israel recognizes the Jewish Agency as an authorized agency which shall continue acting “for the development and settlement of the land, for the absorption of immigrants from the Diaspora and for the coordination of the acts of Jewish institutions 309

THE KATZIR CASE

and associations operating in these fields in Israel” (Section 4, etc.). Also the Convention written between the Government of Israel and the Jewish Agency in 57391979 expresses the special status and the important mission of the Jewish Agency. In the Beit Rivka Affair, this court quoted at length from the Agency Status Law and from the Convention and stated (Deputy Chief Justice M. Alon, p. 667) that “the essence of the Agency Status Law is the expression of the historic connection between the Israeli people and the state of Israel.” This status was expressed throughout the country for decades: before the establishment of the state, en route to the establishment of the state and after the establishment of the state, down to the present day. The Jewish Agency filled a primary role in the realization of the Zionist vision, in the ingathering of the exiles and in the revival of the land. And it has not yet concluded the role that is in store for it. It still acts, as a “voluntary entity” (HCJ 4212/91, op. cit., p. 670), as an agent of the Jewish people for the development of the state as a Jewish and democratic state. 37. The Petitioners’ attorney, too, does not dispute the important role which the Jewish Agency has filled in the history of the state of Israel, nor does he criticize the policy which had been practiced for many years with regard to the establishment of Jewish settlements around the country. In the petition, he says that: “This petition is mainly forward-looking. The Petitioners do not intend to criticize the policy of many years, according to which settlements – kibbutzim, moshavim and outpost settlements – in which almost always only Jews resided in the past and currently reside, were established around the country (with the assistance of the settling institutions). The Petitioners do not focus their claims on the legitimacy of the policy which prevailed on this matter in the period preceding the establishment of the state and in the years which have elapsed since its establishment. Nor do they challenge the crucial role which the Jewish Agency has filled in the settlement of Jews around the country in this century.” Not only is the petition forward-looking, it also focuses on the Communal Settlement Katzir, under the circumstances as presented to us. Naturally, there are settlements of different types, such as kibbutzim, moshavim and outpost settlements. Settlements of various kinds can give rise to different problems. We have heard no arguments on settlements of different kinds and will therefore take no stand on such settlements. Furthermore, it should be taken into account that there could be special circumstances beyond the type of the settlement, such as special circumstances concerning national security, which could be of importance. We have heard no arguments on the significance of such circumstances, nor shall we, therefore, opine on the significance thereof. Furthermore, it should be kept in mind that we are taking today the first step on a difficult and sensitive road. We must follow this road slowly, so as not to trip and fall, but rather proceed cautiously from one case to the other, in accordance with the circumstances of each case. However, even if the road will be long, it is important that we know always not only where we came from but also where we are headed. 38. How does all of the aforesaid reflect on the case before us? We have determined that the state may not directly discriminate on the basis of religion or nationality in the allocation of state land. From here it follows that neither is the state allowed to discriminate indirectly on the basis of religion or nationality in the allocation of state land. Consequently, the state may not enable such discrimination in state land by transferring the land to the Jewish Agency.

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There is nothing in the Law on the Status of the World Zionist Organization and of the Jewish Agency for Israel, 5713-1952, or in the Convention between the Government of Israel and the Jewish Agency, which legitimizes such discrimination in the allocation of state land. Indeed, according to Section 3 of the Convention, the Jewish Agency operates “on the basis of a plan agreed in advance with the Government.”1 However, pursuant to Section 8(b) of the Status Law, the cooperation between the state of Israel and the Jewish Agency has to be carried out “in accordance with the laws of the state.” Clearly, according to this section and pursuant to basic principles, a plan for cooperation between the state and the Jewish Agency cannot be discriminatory. Discrimination – prohibited to the state – does not lose its discriminatory nature even if it is performed via the Jewish Agency. The Remedy 39. What, therefore, is the remedy to which the Petitioners are entitled? The answer is by no means simple. The petition, as the Petitioners argue, is forward-looking. However, it must not be forgotten that the state allocated the land on which the Communal Settlement Katzir was established to the Jewish Agency, pursuant to an agreement which was entered into in 1986. The agreement was prepared based on the knowledge that the Jewish Agency would invest resources in the development of the land in accordance with its documents of incorporation, namely, in order to establish a Jewish settlement. And, indeed, on the basis of this agreement, and in accordance with the documents of incorporation of the Jewish Agency, the Jewish Agency invested resources in the establishment of the Communal Settlement Katzir. To this end, it also entered into an agreement with the Katzir Cooperative Society. Moreover, the settlers in the Communal Settlement have bought houses at the place and moved to reside therein, while relying on the situation as being at the time. All of these raise severe problems from the points of view of the Agency, the Cooperative Society and the residents of the settlement, not only socially but also legally. It should be kept in mind that the judgment is issued today, approximately fourteen years after the allocation and after the settlers and the Jewish Agency itself acted in reliance on expectations which were acceptable in their time and place. All of these create difficulties for the state and might impose limitations thereon also from the legal point of view. We too cannot ignore these problems. 40. In this state of affairs, in the desire to take all the considerations and difficulties into account and to reach the proper balance, we have decided to make the order in this petition absolute in the following sense: a. We declare that the state was not lawfully entitled to allocate state land to the Jewish Agency for the establishment of the Communal Settlement Katzir on the basis of discrimination between Jews and non-Jews.

1

Unofficial translation from the Hebrew.

311

THE KATZIR CASE

b. The state shall consider the Petitioners’ request to purchase a plot of land in the settlement Katzir on which to build their home, on the basis of the principle of equality, while taking into account the relevant considerations – including the considerations relating to the Agency and to the settlers at the place – and including the legal problems involved in this matter. On the basis of these considerations, the state shall decide in the appropriate timeframe whether it can allow the Petitioners, within the framework of the law, to build themselves a house in the area of the Communal Settlement Katzir. Justice T. Or: I concur. Justice I. Zamir: I concur. Justice M. Cheshin: In the distribution of the public resources among the individuals of Israeli society, the Petitioners have been discriminated against, and in any case are entitled to the remedy to which a person discriminated against is entitled. On these grounds, I concur with the judgment of my colleague, Chief Justice Barak. Justice Y. Kedmi: Opening Comments 1. The essential stand presented in the judgment of the Chief Justice with regard to the position of the value of equality among the values of the state of Israel, and the effect thereof on the allocation of state land, is acceptable to me. I also accept the position of the Chief Justice whereby the implementation of the value of equality in the context discussed here cannot be circumvented by allocating state land to the Jewish Agency. As for the latter, being a Jewish-Zionist settlement organization, it may limit the sector of the population which shall enjoy its activities. This essential stand – to the best of my understanding – does not close the gate to a balancing of the value of equality against other values, including the value of national security. This value speaks of the assurance of the existence of the state of Israel as a Jewish and democratic state. Under circumstances justifying the same – in consideration of the location or goal of establishing a settlement founded on state land – it can derogate from, and even supercede, the value of equality (hereinafter the “Balancing Gate”). In the beginnings of the state, the scope and size of the said Balancing Gate were relatively wide, in view of the weight carried then by the other values – including the value of national security – under the special circumstances that existed at the time. However, as the state developed, and as the risks that hindered its establishment as a Jewish and democratic state lost some of their vigor, so the Gate became increasingly smaller. The size of the Gate is now very narrow and limited; and such a balance would be required only under rare circumstances. Unfortunately, our task is not yet complete; and so long as we cannot, there shall – probably – be no way of avoiding leaving remnants of that Gate intact.

312


The Application of the Rule 2. In view of the existence of the Balancing Gate, I believe that past actions in the field of allocation of state land are protected against retroactive review and amendment. First, on the grounds that they enjoy a presumption whereby if they infringed the value of equality, such infringement is regarded as having been necessary due to the demands of competing vital values. The act which is the subject matter of the petition, namely the decision to establish a communal settlement in Katzir, whose population shall be limited only to people who served in the army – was made approximately eighteen years ago. I have found, in the material presented to us, no justification for challenging the said presumption. In my opinion, the fact that the Communal Settlement lies in topographical proximity to an urban settlement in which no population limitations are applied is insufficient to determine that at the time – in accordance with the state of affairs then existing – limitations of this type were not called for in the Communal Settlement through a balance between the value of equality and other vital values. Second, due to the innovation in the judgment – with regard to both the power of the value of equality with regard to the utilization of state land in general, and with regard to its applicability to such an allocation of land to the Jewish Agency in particular – by its nature, and in particular with regard to the allocation of state land to the Jewish Agency, such an innovation does not operate retroactively. On the two foregoing grounds, it would be appropriate, in my opinion, to make do in this case with a declaratory judgment on the position and weight of the value of equality with regard to the allocation of state land, as specified in the judgment of the Chief Justice, while clarifying that the judgment is forward-looking and does not entail a demand to review past actions. The result is that, by majority opinion (against the dissenting opinion of Justice Kedmi), we make the order nisi absolute, as provided in paragraph 40 of the judgment of the Chief Justice. Issued today, Adar II 1, 5760 (March 8, 2000).

313

2. The Flechettes Case (April 27, 2003)* The Supreme Court of Israel sitting as the High Court of Justice High Court Ruling 8990

Before: The Honorable Justice E. Matza The Honorable Justice M. Cheshin The Honorable Justice A. Hayout Appellants: 1. Physicians for Human Rights 2. The Palestinian Center for Human Rights v. Respondents: 1. O.C. Southern Command David Almog 2. The State of Israel – Minister of Defense Petition for the Granting of an Order Nisi Date of session: 11 Nissan 5763 (April 13, 2003).

On Behalf of the Appellants: Atty. Y. Arnon, Y. Zur On Behalf of the Respondents: Atty. Y. Gensin

*

Unofficial translation by Human Rights Watch. Permission to reprint is gratefully acknowledged.


THE FLECHETTES CASE

Judgment Justice E. Matza: The appellants’ petition is for the granting of an order that will prohibit the IDF from using tank shells of the “flechette” type in the framework of its activities in the Gaza Strip area. The flechette shell contains a bundle of metal arrows. It is unique in that when it explodes at a certain height above the ground, its arrows are dispersed across a surface that is a few hundred meters in width. Similar to other means of combat that include subammunition – such as the various kinds of cluster bombs – flechette shells are intended to hit area goals, as distinct from point-specific goals. The claim of the petitioners is that the use of flechette shells is in contravention of the principles of the laws of war, under which a prohibition applies to the use of weapons that are likely to strike indiscriminately also at those who are not taking part in the fighting and to cause unnecessary suffering to the wounded. In the petition, two cases were mentioned in which the use of flechette shells resulted in fatal injuries to civilians: In one case, a flechette shell fired in response to fire opened at an IDF outpost in Netzarim landed near a Bedouin tent and brought about the death of three women; while in the second case, as a result of the strike of a flechette shell, shot during an operational action against suspected terrorists on their way to carry out a terrorist attack, three young men were killed. The appellants sought to determine that the use of flechette shells by the IDF in the Gaza Strip area is illegal, and that their use must be prevented entirely. From an examination of the respondents’ response it emerges that the question of whether it is fitting to prohibit the use of flechette shells – in the framework of the Convention for Restrictions on the Use of Conventional Weapons [United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects] – was indeed raised for discussion, a number of times, before various international forums. However, the suggestions to prohibit or limit the use of flechette shells were never really supported and were removed from the agenda. The 1980 convention regarding conventional weapons prohibited use of certain other weapons; and Israel, which in 1995, joined this convention and ratified it, indeed views itself as obligated to the convention’s prohibitions and restrictions. This convention, however, did not prohibit the use of weapons that contain sub-ammunition (such as flechette shells). It has been found that the claim of the appellants, that the laws of war prohibit use of flechette shells, has no basis and it should be rejected. The respondents do not argue that use of flechette shells – intended for a surface target – involves a heightened danger for incidental injury even of those not participating in the fighting against the army, and who happen to be within the boundaries of the area at which the shell was fired. The respondents explained that according to the estimates of the command and professional personnel charged with IDF activity in the Gaza Strip area, the use of flechette shells in the present security reality is necessary and has no suitable replacement. This notwithstanding, they emphasized that the rules composed in the IDF assure that no regular use of the flechette will be made; and the guidelines determined detailed the only situations and conditions under which commanders in the field are permitted to instruct the firing of a flechette shell. In general, and without entering into the details of the instructions, it was stated that the use of the flechette is restricted to areas in 316


which the danger to innocent civilians is not actual, and only against those suspected of activity that endangers IDF soldiers or Israeli civilians. In their treatment of the cases mentioned in the appeal, in which the use of flechette shells led to the killing of civilians, the respondents enumerated the circumstances of the events. As saddening as the attack on these civilians is, in our estimate there is no foundation for accepting that the use of the flechette in any of these situations deviated from the guidelines restricting the use of this weapon. Moreoever: under our impression, these same civilians were likely to have been struck by the firing of ordinary shells, meaning that the harm to them cannot necessarily be attributed to use of the flechette. The appellants asked us to prohibit the army from using flechette shells. Since we have realized that the use of this ammunition is not prohibited by the laws of war, the petitioners’ request cannot be accepted. This court has ruled that “the choice of weapons, which the respondents use for the goal of preventing murderous terror attacks, is not one of the topics in which this court sees fit to intervene.” (HCJ 5872/ 01, Bracha v Prime Minister, PD 56 (3)1). Needless to say, the respondents have eased our minds that the scope of use of this ammunition is arranged by the IDF through rules that are binding on the commanders of forces acting in the field. The decision regarding the question as to whether the conditions in the arena of combat, in every given case, justify use of the flechette, is determined by the authorized commander, who in formulating his decision is commanded to act according to professional guidelines, that in principle were intended to prevent harming residents not involved in activities that endanger IDF soldiers or Israeli civilians. The petition is rejected. Justice M. Cheshin: I concur. Justice A. Hayout: I concur. Decided, as stated, in Justice E. Matza’s decision. Issued today, 25 Nissan 5763 (27 April 2003).

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3. The Iqrit Case (June 26, 2003)* The Supreme Court of Israel sitting as the High Court of Justice HCJ 840/97 Before: The Honorable Justice D. Dorner The Honorable Justice (ret.) Y. Engelard The Honorable Justice A. Procaccia Appellants: 1. Auni Sabit 2. Yussef Atallah 3. Elias Khouri 4. Na’ama Ashqar v. Respondents: 1. The Government of Israel 2. The Minister of Defense 3. The Minister of Finance 4. The Development Authority 5. The General of the Northern Command, IDF Petition for the Granting of an Interim Decree Date of session: 17 Tammuz 5762 (April 29, 2002). For the Appellants: Attorney Avigdor Feldman For the Respondents: Attorney Osnat Mandel

*



THE IQRIT CASE

Judgment Justice D. Dorner: Facts, Procedures and Claims 1. The village of Iqrit was occupied on November 8, 1948 during the War of Independence. One week later, the residents of the village were ordered to evacuate for a short period of time, until the security situation would permit their return. Their property – land and homes – was not transferred to the Custodian of Absentees’ Property. The residents acted as instructed but, after the area was declared a security zone under the terms of the Emergency Regulations (Security Zones), 5719-1949, were not permitted to return to the village. In a petition submitted to the Supreme Court, the residents sought to oblige the Minister of Defense to permit them to return to the village. It was ruled that the appellants – concerning whom there were no grounds for denying their right to return to the village – should be considered permanent residents prior to the declaration of the village as a security zone. Accordingly, as long as no exit order were issued requiring them to leave the village, they were entitled to return thereto. Justice Yoel Sussman explained this ruling: We are without doubt convinced that, were it not for the refusal of the Respondents to permit the Applicants to return to the village, they would return to the village at the first opportunity. We have already determined that, after April 27, 1949 – the date on which the original regulations took effect – and through September 26, 1949 – the date on which the village was declared a security zone, there were no legal grounds for denying the Applicants their right to return. Accordingly, and since it was the (unjustified) opposition of the Respondents that caused the residents not to return to the village immediately after April 27, 1949, and they were not resident in the village on a permanent basis on September 26, 1949 – at which time the village formed part of a security zone – we are of the opinion that the Respondents are now prevented from denying that the Applicants are permanent residents. (HCJ 64/51, Daud et al. v Minister of Defense et al., Piskei Din 5 1117 [hereinafter “First Iqrit Petition”], p. 1122.) On July 31, 1951, a final decree was granted, in which the authorities were mandated to permit the displaced persons to return to their village. This decree was not upheld. The Appellants did not seek the legal relief granted by law but relied on promises made to them by the authorities until, on September 10, 1951, exit orders were sent to the residents of the village. At this point, they once again petitioned the Supreme Court, but no cause was found to reject the exit orders. In the verdict, given on February 25, 1952 by Justice Yitzhak Olshan, it was noted that, after the issuing of the exit orders, the Appellants had sought alternative housing from the state, but that no offer had been made. However, it was announced on behalf of the state that it was able “to arrange means of livelihood and housing that are not inferior, if not superior, to those they enjoyed in Iqrit, as they desire, and with or without connection to their rights in Iqrit.” (HCJ 239/51, Daud v Appeals Committee for Security Zones in the Galilee, Piskei Din 6 229 [hereinafter “Second Iqrit Petition”], p. 232.) 320


In 1953, a year after the said petition was rejected, the Land Acquisition (Validation of Acts and Compensation) Law, 5713-1953 was passed. Article 2 of that law determined that a property that the authorized minister declared was not in the possession of its owner as of April 1, 1952 and which was used through that date for vital development, settlement and security needs, and which was still required for one of those needs, would become the property of the Development Authority. On the basis of these provisions, and on the strength of a certificate issued by the Minister of Finance on August 28, 1953, the lands of the village of Iqrit, totaling 24,591 dunums, were granted to the Development Authority and registered in the state’s name. The state’s notification, supported by an affidavit, shows that this land was mostly allocated to settlements in the surroundings. 5,000 dunums of the land is a nature reserve, while the remainder of the land has been used for residential, industrial, agricultural and grazing needs. Roads have also been paved, and the land is also used by the army. In November 1963, the military commander issued a closure order in accordance with Article 125 of the Defense (Emergency) Regulations, 1945, in accordance with which entry into the area of the village of Iqrit was prohibited. For their part, the Appellants again requested that they be enabled to settle in the village. On July 23, 1972, the government, headed by Golda Meir, decided that the residents of Iqrit, as well as the residents of Bir’am, who were also displaced from their village, should not be returned, but that the displaced persons should receive compensation and should be rehabilitated through the allocation of land in their present place of residence. It was, however, decided to enable the residents to visit Iqrit. In December 1972, a closure order was issued in accordance with Regulation 125, including a general entry permit in accordance with which the possibility was provided to enter the area but not to dwell permanently therein. In 1981, the residents petitioned the High Court of Justice for the third time, requesting that the closure orders and the confiscation of their land be nullified, and, alternatively, that the state be obliged to allocate them an area of land in the village of Iqrit in which they might settle. The petition was rejected. It was ruled that the long delay prevented the possibility of examining the considerations exercised by the Minister of Finance – who issued the certificate on the basis of which the land was confiscated – and the considerations of the commanders in 1963 and 1972 who had issued the closure orders. Accordingly, the Court assumed that the confiscation and the orders had been executed lawfully. On the basis of this assumption, it was found that although the loyalty of the displaced persons to the state was beyond doubt, no change had occurred in the security situation that might justify the nullification of the orders. It was noted that the prime minister, who had been presented with the appellants’ claims, had announced that their case would be reexamined if there were a change in the security situation. Justice Yitzhak Cohen made the following parenthetical comment in the verdict: We can only express the hope that if a real change for the better occurs in the security situation in the proximity of the Lebanese border, the Appellants will enjoy a sympathetic discussion with a view to finding a decent solution to this human problem that has been pending for so long. (HCJ 141/81, Committee of Displaced Persons of Iqrit, Kfar Rama et al. v Government of Israel et al., Piskei Din 36(1) 129 [hereinafter “Third Iqrit Petition”], p. 133.)

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THE IQRIT CASE

Accordingly, the petition was rejected. However, the issue of the displaced persons of Iqrit and Bir’am remained on the public agenda. Over the years, a broad political consensus emerged that the displaced persons had been wronged and that ways must be sought to rectify this. In 1977, after the change of government, the government headed by Menachem Begin established a ministerial committee to examine the possibility of allowing the displaced persons to return. The committee, headed by Minister Ariel Sharon, recommended by a majority vote that they not be returned. The government did not reach a decision on the controversy. In 1988 it was decided that, at this stage, it was not possible to address the return of the displaced persons due to the security situation. In the early 1990s, several bills were tabled for the return of the displaced persons, including one submitted by members of Knesset from all sides of the political spectrum that was passed at its preliminary reading. However, these proposals never became law. On November 7, 1993, the government – now headed by Yitzhak Rabin – decided to establish a ministerial committee for the matter of the displaced persons of Iqrit and Bir’am, headed by Minister of Justice David Libai (hereinafter “the Libai Commission”). Some two years later, on November 4, 1995, Yitzhak Rabin was murdered, and was replaced by Shimon Peres. On December 24, 1995, the Libai Commission recommended to the government that the residents be returned to a site of 1,200 dunums in the area of Iqrit and Bir’am. This reflected the changes that had occurred both in the position of the security services – who were of the opinion that there was no security impediment to the return of the residents – and in light of the signing of peace agreements with Egypt, Jordan and the Palestinian Authority. The Committee’s report stated, inter alia: It is decided (nem. con.): A. To recommend to the government, further to the undertakings of the Israeli authorities in the past and by way of repaying a debt of honor, to introduce a final settlement, by way of leniency, of the claims of the residents of Iqrit and Bir’am, as a single and unique case with exceptional circumstances, that shall not serve as a precedent, as follows: B. Preamble 1) Recognizing the unique nature of the case of the residents of Iqrit and Bir’am, which has no parallel in Israel, and which is manifested in the following cumulative circumstances: (A) The governmental promises made to the residents of Iqrit and Bir’am by representatives of the government and the IDF from the date of their voluntary evacuation from the settlements. … (D) The promises given on behalf of the government to the residents in the affidavit before the High Court of Justice.

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Despite deliberations that were held by the Libai Commission and by sub-committees thereof to implement the recommendations, the government was unable to determine its position before the elections held in October 1996, in which the government changed hands. It was then, on February 5, 1997, that the petition before us was submitted. 2. The Appellants argued that the security foundation on the basis of which they were prevented from returning to their homes had changed, that their right once again to live in their village is no longer in doubt, and that the Libai Commission already discussed the conditions for the return of the displaced persons of Iqrit to their village, including the size of the area to which they would return, building rights, inheritance rights, etc. The Appellants argued that the procedure instigated by the outgoing government had been interrupted prior to completion due to the change of government. They requested that the various orders issued in the past resulting in their being prohibited from returning to Iqrit and settling there be nullified, and that the government act to complete and implement the decision to return the displaced persons of Iqrit to their village. In a preliminary response to the petition, the state argued that even if the closure orders, regarding the justification for which it declined to offer its opinion, were nullified, the Appellants would not be entitled to settle on the land of Iqrit and Bir’am, which had been granted to the Development Authority decades ago. However, the state requested a stay for the purpose of enabling the new government to consolidate a decision. Indeed, the government headed by Benjamin Netanyahu also continued to address the issue. In 1997, the Prime Minister charged Minister of Justice Zahi Hanegbi – who at the time favored the return of the displaced persons in accordance with the recommendation of the Libai Commission – with presenting the subject to the Ministerial Committee for National Security. Once again, however, the discussion was delayed due to the elections for the Knesset and the prime minister in 1999. Again the government changed hands and, given the developments in the region, including the withdrawal of the IDF from southern Lebanon, the government headed by Ehud Barak formed the opinion that adoption of the decision should be postponed. In the interim, on February 6, 2001, elections were held for the prime minister. Ariel Sharon was elected and he, too, established a team to examine the issue, headed by the government secretary. During this period, an interim decree was issued in the petition. At the state’s request, and due to its inability to present a final position due to the changes of power, the discussion was delayed for many months, which accumulated into years. During the years that passed, the political circumstances changed. The agreement with the Palestinian Authority deteriorated, and in discussions held therewith, the demand was raised for the right of return. Eventually, in an affidavit of response from Prime Minister Ariel Sharon, submitted on October 15, 2001 – over four years after the submission of the petition – it was stated that even if promises were made to the displaced persons by the authorities, these were not authorized by the various governments and, in any case, the government could release itself therefrom if a political and even existential interest were at stake. According to the content of the affidavit, it is not possible, at this time, to maintain the

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THE IQRIT CASE

promises so given, in light of the ramifications of the return of the displaced persons for vital state interests. The affidavit stated, inter alia: The issue of the refugees and the Arab demand for refugees to be returned were indeed forcefully raised at the discussions at Camp David and Taba and during the violent wave thereafter, underscoring the ramifications that might follow the adoption of a decision on this matter. The precedent of returning the displaced persons to their village would be used for propaganda and political purposes by the Palestinian Authority. … The security sources, which indeed formed the opinion that there was no security impediment, in the narrow sense, to the return of the displaced persons in a limited format, as proposed by the Libai Commission… noted the portentous broad ramifications liable to result from such a move. The prime minister added that to this day, the government is willing to consider various possibilities for compensating and rehabilitating displaced persons who have not been compensated or rehabilitated, including by means of considering the allocation of land in their current place of residence. The Appellants countered by arguing that the issue under discussion has nothing to do with the demand for the right of return, and that the issue is the right to property, the validity of confiscation and the right of the Appellants that the (judgment from the) First Iqrit Petition be realized in their case. The Appellants challenged the data presented in the affidavit on behalf of the state claiming that the land was not available – an affidavit contradictory to the report of the Libai Commission, in accordance with which available land was found for the settlement of the Appellants. They further argued that the legal framework for discussion of the petition was recently clarified following the new ruling given in HCJ 2390/96, Krasik v State of Israel, Piskei Din 55(2) 625 (hereinafter “the Krasik Petition”), concerning confiscated land and the affinity of owners to confiscated land. It was established in this ruling that the authority of confiscation in accordance with the Land (Acquisition for Public Purposes) Ordinance, 1943, is restricted to the purpose of realizing a pubic need, and that when the land is no longer required in order to realize the public need, the Minister of Finance must, as a generality, nullify the confiscation. The Appellants argued that the Krasik Petition should apply to our matter. Attorney Khalil Jad’in, a descendant of a family of displaced persons from Iqrit, sought to add that the transfer of the displaced persons from their village came many months after the determination of the War of Independence; that associating the Appellants’ case with the issue of the right of return was inappropriate, since the displaced persons of Iqrit are citizens of the state required temporarily to relocate their place of residence and have no connection to the question of the refugees; and that since the governmental decision in 1972, significant change has occurred in the circumstances, including the occurrence of the Peace for Galilee War and the withdrawal of the IDF from Lebanon, as well as drastic change in the position of the security services on this matter. Following discussion of the petition, held on the basis of our recommendation, the state prepared a relatively generous offer of compensation and even agreed to consid324


er the possibility of providing compensation by way of land for displaced persons engaged in agriculture. The Appellants announced that only their return to their villages, as limited as this might be, could compensate them for the wrong they have suffered, and that compensation is not a proper substitute for their land. Land Confiscation and the Right to Property 3. Land confiscation infringes the right to property as enshrined in Article 3 of the Basic Law: Human Dignity and Liberty, even if it is undertaken for public needs. However, as a generality, such confiscation is consonant with the values of the state, and is even for a fit purpose, while commensurability is maintained by way of the payment of fair and equivalent compensation on account of the confiscated land. The payment of compensation also maintains the principle of equality, since “without [such] compensation, the confiscation will impair equality, since only the owners of land required for public use, as distinct from the owners of other land or assets, will be required to bear the financing of the public benefit, without their being any justification to impose the financing solely on these owners.” See CC 5546/97, Kiryat Ata Local Planning and Building Board v Holzman, Piskei Din 55(4) 629 (hereinafter “the Local Committee Appeal”), p. 642. However, and like the government, the Appellants also view their return – if only to a limited area – to the villages from which their parents were evacuated 55 years ago, on the assurance that they would, after a short time, be able to return and live therein, as a symbolic act with, as they state, unique power to amend the grave injury they have been caused. The Appellants base their demand to return to the village on three foundations: the absence of any security grounds for the issuing of the closure orders; a promise by the authorities from which there are no grounds for release; and the ruling permitting the nullification of confiscation, including confiscation executed many years earlier. I shall discuss these claims in order. The Closure Orders 4. The closure orders were based on security grounds. While the Third Iqrit Petition determined that these grounds remained intact, there can today be no argument that these grounds still exist. This emerges from the report of the Libai Commission, before whom there appeared representatives of the IDF, including the Chief-of-Staff and members of the General Security Service, expressing their opinion that there is no longer any security impediment to the return of the residents to the Iqrit area. In the affidavit of Prime Minister Sharon, it was also explained that a distinction must be made between a narrow security impediment, which now no longer exists, and broad ramifications. Similarly, the state’s response shows that, after the granting of the land to the Development Authority, these grounds are no longer available, and the closure orders issued, inter alia, with the goal of preventing the displaced persons from returning to the villages are not required, and that the state’s position is now based on broad political considerations. These considerations do not establish grounds for activating orders based on security reasons that, in accordance with the opinion of the authorized bodies, are no longer valid; accordingly, these should be nullified. However, in the absence of the allocation of land by the state, even after the nullification of the orders, the descendants of the displaced persons cannot, in practical terms, settle in the villages. 325

THE IQRIT CASE

5. Successive Israeli governments have not formulated a formal decision nullifying the decision of the government headed by Golda Meir not to allow the return of the displaced persons to their place of residence. In my opinion, however, a promise by the authorities has been consolidated in this matter; at the least, it may be assumed that such a promise has been consolidated. The behavior of the authorities over decades – since the IDF officer who ordered the evacuation of the villages promised to enable the residents to return after a short time, through the promises of the authorities to observe the ruling in the First Iqrit Petition and the comments by prime ministers, ministers and members of Knesset from all sides of the political spectrum expressing understanding for the demand of the displaced persons that they be returned, and on to the detailed recommendations of the Libai Commission – has consolidated a representation on which the displaced persons were entitled to rely reasonably and in good faith. As emerges from the Second Iqrit Petition, the Appellants, basing themselves on the promise of the authorities, refrained from taking steps to enforce the ruling of the Supreme Court, and indeed exacerbated their situation by so doing. An administrative authority may indeed release itself of an authoritative promise made thereby if legal justification exists, including changed circumstances warranting a retraction of the promise. The foundation of this power of the authority to release itself from its promises lies in the public interest, “which demands that the authority’s hands not be tied to the point that it cannot perform its functions for the general good as times, circumstances and needs change” (as stated by Justice Eliezer Goldberg in HCJ 580/83, Atlantic Fishing and Shipping Company Ltd. Minister of Trade and Industry, Piskei Din 39(1) 29, p. 36). Yet the authority seeking to retract from a promise made to a citizen, whose interest of reliance thereon is impaired, must indicate the changed circumstances that occurred after the granting of the promise and which justify release therefrom. See the comments of Justice Eliahu Matza in HCJ 4383/91, Speckman v Municipality of Herzliya, Piskei Din 56(1) 447, p. 454. However, a promise that cannot be realized on account of a lawful justification may establish grounds for the payment of compensation if the party to which the promise was made acted in accordance therewith and exacerbated its situation. As is known, when the body making the promise is not an administrative authority, if the recipient of the promise relied thereon in good faith and in reasonable manner and its situation was exacerbated thereby, the body making the promise may be estopped from denying the promise. See, for example, CA 4928/92, Ezra v Tel Mond Local Council, Piskei Din 47(5) 94, p. 100. However, the principle of estoppal, insofar as it requires the observance of the promise, creates difficulties in administrative law. As explained, the estoppal of an administrative body is liable to injure the pubic interest or unconditional norms of administrative law. See the comments of Judge Yitzhak Cohen in CA 831/76, Levy v Haifa Assessing Office, Piskei Din 32(1) 421 (hereinafter “Levy Appeal”), pp. 434-435. These difficulties do not, however, negate the claim of estoppal in limine as raised by an individual against an administrative authority “but rather the court, in each individual case, weighs, on the one hand, the public interest in preventing this claim and, on the other, the injustice caused to the individual who relied on the representation of the authority” (Judge Yitzhak Cohen, Levy Appeal, p. 435). Moreover, the perception of justice at the foundation of the theory of estoppal – particularly given the elevated obligation of fairness of the authority toward the citizen – specially justifies the application of estoppal in administrative law. However, the relief 326


that may be granted against the authority – injunctive relief or compensation – is conditional on the balancing between the public interest and the principal of the legality of administration and the case of an individual who reasonably and in good faith relied on the representation of an administrative authority. I discussed the criteria for maintaining this balance in CA 6996/97, A. Abada Ltd. v The Development Authority under the Auspices of the Israel Lands Administration, Piskei Din 53(4) 117, pp. 124-125: Within the scope of this balance, the following factors, inter alia, must be taken into account: the extent of the injury to the public good liable to result from the enforcement of the authority’s representation; the value of the exacerbation that occurred in the situation of the person relying [on the promise] compared to the value of the enforcement of the representation and the injury to the interests of third parties liable to be caused by enforcement. If this balance leads to the conclusion that the representation is not to be enforced against the authority, the possibility should be examined of converting enforcement into something close to the representation in which the individual is interested (“alternative enforcement”) or the payment of financial compensation to the individual relying [on the promise]. See also Ariel Bandor, The Theory of Estoppal in Administrative Law (thesis toward an LL.D. degree, 5744), 169-173; and Alex Stein, “Administrative Promise,” Mishpatim 14 255, pp. 289-294. 6. In our case, the Libai Commission based its recommendations, inter alia, on political changes that have occurred in the region, including the peace agreement with the Palestinian Authority (the “Oslo Accord”). However, as noted, the political reality has changed since then, and, in the prime minister’s opinion, given these changes, and at this time, when the Palestinians’ demand for the right of return has once again been raised, the precedent of returning the displaced persons is liable to injure important interests of the state. This position relates to a political matter in which the government enjoys broad discretion and where the scope of reasonableness granted thereto is extremely wide. See and cf. CA 5167/00, Weiss v Prime Minister, Piskei Din 55(2) 455, p. 472. In these circumstances, there are no grounds for enforcing the promise by the authorities to settle the displaced persons in the Iqrit area. However, the Appellants have the right to alternative enforcement through the allocation of land in another place or through the payment of compensation. Nullification of Confiscation 7. As noted, the Appellants – based on the report of the Libai Commission, which indicated areas of land adjacent to Iqrit and Bir’am on which community settlements could be established without real injury to the neighbors – claim that these areas have not been used to date and, accordingly, the areas are not required in order to secure the public need for which they were confiscated. Accordingly, it is argued, the rule given in the ruling in the Krasik Petition applies to this land and, in these circumstances, the Minister of Finance must nullify the granting of their land to the Development Authority. This argument cannot be accepted. First, as emerges from the state’s notification, supported by the affidavit, the land is no longer vacant and has been used for various needs. This affidavit does not contradict the commission’s findings that a limited area may be allocated for the purpose of settlement “without real injury.” In such case, however, the land would no longer be used 327

THE IQRIT CASE

for the purpose for which it is currently used. Second, the rule in the Krasik Petition relates to the authority of confiscation in accordance with the Land (Acquisition for Public Needs) Ordinance, 1943 and is also subject to exceptions that must be consolidated in law. The areas that are the subject of the petition, however, were granted to the Development Authority on the basis of the Land Acquisition [(Validation of Acts and Compensation)] Law, which has a different legislative purpose. Third, the Krasik ruling did no more than present a principled approach, alongside which a series of questions remain open, centrally the date of application of the rule. The determination of these questions has been delayed for one year, in the expectation that a law on the matter will be enacted during this period. Fourth, in my opinion, cardinally – even in accordance with the new doctrine underlying the Krasik rule, grounds are established “to return the land or pay the value thereof on the exhaustion of the public goal for which the land was confiscated…” (Justice Cheshin in the Krasik Petition, p. 692, emphasis added). In our case, however, the public goals are still intact. Lastly, there is no foundation to the Appellants’ claim that the granting of their land to the Development Authority should be nullified. 8. Accordingly, in the absence of grounds to oblige the authorities to allocate land for the purpose of the settlement of the Appellants in the area from which their fathers were displaced, the relief to which they are entitled – which is commensurate and also maintains the principle of equality – is compensation, whether in money or land. My conclusion is, therefore, that, subject to the authorities’ duty to nullify the closure orders, the petition should be rejected. This is the situation for the present. For I believe that this debt of honor – as it was termed in the report of the Libai Commission – created pursuant to the repeated promises of the authorities to generations of displaced persons, loyal citizens of the state of Israel, remains intact. It is therefore proper, if a change occurs in the political situation, to consider another solution that would enable the Appellants to settle in the same area. Justice (ret.) Y. Engelard: I concur. Justice A. Procaccia: I concur. It is decided as stated in the ruling of Justice Dorner. Issued today, 26 Sivan 5763 (June 26, 2003).

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II. Cases from Other Jurisdictions 1. THE CASE OF EL-ALI AND DARAZ V. THE [U.K.] SECRETARY OF STATE FOR THE HOME DEPARTMENT (Interpretation of Article 1D of the 1951 Convention Relating to the Status of Refugees in the U.K.) (July 26, 2002) [EXCERPT]1

Case No: C/2002/0751. Neutral Citation No [2002] EWCA Civ 1103. In the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from the Immigration Appeal Tribunal. Royal Courts of Justice, Strand, London, WC2A 2LL. Friday 26th July 2002. In the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from the Immigration Appeal Tribunal. Before: LORD PHILLIPS OF WORTH MATRAVERS THE MASTER OF THE ROLLS LORD JUSTICE MAY and LORD JUSTICE LAWS

Between: Amer Mohammed El-Ali

Appellant

and The Secretary of State for the Home Department

Respondent

C/2002/1284 Daraz

Appellant

and The Secretary of State for the Home Department The United Nations High Commissioner for Refugees

1

Case published in the Law Reports [2003] 1 WLR 95.


Respondent Intervener

THE CASE OF EL-ALI AND DARAZ V. THE [U.K.] SECRETARY OF STATE

– Mr Nicholas Blake QC and Mr Raza Husain (instructed by Salfiti & Co) for El Ali – Mr Rambert de Mello and Mr Chris Williams (instructed by Nijher & Co) for Daraz – Mr Tim Eicke (instructed by the Treasury Solicitors) for the Secretary of State for the Home Department – Professor Guy Goodwin-Gill (instructed by the UNHCR) Intervener

Lord Justice Laws:

A.

INTRODUCTORY

1. There are two matters before the court. First there is in the case of El-Ali an appeal brought with permission granted by the Tribunal itself, against a starred determination of the Immigration Appeal Tribunal (“IAT”) notified on 29 January 2002, dismissing the appellant’s appeal from the decision of the Adjudicator who in his turn had in June 2001 dismissed the appellant’s appeal against the Secretary of State’s refusal of his asylum claim. The appeal requires the court to decide what is the correct interpretation of Article 1D of the 1951 United Nations Convention relating to the Status of Refugees (“the Convention”). The second matter before the court, Daraz, is an application for permission to appeal which was adjourned by myself, on consideration of the papers, to be listed with the appeal in El-Ali. The applicant Daraz seeks to raise essentially the same issues on Article 1D as does El-Ali. The IAT in Daraz gave the applicant’s representative a period of 14 days within which to make written submissions on the Tribunal’s then recent decision in El-Ali; however he failed to do so. Accordingly the IAT without further reasoning followed its own decision in El-Ali, and refused permission to appeal to this court to the applicant. At an early stage of the hearing we indicated that we would give permission to appeal, so that the two cases might be dealt with as substantive appeals on the same procedural footing.

B.

THE MATERIAL PROVISIONS OF THE CONVENTION

2. Article 1D cannot be understood outside its context. It will be necessary in due course to refer to other legal materials, and some of the travaux préparatoires of the Convention, but it is convenient at this stage to set out the following provisions of the Convention itself. I have included (in light of the argument in the case) some but not all of the measures conferring the rights which refugees are to enjoy. [Extensive quotation from the 1951 Convention Relating to the Status of Refugees and portions of the 1967 Protocol omitted.]

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C.

THE OUTLINE FACTS IN EL-ALI

3. El-Ali was born on 22 July 1977 in Kuwait but lived nearly all his life in the Lebanon. His parents originally came from a village near Tiberius in Israel. He arrived in the United Kingdom on 21 September 1998 having apparently been travelling on a false Jordanian passport which he destroyed en route. He claimed asylum and produced documents showing that he was registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”) in the Lebanon field. The political and historical genesis of UNRWA is very important for the task of interpreting Article 1D and I shall explain it in due course. El-Ali’s documents described him as a “Palestinian Refugee” and showed his residence to have been Ein El Hilweh Camp I. There are three decision letters from the Secretary of State, rejecting El-Ali’s substantive asylum claim, and also his claims put forward in the context of the Secretary of State’s Mandate Refugee policy and of Article 1D of the Convention. 4. It is convenient at this stage to give a summary explanation of the Mandate Refugee policy. On its face (the relevant documents are in the papers) the policy is directed at persons who have been recognised as refugees by, and received the protection of, the United Nations High Commissioner for Refugees (“UNHCR”); where an application is made on such a person’s behalf from overseas for an entry clearance to come to the United Kingdom as a refugee, the policy indicates that it should not be necessary to assess the applicant’s refugee status, and consideration of the claim should usually be limited to “the applicant’s circumstances in the present country of refuge, and whether the UK is the most appropriate country for resettlement”. A further Home Office instruction (since superceded, as I shall show: paragraph 5) stated: “An application from a Palestinian who receives protection from UNRWA should be considered in accordance with the instruction on Mandate Refugees”. This decision-making procedure was followed in El-Ali’s case. In November 2000, however, the Secretary of State concluded that he could have remained safely in the Lebanon and so should not be admitted under the policy. 5. The IAT decided that the Mandate Refugee policy had “no relevance” to El-Ali’s case, essentially because he was asserting that he had ceased to receive protection from UNRWA, and had presented himself as a substantive asylum claimant. It is submitted in the skeleton argument prepared on El-Ali’s behalf by junior counsel (paragraph 2) that the IAT was wrong and that the case should be remitted for re-determination on the footing that El-Ali had a strong prima facie case under the policy. However, there is no effective challenge to the Secretary of State’s conclusion that El-Ali could have remained safely in the Lebanon. The Home Office’s procedures were revised in early 2001. As appears from the Minister of State’s letter of 7 March 2001 the upshot, so far as material, is that a Palestinian who was “UNRWA assisted” before he came to the United Kingdom will have his claim to enter considered against the standard criteria for asylum contained in Article 1A(2) of the Convention. I may state at once that there is in my judgment no scope for allowing the appeal in El-Ali on any free-standing ground based on the Mandate Refugee policy. 6. The Adjudicator for his part rejected El-Ali’s various claims. In particular, although he accepted that El-Ali had on one occasion been detained and investigated by the Lebanese authorities, he did not accept that the treatment then meted out to him

331


amounted to persecution for a Convention reason; nor therefore, were the Secretary of State to return him to the Lebanon and he there suffered like treatment again, did the Adjudicator accept that that would amount to persecution for a Convention reason. He also rejected El-Ali’s claim that the Lebanese government systematically discriminates against Palestinians to an extent which amounts to persecution, and with it the argument that his return to Lebanon would for that reason amount to a violation of the Convention. 7. El-Ali’s essential case before the IAT, which (though it has been somewhat refined, as I shall show) gives rise to the issue of the true interpretation of Article 1D of the Convention, was, if I may say so, succinctly summarised by the IAT itself as follows: “10. The Appellant submits that Article 1D is to be given its full literal meaning and that, as a result, he is entitled to enter and remain in the United Kingdom as a refugee. While he was in Lebanon he was able to claim protection or assistance from UNRWA, and so the Refugee Convention did not apply to him. Now that he has left Lebanon that protection or assistance has ceased, and so ‘ipso facto’ he has become, he says, entitled to the benefits of the Refugee Convention.” In rejecting this submission the IAT adopted an interpretation of Article 1D which I shall have to examine: it is not accepted by Mr Eicke for the Secretary of State, nor by Professor Goodwin-Gill who appeared for UNHCR. (UNHCR intervened with the court’s permission, and for my part I found the intervention of considerable assistance.) The Secretary of State put in a respondent’s notice urging a different interpretation, which has been supported by Mr Eicke in the course of argument.

D.

THE OUTLINE FACTS IN DARAZ

8. Daraz is also a Palestinian who lived in the Lebanon. He was born at the Tyre Albass refugee camp on 26 June 1973. He arrived in the United Kingdom on 7 June 1998 and sought asylum, claiming to have left the Lebanon because he was wanted by members of the Hezbollah. The Secretary of State refused his claim and he appealed to the Adjudicator, before whom however he did not appear and was not represented. The Adjudicator rejected his substantive assertions of a well-founded fear of persecution were he to be returned to the Lebanon. There is no reference in his determination to Article 1D; however at paragraph 36 he stated: “It was suggested that the Appellant is entitled to remain in the United Kingdom in any event. This is because the Secretary of State has published a policy to be followed in the case of people who are protected by [UNRWA].” This was of course a reference to the Mandate Refugee policy. However the Adjudicator held that it was not for him, on the asylum appeal, to rule whether Daraz might be so entitled. Daraz then sought to rely on Article 1D in his Grounds of Appeal to the IAT, and was given leave to appeal to the Tribunal on 29 November 2001. That was two months before the IAT’s decision in El-Ali. I have already described (paragraph 1) Daraz’ representatives’ failure to make submissions on El-Ali in the time allowed by the IAT, and the consequent refusal by the IAT of permission to appeal to this court. Having been granted permission by us, Daraz now relies on the same arguments based on Article 1D as does El-Ali, together with some additional points. I should say that in my 332


judgment, as in the case of El-Ali, there is no room for any distinct case to be made in reliance on the Mandate Refugee policy. Both of these appeals turn entirely on the interpretation of Article 1D of the Convention.

E.

HISTORICAL SUMMARY

9. The background is unusually important. For much of what follows in this short account I am indebted to the submissions of Professor Goodwin-Gill. 10. On 29 November 1947 the General Assembly of the United Nations voted in favour of the partition of Palestine into two separate States, Arab and Jewish. The British mandate over the territory ended on 14 May 1948. The next day the Jewish community proclaimed the State of Israel. At once the first Arab-Israeli war broke out. Many thousands of Palestinian Arabs fled into neighbouring countries. On 19 November 1948 the General Assembly established the Special Fund for Relief of Palestinian Refugees. On 11 December it resolved to establish the United Nations Conciliation Commission for Palestine (“UNCCP”) which was instructed (Article 6 of Resolution 194(III)) “to take steps to assist the Governments and authorities concerned to achieve a final settlement of all questions outstanding between them”. By paragraph 11 of 194(III) the General Assembly resolved “that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date… [and UNCCP was instructed to] facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation…” 11. A year later, on 8 December 1949, UNRWA was established by Resolution 302(IV) as a subsidiary organ of the General Assembly. Certain specific obligations were imposed on UNRWA (or rather its Director) but its overall brief was to provide assistance to those who had left Palestine as a result of the conflict. By paragraph 20 of 302(IV) UNRWA was directed to consult with UNCCP “in the best interests of their respective tasks, with particular reference to paragraph 11 of General Assembly resolution 194(III) of 11 December 1948”. 12. UNRWA adopted a working definition of “refugee” for the purposes of this task: “a person whose normal residence was Palestine for a minimum of two years immediately preceding the outbreak of conflict in 1948, and who, as a result of that conflict, lost both home and means of livelihood, and who is in need”. This definition has since been extended to the children of such persons. By Resolution 2252 (ES-V) of 4 July 1967 (re-affirmed by Resolution 2341 B (XXII) of 19 December 1967) the General Assembly authorised UNRWA to give temporary assistance as a matter of urgency to others in the area who had been displaced by the hostilities of June that year; and much more recently, by Resolution 56/54 of 10 December 2001, such assistance was extended so as to cover “persons in the area who are currently displaced and in serious need of continued assistance as a result of the June 1967 and subsequent hostilities”. The reference in that Resolution to “the area” is to the territorial scope of UNRWA’s activities, which is restricted to Lebanon, Syria, Jordan, the West Bank, the Gaza Strip and (since the 1967 displacements) Egypt. The recipients of its assistance are also restricted, being 333


limited to refugees registered in these countries and residing there. By Resolution 56/56, also of 10 December 2001, the General Assembly (amongst other things) requested the Commissioner-General of UNRWA “to proceed with the issuance of identification cards for Palestine refugees and their descendants in the Occupied Palestinian Territory”. 13. These later measures, from 1967 onwards, show that the scope of UNRWA assistance has been widened at times long since the original displacement of Palestinian Arabs following the war of 1948. In due course I shall have to consider what light, if any, this circumstance throws on the interpretation of Article 1D. 14. There are some further aspects of the earlier historical events to which I must refer before coming to the travaux préparatoires of the Convention. First, whereas the role of UNRWA was primarily to give aid and assistance, UNCCP was distinctly charged with a measure of protection: see for example Resolution 194(III) paragraphs 2(a) and 6, cross-referring to Resolution 186 (S-2) of 14 May 1948 and Resolution 394(V) of 14 December 1950. I need not set out these materials. Secondly, it was plainly envisaged in the period leading up to the adoption of the Convention that the plight of the displaced Palestinians would be resolved within a short time-scale. This is implicit in much of the contemporary documentation, including paragraph 6 of Resolution 302(IV), by which it was anticipated that direct relief to the Palestinian refugees should cease not later than 31 December 1950. But the high hopes of the time were not fulfilled; indeed, as the world knows, they have still not been fulfilled. More particularly for our purposes, expectations of what might have been achieved by UNCCP were not met. In her article Reinterpreting Palestinian Refugee Rights under International Law, and a Framework for Durable Solutions Professor Susan Akram of the Boston University Law School states: “The UNCCP struggled to fulfil its mandate. Its efforts were stymied by a complete stalemate: the Arab states and the Palestinians demanded full repatriation, while Israel refused to accept any repatriation of the refugees. Thus, within four years of its formation, the UNCCP devolved from an agency charged with the ‘protection of the rights, property and interests of the refugees’ to little more than a symbol of UN concern for the unresolved aspects of the Arab-Israeli conflict”. Whether or not this is a just description of the events which happened – as to which we need form no view – it is clear that UNCCP’s aims were unachieved. And it is I think no less plain that in the years from 1948 to 1951, when the Convention was adopted, it was entirely beyond the contemplation of the General Assembly, or of the nations and peoples involved, that fifty years and more later there would still be no political solution to cure the displacement of the Palestinian Arabs. 15. The next aspect of the historical background to which I should refer forms a convenient bridge towards the travaux préparatoires of the Convention. It is that Palestinian refugees – and there is no doubt but that the displaced Palestinians were considered at all relevant stages to be refugees – were regarded, in and out of the United Nations, as belonging to a special category. To anticipate the question of Article 1D’s proper interpretation, I note that Professor Hathaway of the Osgoode Hall Law School (The Law of Refugee Status, Butterworths, p.204) states that Article 1D

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“resulted from the strongly held view of Arab states that because the plight of Palestinian refugees was the consequence of the establishment of Israel by the United Nations itself, the UN should bear a more direct and obvious responsibility for their well-being” Professor Hathaway then cites these observations of the Lebanese representative at the Fifth Session of the Third Committee of the General Assembly (5 UNGAOR) on 27 November 1950 (pp.358-359): “… the Palestinian refugees… differed from all other refugees. In all other cases, persons had become refugees as a result of action taken contrary to the principles of the United Nations, and the obligation of the Organization toward them was a moral one only. The existence of the Palestine refugees, on the other hand, was the direct result of a decision taken by the United Nations itself, with full knowledge of the consequences. The Palestine refugees were therefore a direct responsibility on the part of the United Nations and could not be placed in the general category of refugees without betrayal of that responsibility.” After setting out further citations (including material showing the desire of the Arab States that the Palestinian refugees should be aided pending their repatriation, “repatriation being the only real solution of their problem”) Professor Hathaway observes (p.207): “The concerns of the Arab community ironically coincided with a determination by some Western delegates to avert the prospect of claims to refugee status by Palestinians. The French representative, for example [statement, UN Doc. A/CONF.2/SR.19, 26 November 1951], ‘… considered that the problems in their case were completely different from those of the refugees in Europe, and could not see how Contracting States could bind themselves to a text under the terms of which their obligations would be extended to include a new, large group of refugees…’ Indeed, the American representative warned that the inclusion of Palestinian refugees ‘would present Contracting States with an undefined problem, and so reduce the number of States in Europe that would find it possible to sign the Convention.’” 16. It is not hard to see that this uneasy and ironic conformity between the stance of the Arab States and the anxieties of the Europeans drove towards a disposition in the Convention, in 1951, of the plight and the claims of the Palestinian refugees which would be quite different from the notion of protection in any of the Signatory States obliged to harbour a refugee who fled to its borders. This notion is the paradigm of the Convention’s aims; applied to the Palestinians in 1951, however, it might have been the engine of a diaspora which would be condemned by the Arabs and feared or resented or at least not welcomed by the Europeans, or by some of them. 17. Last before coming to the travaux of the Convention I should note the adoption by the General Assembly on 14 December 1950, by Resolution 428(V), of the Statute of the Office of the UNHCR. By Chapter I Article 1 he was to “assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute…” Chapter II Article 6 opens with the words “The competence of the High Commissioner shall extend to…”, and then A(i)

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and (ii), which immediately follow, correspond to Article 1A(1) and (2) of the Convention in its original form; save that Article 6A(ii) (equivalent to Article 1A(2) of the Convention) has the words “or for reasons other than personal convenience” between “owing to such fear” and “is unwilling to avail himself ”.

F.

THE TRAVAUX PREPARATOIRES OF THE CONVENTION

18. The relevance of the travaux préparatoires to the interpretation of the Convention, and thus of Article 1D, is not in doubt. The travaux of an international treaty are recognised as a “supplementary means of interpretation” by Article 32 of the 1969 Vienna Convention on the Law of Treaties (“the Vienna Convention”). (The Vienna Convention strictly applies only to the construction of treaties concluded after its entry into force on 27 January 1980; however, as Gummow J explained in A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 277, the rules of interpretation which it sets out reflect customary international law.) 19. On 14 December 1950 the General Assembly considered (Resolution 429(V)) a draft Refugee Convention which had been submitted by the Economic and Social Council, and resolved to hold a conference at Geneva at which the draft would be considered by governments, including the governments of States which were not members of the United Nations. Article 1C of the draft, which was annexed to Resolution 429(V) and was in part the forerunner of Article 1D in the Convention as it was adopted, merely provided: “The present Convention shall not apply to persons who are at present receiving from other organs or agencies of the United Nations protection or assistance.” The Geneva conference duly met and deliberated. The record of the nineteenth meeting held on 13 July 1951, whose purpose as I understand it was in terms to consider what should be the definition of “refugee” in the forthcoming Convention, contains a number of important passages. The Egyptian representative proposed an amendment to Article 1C by the addition of a second sentence as follows: “When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the United Nations General Assembly, they shall ipso facto be entitled to the benefit of this Convention.” This, of course, became the second sentence of Article 1D. The Egyptian representative’s observations are reported thus in the text of the nineteenth meeting (A/CONF.2/ SR.19, pp.16-17): “… it should be noted… that the present situation of those refugees was a temporary one, and that the relevant resolutions of the General Assembly provided that they should return to their homes… The limiting clause contained in paragraph C of article 1 of the Convention [sc. as I have set it out above in its original form] at present covered Arab refugees from Palestine. From the Egyptian Government’s point of view it was clear that so long as United Nations institutions and organs cared for such refugees their protection would be a matter for the United Nations alone. However, when that aid came to 336


an end the question would arise of how their continued protection was to be ensured. It would only be natural to extend the benefits of the Convention to them; hence the introduction of the Egyptian amendment.” The Iraqi representative pointed out that (p.17): “… paragraph C of article 1 had been inserted in the definition at the express request of the Arab countries which had not wished to impose on Contracting States the burden of the Arab refugees from Palestine so long as the United Nations was caring for them. When the assistance at present being given by the United Nations came to an end, and the Convention accordingly became applicable to those refugees, it would not by any means follow that they would emigrate to France or other western European countries, if only for purely material reasons.” The Egyptian representative had more to say (p.19): “The provisions of paragraph C would cease to be applicable the moment the aid at present being given by the United Nations to Arab refugees ceased; the latter would then be eligible for the benefits of the Convention.” The United Kingdom representative (p.20) “… wished to make it quite clear that he understood paragraph C to exclude persons who were defined as those who at the time when the Convention came into force were receiving protection or assistance from United Nations organs or agencies, and that the cessation of the operations of such organs or agencies would not bring such persons within the scope of the Convention.” So there was a debate as to the effect of the unamended paragraph C when the agencies of the United Nations ceased their operations: would the Convention then apply to the Palestinian Arabs or not? 20. Being of the view that the Convention would not apply in those circumstances, the Egyptian representative was at pains to press his amendment. At the twentieth meeting (which followed on the afternoon of the same day, 13 July 1951), he said: “It was only right and proper that, as soon as the Palestine problem had been settled and the refugees no longer enjoyed United Nations assistance and protection, they should be entitled to the benefits of the Convention on the Status of Refugees, and it was for that reason that the Egyptian delegation had submitted its amendment… to article 1 of the draft Convention.” At the twenty-ninth meeting, on 19 July, the Egyptian representative returned to his theme: “The object of the Egyptian amendment was to make sure that Arab refugees from Palestine who were still refugees when the organs or agencies of the United Nations at present providing them with protection or assistance ceased to function, would automatically come within the scope of the Convention.” The Egyptian amendment was adopted at the twenty-ninth meeting. The Convention itself was adopted on 28 July 1951. 21. That is a sufficient citation of the travaux for the purpose of interpreting Article 1D.

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G.

RIVAL INTERPRETATIONS

22. The starting-point for the interpretation of Article 1D is, of course, the language which the drafters used: see Article 31(1) of the Vienna Convention, and Adan v SSHD [1999] 1 AC 293 per Lord Lloyd of Berwick at 305. However there is first a point to be made which does not depend on the language. Though there is some suggestion in the literature to the contrary I think it is entirely plain, from the travaux and the Convention’s historical setting, that Article 1D is only concerned with Palestinian Arabs. As will in due course appear there is a real question which Palestinian Arabs; I merely say at this stage that the Article’s scope does not in my judgment extend to any other groups. 23. I turn then to the language of the Article. It contains three particular phrases upon which the debate has focussed. Plainly the Article must be read as a whole (and, of course, in the context of the surrounding provisions of the Convention), but the combined effect, correctly understood, of these three elements will drive its overall meaning. For convenience I will set out the text of the Article again with the three phrases emphasised: “This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.” 24. Subject to certain refinements, each of the expressions which I have emphasised might bear either of two senses. “At present” might mean (A) that the “persons” to whom the first sentence (and by cross-reference – “such persons” – the second sentence) refers are and are only those Palestinians who as at 28 July 1951, when the Convention was adopted, were registered to receive protection or assistance from non-UNHCR United Nations bodies and were resident in the territories where such bodies operated (in this case we are concerned only with UNRWA assistance). The other possible meaning of “at present” – (B) – has been described with spectacular inelegance as “continuative”, that is, it connotes a wider reference for the “persons” mentioned in the Article, so as to include any Palestinian who is receiving UNRWA assistance at the time when the application of Article 1D falls to be considered in any individual case; in particular (and perhaps only) when the authorities of any State Party are called on to decide whether or not a particular Palestinian should be given entry to its territory as a refugee. The effect of adopting (A) rather than (B) or vice versa will be at once apparent. If (A) is right, the identity of those persons excluded from the Convention by the first sentence of 1D was fixed on 28 July 1951, and in the nature of things their numbers must have been dwindled ever since. Any other person, including any other Palestinian Arab, is entirely untouched by 1D and, unless excluded by some other provision, is free to claim refuge in any State Party to the Convention by showing that he falls within Article 1A(2). If (A) is the correct sense of “at present” these appeals must fail; manifestly neither El-Ali nor Daraz were receiving UNRWA assistance (or registered with UNRWA) on 28 July 1951 and both acknowledge that they have no case in this court to the effect that they should be treated as refugees within Article 1A(2) of 338


the Convention; each accepts that the appellate authorities have lawfully concluded that he does not harbour a well-founded fear of persecution for a Convention reason in the event of his return to the Lebanon. 25. The first meaning – (A) – of “such protection or assistance has ceased for any reason” in the second sentence of the Article contemplates the happening of a single overall event, namely the cesser or withdrawal of its agencies’ support by the United Nations; as for example might have happened if it had become clear that the Palestinians could return in peace and security to their homelands, and in consequence the operations of (in this case) UNRWA were wound up; or perhaps if that were done for some other reason of international politics. The second meaning – (B) – contemplates the happening of individual or particular events: thus if an individual Palestinian leaves the territory where he is registered with UNRWA and/or receiving assistance from UNRWA, the relevant protection or assistance ceases in his case; he is accordingly and without more taken out of the scope of the first sentence of 1D and finds himself within the second. Again the application of meaning (A) over (B) or vice versa at once profoundly affects the Article’s operation in practice. If (A) is right, application of the first sentence of the Article shuts down altogether upon a single happening, and all those subject to exclusion under the first sentence are then and there the beneficiaries of the second sentence (whatever its benefits are: that depends on the meaning to be attributed to the third of the three phrases). But if (B) is right, then subject to certain qualifications in the appellants’ arguments to which I will come, an individual may seemingly move at will between the first and the second sentence. 26. The first meaning – (A) – of “these persons shall ipso facto be entitled to the benefits of this Convention” in the second sentence is that any such person merely becomes entitled to apply to a State Party for refugee status under Article 1A(2), and must demonstrate that Article 1A(2) applies to him. The second meaning – (B) – is that any such person shall be accepted as a refugee (by any State Party where he claims asylum) without having to demonstrate that he falls within Article 1A(2). Subject to a separate point about the effect of the non-refoulement clause (Article 33) he is then entitled to all the material benefits of the Convention including and in particular those flowing from the provisions in Articles 3 ff which I have set out above at paragraph 2. The difference between the respective effects of (A) and (B) needs no elaboration. 27. It will be evident that the possible combinations that might be made of the (A) and (B) meanings for each of the three phrases will yield quite different interpretations of Article 1D taken as a whole. If I may express it schematically, there is a range of interpretations from A-A-A to B-B-B. With certain important reservations as regards the precise meanings to be attributed to the first and second phrases, the appellants urge B-B-B, and that position was essentially supported by Professor Goodwin-Gill. The Secretary of State urged A-A-A. The IAT adopted A-B-B. For reasons I shall give, I consider that the correct interpretation is A-A-B.

H.

“AT PRESENT”

28. I find it convenient first to consider the meaning of this phrase in the first sentence of the Article, because it will in my judgment determine that sentence’s scope and therefore, potentially, the scope of the whole Article. At once there is as I see it a formida339


ble difficulty in the way of meaning (B), favoured by the appellants and UNHCR, namely that the phrase has a “continuative” effect. If in practice this means that the first sentence falls to be applied in any given case at the time when a State Party is called on to consider an asylum claim put forward by a Palestinian Arab, Article 1D is rendered entirely unworkable. Suppose first that the authorities of the State Party conclude that the applicant before them is at that time to be regarded as a person who is receiving UNRWA assistance. They are bound to refuse the claim, since ex hypothesi by force of the first sentence of the Article the Convention does not apply to him; but in that case the second sentence has nowhere to bite. Suppose next that the authorities of the relevant State Party conclude that the applicant is not receiving UNRWA assistance at the time of his application. In that case Article 1D has no application at all, the applicant is to be treated as seeking asylum under Article 1A(2), and his claim falls to be dealt with accordingly. Thus the two sentences of 1D can in substance only operate if the application of the first sentence is seen as historic, as referring to a past state of affairs. Then the task of the State Party to whom a Palestinian applies for refuge gives a coherent place to Article 1D. It must enquire whether the claimant is a person to whom that past state of affairs applied. If he is, then by force of the first sentence the Convention does not apply to him, unless the second sentence has effect in his case. The ambit of the second sentence, of course, depends on the meanings to be respectively attached to the two critical phrases there appearing. 29. The difficulties inherent in according a “continuative” effect to “at present” influenced the IAT, as appears from paragraph 39 of the determination which with respect I need not set out. Moreover the proposition that the words “at present” refer to 28 July 1951 is supported by a formidable body of expert academic opinion: see Takkenberg, The Status of Palestinian Refugees in International Law (Clarendon Press 1998), p.96, citing Grahl-Madsen (The Status of Refugees in International Law, Sijthoff-Leyden 1966) and Hathaway with both of whom he agrees on the point. But this is not an acceptance of meaning (A) as I have described it – viz. that the “persons” to whom the first sentence refers are and are only those Palestinians who as at 28 July 1951 were receiving UNRWA assistance. Takkenberg (who has experience as an UNRWA officer in the field) says (p.98): “The interpretation that the words ‘at present’… refer to [28 July 1951] raises the question whether that provision is only applicable to those Palestinian refugees who were at that time being assisted by UNRWA, excluding those registered at a later date. An affirmative answer would lead to an interpretation which is definitely not in line with the intention of the drafters of the Convention, which was to exclude all Palestinian refugees under UNRWA’s care from its application. According to Grahl-Madsen: ‘There is reason to believe that Article 1D applies not only to those individuals who were actually receiving protection or assistance from UNRWA on 28 July 1951, but also to those individuals who became the concern of UNRWA at any later date, including those born after the signing of the Convention; or, in other words, that Article 1D applies to persons within the mandate of UNRWA as a class or category, and not to individual persons. If this were not so, we would get a rather artificial distinction between those who became UNRWA refugees before or on 28 July 1951, and those who became UNRWA refugees after that date.’ [Takkenberg’s emphasis] 340


30. In this context Takkenberg refers also to one of the relatively few judicial decisions in which Article 1D has been addressed, namely the judgment of the German Federal Administrative Court (the Bundesverwaltungsgericht) of 4 June 1991 ((Bverg I C 42.88) (1992) 4(3) IJRL 387 Case 1200. The court said (Takkenberg’s translation): “With the words ‘at present’, article 1D, first sentence, ties in with the specific category of persons who at the time the 1951 Convention was adopted were already in receipt of protection or assistance from organs or agencies of the United Nations other than UNHCR, without excluding from its application persons who only at a later point in time were able to enjoy such protection or assistance. A different interpretation would lead to the inappropriate, apparently unintended result that persons enjoying protection or assistance after the set date, for example descendants born later, would be treated differently under the 1951 Convention, although they share the same refugee experience…” [my emphasis] 31. So this approach (which is adopted also by Hathaway) accepts that the reference of “at present” is to 28 July 1951, but does not accept that this defines the membership of the class of “persons who are at present receiving [assistance]” by reference to that date. 32. This is, in effect, the position taken on “at present” by Mr Blake QC for El-Ali, whose argument was adopted by Mr de Mello for Daraz. Mr Blake submitted (as I understood him) that while the class of persons which is the subject of the first sentence of Article 1D was originally identified by reference to 28 July 1951 – and thus as at that date was constituted by those Palestinian Arabs receiving assistance from UNRWA in the territories where UNRWA’s operations were conducted – nevertheless Palestinians who later qualified for such assistance in those territories would thereby join the class. Accordingly his client was included. 33. I consider this approach to the scope of Article 1D to be erroneous. First, because of the language: the phrase “persons who are at present receiving [assistance]” no longer means what it says; it includes also persons who later receive such assistance. Under the suggested interpretation, “at present” does not refer to a specific date (28 July 1951 or otherwise) as setting the time when the membership of the class described in the first sentence is fixed (which is surely the ordinary sense of the words used) but merely to a start-date, a terminus a quo, for the identification of the class whose membership may, however, be swelled by new entrants thereafter. I think this is a very considerable distortion of the Article’s language. I notice that Professor Goodwin-Gill, at paragraph 15 of his helpful supplemental submissions, acknowledges that if a “continuative” approach (including therefore the approach I am presently considering) is to be accepted the words “persons at present receiving” have to be taken as if they read “persons who were and/or are now receiving”. I cannot think that is a legitimate exercise. It is to substitute what is really an entirely different provision. 34. My second reason for rejecting this approach arises from the definition of “refugee” in Article 1A(2): until 1967 a refugee within the meaning of Article 1A(2) was so only by reference to “events occurring before 1 January 1951”; thus until 1967 the Palestinians intended to be excluded from the Convention by the first sentence of Article 1D can only have been persons whose putative claims to refugee status rested on such events. Article 1D was not amended by the 1967 Protocol, and I do not think it can have been amended by implication. This is a point which was addressed by Professor Goodwin-Gill in his skeleton argument at paragraphs 69-73. There he 341


submits (paragraph 72) that the “equal status” to be enjoyed by all refugees irrespective of the 1 January 1951 dateline, aspired to in the third preamble to the 1967 Protocol, “could not be achieved if the category of refugees falling within Article 1D were subject to the 1 January 1951 or any other dateline”. But if those intended to be covered by the first sentence of 1D include Palestinians not within the original July 1951 group, then the class of “refugees covered by the definition in the Convention irrespective of the dateline 1 January 1951” (the words of the third preamble to the 1967 Protocol) is made smaller, not bigger; to express the same point differently, the more tightly defined the group of persons to which the first sentence of 1D applies, the larger will be the numbers of those entitled to apply to States Parties under Article 1A(2). 35. Professor Goodwin-Gill also submits (paragraph 73) that “Article 1D is not based as such on ‘a well-founded fear of persecution’ in the sense of Article 1A(2) [but] on the events of 1948-1949 [and] the mandates of UNRWA and UNCCP…” This is true; but the effect of the first sentence of 1D is to disqualify the persons to whom it refers from applying for refugee status under 1A(2). The persons in question must, before as well as after 1967, have been at least potential candidates for refuge under 1A(2) for Article 1D to have effect. 36. The next reason why I would reject this approach to the first sentence of 1D engages the third critical phrase in the Article, appearing in the second sentence: “these persons shall ipso facto be entitled to the benefits of this Convention”. I am clear, as was the IAT, that by these words the second sentence confers rights upon any person to whom it applies to be accepted as a refugee without having to demonstrate that he or she falls within the Article 1A(2) definition: meaning (B). On this footing, I think it unsurprising that the class of persons caught by the first sentence should be identified and fixed by reference to a particular date. They were entitled to receive highly preferential and special treatment once the second sentence of 1D came into effect. This, it seems to me, was itself a recognition of the particular responsibility borne by the United Nations towards the Palestinian Arabs who had been displaced (see paragraph 15 above). It appears to me on the whole to be unlikely that arrangements of that kind were intended to apply to others, including others not yet born, who had not suffered that experience and had not, accordingly, been taken under the aegis of UNRWA at the time the Convention was signed; although of course I recognise (as I have already stated: paragraph 14) that the Convention’s drafters did not envisage just how long the difficulties of the displaced Palestinians would remain unresolved. 37. Next, I should say that with respect to Takkenberg, and Professor Goodwin-Gill (see paragraph 18 of his supplemental submissions), I do not consider that the interpretation of “at present” which fixes the membership of the class being referred to as at 28 July 1951 runs counter to the travaux. On the contrary, I think the drafters were specifically concerned with that generation of Arabs who had been displaced from Palestine. I agree with this observation of the IAT, at paragraph 42 of the determination in El-Ali: “So far from producing a bizarre result, as has sometimes been argued, this interpretation would appear to operate fairly and efficiently. The crucial consideration is that those who were within UNRWA’s mandate on 28 July 1951 were actually displaced persons. They had been compelled to leave their homes – or to remain away from them – by the Israel-Arab war of 1948-9. To that extent it was right to

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treat them as a group, with a common, shared experience. Hence the plural ‘persons’ is used in Article 1D, in contrast to Article 1A, C, E and F, each of which regulates the circumstances of an individual person.” 38. Amongst alleged “bizarre results” is the suggestion, canvassed by Professor GoodwinGill, that this interpretation of “at present” which was adopted by the IAT and which I consider to be correct sits ill with the application of other, near-contemporaneous international instruments, in particular the UNHCR Statute and the 1954 Convention relating to the Status of Stateless Persons. The latter was adopted on 28 September 1954 and entered into force on 6 June 1960. It obliges the States Parties to confer certain rights (comparable with many of the rights provided for in the Refugee Convention) upon stateless persons within their territory. Article 1(2)(i) is in the same terms as the first sentence of 1D, with the addition at the end of the words “so long as they are receiving such protection or assistance”. Professor Goodwin-Gill’s point is that applying the same approach to the interpretation of the two measures gives the 28 July 1951 defining date for 1D of the Refugee Convention and the 28 September 1954 defining date for 1(2)(i) of the Stateless Persons Convention. But I do not think that is necessarily bizarre. Let it be accepted for the purposes of this argument that, at least after the end of the British mandate, the displaced Palestinian Arabs are generally to be regarded as stateless (a condition whose meaning is itself not without some sophistication: see Desai 88 FTR 161 in the Federal Court of Canada): the position is succinctly described at paragraph 27 of the decision of the Federal Court of Australia in Quiader [2001] FCA 1458. Still the classes of persons to whom these two Conventions apply, though overlapping, are not the same. There is thus no necessary want of reason in the difference of dates. 39. The UNHCR Statute is rather different. The Office of the High Commissioner came into being on 1 January 1951; the Statute had been adopted by the General Assembly on 14 December 1950, as I have indicated in paragraph 17, where I have set out an abbreviated account of some of the effects of Chapter I and Chapter II. Article 6(7)(c) reads as follows: “Provided that the competence of the High Commissioner as defined in paragraph 6 above shall not extend to a person:… (c) who continues to receive from other organs or agencies of the United Nations protection or assistance…” Professor Goodwin-Gill suggests that this wording bears a “continuative” meaning. Thus, he submits, on the interpretation of 1D of the Convention which I favour, the category of persons receiving protection or assistance from UN organs other than UNHCR has to be accorded yet another meaning – the third – in the UNHCR Statute. Even if this is right, the functions of the Commissioner under the Statute, though plainly closely related, are not identical to the functions of the Convention itself. However it seems to me that the words used do not suggest that the class itself changes over time. 40. I have briefly described (paragraph 12) the enlargement since 1967 of the class or classes of persons eligible to receive, or in fact receiving, assistance from UNRWA. But I do not consider that this affects the interpretation of Article 1D. First, as I think is accepted on all hands, resolutions of the General Assembly such as brought about

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the expansion of UNRWA’s mandate are not legally capable of effecting an amendment to the Convention. But Professor Goodwin-Gill argues (supplementary submissions, paragraphs 7–9) that these resolutions constitute “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” within Article 31(3) of the Vienna Convention, by force of which, therefore, they may be taken into account in the Refugee Convention’s interpretation. However these resolutions are not in my judgment any evidence of “practice in the application of the treaty”. The enlargement of UNRWA’s mandate in 1967 and thereafter is not on its face an “application” of the first sentence of 1D; and there is no reason why the two things should march together. 41. I recognise that it is a premise of the reasoning of French J in the Federal Court of Australia in Quiader, to which I have referred in passing, that the ambit of the first sentence of 1D is potentially wider than I would have it, since otherwise there could have been no question but that the respondent in that case, who was born in Damascus in 1963, would have enjoyed the right to apply to the Australian authorities under Article 1A(2). In fact the court arrived at that result by a somewhat longer route, holding that (paragraph 33): “… Art 1(D) does not apply, to exclude from the protection of the Convention, a Palestinian, entitled to protection and assistance from UNRWA, who is nevertheless at risk of persecution if returned to his home region notwithstanding that it is within the territorial competence of UNRWA.” 42. With great respect I do not think that as a general proposition this is right. But if it is not, the seeming harshness of the result is all but extinguished by my overall conclusion on this part of the case: the IAT in my view correctly interpreted the first sentence of Article 1D of the Convention, whose application is thus limited to those receiving assistance from UNRWA as at 28 July 1951. I should say that something was sought to be made in the course of argument of the difference between “protection” and “assistance”; but it seems to me beyond argument that those persons registered with or receiving assistance from UNRWA in the territories of its operation on 28 July 1951, even if they were not the beneficiaries of any other distinct protection, must have fallen within the first sentence of 1D. I do not consider that my conclusions produce bizarre results. When read with the generous interpretation of “these persons shall ipso facto be entitled to the benefits of this Convention” in the second sentence, which I also favour, in my judgment this construction yields a proper balance between the special claims of those Palestinians who were actually displaced in 1948-49 and the rights of other persons, including Palestinians not members of the original group, to claim protection under Article 1A(2) of the Convention. I consider this interpretation to be promoted by the language of the Article, the Article’s context, and the historical setting and the travaux préparatoires of the Convention. I acknowledge that it is at odds with the views of Carr J in the Federal Court of Australia in Al-Khateeb [2002] FCA 7, paragraph 49, but with great respect I cannot find in the learned judge’s reasoning in that case anything to surmount the considerations which have led me to the view I have expressed. 43. If my Lords were to agree with this view, that would conclude these appeals in favour of the Secretary of State, since neither appellant was on this footing within the class of persons referred to in the first sentence of 1D and is not therefore a candidate to

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claim the benefit of the second sentence, whatever the latter’s scope; and as I have made clear there is now no challenge to the dismissal of their substantive claims under Article 1A(2). However I should deal, albeit more briefly, with the meaning to be attributed to the second and third critical phrases in Article 1D, both appearing in the second sentence. I have already indicated my acceptance that the more generous sense – meaning (B) – should be accorded to the third phrase, “these persons shall ipso facto…”

I.

“SUCH PROTECTION OR ASSISTANCE HAS CEASED FOR ANY REASON”

44. Judging from the summary given at paragraph 10 of the determination (which I have set out above at paragraph 7), El-Ali’s position before the IAT may have gone so far as to suggest that a Palestinian registered with UNRWA who left the territory of his residence and registration for any reason whatever thereby moved, as it were, from the first to the second sentence of 1D. But, subject only to any practical constraints upon his ability to travel from place to place, this would put the applicability of the 1D regime entirely at the choice of the individual Palestinian. I am clear that must be wrong, and in formulating his case for this court counsel for El-Ali eschewed so extreme a stance. Paragraph 14 of the skeleton argument prepared by junior counsel asserts: “The appellant submits that Article 1D is a contingent inclusion clause. It defines refugees on the contingency that protection or assistance in fact or in the particular case ceases to be provided from… UNRWA, or cannot be accessed. When that contingency occurs, claimants are without more entitled to be treated as refugees. However, the Appellant no longer submits that the act of leaving for reasons of personal convenience itself means that protection or assistance has ceased. The Appellant submits that for the second sentence in Article 1D to be engaged, it is enough that there is either: 1) an inability to access UNRWA protection, or 2) a protection related reason rather than personal convenience for the individual’s departure.” Then in paragraph 44 of the skeleton it is asserted (I summarise) that El-Ali’s treatment in Lebanon was sufficient to justify a finding that there was a “protection related reason” for his departure from that country. 45. While this qualification introduces some constraint upon the circumstances in which a Palestinian may at his own choice move, as I have put it, from the first to the second sentence of 1D, it does so at the price of introducing a test or criterion which is nowhere to be found in the Article. It is true that the phrase “for reasons other than personal convenience” appears in Article 6A(ii) of the UNHCR Statute as a qualification of the definition there set out of the class of persons to which the competence of the High Commissioner is made to extend. But there is no warrant for reading an equivalent qualification into Article 1D.

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46. Mr Blake sought to pray in aid the learning on what is called, in the argot of refugee law, the “internal flight alternative” which arises in some cases in the assessment of an Article 1A(2) claim: where it is accepted that the applicant may be persecuted for a Convention reason in some parts of his home State, but it is said that it is reasonable for him to take refuge in another part where on the evidence he would be safe. He cited Robinson [1998] QB 929, Karanakaran [2000] INLR 122 and Gardi [2002] EWCA Civ 750. However in my judgment it is wholly unreal to suppose that the question – sometimes a difficult factual question – engaged in consideration of the internal flight alternative, namely whether in the particular circumstances it would be “unduly harsh” (see eg the headnote in Karanakaran) to expect an asylum claimant to settle in this or that part of his home State, has anything whatever to do with the operation of the second sentence of Article 1D. 47. Here the language of the provision, and the travaux, point in my judgment conclusively to a clear and particular result. It was the drafters’ intention, effected in the words used, that the second sentence would bite on the happening of a particular overall event: the cessation of UNRWA assistance. They did not contemplate that Article 1D would apply piecemeal and haphazardly, its scope marked off by reference to the persons who at any given moment were or were not within the UNRWA territories receiving assistance – whether or not in any given case an individual might have a good reason (a “protection related reason”) for leaving the territory where he is registered. 48. I have considered the possible plight of a Palestinian within the first sentence of 1D who leaves the territory where he is registered with UNRWA but then finds himself barred from returning to it. Is he still excluded from the Convention’s scope by force of the first sentence? Such a potential state of affairs to my mind demonstrates the need, elementary enough, to construe 1D as a whole. If as I would hold the class of persons referred to in the first sentence is limited to those receiving UNRWA assistance on 28 July 1951, this possible scenario is far more apparent than real, and would not, in my judgment, constitute sufficient justification for an interpretation of “such protection or assistance has ceased for any reason” – based on the movements of individuals and not the overall cessation of UNRWA activity – which for reasons I have given cannot be accepted. That said, I would recognise the force of a limited alternative view, though I would not myself adopt it, to the effect that a person who could demonstrate that he was actually prevented, by the relevant authorities, from returning to the State where he is UNRWA assisted has in truth passed from the first to the second sentence of Article 1D. That would be an exceptional circumstance. On my approach to “at present” and on the facts of these cases, it is not necessary to decide whether it may be right.

J.

“THESE PERSONS SHALL IPSO FACTO BE ENTITLED TO THE BENEFITS OF THE CONVENTION”

49. I have already given my view that these words mean that any person to whom they apply is to be treated as a refugee within Article 1A(2), and therefore entitled to the benefits which the Convention requires to be accorded to refugees, without having to demonstrate a good Article 1A(2) case on his individual facts. The IAT took the same view. In my judgment this result is inescapable, given the language which the drafters chose to use. The phrase “ipso facto” in the English text is mirrored in the French by 346


“de plein droit”, and it is suggested that this points even more strongly than does the Latinism to an intention, once the second sentence bites, to confer on all its beneficiaries the substantive rights which the Convention guarantees automatically, with nothing else to be established. 50. So great a parcel of rights would not likely be conferred, I think, unless the class of its recipients were clear and certain, and this is given by the interpretations I favour both of “at present” and “such protection or assistance has ceased for any reason”. At the end, each of these interpretations is in constellation with the others; each is, of course, merely a dimension of the true interpretation of the whole provision contained in Article 1D. I consider that the approach I have put forward best reflects the Convention’s original and historic purposes and if, like the European Convention on Human Rights, it should be regarded as a living instrument, then this approach also represents a rational and humane response to today’s Palestinian asylum-seekers.

K.

POSTSCRIPT

51. I have not so far referred to a distinct issue canvassed before us, namely whether, even if the appellants were right as to the construction of Article 1D, nevertheless it would be open to the Secretary of State lawfully to remove them to the Lebanon because on the appellate authorities’ findings neither appellant entertains a well-founded fear of persecution for a Convention reason in the event of his being returned. The Secretary of State through Mr Eicke would wish to contend that in those circumstances, even if on the true construction of 1D these appellants have the benefit of the second sentence of the Article so that they have to be accepted a refugees and admitted to the Convention’s benefits, still it would be open to him to remove them because (since they entertain no well-founded fear) to do so would not violate the non-refoulement provision contained in Article 33 of the Convention. Since in my view Article 1D has never touched either appellant, I do not find it necessary to deal with this question. 52. I would dismiss these appeals. Lord Justice May: 53. I agree. Lord Phillips MR: 54. I agree that these appeals should be dismissed for the reasons given by Laws LJ. I propose to set out shortly, in my own words, my reasons for sharing his conclusions, without repeating his detailed and elegant exposition of the relevant facts, background material and jurisprudence. 55. The issue that arises on these appeals is whether Article 1D of the 1951 Convention has any application to two men born of Palestinian parents over 20 years after the Convention was agreed, one in Kuwait and the other in the Lebanon. Each was registered with and enjoyed the assistance of UNRWA in the Lebanon, but each has come to this country contending, to put it at its lowest, that he could not reasonably be expected to continue to live in the Lebanon. Each claims that he is entitled to be treated as a refugee by virtue of the provisions of Article 1D. 347


56. Article 1D provides: “This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention” ‘persons who are at present receiving…protection or assistance’ 57. Article 1D can only apply to the appellants if they fall within the category of persons described by these words. Article 31(1) of the 1969 Vienna Convention on the Law of Treaties requires us to interpret these words in accordance with their ordinary meaning, in their context and having regard to the object and purpose of the Convention. Ordinary meaning 58. The ordinary meaning of the words ‘at present’, when used in an agreement, whether concluded by individuals or by High Contracting Parties, is ‘at the time of the conclusion of this agreement’. Not only is that the ordinary meaning of those words, but, having regard to their immediate context, I find it impossible to give them any other meaning. This is because, by Article 1D, the Member States were making an agreement both about the present, in the first sentence and about the future in the second sentence. The first sentence is plainly designed to be dealing with the state of affairs persisting at the time that the Convention was concluded. Context and purpose 59. When the broader context in which the Convention was concluded and the object of the Convention are considered they provide compelling support for the conclusion that the words in the phrase under consideration are to be given their ordinary meaning. 60. The Convention was concluded at a time when the Second World War and the circumstances leading up to it had resulted in the displacement of many refugees from their homelands. The Convention was concerned with securing humanitarian treatment for those who had already become refugees at the time that the Convention was concluded. Thus the general definition of ‘refugee’ in Article 1(2) was a person who ‘as a result of events occurring before 1 January 1951… is outside the country of his nationality’. Inasmuch as Article 1D was making an exception from the application of the Convention, that exception was only relevant to persons who were outside the country of their nationality as a result of events that had occurred before 1 January 1951. 61. Although the definition of the ‘persons’ subject to the application of Article 1D is nonspecific, the background facts, as illuminated by the travaux préparatoires make it quite clear that there was, in existence in 1951, a category of persons for whom Article 1D was tailor made. These were the Palestinian Arabs who had been displaced from their homeland as a result of the events which immediately followed the termination of the British mandate on 14 May 1948. That group of persons was receiving protec-

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tion or assistance from ‘organisations or agencies of the United Nations other than the UNHCR’, namely UNRWA and UNCCP and it has never been suggested that there were any other persons who, at the time, satisfied those criteria. 62. Equally, the reference in the second sentence of Article 1D to the ‘position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly’ can only sensibly refer to a series of resolutions that had, by the time that the Convention was concluded, been passed in relation to the resettlement of the displaced Palestinian Arabs. 63. How is it suggested that an alternative meaning can be given to the phrase under consideration, and what reasons are advanced for according it such a meaning? Laws LJ deals with this at paragraphs 29 to 32 of his judgment. The suggestion is that ‘persons who are at present receiving… protection or assistance’ should be interpreted as ‘ persons who are now or in the future become members of that category of persons who are at present receiving protection or assistance’. Plainly, as Laws LJ observes, this involves a considerable distortion of the ordinary meaning of the words used. I do not, however, think that this is beyond the bounds of what can be achieved by the type of purposive interpretation that is applied to international conventions. What reason is advanced for distorting the ordinary meaning of the words? 64. It is said by Grahl-Madsen that the distorted meaning is required because otherwise there will be ‘a rather artificial distinction between those who became refugees before or on 28 July 1951 and those who became refugees after that date’ and the Bundesverwaltungsgericht has described this as an ‘inappropriate, apparently unintended result’ – see Laws LJ at paragraphs 29 and 30. 65. I have no difficulty in accepting that this result was unintended by the States who were party to the Convention. The reason is that they believed that they were dealing with a short-term situation that would reasonably soon be resolved. They did not anticipate that, half a century later, there would be second or third generations of Palestinian Arabs, living outside the territories from which their parents or grandparents had been displaced, and enjoying the assistance of UNRWA. Nor did they anticipate that there would be further Palestinian Arabs displaced as a result of the war in June 1967 and subsequent hostilities. 66. What I do not accept is that, had the parties to the Convention envisaged what was to come, they would have agreed that the regime provided for by Article 1D would apply indefinitely to all displaced or stateless Palestinian Arabs who might find themselves receiving assistance from UNRWA. It is possible that they might have made such an agreement, but it is equally possible that they would not have been prepared to enter into so uncertain a commitment. At the end of the day, however, I do not believe that these considerations are relevant. What matters is what the parties to the Convention in fact agreed in 1951, not what they might have agreed had they envisaged a state of affairs which they did not foresee at the time. 67. I agree with Laws L.J. that the 1967 Protocol had no impact on Article 1D, for the reasons that he gives. 68. For these reasons I conclude that Article 1D has no application to either of the appellants. If I am correct, this renders academic the other issues that arise on the interpretation of the Article. I shall, however, deal with them briefly. 349


‘When such protection or assistance has ceased for any reason’ 69. Do these words apply where an individual, of his own initiative, leaves the territory where UNRWA is providing the assistance, or are they only applicable if and when UNRWA withdraws the assistance that it is providing? Here, I believe, there is ambiguity, but it is resolved when the objects of Article 1D and the travaux préparatoires are considered. 70. One of the objects of Article 1D was to prevent a ‘diaspora’ of displaced Palestinian Arabs, so that resettlement in the lands from which they had been displaced would more readily be achieved. Another motive was to provide some protection for the High Contracting Parties against a potential flood of asylum applications from displaced Palestinian Arabs. Both these objects would be liable to be defeated if the second sentence of Article 1D were so construed as to enable individuals to avoid the effect of the first sentence of the Article by not availing themselves of the assistance on offer by UNRWA. 71. In addition to the above considerations, when the travaux préparatoires to which Laws LJ has referred in paragraphs 19 and 20 of his judgment are considered, it is clear that the second sentence of the Article was intended to cater for the situation should the organs of the United Nations cease to provide protection and assistance. 72. For these reasons I share the conclusion of Laws LJ that the second sentence of Article 1D does not apply to individuals who, of their own initiative, cease to avail themselves of assistance provided by UNRWA, notwithstanding that UNRWA continues to offer such assistance. ‘shall ipso facto be entitled to the benefits of the Convention’ 73. Does this mean ‘shall be entitled to be treated as refugees’ or ‘shall be entitled to the benefits of the Convention provided that they can show that they are refugees within its terms’? The ordinary meaning of the words is undoubtedly the former. The Convention provides for benefits only for those who are refugees, as therein defined. If one is not a refugee, the Convention provides one with no benefits. Anyone entitled to the benefits of the Convention is, ex hypothesi, entitled to be treated as a refugee. The addition of the words ‘ipso facto’ or, in French ‘de plein droit’, put the matter beyond doubt. 74. There is nothing in the context or the surrounding circumstances that makes it necessary to give the phrase under consideration other than its normal meaning. Article 1D was designed to deal with those who might otherwise be entitled to the benefits of the Convention. Under the first sentence these persons were to be deprived of those benefits for so long as the United Nations was providing protection or assistance. I can see nothing irrational, or contrary to the object of the Convention in general and Article 1D in particular, in the parties agreeing that the defined category of the displaced Palestinian Arabs who were, at the time, receiving assistance from UNRWA should be treated as refugees should that assistance be withdrawn before they were resettled.

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75. For these reasons I concur in Laws LJ’s interpretation of this part of Article 1D. 76. It follows that these appeals must be dismissed. Order: Appeals dismissed. Leave to appeal to the House of Lords refused. Public funding order of both appellants costs. No order as to costs. (Order does not form part of the approved judgment).

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LEGISLATION

I. Palestinian Law 1. Law No. (1) of 2002 on the Judicial Authority (Promulgated May 14, 2002)*

The Chairman of the Executive Committee of the Palestine Liberation Organization, The President of the Palestinian National Authority After reviewing: – The Law on the Independence of the Judiciary No. 19/1955, in force in the West Bank Districts; – The Courts Ordinance No. 31/1940, in force in the Gaza Strip Districts; – The Law on the Formation of the Courts, No. 26/1952, in force in the West Bank Districts; – The Civil Service Law No. 4/1998; – The Social Insurance and Retirement Law, No. 8/1964; – Order No. 473/1956, issued by the Administrative Governor General, regarding the Jurisdiction of Public Prosecution, in force in the Gaza Strip Districts; and – Decree No. 286/1995, regarding the formation of the Consultation and Legislation Department [at Ministry of Justice]; And after the adoption of the Legislative Council, We have promulgated the following law.

Title One: General Principles and Provisions Article 1 The Judicial Authority is independent. No other authority shall interfere with the judiciary or with the affairs of justice.

*

Translation into English for the Yearbook


LAW NO. (1) OF 2002 ON THE JUDICIAL AUTHORITY

Article 2 Judges are independent and shall not be subject, in the exercise of their judicial function, to any authority other than the authority of the law. Article 3 1. The Judicial Authority shall have its own budget, which shall appear as an independent section in the annual public budget of the Palestinian National Authority. 2. The High Judicial Council shall prepare the draft budget and transmit it to the Minister of Justice in order for the latter to fulfill the legal requirements according to the provisions of the Law on the Organization of the Budget and Public Finance. 3. The High Judicial Council shall supervise the implementation of the budget of the Judicial Authority. 4. The budget of the Judicial Authority shall be subject to the provisions of the Annual Budget Law of the Palestinian National Authority. Article 4 Arabic shall be the official language used in courts. The court shall hear the statements of non-Arabic speaking litigants or witnesses through a sworn interpreter. Article 5 Judgements shall be issued and executed in the name of the Arab Palestinian people. Judgements shall specify the reasons upon which they are based.

Title Two: The Courts Chapter one: Types and Levels of Courts Article 6 Courts in Palestine shall consist of the following: First:

Shari’a and Religious Courts, organized by law.

Second:

A High Constitutional Court, organized by law.

Third:

Regular courts, that consist of: 1. A High Court, which consists of: (a) The Court of Cassation; and (b) The High Court of Justice. 354


2. Courts of Appeal. 3. Courts of First Instance. 4. Conciliation Courts. Each court shall consider cases submitted to it according to the law. Article 7 The formation of courts and their respective areas of jurisdiction shall be specified by the law.

The High Court Article 8 1. The High Court shall be comprised of a President, one or more Vice-Presidents and a sufficient number of Judges. 2. The permanent seat of the High Court shall be in Jerusalem. The court shall convene temporarily in Gaza and in Ramallah cities, according to the situation.

The Technical Office Article 9 1. A Technical Office shall be established at the High Court. It shall be chaired by one of the judges of the High Court, assisted by a number of judges, retired judges or senior lawyers selected by the High Judicial Council for two years subject to renewal. 2. The Technical Office shall be provided with a sufficient number of employees. Article 10 The Technical Office shall be responsible for the following: 1. Draw the legal principles adopted by the High Court from the judgements it renders, classify them and monitor their publication, after presenting them to the President of the High Court. 2. Conduct the necessary research. 3. Any other matter required by the President of the High Court.

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Courts of Appeal Article 11 1. The Courts of Appeal shall be established in Jerusalem, Ramallah and Gaza. 2. Each Court of Appeal shall consist of a President and a sufficient number of Judges.

Courts of First Instance Article 12 1. The seats of Courts of First Instance shall be in the centers of the governorates. 2. Each Court of First Instance shall be comprised of a President and a sufficient number of Judges. 3. Courts of First Instance may convene in any place outside their local jurisdiction whenever necessary, pursuant to a decision issued by the President of the High Court to make such a change.

Conciliation Courts Article 13 1. Within the circuit of each Court of First Instance, one or more Conciliation Court, as necessary, shall be established. The Minister of Justice shall issue a decision specifying their respective seats and jurisdictional circuits. 2. Conciliation Courts may convene in any place within their jurisdictional circuit, whenever necessary, pursuant to a decision issued by the President of the Court of First Instance.

Chapter Two: Jurisdiction of the Courts Article 14 Regular courts shall consider and settle all disputes and crimes, except those excluded by a special provision of law. The authority of the judiciary shall be exercised over all persons.

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Court Sessions Article 15 1. Court sessions shall be open and public, unless the court decides sua sponte or at the request of one of the litigants that proceedings be held in camera for reasons of morality or to maintain public order. In all cases, pronouncement of the judgement shall be made in a public session. 2. The presiding judge is responsible for the organization and orderly process of the session.

Title Three: Judges Chapter one: Appointment, Promotion, and Seniority of Judges Article 16 A member assigned to the judiciary shall fulfill the following requirements: 1. Must possess Palestinian nationality and enjoy full legal capacity. 2. Must hold a license (BA degree) in law or Shari’a and law from a recognized university. 3. Must not have been condemned by a court or a disciplinary council on a matter involving breach of honor, even if having since been rehabilitated or covered by a general amnesty. 4. Must be of good conduct and repute as well as medically fit to assume the position. 5. Must terminate membership in any party or political organization upon appointment. 6. Must have good command of the Arabic language. Article 17 The High Judicial Council shall develop a system to train and prepare judges before they assume their judicial functions.

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Article 18 1. Judicial positions shall be filled pursuant to a decision by the President of the National Authority, based upon a nomination from the High Judicial Council and in the following manner: (a) Initially, by appointment. (b) By promotion based upon seniority while taking competence into consideration. (c) By appointment through transfer from Public Prosecution. (d) By secondment from a sister country. 2. A judge on secondment must satisfy all the criteria set forth in Article 16 of this law except for the requirement of Palestinian nationality, provided the judge on secondment is an Arab national. 3. Appointment or promotion shall be effective as of the date the relevant decision is issued. Article 19 1. The following may be appointed judges in the Conciliation Courts, Courts of First Instance and Appeal, or members of the Public Prosecution: (a) Former judges and members of the Public Prosecution. (b) Lawyers. (c) Teaching staff of faculties of law and faculties of Shari’a and law. The High Judicial Council shall issue general guidelines regarding the length of experience required for appointment from each category mentioned in the above Paragraph 1 and any other experience deemed comparable to a judicial function. 2. To be appointed as a Presiding Judge of a Court of Appeal, one must have sat and worked for a period of not less than five years on a panel of a Court of Appeal. Article 20 1. A Judge appointed to the High Court shall satisfy the following criteria: One must have worked for at least three years as a Judge in a Court of appeal, or for the equivalent in public prosecution, or for at least ten years as a lawyer. 2. To be appointed as President or Vice-President of the High Court, one must have sat and worked for no less than three years on chambers of the High Court, or worked as a lawyer for no less than fifteen years.

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Article 21 1. Prior to assuming their work for the first time, judges shall take the following oath: 2. “I swear by God, the Almighty, to judge among people fairly and to respect the Constitution and the law.” 3. The President of the High Court shall take the oath before the President of the state. All other Judges shall take the oath before the High Judicial Council.

Chapter Two: Transfer, Secondment and Loan of Judges Article 22 Judges may not be transferred, seconded or loaned other than in the manner and cases indicated in the law. Article 23 1. Judges may not be transferred or seconded to perform non-judicial tasks against their will. 2. Transfer or secondment of judges shall be carried out pursuant to a decision by the High Judicial Council. The effective date of transfer or secondment shall be the notification date of the decision. 3. As an exception to the preceding two paragraphs, a Judge may be temporarily seconded to perform judicial tasks other than the Judge’s regular work, or in addition to it, or to perform other legal work if so required by the national interest, pursuant to a decision issued by the Minister of Justice and with the approval of the High Judicial Council. Article 24 According to the provisions of this law, the High Judicial Council may: 1. Temporarily second to the High Court a Judge from a Court of Appeal who fulfills the qualifications for working in the High Court, for a period of six months subject to renewal. 2. Second a Judge from the Courts of Appeal or First Instance to work in another court of the same level, for a period of six months subject to renewal. Article 25 In the event that the position of a Presiding Judge of a court becomes vacant, or during the absence of a Presiding Judge, or due an impediment preventing the exercise of the latter’s responsibilities, the most senior judge of the same court, followed by the next most senior judge, shall assume those responsibilities, according to the needs of the situation. 359


Article 26 1. A Judge may be loaned to foreign governments or to international agencies pursuant to a decision of the President of the Palestinian National Authority, based upon a nomination by the High Judicial Council. 2. The duration of secondment or loan may not exceed three consecutive years, unless there is a compelling national interest. To be seconded or loaned, a Judge must have spent the previous four years working on a court panel and must have received favorable competence reports.

Permanence of Judges Article 27 Judges are irremovable except according to the conditions indicated in this law.

Chapter Three: Duties of Judges Article 28 1. A Judge may not engage in any commercial activity. Nor may a Judge engage in any activity that is not consistent with the independence and dignity of the judiciary. The High Judicial Council may prohibit a judge from engaging in any work that it deems to be in conflict with the duties of the position and its sound performance 2. All Judges shall submit, upon appointment, a financial statement for themselves, their spouse and their minor children that details what they own in real estate, movable property, stocks, bonds, cash money and debts, whether inside Palestine or abroad, to the President of the High Court, who will make the necessary arrangements to maintain their secrecy. Such information shall remain confidential and will be only accessed with the permission of the High Court, when necessary. Article 29 Judges are forbidden to: 1. Violate the confidentiality of deliberations or disclose any confidential information they obtain while performing their work. 2. Engage in political activity. 3. Stand for election for the Presidency of the National Authority, or the Legislative Council, local councils or political organizations, unless they have submitted their resignations and these were accepted.

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Article 30 1. Judges interrelated by a blood kinship or kinship by marriage up to the second degree may not sit in the same circuit. 2. Judges related to a member of public prosecution, a representative of a litigant, or with either litigant by a blood kinship or kinship by marriage up to the fourth degree, may not sit in cases involving such persons. 3. The law shall determine the provisions for recusing judges. Article 31 1. A Judge may not be absent or cease working without a valid excuse and without having notified the Presiding Judge of the court. 2. A Judge shall be deemed to have resigned if the Judge stops working for fifteen (15) consecutive days without an excuse acceptable to the High Judicial Council, even if this occurs after the end of a period of leave, loan or secondment.

Chapter Four: Salaries and Allowances of Judges Article 32 1. Salaries and allowances of Judges, of all ranks, shall be set in accordance with Tables (1) and (2) annexed to this law. 2. Allowances specified in the two annexed Tables shall not prejudice the administrative, social, transportation and cost of living allowances provided to all government officials, pursuant to the provisions of the Civil Service Law.

Resignation Article 33 1. The resignation of a Judge shall be deemed accepted two weeks after its submission to the President of the High Judicial Council. A decree from the Minister of Justice shall be issued accepting the resignation effective as of that date. 2. The resignation of a Judge shall not result in loss of entitlement to pension or compensation.

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Retirement Article 34 1. No one beyond the age of seventy (70) shall be allowed to remain in the position of a Judge or be appointed thereto. 2. A Judge’s pension or compensation shall be calculated on the basis of the last salary the judge received.

Chapter Five: Vacations Article 35 1. There shall be a judicial vacation beginning annually in mid-July and ending at the end of August. 2. The annual leave of a Judge shall not exceed, in any case, thirty-five (35) days. 3. During the judicial vacation, courts shall continue to hear urgent matters, the types of which shall be established by the High Judicial Council. Article 36 Judges and members of the Public Prosecution shall be entitled to sick leave in accordance with the Civil Service Law.

Title Four: The High Judicial Council Chapter One: Formation of the High Judicial Council Article 37 1. Pursuant to the provisions of this law, a judicial council shall be established which shall be called the High Judicial Council. It shall exercise its jurisdiction in accordance with the law.

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2. The High Judicial Council shall be comprised of: (a) The President of the High Court, as President. (b) The most senior Vice-President of the High Court, as Vice-President. (c) The two most senior Judges of the High Court, selected by the High Court Assembly. (d) The Presiding Judges of the Courts of Appeal in Jerusalem, Gaza and Ramallah. (e) The Attorney General. (f)

The Deputy Minister of Justice. Article 38

1. In the event that the position of the President of the High Court is vacant, or during the absence of the President of the High Court, or due an impediment preventing the exercise of the latter’s responsibilities, the Presidency shall be filled by the next most senior Vice-President of the High Court. 2. The replacement for any of the Presiding Judges of the Courts of Appeal shall be the next most senior Judge in the relevant court. The Deputy Attorney General, then the most senior Head of a Prosecutors’ [District] Office, shall replace the Attorney General. 3. Any of the other members shall be replaced by the next most senior member of their respective offices, followed by the next senior. Article 39 As provided by law, the President of the High Judicial Council shall follow up on the implementation of its decisions. The President will represent the Council in contacts with others and before the judiciary. Article 40 1. The High Judicial Council shall meet at the seat of the High Court at least once every month. 2. The High Judicial Council shall meet whenever necessary, either upon an invitation from its President, upon the request of the Minister of Justice, or upon the request of three of its members. 3. A meeting shall be considered appropriately convened with the attendance of at least seven of its members, including the President or, in the absence of the President, the Vice-President. Decisions shall be issued by a majority of those present. In the event of a tie, the position of the side which includes the President shall prevail. 4. Governmental and nongovernmental organizations and agencies shall submit to the High Judicial Council whatever data, documents or papers it requests that are related to its jurisdiction.

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Article 41 The High Judicial Council shall set forth by-laws according to which it will exercise its responsibilities. It may form one or more committees of its members, to which it may delegate some of its responsibilities, except for those pertaining to appointment, promotion and transfer.

Chapter Two: Judicial Inspection Article 42 1. A Judicial Inspection Department shall be established and attached to the High Judicial Council. It shall consist of the Chair of the Technical Office and a sufficient number of Judges of the Courts of Appeal or members of the Public Prosecution of similar rank. 2. The High Judicial Council shall set forth regulations for the Inspection Department, indicating its responsibilities, the rules and procedures needed to perform its work, and the elements of the performance evaluation, including the results of training courses, and reasons for reversing, canceling, or amending a judge’s rulings 3. Performance shall be evaluated at one of the following grades: “Excellent”; “Very Good”; “Good”; “Average”; and “Below Average.” Article 43 Judges shall be inspected at least once every two years, except for High Court Judges. The inspection report shall be filed at the High Judicial Council, within a maximum of one month of its completion. Judges shall be notified of all comments or any other document placed in their service files.

Chapter Three: Grievances and Appealing Decisions Article 44 1. The Chair of the Judicial Inspection Department shall notify those Judges whose performance has been evaluated as “Average” or “Below Average” as soon as the department has completed its evaluation. Those notified shall have the right to appeal the evaluation within fifteen (15) days from the date of notification. 2. The Chair of the Judicial Inspection Department shall notify those judges who were eligible for promotion but were not promoted for reasons unrelated to the performance reports. The notice shall specify the reasons for being passed over. Those notified shall have the right to appeal within the deadline provided under paragraph 1 above. 364


Article 45 1. A grievance shall be filed in the form of a petition submitted to the Judicial Inspection Department, which shall in turn present the grievance to the High Judicial Council within five days of its submission. 2. The High Judicial Council shall decide upon the grievance after having reviewed the documentation and having heard the statement of the aggrieved party. It shall issue its decision sufficiently in advance of making the judicial promotions. The concerned individual shall be notified of the decision by registered letter, return receipt requested. Article 46 1. The High Court, and no other court, shall have the sole jurisdiction to resolve cancellation, compensation and suspension requests filed by Judges against administrative decisions related to any of their affairs, as well as to resolve disputes related to salaries, pensions and compensation to them or to their heirs. 2. Requests related to matters covered in the preceding paragraph shall be submitted with a petition, to be filed with the Clerk of the High Court, without the payment of any fee. These shall include the name of the petitioner, the subject of the request and related evidence.

Chapter Four: Disciplinary Inquiry of Judges Article 47 1. The Minister of Justice shall have administrative supervision over all courts. The Presiding Judge of each court shall supervise the work of the Judges and the progress of the work carried out therein. 2. The Presiding Judge of each court shall warn a Judge of any act that constitutes a violation of judicial duties or the requirements of office. The warning may be made verbally or in writing. If the warning is written, the Judge may object to it within fifteen (15) days of notification, in accordance with the procedures established in Article 45 of this law. In such a case, the Court1 shall either rule to reject the objection or alternatively, will rule that the warning is groundless and will cancel it. 3. If the violation is repeated or continues after the warning has been confirmed, a disciplinary case shall be filed.

1

Editor’s note: There appears to be an inadvertent error in this subparagraph. Either the Legislator intended to refer to Article 46 (in which case, the word “Court” is correct) or the Legislator intended to refer to Article 45 (in which case the reference should probably be to the “High Judicial Council” and not to the High Court).

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Disciplinary Council Article 48 1. Disciplining Judges at all levels is under the jurisdiction of a [Disciplinary] Council composed of the two most senior Judges of the High Court and the most senior Judge of each of the Courts of Appeal who are not already members of the High Judicial Council. In the event of the absence or incapacity of one of the members, the absent person shall be replaced by the next most senior Judge or those following in seniority within the relevant Court. 2. The [Disciplinary] Council shall be chaired by the most senior member present from the High Court. Decisions shall be issued pursuant to an absolute majority of the members.

Disciplinary Claim Article 49 1. A disciplinary claim shall be filed by the Attorney General based upon a request made by the Minister of Justice, by the President of the High Court or by the Presiding Judge of the Court to which the Judge in question belongs. 2. A disciplinary claim shall only be initiated based upon a criminal investigation, or following an investigation conducted by a Judge from the High Court designated by its President sua sponte for that purpose, or upon a request from the Minister of Justice, the Attorney General, or the Presiding Judge of the Court to which the Judge in question belongs. The Judge designated to the investigation shall have the power of a Court regarding the authority to take testimony from witnesses deemed useful to hear. 3. In proceedings before the Disciplinary Council, public prosecution shall be represented by the Attorney General or one of the latter’s deputies. Article 50 1. A disciplinary claim shall be initiated by a petition that includes the charge or charges arrived at through investigations. The petition shall be filed with the secretariat of the Disciplinary Council. 2. If the Disciplinary Council finds grounds for continuing the procedures, it shall order the Judge to appear on a specified date. The order shall contain sufficient information regarding the subject of the disciplinary action and the grounds for the accusation. A copy of the claim shall be delivered to the Judge in question, upon request and without fees, at least one week prior to the hearing. 3. The Disciplinary Council may decide to suspend the Judge in question from office until the trial is concluded. The Council may reconsider the decision of suspension at any time. The suspension of a Judge shall not lead to withholding of salary during the period of suspension unless the Disciplinary Council decides otherwise. 366


Article 51 The Disciplinary Council may seek whatever information it deems lacking in the investigation or second one of its members to do so. The Disciplinary Council, or a member seconded to the investigation, shall have the power of a Court regarding the authority to take testimony from witnesses deemed useful to hear. Article 52 1. Sessions of the disciplinary proceedings shall be held in camera unless the accused Judge requests that they be made public. 2. The accused Judge shall appear in person before the Disciplinary Council. The accused Judge may submit a defense in writing and may appoint a Judge or a lawyer for the defense. If the accused Judge or the representative for the defense fails to appear, the Council may make an in absentia ruling, after verifying that the accused Judge was properly notified and served. Article 53 The Disciplinary Council shall issue a ruling in a disciplinary case after having heard the arguments of the prosecution and the defense of the accused Judge. The ruling in a disciplinary case must include substantiating grounds, which shall be read when the ruling is pronounced in an in camera session. The accused Judge and the Attorney General shall each have the right to appeal the decision, pursuant to the procedures outlined in Article 45 herein. Article 54 A disciplinary claim terminates upon the resignation or retirement of the judge. A disciplinary claim shall have no effect upon a criminal or civil action arising from the same incident. Article 55 1. The disciplinary penalties that may be imposed upon a judge are as follows: (a) Warning. (b) Reprimand. (c) Dismissal. 2. The High Judicial Council shall implement the disciplinary rulings issued by the Disciplinary Council once they become final. If a ruling is to dismiss, the Judge in question shall be considered to be on leave from the date the ruling is issued until it becomes final. 3. Once finalized, a ruling to dismiss a Judge shall be implemented by a decree issued by the President of the Palestinian National Authority. The dismissal shall be effective from the date the ruling is issued.

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4. A ruling to dismiss a Judge shall not affect entitlement to pension or compensation, unless the ruling indicates otherwise. Article 56 1. Apart from a case where a Judge is caught in the immediate commission of a crime, a Judge may not be arrested or detained without special permission from the High Judicial Council to do so. 2. In the event that a Judge is caught in the immediate commission of a crime, the Attorney General shall, upon the arrest or detention of the Judge, present the matter to the High Judicial Council within the next twenty-four (24) hours. The High Judicial Council shall decide, after having heard the statements of the Judge, either to release on bail, to detain without bail, or continue detention for a period to be determined by the Council. The High Judicial Council shall have the right to extend this period. 3. The Judge shall be detained, and the punishment restricting freedom shall be implemented, in a location that is separate from those assigned to other detainees. Article 57 The High Judicial Council shall have jurisdiction to consider the detention of the Judge and the renewal of arrest, unless the case is being heard before the relevant Penal Court, in which case the latter shall have jurisdiction over the case. Article 58 Detention of a Judge shall lead to an immediate suspension of that Judge’s official duties during the period of detention. The High Judicial Council may, upon a request by the Minister of Justice or by a Judge seconded to the investigation, order the suspension of the Judge’s official duties during the period of the investigation of the crime attributed to the latter. In such cases, the provisions of Article 50 of this law shall be applied. Article 59 A criminal case shall not be filed against a Judge without the permission of the High Judicial Council. The High Judicial Council may designate the Court to hear the case irrespective of the local jurisdictional rules established by law.

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Title Five: Public Prosecution Chapter One: Composition of Public Prosecution Article 60 The Public Prosecution shall consist of the following positions: 1. The Attorney General. 2. One or more Deputies to the Attorney General. 3. Heads of Prosecutors’ [District] Offices. 4. Prosecutors. 5. Prosecutor Assistants.

Prosecutor Assistants Article 61 To be appointed a member of Public Prosecution, one must satisfy the conditions and requirements stipulated in Article 16 of this law. Article 62 1. After soliciting the opinion of the concerned Prosecutor, the Attorney General shall draft a report on the work of the Prosecutor Assistant, indicating the extent of qualifications and suitability for judicial work. The member in question shall be notified of the report. 2. This report, along with any written comments submitted by the member in question, shall be presented to the Minister of Justice, who shall decide whether the member is suitable for appointment to the position of Prosecutor, or, if not, whether the member should be given a grace period, not to exceed one year, for a reevaluation of qualifications and suitability.

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Appointment of the Attorney General Article 63 1. The Attorney General shall meet the conditions and requirements stipulated in Article 16 of this law. 2. The Attorney General shall be appointed by a decision issued by the President of the Palestinian National Authority, based upon a nomination from the High Judicial Council. The duties and jurisdiction of the Attorney General shall be determined by law. Article 64 1. Members of the Public Prosecution shall take an oath, before assuming their duties for the first time, as follows: “I swear by God, the Almighty, to respect the Constitution and the law and to perform my duties honestly and in good faith.” 2. The Attorney General shall take the oath before the President of the Palestinian National Authority and in the presence of the Minister of Justice. 3. The other members of the Public Prosecution shall take oath before the Minister of Justice and in the presence of the Attorney General. Article 65 1. Designation of the place of work for members of the Public Prosecution, and transfer outside the circuit of the court to which they are appointed, shall be by decision of the Minister of Justice, based upon a recommendation by the Attorney General. Transfer within the court’s circuit, or their secondment outside it, shall be by decision of the Attorney General, provided that such secondment shall not exceed six months. 2. Except for the Attorney General and the Deputy Attorney General, the tenure of members of the Public Prosecution outside court’s circuits shall not exceed four years from the time of meeting the requirements to work within circuits. Article 66 Members of the Public Prosecution shall report to their superiors in accordance with the sequence and hierarchy of their respective ranks.

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Chapter Two: Jurisdiction of Public Prosecution Article 67 The Public Prosecution shall exercise the jurisdiction and authorities vested in it by law. It shall have the right alone and solely to file and initiate criminal cases unless the law provides otherwise. Article 68 1. The Attorney General, or any member of the Public Prosecution, shall perform the function of public prosecution before the Courts. Prosecutor Assistants shall perform the work assigned to them, under the supervision and responsibility of those members of the Public Prosecution assigned to train them. 2. In the event that the position of the Attorney General becomes vacant, or during the absence of the Attorney General, or due an impediment preventing the exercise of the latter’s responsibilities, the position shall be filled by the Deputy Attorney General with all of the powers that it entails for a period not to exceed three months. 3. In case of absence or incapacity of a member of the Public Prosecution, the Attorney General shall appoint a replacement. 4. No one below the rank of Head of Prosecutors’ [District] Office shall perform public prosecution functions before the High Court. Article 69 Judicial officers shall report to the Public Prosecution with respect to their work. Article 70 The Attorney General or the Attorney General’s agents, as well as Judges of the Courts, each in their respective jurisdictional circuit, shall have access to all correctional and rehabilitation centers (prisons) at any time to inspect, and verify that the law is being complied with, and that Court rulings and decisions of Public Prosecution are being implemented. Directors of such centers shall provide them with all information they request.

Chapter Three: Duties of members of the Public Prosecution Article 71 The provisions of Title Three, Chapter Three of this law – “Duties of Judges” – shall apply to members of the Public Prosecution.

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Disciplining members of the Public Prosecution Article 72 The provisions of Title Four, Chapter Four – “Disciplinary Inquiry of Judges” – shall apply to members of the Public Prosecution. Disciplinary claims shall be instituted against them by the Attorney General, either sua sponte, or upon the request of the Minister of Justice.

Chapter Four: Salaries and Allowances of Members of the Public Prosecution Article 73 Salaries and allowances for members of the Public Prosecution shall be set in accordance with Article 32 of this law.

Chapter Five: Promotion and Seniority Article 74 1. The seniority of the members of the Public Prosecution shall be determined in accordance with the rules prescribed to determine the seniority of judges, as stipulated in Article 18, paragraph 3 of this law. 2. The promotion of members of the Public Prosecution to higher positions shall be based on seniority and competence, pursuant to Article 42, paragraph 3 herein.

Title Six Chapter One: Judicial Auxiliaries Article 75 Judicial Auxiliaries are lawyers, experts, secretaries, clerks, summons servers and translators. Article 76 The law shall regulate the practice of the legal profession.

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Article 77 The law shall regulate the expertise required before the judiciary and Public Prosecution. The law shall specify the rights and duties of experts and the means for disciplining them.

Chapter Two: Court Employees Article 78 Each Court shall be assigned a sufficient number of employees. The law shall specify their duties. Article 79 Employees of Courts shall be subject to the provisions of the Civil Service Law.

Title Seven General and Transitional provisions Article 80 The High Judicial Council shall develop the necessary regulations to implement the provisions of this law. Article 81 1. The Transitional High Judicial Council shall be formed pursuant to a decision issued by the President of the Palestinian National Authority and based upon a recommendation by the Minister of Justice. This shall take place within one month of the publication of this law in the Official Gazette. The Transitional High Judicial Council shall consist of: (a) The President of the High Court, as President. (b) Four Judges from the High Court. (c) The Attorney General. (d) The Presiding Judges of the Courts of Appeal in Gaza and Ramallah, respectively. (e) Deputy Minister of Justice.

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2. The Transitional High Judicial Council shall assume the responsibilities of the High Judicial Council, as stipulated in this law, until the latter is formed within a maximum period of one year from the publication of this law in the Official Gazette. Article 82 Implementation of judicial rulings is binding. Refraining from implementing them, or suspending them in any way, shall be considered a crime sanctionable by imprisonment, or dismissal from the job if the accused is a public servant or is assigned to public service. One whose rights are violated by the improper suspension or non-implementation of a judicial ruling shall have the right to file a case immediately before a competent court. The Palestinian National Authority shall guarantee full indemnification. Article 83 The High Court shall temporarily assume all functions assigned to the Administrative Courts and to the High Constitutional Court, until such courts are formed, unless they are included within the jurisdiction of other judicial entities in accordance with laws in force. Article 84 The following laws shall be repealed: 1. The Law on the Independence of the Judiciary No. 19/1955, in force in the West Bank Districts. 2. The Courts Ordinance No. 31/1940, in force in the Gaza Strip Districts. 3. Order No. 473/1956, issued by the Administrative Governor General, regarding the Jurisdiction of Public Prosecution, in force in the Gaza Strip Districts. 4. All provisions in conflict with the provisions of this law. Article 85 All concerned parties and bodies, each in their own competence, shall implement the provisions of this law, which shall enter into effect thirty days after publication in the Official Gazette. Issued in Ramallah City on May 14, 2002 Corresponding to Rabi’ Awal 02, 1423 H. Yasser Arafat Chairman of the Executive Committee of the Palestine Liberation Organization President of the Palestinian National Authority

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“INTERNATIONAL CRIMINAL JUSTICE AND PALESTINE”

Annexes Table No. (1): Table of Positions, Salaries and Allowances for Judges and Members of the Public Prosecution.

Position

Basic Salary*

Allowance for the Nature of Work*

Periodical Annual Allowance*

Total Salary*

President of High Court

2,500

500

50

3,050

Vice-Presidents of High Court + Attorney General

2,300

460

46

2,806

Judges of High Court + Deputy Attorney General

2,300

460

46

2,806

Presiding Judges of Court of Appeals

1,900

380

38

2,318

Judges of Courts of Appeal

1,900

380

38

2,318

Presiding Judges of Court of First Instance

1,600

320

32

1,952

Judges of Court of First Instance

1,600

320

32

1,952

Judges of Conciliation Court

1,400

280

28

1,708

Heads of Prosecutors’ [District] Offices

1,400

280

28

1,708

Prosecutors

1,250

250

26

1,526

Prosecutor Assistants

1,200

24

1,224

*

Note: The above figures are in U.S.$ until replaced by equivalent figures based on the Palestinian

Pound. Table No. (2): Representation Allowances for Some Judicial Positions

Amount*

Position President of High Court

500

Vice-President of High Court + Attorney General

368

Presiding Judge of Court of Appeal

285

Presiding Judge of Court of First Instance

176

Head of Prosecutors’ [District] Office

140

Prosecutor *

62

Note: The above figures are in U.S.$ until replaced by equivalent figures based on the Palestinian Pound.

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2. The Amended Basic Law (Promulgated March 18, 2003)*1 In the Name of God, the Merciful and the Compassionate.

Introduction The continuous attachment of the Arab Palestinian people to the land of their fathers and forefathers, on which this people has historically lived, is a fact that has been expressed in the Declaration of Independence, issued by the Palestine National Council. The strength of this attachment is confirmed by its consistency over time and place, by keeping faith with and holding onto national identity, and in the realization of wondrous accomplishments of struggle. The organic relationship between the Palestinian people, their history and their land has confirmed itself in their unceasing effort to prompt the world to recognize the rights of the Arab Palestinian people and their national entity, on equal footing with other nations. The birth of the Palestinian National Authority in the national homeland of Palestine, the land of their forefathers, comes within the context of continuous and vigorous struggle, during which the Palestinian people witnessed thousands of their precious children sacrificed as martyrs, injured persons and prisoners of war, all in order to achieve their people’s clear national rights, the foremost of which are the right of return, the right to self-determination and the right to establish an independent Palestinian state, with Jerusalem as a capital, under the leadership of the Palestine Liberation Organization, the sole, legitimate representative of the Arab Palestinian people wherever they exist. Within the framework of the interim period, resulting in the Declaration of Principles Agreement, the establishment of the Palestinian National Authority with its three pillars – the legislative, executive and judicial branches – became among the most urgent of national missions. The establishment of the Palestinian Legislative Council, through free and direct general elections, made the adoption of a Basic Law suitable for the interim period a necessary foundation upon which to organize the mutual relationship between the government and the people. It is a first step on the way to determining the distinguishing characteristics of a civil society capable of achieving its independence. At the same time, it is a basic foundation upon which to enact unifying legislation and law for the Palestinian national homeland. This Basic Law has established a firm foundation, representing the collective conscience of our people, including its spiritual components, its national faith and its nationalist loyalty. The titles of the Basic Law include a group of modern constitutional rules and principles that address public and personal rights and liberties in a manner that achieves justice and equality for all, without discrimination. Further, they ensure the rule of law, strike a balance

*


1

Published in the Palestine Official Gazette, Special Issue No. 2, March 19, 2003. The original Basic Law was published in the Palestine Official Gazette, Special Issue, July 7, 2002.


THE AMENDED BASIC LAW

between the executive, legislative and judicial branches, and draw lines between their respective jurisdictions in a manner that ensures independence to each of them while coordinating their roles to achieve a high national interest that will serve as a guide to all. The enactment of this temporary Basic Law for a transitional and interim period constitutes a fundamental step towards the realization of the firm national and historical rights of the Arab Palestinian people. It shall not in any way whatsoever abrogate or cancel their right to continue to strive to achieve their rights of return and self-determination, including the establishment of a Palestinian state with Jerusalem (al-Quds al-Sharif) as its capital, which is the first shrine and the third mosque, to which the Prophet Muhammad, may peace be upon him, traveled by night, in the land of the nativity of Jesus, may peace be upon him. The provisional character of the Basic Law shall not abrogate the right of any Palestinian, wherever residing, to exercise equal rights with his/her fellow citizens on the soil of the homeland. This temporary Basic Law draws its strength from the will of the Palestinian people, their firm rights, their continuous struggle and the exercise of their democratic right – as represented in the election of the President of the Palestinian National Authority and the members of the Palestinian Legislative Council – to commence the organization and establishment of a sound, democratic and legislative life in Palestine. At the same time, the enactment and ratification of this law by the Legislative Council does spring from the fact that the Palestine Liberation Organization is the sole and legitimate representative of the Arab Palestinian people.

Explanatory Memorandum for the Amended Basic Law Article 1112 of the Basic Law provides the Legislative Council with the authority to amend the Basic Law by securing a majority vote of two-thirds of its members. The Council believes that it is necessary to amend the Basic Law to allow for the creation of the position of a Prime Minister in the Palestinian National Authority and to determine his powers and the legal and political controls that will regulate his work, as well as to define and clarify the form of the relationship between him and the President of the Palestinian National Authority and the legislative branch. This amendment requires rearrangement of some provisions of the original law. Accordingly, the title that deals with the powers of the President of the National Authority is now Title Three in the amended law. On the other hand, the title that deals with the legislative branch has been moved to a subsequent title, which is Title Four.

2

Editor’s note: Article 111 refers to the original text of the Basic Law as published in July 2002. In the Amended Basic Law, it becomes Article 120. The reason for this apparent discrepancy is that the Palestinian Legislator has chosen to integrate the March 2003 amendments into a consolidated text. This has involved numbering anew a substantial part of the original articles.

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As for Title Five, dealing with the Council of Ministers, it covers the formation of the government by the Prime Minister, the procedure for obtaining the confidence of the [Legislative] Council, the powers of the Council of Ministers and its head, and the relationship between the Prime Minister and the President of the National Authority. The Council decided during the review of the amended law that it would not be necessary to add provisions dealing with the Prime Minster’s presentation of all matters related to the formation, resignation or dissolution of the cabinet to the President of the National Authority, on the grounds that this is a political tradition that does not require being put into a separate article in the text of the law. Ahmed Qurei’ (Abu Ala’) Speaker The Palestinian Legislative Council

Title One: Article 1 Palestine is part of the larger Arab world, and the Palestinian people are part of the Arab nation. Arab unity is an objective that the Palestinian people shall work to achieve. Article 2 The people are the source of power, which shall be exercised through the legislative, executive and judicial authorities, based upon the principle of separation of powers and in the manner set forth in this Basic Law. Article 3 Jerusalem is the capital of Palestine. Article 4 1. Islam is the official religion in Palestine. Respect for the sanctity of all other divine religions shall be maintained. 2. The principles of Islamic Shari’a shall be a principal source of legislation. 3. Arabic shall be the official language. Article 5 The governing system in Palestine shall be a democratic parliamentary system, based upon political and party pluralism. The President of the National Authority shall be directly elected by the people. The government shall be accountable to the President and to the Palestinian Legislative Council.

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Article 6 The principle of the rule of law shall be the basis of government in Palestine. All governmental powers, agencies, institutions and individuals shall be subject to the law. Article 7 Palestinian citizenship shall be regulated by law. Article 8 The flag of Palestine shall be of four colors and in accordance with the dimensions and measurements approved by the Palestine Liberation Organization. It shall be the official flag of the country.

Title Two: Public Rights and Liberties Article 9 Palestinians shall be equal before the law and the judiciary, without distinction based upon race, sex, color, religion, political views or disability. Article 10 1. Basic human rights and liberties shall be protected and respected. 2. The Palestinian National Authority shall work without delay to become a party to regional and international declarations and covenants that protect human rights. Article 11 1. Personal freedom is a natural right, shall be guaranteed and may not be violated. 2. It is unlawful to arrest, search, imprison, restrict the freedom, or prevent the movement of any person, except by judicial order in accordance with the provisions of the law. The law shall specify the period of prearrest detention. Imprisonment or detention shall only be permitted in places that are subject to laws related to the organization of prisons. Article 12 Every arrested or detained person shall be informed of the reason for their arrest or detention. They shall be promptly informed, in a language they understand, of the nature of the charges brought against them. They shall have the right to contact a lawyer and to be tried before a court without delay.

380


Article 13 1. No person shall be subject to any duress or torture. Indictees and all persons deprived of their freedom shall receive proper treatment. 2. All statements or confessions obtained through violation of the provisions contained in paragraph 1 of this article shall be considered null and void. Article 14 An accused person is considered innocent until proven guilty in a court of law that guarantees the accused the right to a defense. Any person accused in a criminal case shall be represented by a lawyer. Article 15 Punishment shall be personal. Collective punishment is prohibited. Crime and punishment shall only be determined by the law. Punishment shall be imposed only by judicial order and shall apply only to actions committed after the entry into force of the law. Article 16 It is unlawful to conduct any medical or scientific experiment on any person without prior legal consent. No person shall be subject to medical examination, treatment or surgery, except in accordance with the law. Transplantation of human organs and new scientific developments shall be regulated by the law in order to serve legitimate humanitarian purposes. Article 17 Homes shall be inviolable; they may not be subject to surveillance, broken into or searched, except in accordance with a valid judicial order and in accordance with the provisions of the law. Any consequences resulting from violations of this article shall be considered invalid. Individuals who suffer from such violation shall be entitled to a fair remedy, guaranteed by the Palestinian National Authority. Article 18 Freedom of belief, worship and the performance of religious functions are guaranteed, provided public order or public morals are not violated. Article 19 Freedom of opinion may not be prejudiced. Every person shall have the right to express his opinion and to circulate it orally, in writing or in any form of expression or art, with due consideration to the provisions of the law.

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Article 20 Freedom of residence and movement shall be guaranteed within the limits of the law. Article 21 1. The economic system in Palestine shall be based on the principles of a free market economy. The executive branch may establish public companies that shall be regulated by a law. 2. Freedom of economic activity is guaranteed. The law shall define the rules governing its supervision and their limits. 1. Private property, both real estate and movable assets, shall be protected and may not be expropriated except in the public interest and for fair compensation in accordance with the law or pursuant to a judicial ruling. 4. Confiscation shall be in accordance with a judicial ruling. Article 22 1. Social, health, disability and retirement insurance shall be regulated by law. 2. Maintaining the welfare of families of martyrs, prisoners of war, the injured and the disabled is a duty that shall be regulated by law. The National Authority shall guarantee these persons education, health and social insurance. Article 23 Every citizen shall have the right to proper housing. The Palestinian National Authority shall secure housing for those who are without shelter. Article 24 1. Every citizen shall have the right to education. It shall be compulsory until at least the end of the basic level. Education shall be free in public schools and institutions. 2. The National Authority shall supervise all levels of education and its institutions, and shall strive to upgrade the educational system. 3. The law shall guarantee the independence of universities, institutes of higher education, and scientific research centers in a manner that guarantees the freedom of scientific research as well as literary, artistic and cultural creativity. The National Authority shall encourage and support such creativity. 4. Private schools and educational institutions shall comply with the curriculum approved by the National Authority and shall be subject to its supervision. Article 25 1. Every citizen shall have the right to work, which is a duty and honor. The Palestinian National Authority shall strive to provide work for any individual capable of performing it. 382


2. Work relations shall be organized in a manner that guarantees justice to all and provides workers with welfare, security, and health and social benefits. 3. Organization of unions is a right that shall be regulated by the law. 4. The right to conduct a strike shall be exercised within the limits of the law. Article 26 Palestinians shall have the right to participate in political life, both individually and in groups. They shall have the following rights in particular: 1. To form, establish and join political parties in accordance with the law. 2. To form and establish unions, associations, societies, clubs and popular institutions in accordance with the law. 3. To vote, to nominate candidates and to run as candidates for election, in order to have representatives elected through universal suffrage in accordance with the law. 4. To hold public office and positions, in accordance with the principle of equal opportunities. 5. To conduct private meetings without the presence of police members, and to conduct public meetings, gatherings and processions, within the limits of the law. Article 27 1. Establishment of newspapers and all media means is a right for all, guaranteed by this Basic Law. Their financing resources shall be subject to the scrutiny of the law. 2. Freedom of audio, visual, and written media, as well as freedom to print, publish, distribute and transmit, together with the freedom of individuals working in this field, shall be guaranteed by this Basic Law and other related laws. 3. Censorship of the media shall be prohibited. No warning, suspension, confiscation, cancellation or restriction shall be imposed upon the media except by law, and pursuant to a judicial ruling. Article 28 No Palestinian may be deported from the homeland, prevented or prohibited from returning to or leaving it, deprived of his citizenship, or handed over to any foreign entity. Article 29 Maternal and childhood welfare are national duties. Children shall have the right to: 1. Comprehensive protection and welfare. 2. Not to be exploited for any purpose whatsoever, and not to be permitted to perform work that might damage their safety, health or education. 3. Protection from harmful and cruel treatment. 4. Not to be subjected to beating or cruel treatment by their relatives. 383


5. To be segregated – in cases where they are sentenced to a penalty that deprives them of their freedom – from adults, and be treated in a manner that is appropriate to their age and aims at their rehabilitation. Article 30 1. Submitting a case to court is a protected and guaranteed right for all people. Each Palestinian shall have the right to seek redress in the judicial system. Litigation procedures shall be organized by law to guarantee prompt settlement of cases. 2. Laws may not contain any provisions that provide immunity to any administrative decision or action or against judicial review. 3. Judicial error shall result in a remedy by the National Authority. Conditions and methods of such remedy shall be regulated by law. Article 31 An independent commission for human rights shall be established pursuant to a law that will specify its formation, duties and jurisdiction. The commission shall submit its reports to the President of the National Authority and to the Palestinian Legislative Council. Article 32 Any violation of any personal freedom, of the sanctity of the private life of human beings, or of any of the rights or liberties that have been guaranteed by law or by this Basic Law shall be considered a crime. Criminal and civil cases resulting from such violations may not be subject to any statute of limitations. The National Authority shall guarantee a fair remedy to those who suffer from such damage. Article 33 The enjoyment of a balanced and clean environment is a human right. The preservation and protection of the Palestinian environment from pollution for the sake of present and future generations is a national duty.

Title Three: The President of the Palestinian National Authority Article 34 The President of the Palestinian National Authority shall be elected in a general and direct election by the Palestinian people, in accordance with the Palestinian Election Law.

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Article 35 Before assuming office, the President shall take the following oath before the Legislative Council and in the presence of the Speaker of the Palestinian National Council and the President of the High Court: “I swear by God, the Almighty, to be faithful to the homeland and to its sacred places, to the people and its national heritage, to respect the constitutional system and the law, and to safeguard the interests of the Palestinian people completely, as God is my witness.” Article 36 The term of the presidency of the National Authority shall be the interim phase, after which the President shall be elected in accordance with the law. Article 37 1. The office of the President shall be considered vacant in any of the following cases: a. Death; b. Resignation submitted to the Palestinian Legislative Council, if accepted by two-thirds of its members; c. Loss of legal capacity, as per a ruling issued by the High Constitutional Court and subsequently approved by a majority of two-thirds of the members of the Legislative Council. 2. If the office of the President of the National Authority becomes vacant due to any of the above cases, the Speaker of the Palestinian Legislative Council shall temporarily assume the powers and duties of the Presidency of the National Authority for a period not to exceed sixty (60) days, during which free and direct elections to elect a new President shall take place in accordance with the Palestinian Election Law. Article 38 The President of the National Authority shall exercise his executive duties as specified in this law. Article 39 The President of the National Authority is the Commander-in-Chief of the Palestinian Forces. Article 40 The President of the National Authority shall appoint and terminate the services of the National Authority’s delegates to foreign countries, international organizations and foreign agencies. The President shall accept the credentials of foreign delegates to the Palestinian National Authority.

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Article 41 1. The President of the National Authority shall promulgate the laws voted by the Palestinian Legislative Council within thirty (30) days of their transmittal to him. The President may refer a law back to the Legislative Council with his observations and the reasons of his objection within the same period. Otherwise, the law will be deemed promulgated and will be published in the Official Gazette. 2. If the President of the National Authority returns the proposed law to the Legislative Council in conformity with the time limit and conditions specified in the previous paragraph, the Council shall debate the law again. If the Council passes the law a second time by a majority of two-thirds of its members, the proposed law shall be considered approved and shall be immediately published in the Official Gazette. Article 42 The President of the National Authority has the right to grant special pardons or to commute sentences. However, general amnesties or amnesties for crimes may not be granted except by law. Article 43 The President of the National Authority shall have the right, in cases of necessity that cannot be delayed, and when the Legislative Council is not in session, to issue decrees that have the power of law. These decrees shall be presented to the Legislative Council in the first session convened after their issuance; otherwise they will cease to have the power of law. If these decrees are presented to the Legislative Council, as mentioned above, but are not approved by the latter, then they shall cease to have the power of law. Article 44 The President’s salary, allowances and remuneration shall be determined by law. Article 45 The President of the National Authority shall appoint the Prime Minister and authorize the latter to constitute his government. The President shall have the right to dismiss the Prime Minister or to accept his resignation and to request him to convene the Council of Ministers. Article 46 The Council of Ministers shall assist the President in the performance of the President’s duties and exercise of powers, in the manner stipulated in this Basic Law.

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Title Four: The Legislative Autority Article 47 1. The Palestinian Legislative Council is the elected legislative authority. 2. The Legislative Council shall assume its legislative and oversight duties as prescribed in its Standing Orders, insofar as they do not contradict the provisions of this law. 3. The term of this Council shall be the interim period. Article 48 1. The Legislative Council shall be composed of eighty-eight (88) Members elected in accordance with the law. 2. If the position of one or more Members becomes vacant due to death, resignation or loss of capacity, partial elections shall be conducted in the relevant district to elect a successor, in accordance with the law. Article 49 Before commencing work, every Member shall take the following oath before the Council: “I swear by God, the Almighty, to be faithful to the homeland, to preserve the rights and interests of the people and the nation, to respect the law, and to perform my duties in the best manner, as God is my witness.” Article 50 In its first meeting, the Council shall elect a Speaker, two Deputies to the Speaker, and a Secretary-General. Together, they shall make up the Office of the Legislative Council. It shall not be permitted to be a member of the Office and hold at the same time the position of President of the National Authority, or Minister, or any other governmental position. Article 51 The Council shall accept the resignation of its Members and establish its own Standing Orders, as well as procedures for questioning its Members, in a manner that does not contradict the provisions of this Basic Law or general constitutional principles. The Council shall be solely responsible for maintaining order and security during sessions and committee meetings. Security personnel may not be present in the Council premises unless requested by the Speaker or by a Committee Chair, as the circumstances may require.

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Article 52 The President of the Palestinian National Authority shall open the first ordinary session of the Council and deliver an opening address. Article 53 1. Council Members may not be questioned in civil or criminal proceedings due to opinions they express, facts they mention, their voting in Council sessions or committee meetings, or because of any action they undertake outside the Council in the course of performing their parliamentary duties. 2. No Member shall be interfered with in any manner, nor shall any search be made of a Member’s luggage, home, place of residence, car, office, or any real estate or movable property belonging to the Member, throughout the period of immunity. 3. No Member of the Legislative Council shall be required during the period of membership, or subsequently, to testify on any subject regarding Council-related actions, statements or information obtained as a result of membership in the Council, unless the Member voluntarily agrees to do so and has the prior consent of the Council. 4. No penal measures shall be taken against any Member of the Legislative Council unless a Member is found red-handed in the commission of a crime. The Council shall be notified immediately about measures taken against a Member so that the Council may decide upon its proper course of action in the matter. The Office of the Council shall assume this responsibility if the Council is not in session. 5. A Member of the Legislative Council shall not relinquish parliamentary immunity without the prior permission of the Council. Immunity shall not lapse after membership in the Council ceases but shall be subject to the limits prevailing during the membership period. Article 54 1. A Member of the Legislative Council may not exploit Council membership in any type of private business or in any manner whatsoever. 2. Members of the Legislative Council shall present financial statements for themselves, their spouse and their minor children that detail their wealth, including real estate and movable property both inside Palestine and abroad, as well as debts. These statements shall be kept in sealed confidential envelopes at the High Court of Justice and may not be accessed unless permitted by the Court and within the limits it allows. Article 55 A Member of the Legislative Council shall receive a monthly salary determined by law.

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Article 56 Each Member of the Council shall have the following rights: 1. To submit to the executive branch all legitimate requests necessary to enable the Member to carry out parliamentary functions. 2. To propose laws. Rejected proposals may not be resubmitted within the same term. 3. To address inquiries and interpellations to the government, to any Minister or to others of similar rank. Interpellations may only be discussed seven days after submission, unless the addressee agrees to reply immediately or within a shorter period. However, the seven-day period can be shortened to three days in urgent cases and with the approval of the President of the National Authority. Article 57 1. Following an interpellation, a minimum of ten Members of the Council may submit a request to withdraw confidence from the government or from any Minister. Voting on such a request may not be held earlier than three days after submission. A decision may be issued by approval of the majority of the Council’s Members. 2. Withdrawal of confidence shall result in termination of the term of the party from whom confidence was withdrawn. Article 58 The Council may form special committees or entrust one of its committees to conduct information gathering and fact-finding regarding any public matter or regarding any public institution. Article 59 The Legislative Council shall approve the General Development Plan. The law shall specify the way to prepare and present the Plan to the Council. Article 60 The law shall regulate the specific rules governing the preparation and approval of the general budget and disbursement of funds appropriated in it, as well as any attached budgets, developmental budgets, budgets for public institutions and services, and budgets for any project in which the government’s investment comprises at least 50% of its capital. Article 61 Taking into consideration the provisions of Article 90 of this Basic Law: 1. The government shall present the draft budget to the Legislative Council at least two months prior to the start of the fiscal year. 2. The Legislative Council shall convene a special session to discuss the annual draft budget. It shall either ratify it with the necessary amendments prior to the start of 389


the new fiscal year or send it back to the government, within a period not exceeding one month from the date of receipt. The returned draft budget shall include the Council’s observations so that its requirements can be fulfilled and the draft budget resubmitted to the Legislative Council for approval. 3. The Council’s voting on the general budget shall be title by title. 4. Transfer of funds between the various budget titles is not permitted unless it is agreed upon between the Legislative Council and the Executive branch. Article 62 The final accounts of the National Authority’s budget shall be presented to the Legislative Council no later than one year after the end of the fiscal year. The Council shall vote on the final accounts title by title.

Title Five: The Executive Authority Article 63 The Council of Ministers (the “government”) is the highest executive and administrative instrument; it shoulders the responsibility for implementing the program that has been approved by the legislative branch. Except for the executive powers of the President of the National Authority, as specified in this Basic Law, executive and administrative powers shall be within the competence of the Council of Ministers. Article 64 1. The Council of Ministers shall comprise a Prime Minister and a number of Ministers, not to exceed twenty-four (24) in number. 2. The appointment shall identify to which Ministry each Minister shall be assigned.

Formation of the Government Article 65 1. Once appointed by the President of the Palestinian National Authority, the Prime Minister shall form a government within three weeks of the date of appointment. There shall be a right to an extension of a maximum of two weeks. 2. If the Prime Minister fails to form a government within the stated deadline or does not obtain the confidence of the Legislative Council, then the President of the National Authority shall appoint another Prime Minister within two weeks of the passing of the deadline or the date of the confidence session, whichever applies. Provisions contained in the above paragraph 1 shall apply to the new Prime Minister. 390


Confidence in the Government Article 66 1. Once the Prime Minister selects the members of the government, the Prime Minister shall submit a request to the Legislative Council to hold a special session for a vote of confidence. The vote of confidence shall take place after hearing and discussing the written ministerial declaration which specifies the program and policy of the government. The session shall be held no later than one week from the date of submission of the request. 2. The vote of confidence shall be cast for the Prime Minister and the members of the government together, unless the absolute majority of the members of the Legislative Council decides otherwise. 3. Confidence shall be granted to the government if it obtains the affirmative vote of the absolute majority of the Members of the Palestinian Legislative Council. Article 67 After obtaining the vote of confidence and before assuming their offices, the Prime Minister and members of the government shall take the constitutional oath, stipulated in Article 35 of this Basic Law, before the President of the National Authority.

Powers of the Prime Minister Article 68 The Prime Minister shall exercise the following powers: 1. To form or modify the composition of the Council of Ministers, to dismiss or accept the resignation of any of its members, or to fill a vacant position. 2. To convene the Council of Ministers for weekly meetings, or when necessary, or upon a request from the President of the National Authority, as well as to set its agenda. 3. To preside over sessions of the Council of Ministers. 4. To manage the affairs of the Council of Ministers. 5. To oversee the work of the Ministers and public institutions dependent on the government. 6. To issue necessary decisions within the Prime Minister’s competence in accordance with the law. 7. To sign and issue regulations approved by the Council of Ministers. 8. The Prime Minister shall appoint a Minister to serve as deputy and to assume the duties of the Prime Minister, if the Prime Minister is absent.

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Powers of the Council of Ministers Article 69 The Council of Ministers shall exercise the following powers: 1. To devise general policies within the limits of its jurisdiction and in light of the ministerial program approved by the Legislative Council. 2. To implement general policies adopted by the relevant Palestinian authorities. 3. To prepare the general budget for presentation to the Legislative Council. 4. To prepare the administrative apparatus, set its structure and provide it with all necessary means, as well as to supervise it and follow up on it. 5. To follow up on the implementation of laws and to ensure compliance with their provisions, taking necessary actions in this regard. 6. To supervise the performance of the ministries and all other components of the administrative apparatus in respect of their duties and functions, as well as to coordinate between them. 7. To be responsible for maintaining public order and internal security. 8. To discuss with various governmental bodies relevant to paragraphs 6 and 7 above their proposals and policies with regard to implementation of their respective responsibilities. 9. (a) To establish or dissolve agencies, institutions, authorities and similar administrative units belonging to the executive apparatus of the government, provided that each shall be regulated by law. (b) To appoint heads of institutions and agencies mentioned above in subparagraph (a), and to supervise them in accordance with the provisions of the law. 10. To specify the respective areas of responsibilities of all ministries, agencies and institutions, that report to the executive branch, and others of similar status. 11. To assume any other responsibility assigned to it, in accordance with the provisions of the law. Article 70 The Council of Ministers shall have the right to transmit draft laws to the Legislative Council, to issue regulations and to take necessary actions to implement laws. Article 71 Each Minister shall exercise the following powers and functions within their respective ministry: 1. To propose the general policy for the ministry and to supervise its implementation after approval.

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2. To supervise the conduct of affairs in the ministry and to issue necessary instructions therefore. 3. To implement the general budget within the funds allocated for the ministry. 4. To propose bills and legislation related to the ministry and to present them to the Council of Ministers. 5. A Minister may delegate certain powers to a Deputy Minister or to other senior officers in the ministry, within limits set by the law. Article 72 Each Minister shall submit detailed reports to the Council of Ministers on the activities, policies, plans and achievements of their respective ministry in comparison with the objectives specified for the ministry within the framework of the General Plan, including the ministry’s proposals and recommendations concerning its future policies. These reports shall be submitted regularly every three months, so that the Council of Ministers remains well informed and has sufficient information about the activities and policies of each ministry.

Meetings of the Council of Ministers Article 73 1. Upon invitation of the Prime Minister, the Council of Ministers shall meet periodically every week, or whenever necessary. Persons other than Ministers may not attend these meetings, unless there is a prior invitation from the Prime Minister. 2. The meetings of the Council of Ministers shall be documented.

Accountability of the Prime Minister and Ministers Article 74 1. The Prime Minister is accountable to the President of the National Authority for his actions and the actions of his government. 2. Ministers are accountable to the Prime Minister, each within the limits of their jurisdiction and for the actions of their respective ministry. 3. The Prime Minister and members of the government are jointly and individually accountable to the Legislative Council.

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Article 75 1. The President of the National Authority shall have the right to refer the Prime Minister for investigation as a result of crimes attributed to the Prime Minister during, or due to, the performance of official duties, in accordance with the provisions of law. 2. The Prime Minister shall have the right to refer any Minister for investigation based on any of the reasons mentioned in the above paragraph 1, in accordance with the provisions of law. Article 76 1. Any accused Minister shall be suspended from the performance of official duties immediately upon the issuance of an indictment. The termination of service shall not prevent continuing the investigation or follow-up procedures. 2. The Attorney General, or a representative from the Public Prosecution, shall undertake the investigation and indictment procedures. If a trial ensues, it shall be conducted before an appropriate tribunal and shall follow the provisions and procedures prescribed in the Penal Code and in the Law of Criminal Procedure. 3. The above provisions shall apply to Deputy Ministers, Assistant Ministers and others of similar rank.

Vote of No Confidence Article 77 1. A minimum of ten Members of the Legislative Council may submit a request to the Speaker to hold a special session to withdraw confidence from the government or from any Minister after an investigation. 2. The date of the first session shall be specified three days after the date of submitting the request. The session shall not be held later than two weeks after the date of the request. Article 78 1. A vote of no confidence in the Prime Minister and the government shall require an absolute majority of the Members of the Palestinian Legislative Council. 2. A vote of no confidence in the Prime Minister and the government shall result in the termination of their term. 3. Upon the completion of the term of the Prime Minister and the government, they will temporarily exercise their powers in the capacity of a caretaker government, during which they may make decisions only insofar as they are necessary for the conduct of executive affairs until a new government is formed.

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Article 79 1. In case the Legislative Council, by an absolute majority, casts a vote of no confidence in the Prime Minister, or in the Prime Minister and the members of the government collectively, the President of the National Authority shall present a new Prime Minister who will take over from the former within a period not to exceed two weeks from the date of the vote of no confidence. The new Prime Minister shall be subject to the provisions of this title. 2. In case the Legislative Council casts a vote of no confidence in one or more members of the government, the Prime Minister shall present the new member or members to the following session, provided that it takes place within two weeks of the date of the no confidence vote. 3. (a) Any addition or change that affects a portfolio, a Minister, or more than a Minister shall be considered a ministerial reshuffle, so long as it affects less than one-third of the members of the Council of Ministers. (b) Upon a ministerial reshuffle, the addition of a Minister, or the filling of a vacancy, for any reason, the new Minister or Ministers shall be presented at the very next session of the Legislative Council, which shall occur no later than two weeks from the date of the reshuffle or the occurrence of the vacancy, for a vote of confidence in accordance with the provisions of this article. 4. Neither the Prime Minister nor any of the Ministers shall assume their duties until they have obtained the confidence of the Legislative Council.

Financial Liability of Members of Council of Ministers Article 80 1. The Prime Minister and each Minister shall submit a financial statement for themselves, their spouse and their minor children that details what they own in real estate, movable property, stocks, bonds, cash money and debts, whether inside Palestine or abroad, to the President of the National Authority, who shall make the necessary arrangements to maintain their secrecy. Such information shall remain confidential and may not be accessed unless permitted by the High Court when necessary. 2. Neither the Prime Minister nor any Minister may purchase or lease any property belonging to the State or to any public entity, or have a financial interest in any contract concluded with any governmental or administrative body, nor may they, during their terms of office, be board members in any company, or practice commerce or any other profession, or receive a salary or any other financial reward or remuneration from any person in any capacity whatsoever, other than the single salary determined for Ministers and the relevant allowances.

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Remuneration and Allowances of Prime Minister and Ministers Article 81 Remuneration and allowances for the Prime Minister, Ministers and others of similar rank shall be determined by the law. Article 82 The appointed Prime Minister and all Ministers shall be Palestinians who enjoy full civil and political rights. Article 83 The government shall be considered dissolved and shall be reformed in accordance with the provisions of this title in the following cases: 1. Upon the commencement of a new term of the Legislative Council. 2. After a vote of no confidence in the Prime Minister, in the Prime Minister and the government, or in one-third or more of the total number of Ministers. 3. Upon any addition, change, vacancy, or dismissal that involves at least one-third of the Council of Ministers. 4. Upon the death of the Prime Minister. 5. Upon the resignation of the Prime Minister, or the resignation of one-third or more of the members of government. 6. Upon the dismissal of the Prime Minister by the President of the National Authority.

Security Forces and Police Article 84 1. The Security Forces and the Police are regular forces. They are the armed forces in the country. Their functions are limited to defending the country, serving the people, protecting society and maintaining public order, security and public morals. They shall perform their duties within the limits prescribed by law, with complete respect for rights and freedoms. 2. The law shall regulate the Security Forces and the Police.

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Local Administration Article 85 1. The law shall organize the country into local administrative units, which shall enjoy juridical personality. Each unit shall have a council elected directly, as prescribed by law. 2. The law shall specify the areas of responsibility of the local administrative units, their financial resources, their relations with the central authority and their role in the preparation and implementation of development plans. The law shall specify the aspects of oversight over these units and their various activities. 3. Demographic, geographic, economic and political parameters shall be taken into consideration at the time of defining the administrative divisions so as to preserve the territorial unity of the homeland and the interests of the communities therein.

Public Administration Article 86 The appointment of all public officials and governmental staff, and the conditions of their employment, shall be in accordance with the law. Article 87 The law shall regulate all affairs related to civil service. The Civil Service Department shall, in coordination with the relevant governmental bodies, upgrade and develop public administration. Its advice shall be sought upon drafting laws and regulations that deal with public administration and civil servants.

Public Finance Article 88 Public taxes and duties shall be imposed, amended and repealed only by law. No one may be totally or partially exempted, except in circumstances prescribed by law. Article 89 The law shall state the provisions concerning the collection of public funds and the procedures for spending therefrom.

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Article 90 The law shall specify the beginning and the end of the fiscal year, and shall regulate the public budget. If the public budget is not approved by the beginning of the new fiscal year, expenditures shall continue on the basis of a monthly allocation of one-twelfth (1/12) of the previous fiscal year’s budget, for each month. Article 91 1. All revenues received – including taxes, duties, loans, grants and profits accruing to the Palestinian National Authority from managing its property or activities – shall be paid to the Public Treasury. No part of the Public Treasury funds may be allocated or spent for any purpose whatsoever except in accordance with the law. 2. In accordance with the provisions of law, the Palestinian National Authority may form a strategic financial reserve, to encounter fluctuations and emergency situations. Article 92 Public borrowing shall be concluded by law. It is not permitted to commit to a project which would require spending funds from the Public Treasury at a later stage unless approved by the Legislative Council. Article 93 1. The law shall regulate the Monetary Authority, banks, the securities market, foreign exchange and insurance companies and all financial and credit institutions. 2. The Governor of the Monetary Authority shall be appointed per a decision issued by the President of the National Authority and endorsed by the Palestinian Legislative Council. Article 94 The law shall specify rules and procedures for granting privileges or imposing obligations related to the utilization of natural resources and public facilities. The law shall also detail the ways and means of dealing with real estate owned by the state and other public legal personalities, and the rules and procedures regulating them. Article 95 The law shall specify the rules for granting wages, remuneration, pensions, subsidies and allowances incurring to the state’s treasury. The law shall also specify the bodies that will be responsible for their implementation. No exceptional funds shall be spent except within limits specified legally. Article 96 1. A Financial and Administrative Auditing Bureau shall be established by law to provide financial and administrative oversight to all apparatus and bodies of the 398


National Authority, which shall include monitoring the collection of public revenues and spending therefrom, within the limits of the budget. 2. The Bureau shall submit to the President of the National Authority and to the Legislative Council a report annually, or upon request, about its work and observations. 3. The Chief of the Financial and Administrative Auditing Bureau shall be appointed pursuant to a decision issued by the President of the National Authority and endorsed by the Palestinian Legislative Council.

Title Six: The Judicial Authority Article 97 The judicial authority shall be independent and shall be exercised by the courts at different types and levels. The law shall determine the way they are constituted and their jurisdiction. They shall issue their rulings in accordance with the law. Judicial rulings shall be announced and executed in the name of the Palestinian Arab people. Article 98 Judges shall be independent and shall not be subject to any authority other than the authority of the law while exercising their duties. No other authority may interfere in the judiciary or in judicial affairs. Article 99 1. Appointment, transfer, secondment, delegation, promotion and questioning of judges shall be as prescribed in the Judicial Authority Law. 2. Judges may not be dismissed except in cases that are allowed in the Judicial Authority Law. Article 100 A High Judicial Council shall be created. The law shall specify the way it is constituted, its responsibilities and its operating rules. The High Judicial Council shall be consulted about draft laws relating to the Judicial Authority, including the Public Prosecution. Article 101 1. Matters governed by Shari’a law and matters of personal status, shall come under the jurisdiction of Shari’a and religious courts, in accordance with the law. 2. Military courts shall be established by special laws. Such courts may not have any jurisdiction beyond military affairs.

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Article 102 Administrative courts may be established by law, to consider administrative disputes and disciplinary claims. Any other jurisdiction of such courts, and procedures to be followed before them, shall be specified by the law. Article 103 1. A High Constitutional Court shall be established by law to consider: (a) The constitutionality of laws, regulations, and other enacted rules. (b) The interpretation of the Basic Law and legislation. (c) Settlement of jurisdictional disputes which might arise between judicial entities and administrative entities having judicial jurisdiction. 2. The law shall specify the manner in which the High Constitutional Court is formed and structured, the operating procedures it will follow and the effects resulting from its rulings. Article 104 The High Court shall temporarily assume all duties assigned to administrative courts and to the High Constitutional Court, unless they fall within the jurisdiction of other judicial entities, in accordance with applicable laws. Article 105 Court hearings shall be public, unless a court decides to make them in camera due to considerations related to public order or public morals. In all cases, the sentence shall be pronounced in a public hearing. Article 106 Judicial rulings shall be implemented. Refraining from or obstructing the implementation of a judicial ruling in any manner whatsoever shall be considered a crime carrying a penalty of imprisonment or dismissal from position if the accused individual is a public official or assigned to public service. The aggrieved party may file a case directly to the competent court and the National Authority shall guarantee a fair remedy for him.

The Public Prosecution Article 107 1. The Attorney General shall be appointed pursuant to a decision issued by the President of the National Authority, based upon a nomination submitted by the High Judicial Council.

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2. The Attorney General shall handle and assume public cases, in the name of the Palestinian Arab people. The jurisdiction, functions and duties of the Attorney General shall be specified by law. Article 108 1. The law shall specify the manner of forming the Public Prosecution service, and its jurisdiction. 2. The law shall determine the conditions for appointing, transferring and dismissing members of the Public Prosecution service and the rules of their accountability. Article 109 A death sentence pronounced by any court may not be implemented unless endorsed by the President of the Palestinian National Authority.

Title Seven: State of Emergency Provisions Article 110 1. The President of the National Authority may declare a state of emergency by decree when there is a threat to national security caused by war, invasion, armed insurrection or in times of natural disaster, for a period not to exceed thirty (30) days. 2. The state of emergency may be extended for another period of thirty (30) days if a two-thirds majority of the members of the Legislative Council vote in favor of the extension. 3. The decree declaring a state of emergency shall state its purpose, the region to which it applies and its duration. 4. The Legislative Council shall have the right to review all or some of the procedures and measures adopted during the state of emergency, at the first session convened after the declaration of the state of emergency or in the extension session, whichever comes earlier, and to conduct the necessary interpellation in this regard. Article 111 It is not allowed to impose restrictions on fundamental rights and freedoms when declaring a state of emergency except to the extent necessary to fulfill the purpose stated in the decree declaring the state of emergency.

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Article 112 Any arrest resulting from the declaration of a state of emergency shall be subject to the following minimum requirements: 1. Any detention carried out pursuant to a state of emergency decree shall be reviewed by the Attorney General, or by the appropriate court, within a time period not to exceed fifteen (15) days from the date of detention. 2. The detained individual shall have the right to select and appoint a lawyer. Article 113 The Palestinian Legislative Council may not be dissolved or its work hindered during a state of emergency, nor shall the provisions of this title be suspended. Article 114 All provisions regulating states of emergency that were applicable in Palestine prior to the entry into force of this Basic Law shall be cancelled, including the [British] Mandate Defense (Emergency) Regulations issued in the year 1945.

Title Eight: General & Transitional Provosions Article 115 The provisions of this Basic Law shall apply during the interim period and may be extended until the entry into force of the new Constitution of the State of Palestine. Article 116 Laws shall be promulgated in the name of the Palestinian Arab people and shall be published immediately in the Official Gazette. These laws shall come into force thirty (30) days from the date of their publication, unless the law states otherwise. Article 117 Laws shall apply only to that which occurs after their entry into force. It may be stipulated otherwise when necessary, except for penal matters. Article 118 Laws, regulations and decisions in force in Palestine before the implementation of this law shall remain in force to the extent that they do not contradict the provisions of this Basic Law, until they are amended or repealed, in accordance with the law.

402


Article 119 All legal provisions that contradict the provisions of this Amended Basic Law are repealed. Article 120 The provisions of this Amended Basic Law may not be amended except by a majority vote of at least two-thirds of the members of the Palestinian Legislative Council. Article 121 This Amended Basic Law shall be effective as of its publication in the Official Gazette. Issued in Ramallah City on March 18, 2003 Corresponding to Muharam 15, 1424 H. Yasser Arafat Chairman of the Executive Committee of the Palestine Liberation Organization, and President of the Palestinian National Authority

403

II. Israeli Law 1. Detention of Unlawful Combatants Law (Promulgated March 4, 2002)*†

Purpose 1. The objective of this law is to regulate the detention of unlawful combatants who are not entitled to Prisoner of War status, in a manner consistent with the obligations of the state of Israel under the provisions of international humanitarian law. Definitions 2. In this law: “Chief of Staff ” – the Commander of the General Staff of the Israel Defense Force; “Unlawful Combatant” – a person who has taken part in acts of hostilities against the state of Israel, directly or indirectly, or who belongs to a force which carries out acts of hostility against the state of Israel in relation to whom the conditions bestowing the status of Prisoner of War according to international humanitarian law, and in particular Article 4 of the Third Geneva Convention of 12 August 1949 regarding the treatment of detainees of war, are not met; “Detainee” – a person detained pursuant to an order issued by the Chief of Staff under the provisions of this law. Detention of an Unlawful Combatant 3. (a) The Chief of Staff, having a reasonable ground to assume that a person held by state authorities is an unlawful combatant, and that release of that person will harm the security of the state, may issue an order, under his signature, ordering the detention of that person at a place to be determined (hereinafter “Detention Order”). A Detention Order will contain the grounds for detention, without harming the requirements of state security. (b) The Detention Order may be issued in the absence of the person held by the state authorities.

*


†

Published in 5762 Sefer HaHukkim 1834 (March 14, 2002) p. 192.


DETENTION OF UNLAWFUL COMBATANTS LAW

(c) The Detention Order shall be made known to the detainee at the earliest possible time, and he shall be given the opportunity to state his arguments regarding the Order before an Officer holding at least the rank of Lt. Colonel, appointed by the Chief of Staff; the arguments of the detainee shall be recorded by the Officer and be brought to the Chief of Staff. If the Chief of Staff, having consulted the detainee’s arguments, finds that the conditions set forth in subsection (a) have not been met, he shall annul the Order. Annulment of the Detention Order 4. Should the Chief of Staff, at any time after the issuance of the Detention Order, be of the opinion that the conditions set forth in Section 3(a) are not met, or that there are special grounds justifying the detainee’s release, he shall order the annulment of the Detention Order. Judicial Review 5. (a) A detainee shall be brought before a District Court Judge no later than fourteen days from the day that the Order is issued; should the District Court Judge find that the conditions set forth in Section 3(a) are not met, he shall annul the Detention Order. (b) Where the detainee was not brought before a District Court or the hearing before him has not commenced within fourteen days from the day that the Detention Order is issued, the detainee shall be released, unless there is another ground for his detention under law. (c) Once every six months from the day the Order was issued under Section 3(a), the detainee shall be brought before a District Court Judge; should the Court find that the detainee’s release will not harm the security of the state, or that special grounds justify his release, the Court shall annul the Detention Order. (d) The decision of the District Court under this Section may be appealed against within thirty days to the Supreme Court, which shall hear the appeal before a single Justice; the Supreme Court will have all the powers granted to the District Court under this law. (e) In proceedings under this law, deviation from the law of evidence is allowed, for reasons which shall be recorded. The Court may admit evidence, even in the absence of the detainee or his attorney, or without disclosing the evidence to them where, having examined the evidence or heard submissions, even in the absence of the detainee or his attorney, it was persuaded that disclosing the evidence to the detainee or to his attorney may harm state security or public safety. This provision does not derogate from any right not to disclose evidence under Chapter C of the Evidence Ordinance (New Version), 5731-1971. (f) Hearings in proceedings under this law shall be conducted in camera unless the court provides otherwise in this matter.

406


The Right of the Detainee to Meet an Attorney 6. (a) The detainee may meet an attorney at the earliest possible time in which such a meeting can be held without harming the requirements of state security, but not later than seven days prior to him being brought before a District Court Judge, in accordance with the provisions of Section 5(a). (b) The Minister of Justice may, in an Order, limit the right of representation in proceedings under this law to those permitted to serve as defense counsel in Military Courts by an unqualified permit, pursuant to the provision of Section 318(c) of the Military Jurisdiction Law, 5715-1955. Presumption 7. For purposes of this law, a person belonging to a force that carries out acts of hostility against the state of Israel, or who participated in hostile acts of such a force, whether directly or indirectly, shall be deemed to be a person whose release will harm the security of the state as long as the hostile acts of that force against the state of Israel have not ceased, as long as it has not been proven otherwise. Determination Regarding Hostile Activity 8. The determination of the Minister of Defense, in a certificate signed by him, that a certain force is carrying out acts of hostility against the state of Israel, or that hostile acts of that force against the state of Israel have not yet ceased, will serve as evidence in any legal proceeding, unless the opposite is proven. Criminal Proceedings 9. (a) Criminal proceedings under any law may be taken against an unlawful combatant. (b) The Chief of Staff may order, by an Order, the detention of an unlawful combatant under Section 3, regardless of criminal proceedings taken against him under any law. Detention Conditions 10. (a) The detainee shall be held in appropriate conditions, which are not harmful to his health or dignity. (b) The detention conditions of detainees shall be determined by the Minister of Defense in regulations. Delegation of Powers 11. The Chief of Staff may delegate his powers under this law to an Officer holding the rank of Major-General whom he shall designate.

407

DETENTION OF UNLAWFUL COMBATANTS LAW

Transitional Provisions 12. (a) The provisions of this law shall also apply to an unlawful combatant detained by the state authorities on the date of its commencement. (b) Until regulations under Section 10(b) have been enacted, the Emergency Powers (Detentions) (Conditions of Administrative Detention) Regulations, 5751-1981 shall apply to the detention of detainees. Implementation and Regulation 13. (a) The Minister of Defense is charged with the implementation of this law. (b) The Minister of Defense may enact regulations concerning procedure in proceedings under this law.

408

2. Law of Civil Wrongs (Liability of the State), 5712-1952 (Amended July 24, 2002)*†

1. Interpretation (Amended: 5762) In this law: “Ordinance” shall mean the Civil Wrongs Ordinance, 1944; “Act” – including an omission; “Liability in Tort” shall mean liability under the Ordinance for an Act performed after the effective date of this law; “Act of War” – including any action of combating terror, hostile actions, or insurrection, and also an action that is intended to prevent terror, hostile actions, or insurrection committed in circumstances of danger to life or limb; Other terms shall have the meaning imparted thereto in the Ordinance. 2. State’s Liability in Tort With respect to Liability in Tort, the state shall be deemed as any incorporated body, except as provided in this law. 3. Acts within the Realm of Lawful Authorization The state is not Liable in Tort for Acts performed within the realm of lawful authorization, or in good faith while making apparent use of lawful authorization; it is, however, liable for negligent Acts. 4. Defamation The state is not Liable in Tort for defamation. 5. Act of War The state is not Liable in Tort for an Act performed through an act of war of the Israel Defense Forces.

*

Unofficial translation by HaMoked: Center for the Defence of the Individual. Permission to reprint is gratefully acknowledged.

†

The Law of Civil Wrongs (Liability of the State), 5712-1952 was amended by the Knesset on July 24, 2002 by a bill called the Torts Law (State Liability) (Amendment – Claims Arising from Activity of Security Forces in Judea and Samaria and the Gaza Strip), 5761-2001. The Amended Law of Civil Wrongs (Liability of the State) (Amended 5762) is published as Amendment 5762 Sefer HaHukkim 1862 (August 1, 2002) p. 514.


LAW OF CIVIL WRONGS (LIABILITY OF THE STATE)

5 A. Claims Due to Operations of the Security Forces in the Region (Amended: 5762) A claim against the state or against an agent of the state for damage caused in the Region as the result of an Act performed by the Israel Defense Forces (in this section – a “Claim”) shall be heard in accordance with the provisions of this section: (1) In this section: “Region” – each of the following: Judea and Samaria, and the Gaza Strip; “Israel Defense Forces” – including other security forces of the state of Israel that act in the Region; (2)1 (a)

The court shall not hear a Claim unless the injured person or his guardian or another person on his behalf shall have given written notice, in the manner that shall be set forth in regulations, of the Act that is the subject of the Claim.

(b)

The notice shall be given within 60 days from the day of the Act; provided, however, that if, as a result of the health condition of the plaintiff or his guardian, or for other justifiable reasons he shall have been unable to give the notice within the said period, the notice shall be given within 30 days from the day on which the impediment shall have been removed.

(c)

Where the injured person died and no notice was given while he was alive and the time for giving notice pursuant to subsection (b) has not passed, the notice shall be given by his dependents or by his estate or by another person on their behalf within 60 days from the day of his death.

(d)

Notwithstanding the provisions of this paragraph, the court may, for special reasons that shall be recorded, hear a Claim regarding an Act as to which notice was not delivered in a timely manner.

(3)2 The court shall not hear a Claim filed more than two years from the day of the Act that is the subject of the Claim; provided, however, that the court may extend this period for an additional period that shall not exceed one year, if it is convinced that the plaintiff did not have a reasonable opportunity to file his Claim within the said timeframe. Where the plaintiff is a minor on the day of the Act, the said period of extension shall not exceed three years.

1

This subsection will become effective on the effective date of the regulations as provided in Subsection (6), and will apply to a Claim, the cause of which is an Act that occurred on [sic] the effective date of the Regulations; Statutes 1862.

2

The timeframes fixed in this subsection will be counted, with regard to a Claim, the cause of which is an Act that occurred prior to August 1, 2002 and which was not yet prescribed from August 1, 2002, provided that in no case will the prescription period exceed the prescription period that was applicable by law on the date of the Act; Statutes 1862.

410


(4)3 The provisions of Sections 38 and 41 of the Torts Ordinance [New Version]4 shall not apply to the hearing of the Claim; provided, however, that the court may rule that the provisions of these sections shall apply if it finds that the circumstances of the matter so justify and for special reasons that it shall record. (5) If the court deems that the state has been denied a fair opportunity to defend against the Claim because the Palestinian Council does not comply with the provisions concerning legal assistance in accordance with the Agreement, it may, after giving the parties an opportunity to state their arguments on this matter, deny the Claim. In this paragraph, the “Agreement” – as defined in the Law Extending the Validity of the Emergency Regulations (Judea and Samaria and the Gaza Strip – Adjudication of Offenses and Legal Assistance), 5728 1967;5 the “Palestinian Council,” as “Council” is defined in the aforementioned law. (6)6 The Minister of Defense is responsible for implementation of this section, and may, upon consultation with the Minister of Justice, and with the approval of the Constitution, Law and Justice Committee of the Knesset, enact regulations relating to its implementation. 6. Injury Caused in Military Service (Amended: 5732) (a) The state is not Liable in Tort for an injury caused to a person and for an illness, or the deterioration of an illness, suffered by him during the period of his Military Service due to his Military Service. (b) “Military Service,” in this section, as defined in the Disabled Persons Law (Provident Payments and Rehabilitation), 5709-1949. 7. Death Caused in Military Service (Amended: 5732) (a) The state is not Liable in Tort for the death of a person resulting from an injury caused to him, or from the deterioration of an illness suffered by him, during the period of his Military Service due to his Military Service. (b) “Military Service,” in this section, as defined in the Families of Fallen Soldiers Law (Provident Payments and Rehabilitation), 5710-1950. 7 A. Limitation for Purposes of Rehabilitation Laws (Amended: 5723) If an action in tort is filed against the state and dismissed by virtue of Sections 6 or 7, then the period of limitation for the filing of applications for grants and provident payments pursuant to the Disabled Persons Law (Provident Payments and

3

The provisions of this subsection will not apply to Claims the hearing of evidence for which has begun before August 1, 2002, Statutes 1862.

4

Laws of the State of Israel, New Version 10, p. 268.

5

5728 Sefer HaHukkim (1968), p. 20; 5738 (1978), p. 48; 5796 (1996), p. 34.

6

This subsection will become effective on the effective date of the regulations as provided in Subsection (6), and will apply to a Claim, the cause of which is an Act that occurred on the effective date of the Regulations; Statutes 1862.

411

LAW OF CIVIL WRONGS (LIABILITY OF THE STATE)

Rehabilitation), 5719-1959 [Consolidated Version], and the Families of Fallen Soldiers Law (Provident Payments and Rehabilitation), 5710-1950, shall end on the date fixed therein or six months after the date of issuance of a non-appealable judgment, whichever is the later, provided that the action in tort is filed no later than one year after the end of the effective period of limitation in such laws. 7 B. Exemption from Liability in Tort for Agents of the State (Amended: 5749) (a) In circumstances in which the state is not Liable in Tort pursuant to any one of Sections 5-7, the person due to whom the state would have been Liable in Tort, but for the said sections, shall too be exempt from liability. (b) This section shall apply also to Acts or omissions performed prior to the date of commencement hereof, but shall not prejudice a final judgment issued prior to the said date. 7 C. State’s Right to Indemnification (Amended: 5749) The provisions of Section 7B shall not derogate from the state’s right to indemnification from whomever would have been liable therefor but for the said provisions. 8. Properties Bestowed upon the State The state is not Liable in Tort in the capacity of owner of properties bestowed thereupon by the law only, so long as it has not gained possession thereof. 9.

Preservation of Special Legal Provisions The provisions of this law shall not derogate from any provision in any one of the laws listed below which sets forth, limits or denies the liability of the state or its institutions: (1) Land Ordinance (Arrangement of Title); (2) Postal Offices Ordinance; (3) Governmental Railroads Ordinance, 1936; (4) Absentees’ Property Law, 5710-1950; (5) Germans’ Property Law, 5710-1950; (6) Postal Bank Law, 5711-1951.

10. Revocation Section 4(1) of the Ordinance is hereby revoked. 11. Amendment (Amendment of the Governmental Trials Ordinance.)

412

3. Citizenship and Entry into Israel Law (Temporary Order) (Promulgated July 31, 2003)*†

Definitions 1. In this Law: “Region” – includes Judea and Samaria and the Gaza Strip; “Citizenship Law” – Citizenship Law, 5712 – 1952;1 “Entry into Israel Law” – Entry into Israel Law, 5712- 1952;2 “Regional Commander” – the commander of forces of the Israel Defense Force in the region; “Resident of the region” – includes those who live in the region but are not registered in the region’s Population Registry, and excludes those who are residents of Israeli communities in the region. Restriction on Citizenship and Residence in Israel

2. During the period in which this law shall be in effect, notwithstanding the provisions of any law, including section 7 of the Citizenship Law, the Minister of the Interior shall not grant citizenship to a resident of the region pursuant to the Citizenship Law and shall not give a resident of the region a permit to reside in Israel pursuant to the Entry into Israel Law, and the regional commander shall not give such residents a permit to stay in Israel pursuant to the defense legislation in the region. Reservations

3. Notwithstanding the provisions of section 2: (a) The Minister of the Interior or the regional commander, as the case may be, may grant a resident of the region a permit to reside in Israel or to stay in Israel, for purposes of work or medical treatment or other temporary purposes, for a fixed period of time, and for a cumulative period that shall not exceed six months; and a permit to reside in Israel or a permit to stay in Israel, in order to prevent a child under twelve years of age from being separated from his parent who is lawfully staying in Israel.

*

Unofficial translation by B’Tselem: The Israeli Center for Human Rights in the Occupied Territories. Permission to reprint is gratefully acknowledged.

†

Published in 5763 Sefer HaHukkim.

1

Book of Laws 5712 [1952], p. 146.

2

Book of Laws 5712 [1952], p. 354.


CITIZENSHIP AND ENTRY INTO ISRAEL LAW (TEMPORARY ORDER)

(b) The Minister of the Interior may grant citizenship or give a permit to reside in Israel to a resident of the region if he is convinced that the said resident identifies with the state of Israel and its goals, and that the resident or his family members performed a meaningful act to advance the security, economy or another matter important to the state, or that granting citizenship or giving the permit to reside in Israel are of special interest to the state; in this paragraph, “family members” means spouse, parent or child. Transitional Provisions

4. Notwithstanding the provisions of this law: (a) The Minister of the Interior or the regional commander, as the case may be, may extend the validity of a permit to reside in Israel or of a permit to stay in Israel that was held by a resident of the region prior to the commencement of this law; (b) The regional commander may give a permit allowing temporary stay in Israel to a resident of the region who submitted an application to become a citizen pursuant to the Citizenship Law, or an application for a permit to reside in Israel pursuant to the Entry into Israel Law, prior to 12 May 2002 and who, on the day of the commencement of this law, has not yet been given a decision, provided that the said resident shall not be given, pursuant to the provisions of this paragraph, citizenship pursuant to the Citizenship Law or a permit for temporary or permanent residence pursuant to the Entry into Israel Law. Validity

5. This Law shall remain in effect for one year from the day of its publication; however, the government may, with the approval of the Knesset, extend its validity by order, from time to time, for a period that shall not exceed one year each time. Explanatory Notes Section 2 Israeli citizenship is currently granted primarily to residents of Judea and Samaria and the Gaza Strip (hereinafter “the Region”) pursuant to section 7 of the Citizenship Law, 57121952 (hereinafter “the Citizenship Law”), which provides as follows: Naturalization of Husband and Wife 7. The spouse of a person who is an Israeli citizen or has applied for Israel citizenship and meets or is exempt from the requirements of section 5(a) may obtain Israel citizenship by naturalization even if he or she does not meet the requirements of section 5(a). Similarly, permits for permanent residence in Israel are currently given for purposes of family unification to residents of the region in cases where their spouses are permanent residents of Israel. These permits are given under the general powers given to the Minister of the Interior, pursuant to section 2 of the Entry into Israel Law, 5712-1952 (hereinafter “Entry into Israel Law”), to grant a visa and permit for permanent residency in Israel.

414


Another official empowered to give a permit to stay in Israel is the commander of IDF forces in the region. The commander is given this power pursuant to the defense legislation in the region. It should be mentioned that granting of citizenship pursuant to the Citizenship Law, or giving a permit for permanent residency in Israel pursuant to the Entry into Israel Law, to a foreign resident within the context of family unification is a gradual process, as is enshrined in the procedures of the Ministry of the Interior. This is done to enable control and supervision of the acquisition of status in Israel by a foreign resident. Initially, the regional commander gives the resident of the region a permit to stay in Israel. Subsequently, the Minister of the Interior gives the resident a permit to reside temporarily in Israel for fixed periods of one year each, pursuant to the Entry into Israel Law. At each stage of the procedure, a reexamination is made to ensure that the unified family unit still exists and that there is no criminal or security reason not to grant status in Israel to the resident of the region. Since the outbreak of armed conflict between Israel and the Palestinians, which among other things has led to dozens of suicide attacks on Israeli territory, there has been increased involvement in this conflict of Palestinians who are originally residents of the region and carry Israeli identity cards following family unification with Israeli citizens or residents, and who took advantage of their status in Israel, which enables them to move freely between Palestinian Authority territory and Israel. Therefore, and in accordance with Government Decision 1813, of 12 May 2002 (hereinafter “the Government Decision”), it is proposed to limit the granting to residents of the region citizenship pursuant to the Citizenship Law, including through family unification, and to limit the giving of permits to such residents to reside in Israel pursuant to the Entry into Israel Law or of permits to stay in Israel pursuant to the defense legislation in the region. Section 3 It is proposed to make provisos against the restrictions in the proposed section 2 to enable permits to reside or stay in Israel for a fixed period of time for purposes of work or to obtain medical treatment, and for other temporary purposes that shall not exceed three months cumulatively. It is also proposed to allow the Minister of the Interior to grant citizenship or give a permit to reside in Israel to a resident of the region who performs a meaningful act to advance the security, economy or another matter of importance to the state, or where the granting of these permits is of special interest to the state. Similar considerations currently exist in similar contexts in sections 6(e) and 9(a)(4) of the Citizenship Law. Section 4 A transitional provision is proposed that enables extension of the residency permits and permits to stay in Israel that the resident of the region had obtained prior to when the proposed law takes effect. It should be noted that this provision enables extension of the valid-

415

CITIZENSHIP AND ENTRY INTO ISRAEL LAW (TEMPORARY ORDER)

ity of a residence or stay permit that the resident of the region had prior to the commencement of the proposed law but does not allow the said resident to obtain a permit of a type other than the one he had. The proposed law also allows the continued handling of applications to obtain citizenship and to obtain permits to reside in Israel that were submitted prior to the Government Dcision, while providing a restriction that only permits for temporary stay in Israel may be given in response to these applications. Section 5 The provisions of the proposed law are stated as an emergency provision for one year. However, it is proposed to allow the government, after examining the proposed provisions and the results of their implementation during the period of their validity, to extend them from time to time, each time for one additional year, in accordance with the state’s security needs.

416

INTERNATIONAL LEGAL DOCUMENTS 1. MORATINOS’ “NONPAPER” ON THE TABA NEGOTIATIONS (SUMMER 2001)

Introduction This E.U. nonpaper has been prepared by the E.U. Special Representative to the Middle East Process, Ambassador [Miguel] Moratinos, and his team after consultations with the Israeli and Palestinian sides, present at Taba in January 2001. Although the paper has no official status, it has been acknowledged by the parties as being a relatively fair description of the outcome of the negotiations on the permanent status issues at Taba. It draws attention to the extensive work which has been undertaken on all permanent status issues like territory, Jerusalem, refugees and security in order to find ways to come to joint positions. At the same time it shows that there are serious gaps and differences between the two sides, which will have to be overcome in future negotiations. From that point of view, the paper reveals the challenging task ahead in terms of policy determination and legal work, but it also shows that both sides have traveled a long way to accommodate the views of the other side and that solutions are possible.

1.

Territory

The two sides agreed that in accordance with the U.N. Security Council Resolution 242, the June 4, 1967 lines would be the basis for the borders between Israel and the state of Palestine. 1.1

West Bank

For the first time both sides presented their own maps on the West Bank. The maps served as a basis for the discussion on territory and settlements. The Israeli side presented two maps, and the Palestinian side engaged on this basis. The Palestinian side presented some illustrative maps detailing its understanding of Israeli interests in the West Bank. The negotiations tackled the various aspects of territory, which could include some of the settlements and how the needs of each party could be accommodated. The Clinton parameters served as a loose basis for the discussion, but differences of interpretations regarding the scope and meaning of the parameters emerged. The Palestinian side stated that it had accepted the Clinton proposals but with reservations. The Israeli side stated that the Clinton proposals provide for annexation of settlement blocs. The Palestinian side did not agree that the parameters included blocs and did not accept proposals to annex blocs. The Palestinian side stated that blocs would cause significant harm to the Palestinian interests and rights, particularly to the Palestinians residing in areas Israel seeks to annex.


MORATINOS’ “NONPAPER” ON THE TABA NEGOTIATIONS

The Israeli side maintained that it is entitled to contiguity between and among their settlements. The Palestinian side stated that Palestinian needs take priority over settlements. The Israeli maps included plans for future development of Israeli settlements in the West Bank. The Palestinian side did not agree to the principle of allowing further development of settlements in the West Bank. Any growth must occur inside Israel. The Palestinian side maintained that since Israel has needs in Palestinian territory, it is responsible for proposing the necessary border modifications. The Palestinian side reiterated that such proposals must not adversely affect the Palestinian needs and interests. The Israeli side stated that it did not need to maintain settlements in the Jordan Valley for security purposes, and its proposed maps reflected this position. The Israeli maps were principally based on a demographic concept of settlements blocs that would incorporate approximately 80 percent of the settlers. The Israeli side sketched a map presenting a 6 percent annexation, the outer limit of the Clinton proposal. The Palestinian illustrative map presented 3.1 percent in the context of a land swap. Both sides accepted the principle of land swap but the proportionality of the swap remained under discussion. Both sides agreed that Israeli and Palestinian sovereign areas will have respective sovereign contiguity. The Israeli side wished to count “assets” such as Israel’s “safe passage/corridor” proposal as being part of the land swap, even though the proposal would not give Palestine sovereignty over these “assets.” The Israeli side adhered to a maximum 3 percent land swap as per [the] Clinton proposal. The Palestinian maps had a similar conceptual point of reference stressing the importance of a nonannexation of any Palestinian villages and the contiguity of the West Bank and Jerusalem. They were predicated on the principle of a land swap that would be equitable in size and value and in areas adjacent to the border with Palestine, and in the same vicinity as those annexed by Israel. The Palestinian side further maintained that lands not under Palestinian sovereignty, such as the Israeli proposal regarding a “safe passage/corridor” as well as economic interests, are not included in the calculation of the swap. The Palestinian side maintained that the “No-Man’s-Land” (Latrun area) is part of the West Bank. The Israelis did not agree. The Israeli side requested an additional 2 percent of land under a lease arrangement to which the Palestinians responded that the subject of lease can only be discussed after the establishment of a Palestinian state and the transfer of land to Palestinian sovereignty. 1.2

Gaza Strip

Neither side presented any maps on the Gaza Strip. In was implied that the Gaza Strip will be under total Palestinian sovereignty, but details have still to be worked out. All settlements will be evacuated. The Palestinian side claimed it could be arranged in 6 months, a timetable not agreed [to] by the Israeli side. 1.3

Safe Passage/Corridor from Gaza to the West Bank

Both sides agreed that there is going to be a safe passage from the north of Gaza (Beit Hanun) to the Hebron district, and that the West Bank and the Gaza Strip must be territorially linked. The nature of the regime governing the territorial link and sovereignty over it was not agreed. 418


2.

Jerusalem

2.1

Sovereignty

Both sides accepted in principle the Clinton suggestion of having a Palestinian sovereignty over Arab neighborhoods and an Israeli sovereignty over Jewish neighborhoods. The Palestinian side affirmed that it was ready to discuss [an] Israeli request to have sovereignty over those Jewish settlements in East Jerusalem that were constructed after 1967, but not Jabal Abu Ghunaym and Ras al-Amud. The Palestinian side rejected Israeli sovereignty over settlements in the Jerusalem Metropolitan Area, namely of Ma’ale Adumim and Givat Ze’ev. The Palestinian side understood that Israel was ready to accept Palestinian sovereignty over the Arab neighborhoods of East Jerusalem, including part of Jerusalem’s Old City. The Israeli side understood that the Palestinians were ready to accept Israeli sovereignty over the Jewish Quarter of the Old City and part of the Armenian Quarter. The Palestinian side understood that the Israeli side accepted to discuss Palestinian property claims in West Jerusalem. 2.2

Open City

Both sides favored the idea of an open city. The Israeli side suggested the establishment of an open city whose geographical scope encompasses the Old City of Jerusalem plus an area defined as the Holy Basin or Historical Basin. The Palestinian side was in favor of an open city provided that continuity and contiguity were preserved. The Palestinians rejected the Israeli proposal regarding the geographic scope of an open city and asserted that the open city is only acceptable if its geographical scope encompasses the full municipal borders of both East and West Jerusalem. The Israeli side raised the idea of establishing a mechanism of daily coordination and different models were suggested for municipal coordination and cooperation (dealing with infrastructure, roads, electricity, sewage, waste removal, etc.). Such arrangements could be formulated in a future detailed agreement. It proposed a “soft border regime” within Jerusalem between Al-Quds and Yerushalayim that affords them “soft border” privileges. Furthermore the Israeli side proposed a number of special arrangements for Palestinian and Israeli residents of the open city to guarantee that the open city arrangement neither adversely affect their daily lives nor compromise each party’s sovereignty over its section of the open city. 2.3

Capital for Two States

The Israeli side accepted that the City of Jerusalem would be the capital of the two states: Yerushalayim, capital of Israel, and Al-Quds, capital of the state of Palestine. The Palestinian side expressed its only concern, namely that East Jerusalem is the capital of the state of Palestine.

419


2.4

Holy/Historical Basin and the Old City

There was an attempt to develop an alternative concept that would relate to the Old City and its surroundings, and the Israeli side put forward several alternative models for discussion, for example, setting up a mechanism for close coordination and cooperation in the Old City. The idea of a special police force regime was discussed but not agreed upon. The Israeli side expressed its interest and raised its concern regarding the area conceptualized as the Holy Basin (which includes the Jewish Cemetery on the Mount of Olives, the City of David and Kivron Valley). The Palestinian side confirmed that it was willing to take into account Israeli interests and concerns provided that these places remain under Palestinian sovereignty. Another option for the Holy Basin, suggested informally by the Israeli side, was to create a special regime or to suggest some form of internationalization for the entire area or a joint regime with special cooperation and coordination. The Palestinian side did not agree to pursue any of these ideas, although the discussion could continue. 2.5

Holy Sites: Western Wall and the Wailing Wall

Both parties have accepted the principle of respective control over each side’s respective holy sites (religious control and management). According to this principle, Israel’s sovereignty over the Western Wall would be recognized although there remained a dispute regarding the delineation of the area covered by the Western Wall and especially the link to what is referred to in Clinton’s ideas as “the space sacred to Judaism of which it is part.” The Palestinian side acknowledged that Israel has requested to establish an affiliation to the holy parts of the Western Wall but maintained that the question of the Wailing Wall and/or Western Wall has not been resolved. It maintained the importance of distinguishing between the Western Wall and the Wailing Wall segment thereof, recognized in the Islamic faith as the Buraq Wall. 2.6

Haram al-Sharif/Temple Mount

Both sides agreed that the question of Haram al-Sharif/Temple Mount has not been resolved. However, both sides were close to accepting Clinton’s ideas regarding Palestinian sovereignty over Haram al-Sharif, notwithstanding Palestinian and Israeli reservations. Both sides noted progress on practical arrangements regarding excavations, building, and public order in the area of the compound. An informal suggestion was raised that for an agreed period such as three years, Haram al-Sharif/Temple Mount would be under international sovereignty of the P5 plus Morocco (or other Islamic presence), whereby the Palestinians would be the “Guardian/Custodians” during this period. At the end of this period, either the parties would agree on a new solution or agree to extend the existing arrangement. In the absence of an agreement, the parties would return to implement the Clinton formulation. Neither party accepted or rejected the suggestion.

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3.

Refugees

Nonpapers were exchanged, which were regarded as a good basis for the talks. Both sides stated that the issue of the Palestinian refugees is central to Israeli-Palestinian relations and that a comprehensive and just solution is essential to creating a lasting and morally scrupulous peace. Both sides agreed to adopt the principles and references with could facilitate the adoption of an agreement. Both sides suggested, as a basis, that the parties should agree that a just settlement of the refugee problem in accordance with the U.N. Security Council Resolution 242 must lead to the implementation of U.N. General Assembly Resolution 194. 3.1

Narrative

The Israeli side put forward a suggested joint narrative for the tragedy of the Palestinian refugees. The Palestinian side discussed the proposed narrative and there was much progress, although no agreement was reached in an attempt to develop an historical narrative in the general text. 3.2

Return, Repatriation, and Relocation and Rehabilitation

Both sides engaged in a discussion of the practicalities of resolving the refugee issue. The Palestinian side reiterated that the Palestinian refugees should have the right of return to their homes in accordance with the interpretation of U.N. G.A. Resolution 194. The Israeli side expressed its understanding that the wish to return as per wording of U.N. G.A. Resolution 194 shall be implemented within the framework of one of the following programs: A. Return and repatriation: 1. To Israel 2. To Israel swapped territory 3. To the Palestine state. B. Rehabilitation and relocation: 1. Rehabilitation in host country. 2. Relocation to third country. Preference in all these programs shall be accorded to the Palestinian refugee population in Lebanon. The Palestinian side stressed that the above shall be subject to the individual free choice of the refugees, and shall not prejudice their right to their homes in accordance with its interpretation of U.N. G.A. Resolution 194. The Israeli side, informally, suggested a three-track 15-year absorption program, which was discussed but not agreed upon. The first track referred to the absorption to Israel. No numbers were agreed upon, but with a nonpaper referring to 25,000 in the first three years of this program (40,000 in the first five years of this program did not appear in the nonpaper but was raised verbally). The second track referred to the absorption of Palestinian 421


refugees into the Israeli territory that shall be transferred to Palestinian sovereignty, and the third track referring to the absorption of refugees in the context of a family reunification scheme. The Palestinian side did not present a number but stated that the negotiations could not start without an Israeli opening position. It maintained that Israel’s acceptance of the return of refugees should not prejudice existing programs within Israel such as family reunification. 3.3

Compensation

Both sides agreed to the establishment of an International Commission and an International Fund as a mechanism for dealing with compensation in all its aspects. Both sides agreed that “small-sum” compensation shall be paid to the refugees in the “fasttrack” procedure; claims of compensation for property losses below a certain amount shall be subject to “fast-track” procedures. There was also progress on Israeli compensation for material losses, land and assets expropriated, including agreement on a payment from an Israeli lump sum or proper amount to be agreed upon that would feed into the International Fund. According to the Israeli side the calculation of this payment would be based on a macroeconomic survey to evaluate the assets in order to reach a fair value. The Palestinian side, however, said that this sum would be calculated on the records of the UNCCP, the Custodian for Absentees’ Property and other relevant data, with a multiplier to reach a fair value. 3.4

UNRWA

Both sides agreed that UNRWA should be phased out in accordance with an agreed timetable of five years, as a targeted period. The Palestinian side added a possible adjustment of that period to make sure that this will be subject to the implementation of the other aspects of the agreement dealing with refugees and with termination of Palestinian refugee status in the various locations. 3.5

Former Jewish Refugees

The Israeli side requested that the issue of compensation to former Jewish refugees from Arab countries be recognized, while accepting that it was not a Palestinian responsibility or a bilateral issue. The Palestinian side maintained that this is not a subject for a bilateral Palestinian-Israeli agreement. 3.6

Restitution

The Palestinian side raised the issue of restitution of refugee property. The Israeli side rejected this. 3.7

End of Claims

The issue of the end of claims was discussed, and it was suggested that the implementation of the agreement shall constitute a complete and final implementation of U.N. G.A. Resolution 194 and therefore ends all claims. 422


4.

Security

4.1

Early Warning Stations

The Israeli side requested to have three early warning stations on Palestinian territory. The Palestinian side was prepared to accept the continued operations of early warning stations but subject to certain conditions. The exact mechanism has therefore to be detailed in further negotiations. 4.2

Military Capability of the State of Palestine

The Israeli side maintained that the state of Palestine would be nonmilitarized as per the Clinton proposals. The Palestinian side was prepared to accept limitation on its acquisition of arms and be defined as a state with limited arms. The two sides have not yet agreed on the scope of arms limitations but have begun exploring different options. Both sides agree that this issue has not been concluded. 4.3

Air Space Control

The two sides recognized that the state of Palestine would have sovereignty over its air space. The Israeli side agreed to accept and honor all of Palestine’s civil aviation rights according to international regulations but sought a unified air control system under overriding Israel control. In addition, Israel requested access to Palestinian air space for military operations and training. The Palestinian side was interested in exploring models for broad cooperation and coordination in the civil aviation sphere but unwilling to cede overriding control to Israel. As for Israeli military operations and training in Palestinian air space, the Palestinian side rejected this request as inconsistent with the neutrality of the state of Palestine, saying that it cannot grant Israel these privileges while denying them to its Arab neighbors. 4.4

Timetable for Withdrawal from the West Bank and Jordan Valley

Based on the Clinton proposal, the Israeli side agreed to a withdrawal from the West Bank over a 36-month period with an additional 36 months for the Jordan Valley in conjunction with an international force, maintaining that a distinction should be made between withdrawal in the Jordan Valley and elsewhere. The Palestinian side rejected a 36-month withdrawal process from the West Bank expressing concern that a lengthy process would exacerbate Palestinian-Israeli tensions. The Palestinian side proposed an 18-month withdrawal under the supervision of international forces. As to the Jordan Valley, the Palestinian side was prepared to consider the withdrawal of Israeli armed forces for an additional 10-month period. Although the Palestinian side was ready to consider the presence of international forces in the West Bank for a longer period, it refused to accept the ongoing presence of Israeli forces.

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4.5

Emergency Deployment (or Emergency Locations)

The Israeli side requested to maintain and operate five emergency locations on Palestinian territory (in the Jordan Valley) with the Palestinian response allowing for a maximum of two emergency locations conditional on a time limit for the dismantling. In addition, the Palestinian side considered that these two emergency locations be run by [an] international presence and not by the Israelis. Informally, the Israeli side expressed willingness to explore ways that a multinational presence could provide a vehicle for addressing the parties’ respective concerns. The Palestinian side declined to agree to the deployment of Israeli armed forces on Palestinian territory during emergency situations but was prepared to consider ways in which international forces might be used in that capacity, particularly within the context of regional security cooperation efforts. 4.6

Security Cooperation and Fighting Terror

Both sides were prepared to commit themselves to promoting security cooperation and fighting terror. 4.7

Borders and International Crossings

The Palestinian side was confident that Palestinian sovereignty over borders and international crossing points would be recognized in the agreement. The two sides had, however, not yet resolved this issue, including the question of monitoring and verification at Palestine’s international borders (Israeli or international presence). 4.8

Electromagnetic Sphere

The Israeli side recognized that the state of Palestine would have sovereignty over the electromagnetic sphere and acknowledged that it would not seek to constrain Palestinian commercial use of the sphere but sought control over it for security purposes. The Palestinian side sought full sovereign rights over the electromagnetic sphere but was prepared to accommodate reasonable Israeli needs within a cooperative framework in accordance with international rules and regulations.

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2. “THE BEIRUT DECLARATION” OF THE COUNCIL OF THE LEAGUE OF ARAB STATES AT THE SUMMIT LEVEL, AT ITS 14TH ORDINARY SESSION (MARCH 28, 2002)

The Beirut Declaration The Council of the League of Arab States at the Summit Level, at its 14th Ordinary Session: Reaffirming the resolution taken in June 1996 at the Cairo extraordinary Arab Summit that a just and comprehensive peace in the Middle East is the strategic option of the Arab countries, to be achieved in accordance with international legality, and which would require a comparable commitment on the part of the Israeli Government; Having listened to the statement made by His Royal Highness Prince Abdullah Bin Abdulaziz, the Crown Prince of the Kingdom of Saudi Arabia, in which His Highness presented his initiative, calling for full Israeli withdrawal from all the Arab territories occupied since June 1967, in implementation of Security Council Resolutions 242 and 338, reaffirmed by the Madrid Conference of 1991 and the land for peace principle; and for Israel’s acceptance of an independent Palestinian state, with East Jerusalem as its capital, in return for the establishment of normal relations in the context of a comprehensive peace with Israel; Emanating from the conviction of the Arab countries that a military solution to the conflict will not achieve peace or provide security for the parties, the Council: 1. Requests Israel to reconsider its policies and declare that a just peace is its strategic option as well. 2. Further calls upon Israel to affirm: a. Full Israeli withdrawal from all the territories occupied since 1967, including the Syrian Golan Heights to the lines of June 4, 1967, as well as the remaining occupied Lebanese territories in the south of Lebanon. b. Achievement of a just solution to the Palestinian refugee problem to be agreed upon in accordance with U.N. General Assembly Resolution 194. c. The acceptance of the establishment of a sovereign independent Palestinian state on the Palestinian territories occupied since the 4th of June 1967 in the West Bank and Gaza Strip, with East Jerusalem as its capital. 3. Consequently, the Arab Countries affirm the following: a. Consider the Arab-Israeli conflict ended, and enter into a peace agreement with Israel, and provide security for all the states of the region. b. Establish normal relations with Israel in the context of this comprehensive peace.


“THE BEIRUT DECLARATION” OF THE COUNCIL OF THE LEAGUE OF ARAB STATES

4. Assures the rejection of all forms of Palestinian patriation which conflict with the special circumstances of the Arab host countries. 5. Calls upon the government of Israel and all Israelis to accept this initiative in order to safeguard the prospects for peace and stop the further shedding of blood, enabling the Arab countries and Israel to live in peace and good neighborliness and provide future generations with security, stability and prosperity. 6. Invites the international community and all countries and organizations to support this initiative. 7. Requests the chairman of the summit to form a special committee composed of some of its concerned member states and the secretary general of the League of Arab States to pursue the necessary contacts to gain support for this initiative at all levels, particularly from the United Nations, the Security Council, the United States of America, the Russian Federation, the Muslim States and the European Union.

426

3. A PERFORMANCE-BASED ROAD MAP TO A PERMANENT TWO-STATE SOLUTION TO THE ISRAELI-PALESTINIAN CONFLICT (APRIL 30, 2003)*

The following is a performance-based and goal-driven roadmap, with clear phases, timelines, target dates and benchmarks aiming at progress through reciprocal steps by the two parties in the political, security, economic, humanitarian and institution-building fields, under the auspices of the Quartet. The destination is a final and comprehensive settlement of the Israeli-Palestinian conflict by 2005, as presented in President Bush’s speech of 24 June [2002], and welcomed by the E.U., Russia and the U.N. in the 16 July [2002] and 17 September [2002] Quartet ministerial statements. A two-state solution to the Israeli-Palestinian conflict will only be achieved through an end to violence and terrorism, when the Palestinian people have a leadership acting decisively against terror and willing and able to build a practicing democracy based on tolerance and liberty, and through Israel’s readiness to do what is necessary for a democratic Palestinian state to be established, and a clear, unambiguous acceptance by both parties of the goal of a negotiated settlement as described below. The Quartet will assist and facilitate implementation of the plan, starting in Phase I, including direct discussions between the parties as required. The plan establishes a realistic timeline for implementation. However, as a performance-based plan, progress will require and depend upon the good faith efforts of the parties and their compliance with each of the obligations outlined below. Should the parties perform their obligations rapidly, progress within and through the phases may come sooner than indicated in the plan. Noncompliance with obligations will impede progress. A settlement, negotiated between the parties, will result in the emergence of an independent, democratic and viable Palestinian state living side by side in peace and security with Israel and its other neighbors. The settlement will resolve the Israeli-Palestinian conflict and end the occupation that began in 1967, based on the foundations of the Madrid Conference, the principle of land for peace, U.N. Security Council Resolutions 242, 338 and 1397, agreements previously reached by the parties, and the initiative of Saudi Crown Prince Abdullah – endorsed by the Beirut Arab League Summit – calling for acceptance of Israel as a neighbor living in peace and security, in the context of a comprehensive settlement. This initiative is a vital element of international efforts to promote a comprehensive peace on all tracks, including the Syrian-Israeli and Lebanese-Israeli tracks.

*

Issued by the “Quartet,” comprising the European Union, the United States, the Russian Federation and the United Nations.


PERFORMANCE-BASED ROAD MAP TO A PERMANENT TWO-STATE SOLUTION

The Quartet will meet regularly at senior levels to evaluate the parties’ performance on implementation of the plan. In each phase, the parties are expected to perform their obligations in parallel, unless otherwise indicated.

Phase I: Ending Terror and Violence, Normalizing Palestinian Life, and Building Palestinian Institutions – Present to May 2003 In Phase I, the Palestinians immediately undertake an unconditional cessation of violence according to the steps outlined below; such action should be accompanied by supportive measures undertaken by Israel. Palestinians and Israelis resume security cooperation based on the Tenet Work Plan to end violence, terrorism and incitement through restructured and effective Palestinian security services. Palestinians undertake comprehensive political reform in preparation for statehood, including drafting a Palestinian constitution, and free, fair and open elections upon the basis of those measures. Israel takes all necessary steps to help normalize Palestinian life. Israel withdraws from Palestinian areas occupied from September 28, 2000 and the two sides restore the status quo that existed at that time, as security performance and cooperation progress. Israel also freezes all settlement activity, consistent with the Mitchell Report. At the outset of Phase I: •

Palestinian leadership issues unequivocal statement reiterating Israel’s right to exist in peace and security and calling for an immediate and unconditional cease fire to end armed activity and all acts of violence against Israelis anywhere. All official Palestinian institutions end incitement against Israel.

•

Israeli leadership issues unequivocal statement affirming its commitment to the twostate vision of an independent, viable, sovereign Palestinian state living in peace and security alongside Israel, as expressed by President Bush, and calling for an immediate end to violence against Palestinians everywhere. All official Israeli institutions end incitement against Palestinians.

Security •

Palestinians declare an unequivocal end to violence and terrorism and undertake visible efforts on the ground to arrest, disrupt and restrain individuals and groups conducting and planning violent attacks on Israelis anywhere.

•

Rebuilt and refocused Palestinian Authority security apparatus begins sustained, targeted and effective operations aimed at confronting all those engaged in terror and dismantlement of terrorist capabilities and infrastructure. This includes commencing confiscation of illegal weapons and consolidation of security authority, free of association with terror and corruption.

•

GOI [government of Israel] takes no actions undermining trust, including: deportations; attacks on civilians; confiscation and/or demolition of Palestinian homes and property, as a punitive measure or to facilitate Israeli construction; destruction of Palestinian institutions and infrastructure; and other measures specified in the Tenet Work Plan.

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•

Relying on existing mechanisms and on-the-ground resources, Quartet representatives begin informal monitoring and consult with the parties on establishment of a formal monitoring mechanism and its implementation.

•

Implementation, as previously agreed, of U.S. rebuilding, training and resumed security cooperation plan in collaboration with outside oversight board (U.S.-EgyptJordan). Quartet support for efforts to achieve a lasting, comprehensive cease-fire.

•

All Palestinian security organizations are consolidated into three services reporting to an empowered Interior Minister.

•

Restructured/retrained Palestinian security forces and IDF [Israel Defense Forces] counterparts progressively resume security cooperation and other undertakings in implementation of the Tenet Work Plan, including regular senior-level meetings, with the participation of U.S. security officials.

•

Arab states cut off public and private funding and all other forms of support for groups supporting and engaging in violence and terror.

•

All donors providing budgetary support for the Palestinians channel these funds through the Palestinian Ministry of Finance’s single treasury account.

•

As comprehensive security performance moves forward, IDF withdraws progressively from areas occupied since September 28, 2000 and the two sides restore the status quo that existed prior to September 28, 2000. Palestinian security forces redeploy to areas vacated by IDF.

Palestinian Institution-Building •

Immediate action on credible process to produce draft constitution for Palestinian statehood. As rapidly as possible, constitutional committee circulates draft Palestinian constitution, based on strong parliamentary democracy and cabinet with empowered prime minister, for public comment/debate. Constitutional committee proposes draft document for submission after elections for approval by appropriate Palestinian institutions.

•

Appointment of interim prime minister or cabinet with empowered executive authority/decision-making body.

•

GOI fully facilitates travel of Palestinian officials for PLC and cabinet sessions, internationally supervised security retraining, electoral and other reform activity, and other supportive measures related to the reform efforts.

•

Continued appointment of Palestinian ministers empowered to undertake fundamental reform. Completion of further steps to achieve genuine separation of powers, including any necessary Palestinian legal reforms for this purpose.

•

Establishment of independent Palestinian election commission. PLC reviews and revises election law.

•

Palestinian performance on judicial, administrative and economic benchmarks, as established by the International Task Force on Palestinian Reform.

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•

As early as possible, and based upon the above measures and in the context of open debate and transparent candidate selection/electoral campaign based on a free, multiparty process, Palestinians hold free, open and fair elections.

•

GOI facilitates Task Force election assistance, registration of voters, movement of candidates and voting officials. Support for NGOs involved in the election process.

•

GOI reopens Palestinian Chamber of Commerce and other closed Palestinian institutions in East Jerusalem based on a commitment that these institutions operate strictly in accordance with prior agreements between the parties.

Humanitarian Response •

Israel takes measures to improve the humanitarian situation. Israel and Palestinians implement in full all recommendations of the Bertini Report to improve humanitarian conditions, lifting curfews and easing restrictions on movement of persons and goods, and allowing full, safe and unfettered access of international and humanitarian personnel.

•

AHLC [Ad Hoc Liaison Committee] reviews the humanitarian situation and prospects for economic development in the West Bank and Gaza and launches a major donor assistance effort, including to the reform effort.

•

GOI and PA continue revenue clearance process and transfer of funds, including arrears, in accordance with agreed, transparent monitoring mechanism.

Civil Society •

Continued donor support, including increased funding through PVOs/NGOs, for people to people programs, private sector development and civil society initiatives.

Settlements •

GOI immediately dismantles settlement outposts erected since March 2001.

•

Consistent with the Mitchell Report, GOI freezes all settlement activity (including natural growth of settlements).

Phase II: Transition – June 2003 to December 2003 In the second phase, efforts are focused on the option of creating an independent Palestinian state with provisional borders and attributes of sovereignty, based on the new constitution, as a way station to a permanent status settlement. As has been noted, this goal can be achieved when the Palestinian people have a leadership acting decisively against terror, willing and able to build a practicing democracy based on tolerance and liberty. With such a leadership, reformed civil institutions and security structures, the Palestinians will have the active support of the Quartet and the broader international community in establishing an independent, viable state. Progress into Phase II will be based upon the consensus judgement of the Quartet of whether conditions are appropriate to proceed, taking into account performance of both parties. Furthering and sustaining efforts to normalize Palestinian lives and build 430


Palestinian institutions, Phase II starts after Palestinian elections and ends with possible creation of an independent Palestinian state with provisional borders in 2003. Its primary goals are continued comprehensive security performance and effective security cooperation, continued normalization of Palestinian life and institution-building, further building on and sustaining of the goals outlined in Phase I, ratification of a democratic Palestinian constitution, formal establishment of office of prime minister, consolidation of political reform and the creation of a Palestinian state with provisional borders. •

INTERNATIONAL CONFERENCE: Convened by the Quartet, in consultation with the parties, immediately after the successful conclusion of Palestinian elections, to support Palestinian economic recovery and launch a process leading to establishment of an independent Palestinian state with provisional borders.

•

Such a meeting would be inclusive, based on the goal of a comprehensive Middle East peace (including between Israel and Syria, and Israel and Lebanon), and based on the principles described in the preamble to this document.

•

Arab states restore pre-Intifada links to Israel (trade offices, etc.).

•

Revival of multilateral engagement on issues including regional water resources, environment, economic development, refugees and arms control issues.

•

New constitution for democratic, independent Palestinian state is finalized and approved by appropriate Palestinian institutions. Further elections, if required, should follow approval of the new constitution.

•

Empowered reform cabinet with office of prime minister formally established, consistent with draft constitution.

•

Continued comprehensive security performance, including effective security cooperation on the bases laid out in Phase I.

•

Creation of an independent Palestinian state with provisional borders through a process of Israeli-Palestinian engagement, launched by the international conference. As part of this process, implementation of prior agreements, to enhance maximum territorial contiguity, including further action on settlements in conjunction with establishment of a Palestinian state with provisional borders.

•

Enhanced international role in monitoring transition, with the active, sustained and operational support of the Quartet.

•

Quartet members promote international recognition of Palestinian state, including possible U.N. membership.

Phase III: Permanent Status Agreement and End of the IsraeliPalestinian Conflict – 2004-2005 Progress into Phase III, based on consensus judgement of Quartet, and taking into account actions of both parties and Quartet monitoring. Phase III objectives are consolidation of reform and stabilization of Palestinian institutions, sustained, effective Palestinian security performance, and Israeli-Palestinian negotiations aimed at a permanent status agreement in 2005.

431


•

SECOND INTERNATIONAL CONFERENCE: Convened by Quartet, in consultation with the parties, at beginning of 2004 to endorse agreement reached on an independent Palestinian state with provisional borders and formally to launch a process with the active, sustained and operational support of the Quartet, leading to a final, permanent status resolution in 2005, including on borders, Jerusalem, refugees and settlements; and to support progress toward a comprehensive Middle East settlement between Israel and Lebanon and Israel and Syria, to be achieved as soon as possible.

•

Continued comprehensive, effective progress on the reform agenda laid out by the Task Force in preparation for final status agreement.

•

Continued sustained and effective security performance, and sustained, effective security cooperation on the bases laid out in Phase I.

•

International efforts to facilitate reform and stabilize Palestinian institutions and the Palestinian economy, in preparation for final status agreement.

•

Parties reach final and comprehensive permanent status agreement that ends the Israeli-Palestinian conflict in 2005, through a settlement negotiated between the parties based on U.N. Security Council Resolutions 242, 338 and 1397, that ends the occupation that began in 1967, and includes an agreed, just, fair and realistic solution to the refugee issue and a negotiated resolution on the status of Jerusalem that takes into account the political and religious concerns of both sides and protects the religious interests of Jews, Christians and Muslims world-wide and fulfils the vision of two states, Israel and sovereign, independent, democratic and viable Palestine, living side-by-side in peace and security.

•

Arab state acceptance of full normal relations with Israel and security for all the states of the region in the context of a comprehensive Arab-Israeli peace.

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4. “DECLARATION” OF THE CONFERENCE OF HIGH CONTRACTING PARTIES TO THE FOURTH GENEVA CONVENTION (DECEMBER 5, 2001)*

1. This Declaration reflects the common understanding reached by the participating High Contracting Parties to the reconvened Conference of High Contracting Parties to the Fourth Geneva Convention. The Conference of 15 July 1999, recommended by United Nations’ General Assembly Resolution ES-10/6 in an Emergency Special Session, issued a statement as follows: “…The participating High Contracting Parties reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem. Furthermore, they reiterated the need for full respect for the provisions of the said Convention in that Territory. Taking into consideration the improved atmosphere in the Middle East as a whole, the Conference was adjourned on the understanding that it will convene again in the light of consultations on the development of the humanitarian situation in the field.” 2. The participating High Contracting Parties express deep concern about the deterioration of the humanitarian situation in the field. They deplore the great number of civilian victims, in particular children and other vulnerable groups, due to indiscriminate or disproportionate use of force and due to lack of respect for international humanitarian law. 3. Taking into account art. 1 of the Fourth Geneva Convention of 1949 and bearing in mind the United Nations’ General Assembly Resolution ES-10/7, the participating High Contracting Parties reaffirm the applicability of the Convention to the Occupied Palestinian Territory, including East Jerusalem and reiterate the need for full respect for the provisions of the said Convention in that Territory. Through the present Declaration, they recall in particular the respective obligations under the Convention of all High Contracting Parties (para 4-7), of the parties to the conflict (para 8-11) and of the State of Israel as the Occupying Power (para 12-15). 4. The participating High Contracting Parties call upon all parties, directly involved in the conflict or not, to respect and to ensure respect for the Geneva Conventions in all circumstances, to disseminate and take measures necessary for the prevention and sup-

*

Text issued by the Government of Switzerland. Switzerland, in its capacity as Depositary of the Fourth Geneva Convention, received requests in October 2000 to reconvene the Conference of High Contracting Parties to the Fourth Geneva Convention. (The first Conference of High Contracting Parties was held on July 15, 1999, following the recommendation of the General Assembly in Resolution ES-10/6; a statement was issued by that Conference in which the High Contracting Parties reaffirmed the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territories, including East Jerusalem.) After consultations, Switzerland set December 5, 2001 as the date for reconvening the Conference in Geneva, with Switzerland to serve as Chair. A total of 114 High Contracting Parties and eight other participants and observers attended (including Palestine). Three states (Israel, the U.S. and Australia) boycotted the Conference.


“DECLARATION” OF THE CONFERENCE OF HIGH CONTRACTING PARTIES

pression of breaches of the Conventions. They reaffirm the obligations of the High Contracting Parties under articles 146, 147 and 148 of the Fourth Geneva Convention with regard to penal sanctions, grave breaches and responsibilities of the High Contracting Parties. 5. The participating High Contracting Parties stress that the Fourth Geneva Convention, which takes fully into account imperative military necessity, has to be respected in all circumstances. 6. The participating High Contracting Parties see the need to recall basic humanitarian rules with regard to persons taking no active part in the hostilities, which shall be treated humanely without any discrimination, and to recall the prohibition at any time and in any place whatsoever of acts of violence to life and person, torture, outrages upon personal dignity and of arbitrary or extra-judiciary executions. 7. The participating High Contracting Parties express their support for the endeavours of the humanitarian relief societies in the field in ensuring that the wounded and sick receive assistance, and for the activities of the International Committee of the Red Cross (ICRC), the United Nations Relief and Works Agency in the Near East (UNRWA) and of other impartial humanitarian organisations. They also express their support for the efforts of the United Nations High Commissioner for Human Rights and of U.N. Special Rapporteurs in order to assess the situation in the field and they take note of the reports and recommendations of the High Commissioner for Human Rights (E/CN.4/2001/114) and of the Commission of Inquiry (E/CN.4/2001/121). 8. The participating High Contracting Parties call upon the parties to the conflict to ensure respect for and protection of the civilian population and civilian objects and to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives. They also call upon the parties to abstain from any measures of brutality and violence against the civilian population whether applied by civilian or military agents and to abstain from exposing the civilian population to military operations. 9. The participating High Contracting Parties call upon the parties to the conflict to respect and to protect at all times the fixed establishments and mobile medical units of the Medical Services and to facilitate the operations of the humanitarian relief societies in the field, including the free passage of their ambulances and medical personnel, and to guarantee their protection. 10. The participating High Contracting Parties call upon the parties to the conflict to facilitate the activities of the ICRC, within its particular role conferred upon it by the Geneva Conventions, the UNRWA and of other impartial humanitarian organisations. They recognise and support their efforts to assess and to improve the humanitarian situation in the field. They invite the parties to the conflict to co-operate with independent and impartial observers such as the Temporary International Presence in the City of Hebron (TIPH). 11. The participating High Contracting Parties call upon the parties to the conflict to consider anew suggestions made at the meeting of experts of High Contracting Parties in 1998 to resolve problems of implementation of the Fourth Geneva Convention and to respect and to ensure respect in all circumstances for the rules of international humanitarian law and to co-operate within the framework of direct contacts, including pro434


cedures of inquiry and of conciliation. They encourage any arrangements and agreements supported by the parties to the conflict on the deployment of independent and impartial observers to monitor, inter alia, breaches of the Fourth Geneva Convention as a protection and confidence building measure, with the aim to ensure effectiveness of humanitarian rules. 12. The participating High Contracting Parties call upon the Occupying Power to fully and effectively respect the Fourth Geneva Convention in the Occupied Palestinian Territory, including East Jerusalem, and to refrain from perpetrating any violation of the Convention. They reaffirm the illegality of the settlements in the said territories and of the extension thereof. They recall the need to safeguard and guarantee the rights and access of all inhabitants to the Holy Places. 13. The participating High Contracting Parties call upon the Occupying Power to immediately refrain from committing grave breaches involving any of the acts mentioned in art. 147 of the Fourth Geneva Convention, such as wilful killing, torture, unlawful deportation, wilful depriving of the rights of fair and regular trial, extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly. The participating High Contracting Parties recall that according to art. 148 no High Contracting Party shall be allowed to absolve itself of any liability incurred by itself in respect to grave breaches. The participating High Contracting Parties also recall the responsibilities of the Occupying Power according to art. 29 of the Fourth Geneva Convention for the treatment of protected persons. 14. The participating High Contracting Parties also call upon the Occupying Power to refrain from perpetrating any other violation of the Convention, in particular reprisals against protected persons and their property, collective penalties, unjustified restrictions of free movement, and to treat the protected persons humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. 15. The participating High Contracting Parties call upon the Occupying Power to facilitate the relief operations and free passage of the ICRC, UNRWA, as well as any other impartial humanitarian organisation, to guarantee their protection and, where applicable, to refrain from levying taxes and imposing undue financial burdens on these organisations. 16. The participating High Contracting Parties stress that respect for the Fourth Geneva Convention and international humanitarian law in general is essential to improve the humanitarian situation in the field and to achieve a just and lasting peace. The participating High Contracting Parties invite the parties concerned to bring the conflict to an end by means of negotiation and to settle their disputes in accordance with applicable international law. 17. The participating High Contracting Parties welcome and encourage the initiatives by States Parties, both individually and collectively, according to art. 1 of the Convention and aimed at ensuring the respect of the Convention, and they underline the need for the Parties, to follow up on the implementation of the present Declaration. 18. The participating High Contracting Parties express their gratitude to the Depositary of the Fourth Geneva Convention for its good services and offices.

435

5. U.N. SECURITY COUNCIL RESOLUTION 1397 (MARCH 12, 2002)*

Adopted by the Security Council at its 4489th meeting, on 12 March 2002

The Security Council, Recalling all its previous relevant resolutions, in particular resolutions 242 (1967) and 338 (1973), Affirming a vision of a region where two States, Israel and Palestine, live side by side within secure and recognized borders, Expressing its grave concern at the continuation of the tragic and violent events that have taken place since September 2000, especially the recent attacks and the increased number of casualties, Stressing the need for all concerned to ensure the safety of civilians, Stressing also the need to respect the universally accepted norms of international humanitarian law, Welcoming and encouraging the diplomatic efforts of special envoys from the United States of America, the Russian Federation, the European Union and the United Nations Special Coordinator and others to bring about a comprehensive, just and lasting peace in the Middle East, Welcoming the contribution of Saudi Crown Prince Abdullah, 1. Demands immediate cessation of all acts of violence, including all acts of terror, provocation, incitement and destruction; 2. Calls upon the Israeli and Palestinian sides and their leaders to cooperate in the implementation of the Tenet work plan and Mitchell Report recommendations with the aim of resuming negotiations on a political settlement; 3. Expresses support for the efforts of the Secretary-General and others to assist the parties to halt the violence and to resume the peace process; 4. Decides to remain seized of the matter.

*

Resolution 1397 (2002) was adopted by a vote of 14 in favor to none against with 1 abstention (Syria).

The Palestine Yearbook of International Law, Vol. XII, 2002/2003, p. 437. © 2005 Koninklijke Brill NV.

6. U.N. SECURITY COUNCIL RESOLUTION 1402 (MARCH 30, 2002)*

Adopted by the Security Council at its 4503rd meeting, on 30 March 2002

The Security Council, Reaffirming its resolutions 242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973, 1397 (2002) of 12 March 2002 and the Madrid principles, Expressing its grave concern at the further deterioration of the situation, including the recent suicide bombings in Israel and the military attack against the headquarters of the president of the Palestinian Authority, 1. Calls upon both parties to move immediately to a meaningful cease-fire; calls for the withdrawal of Israeli troops from Palestinian cities, including Ramallah; and calls upon the parties to cooperate fully with Special Envoy Zinni, and others, to implement the Tenet security work plan as a first step towards implementation of the Mitchell Committee recommendations, with the aim of resuming negotiations on a political settlement; 2. Reiterates its demand in resolution 1397 (2002) of 12 March 2002 for an immediate cessation of all acts of violence, including all acts of terror, provocation, incitement and destruction; 3. Expresses support for the efforts of the Secretary-General and the special envoys to the Middle East to assist the parties to halt the violence and to resume the peace process; 4. Decides to remain seized of the matter.

*

Resolution 1402 (2002) was adopted by a vote of 14 in favor to none against with Syria not taking part in the vote.


7. U.N. SECURITY COUNCIL RESOLUTION 1403 (APRIL 4, 2002)*

Adopted by the Security Council at its 4506th meeting, on 4 April 2002

The Security Council, Reaffirming its resolutions 1397 (2002) of 12 March 2002 and 1402 (2002) of 30 March 2002, Gravely concerned at the further deterioration of the situation on the ground and noting that resolution 1402 (2002) has not yet been implemented, 1. Demands the implementation of its resolution 1402 (2002) without delay; 2. Welcomes the mission of the U.S. Secretary of State to the region, as well as efforts by others, in particular the special envoys from the United States, the Russian Federation and the European Union, and the United Nations Special Coordinator, to bring about a comprehensive, just and lasting peace to the Middle East; 3. Requests the Secretary-General to follow the situation and keep the Council informed; 4. Decides to remain seized of the matter.

*

Resolution 1403 (2002) was adopted unanimously.


8. U.N. SECURITY COUNCIL RESOLUTION 1405 (APRIL 19, 2002)*

Adopted by the Security Council at its 4516th meeting, on 19 April 2002

The Security Council, Reaffirming its resolutions 242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973, 1397 (2002) of 12 March 2002, 1402 (2002) of 30 March 2002, 1403 (2002) of 4 April 2002, and the Statement of its President of 10 April 2002 (S/PRST/2002/9), Concerned by the dire humanitarian situation of the Palestinian civilian population, in particular reports from the Jenin refugee camp of an unknown number of deaths and destruction, Calling for the lifting of restrictions imposed, in particular in Jenin, on the operations of humanitarian organizations, including the International Committee of the Red Cross and United Nations Relief and Works Agency for Palestine Refugees in the Near East, Stressing the need for all concerned to ensure the safety of civilians, and to respect the universally accepted norms of international humanitarian law, 1. Emphasizes the urgency of access of medical and humanitarian organizations to the Palestinian civilian population; 2. Welcomes the initiative of the Secretary-General to develop accurate information regarding recent events in the Jenin refugee camp through a fact-finding team and requests him to keep the Security Council informed; 3. Decides to remain seized of the matter.

*

Resolution 1405 (2002) was adopted unanimously.


9. U.N. SECURITY COUNCIL RESOLUTION 1435 (SEPTEMBER 24, 2002)*

Adopted by the Security Council at its 4614th meeting, on 24 September 2002

The Security Council, Reaffirming its resolutions 242 (1967) of 22 November 1967, 338 (1973) of 22 October 1973, 1397 (2002) of 12 March 2002, 1402 (2002) of 30 March 2002 and 1403 (2002) of 4 April 2002, as well as the statements of its President, of 10 April 2002 and 18 July 2002, Reiterating its grave concern at the tragic and violent events that have taken place since September 2000 and the continuous deterioration of the situation, Condemning all terrorist attacks against any civilians, including the terrorist bombings in Israel on 18 and 19 September 2002 and in a Palestinian school in Hebron on 17 September 2002, Gravely concerned at the reoccupation of the headquarters of the President of the Palestinian Authority in the City of Ramallah that took place on 19 September 2002 and demanding its immediate end, Alarmed at the reoccupation of Palestinian cities as well as the severe restrictions imposed on the freedom of movement of persons and goods, and gravely concerned at the humanitarian crisis being faced by the Palestinian people, Reiterating the need for respect in all circumstances of international humanitarian law, including the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, 1. Reiterates its demand for the complete cessation of all acts of violence, including all acts of terror, provocation, incitement and destruction; 2. Demands that Israel immediately cease measures in and around Ramallah including the destruction of Palestinian civilian and security infrastructure; 3. Demands also the expeditious withdrawal of the Israeli occupying forces from Palestinian cities towards the return to the positions held prior to September 2000; 4. Calls on the Palestinian Authority to meet its expressed commitment to ensure that those responsible for terrorist acts are brought to justice by it; 5. Expresses its full support for the efforts of the Quartet and calls upon the Government of Israel, the Palestinian Authority and all States in the region to cooperate with these efforts and recognizes in this context the continuing importance of the initiative endorsed at the Arab League Beirut Summit; 6. Decides to remain seized of the matter. *

Resolution 1435 (2002) was adopted by a vote of 14 in favor to none against with 1 abstention (U.S.).


10. REPORT OF THE U.N. SECRETARY-GENERAL PREPARED PURSUANT TO GENERAL ASSEMBLY RESOLUTION ES-10/10 (“JENIN REPORT”) (JULY 30, 2002) [EXCERPT]*

Summary This report was prepared on the basis of General Assembly resolution ES-10/10, adopted on 7 May 2002, in which the Assembly requested the Secretary-General to present a report, drawing upon the available resources and information, on the recent events that took place in Jenin and other Palestinian cities. The General Assembly requested the report following the disbandment of the United Nations fact-finding team that had been convened by the Secretary-General in response to Security Council resolution 1405 (2002) of 19 April 2002. The report was written without a visit to Jenin or the other Palestinian cities in question and it therefore relies completely on available resources and information, including submissions from five United Nations Member States and Observer Missions, documents in the public domain and papers submitted by non-governmental organizations. The UnderSecretary-General for Political Affairs wrote to the Permanent Representative of Israel and the Permanent Observer of Palestine to the United Nations requesting them to submit information but only the latter did so. In the absence of a response from Israel, the United Nations has relied on public statements of Israeli officials and publicly available documents of the Government of Israel relevant to the request in resolution ES-10/10. This report covers the period from approximately the beginning of March to 7 May 2002. The report sets out the context and background of the situation in Israel and the Occupied Palestinian Territory, including the security, humanitarian and human rights responsibilities of both parties. It briefly charts the rising violence since September 2000, which had by 7 May 2002 caused the deaths of 441 Israelis and 1,539 Palestinians. The report describes the pattern of attacks carried out by Palestinian armed groups against Israel operating from the West Bank and Israel’s military action during Operation Defensive Shield, which began on 29 March with an incursion into Ramallah, followed by entry into Tulkarm and Qalqilya on 1 April, Bethlehem on 2 April, and Jenin and Nablus on 3 April. By 3 April, six of the largest cities in the West Bank, and their surrounding towns, villages and refugee camps, had been occupied by the Israeli military. Operation Defensive Shield was characterized by extensive curfews on civilian populations and restrictions, indeed occasional prohibitions, on the movement of international personnel, including at times humanitarian and medical personnel as well as human rights monitors and journalists. In many instances, humanitarian workers were not able to reach people in need. Combatants on both sides conducted themselves in ways that, at times, placed civilians in harm’s way. Much of the fighting during Operation Defensive Shield occurred in

*

U.N. document number A/ES-10/186 (2002).


REPORT OF THE U.N. TO GENERAL ASSEMBLY RESOLUTION ES-10/10

areas heavily populated by civilians and in many cases heavy weaponry was used. As a result of those practices, the populations of the cities covered in this report suffered severe hardships. The Israeli Defence Forces announced the official end of the operation on 21 April but its consequences lasted until the end of the period under review and beyond.

I.

Introduction

1. The present report is submitted pursuant to resolution ES-10/10 adopted on 7 May 2002 by the General Assembly at its tenth emergency special session. In paragraph 6 of the resolution the Assembly requested the Secretary-General to present a report, drawing upon the available resources and information, on the recent events that took place in Jenin and other Palestinian cities.

II.

Security Council resolution 1405 (2002)

2. On 19 April 2002, the Security Council unanimously adopted resolution 1405 (2002), in which it welcomed my initiative to develop accurate information regarding recent events in the Jenin refugee camp through a fact-finding team. This resolution was tabled in the Council by the delegation of the United States of America following telephone conversations that I had with Israel’s Foreign Affairs and Defence Ministers at their initiative, during which I was assured that Israel would cooperate fully with the team that I would designate. 3. Pursuant to resolution 1405 (2002), on 22 April 2002, I established a fact-finding team composed of Martti Ahtisaari, Sadako Ogata and Cornelio Sommaruga. Headed by Mr. Ahtisaari, the team’s members also included four senior advisers: Major General (ret.) William Nash, as Military Adviser; Deputy Commissioner Peter Fitzgerald, as Police Adviser; Ambassador Tyge Lehmann, as Legal Adviser; and Helena Ranta, as Medical/Legal Adviser. In addition, the team was provided with technical expertise in military, security and counter-terrorism issues, as well as forensic science and general support staff. The team gathered at Geneva and began to prepare a work plan based on three elements: (a) events in Jenin in the period immediately prior to Israel’s military operation; (b) the battle in Jenin during Operation Defensive Shield; and (c) efforts by humanitarian workers to gain access to the civilian population in Jenin after the end of hostilities. 4. After the appointment of the members of the team, the Government of Israel raised a number of concerns regarding the work of the team that made its timely deployment impossible and led me to disband the team. On 1 May 2002 I sent a letter to the President of the Security Council (S/2002/504) describing my efforts to implement resolution 1405 (2002), which read, in part: (a) I instructed that the team should gather in Geneva on 24 April and proceed to the area on 25 April. However, soon after I announced my plan to deploy the team, the Government of Israel began to express concerns related to the composition of the team, the scope of its mandate, how this mandate would be carried out and various procedural matters. At the request of the Government of Israel, I agreed that the

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Secretariat would meet with a delegation from Israel and listen to Israel’s concerns and engage in a clarificatory process. I set back the arrival of the team in the area to 27 April. (b) The discussions with the Israeli delegation were held in a very constructive atmosphere on 25 and 26 April. By the time the Israeli delegation was able to report back on the results of those meetings, the Sabbath had begun in Israel. The Foreign Minister of Israel informed me that the Israeli Cabinet would address the issue at its scheduled meeting on 28 April and requested that the team delay its arrival for another day. I acceded to this request and the Under-Secretary-General for Political Affairs briefed the Security Council accordingly. (c) On 27 April, I spoke on the telephone with the Prime Minister of Israel, after which I dispatched letters to the Permanent Representative of Israel and the Permanent Observer of Palestine setting out the parameters of work of the team. These letters were circulated to Security Council members on the same day. The Permanent Representative of Israel sent me a reply late on 27 April, in which he put forward several concerns on the part of his Government. The Under-Secretary-General for Political Affairs responded orally to the Permanent Representative of Israel. (d) On 28 April, the Israeli Cabinet did not reach a decision on the fact-finding team; I was informed by Israel that the matter would be reviewed by the Cabinet at a meeting the following day. The Secretariat briefed the Security Council on the information I had received on 28 April, and the Council agreed that the President of the Council would express its continuing support for my efforts to implement resolution 1405 (2002). (e) The Israeli Cabinet did not meet on 29 April. Instead, I was informed by the Permanent Representative of Israel that the Cabinet had scheduled a meeting for early on 30 April. The Secretariat briefed the Security Council accordingly. (f) Israel’s Ministerial Committee on National Security (the Security Cabinet) met early on 30 April, after which it issued the following statement: “Israel has raised essential issues before the United Nations for a fair examination. As long as these terms have not been met, it will not be possible for the clarification process to begin.” In the absence of a formal indication of the terms on which the Government of Israel would cooperate with the fact-finding team, this statement was reviewed against the backdrop of various public statements by, and telephone conversations that I held with, senior Israeli officials. I was drawn reluctantly to the conclusion that, while continuing to express its concerns to the United Nations mainly in the form of procedural issues, Israel had developed concerns about Security Council resolution 1405 (2002) that were fundamental in nature. (g) Throughout this process, the United Nations has made every effort to accommodate the concerns of the Government of Israel within the mandate given to me by the Security Council. It was made quite clear that the team was tasked specifically to develop information about the recent events in Jenin and that the facts established would be used solely for its report to me. In my view, the team would have conducted its assignment in the field in a professional and fair manner and produced an accurate, thorough, balanced and credible report.

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(h) Clearly the full cooperation of both sides was a precondition for this, as was a visit to the area itself to see the Jenin refugee camp at first hand and to gather information. This is why the Secretariat engaged in a thorough clarification process with the Israeli delegation. (i) In the light of yesterday’s announcement by the Government of Israel, it seems evident that the team will not be able to proceed to the area and begin its mission in the near future. While I have not received any further written communication from the Israeli Government since 27 April, in my telephone conversations over the past two days, high-level Israeli officials have broached issues additional to those raised by the delegation that came to New York last week and there have been indications that this list may not be exhaustive. (j) As the Secretariat noted in its briefings to the Council, time is also a critical factor. With the situation in the Jenin refugee camp changing by the day, it will become more and more difficult to establish with any confidence or accuracy the “recent events” that took place there. (k) For these reasons, it is my intention to disband the fact-finding team tomorrow. I regret being unable to provide the information requested by the Council in resolution 1405 (2002), and especially that the long shadow cast by recent events in the Jenin refugee camp will remain in the absence of such a fact-finding exercise. 5. On 3 May 2002 I disbanded the team. In writing to the President of the Security Council to inform him of this, I expressed my deep appreciation to President Ahtisaari, Mrs. Ogata, Mr. Sommaruga and all the members of the team for their efforts to support my actions intended to implement resolution 1405 (2002). I stated that I had every confidence that the team would have conducted itself in a professional and fair manner in producing the report requested by the Council.

III.

Report prepared pursuant to paragraph 6 of resolution ES-10/10

A.

Introduction

6. In order to comply with the General Assembly’s request in resolution ES-10/10, on 14 May 2002, the Under-Secretary-General for Political Affairs addressed letters to the Permanent Representative of Israel and the Permanent Observer of Palestine to the United Nations, requesting them to submit information relevant to the implementation of that resolution. In addition, on 14 May 2002, the Under-Secretary-General for Political Affairs addressed a note verbale to all other Member States and Observer Missions requesting the submission of relevant information. On 3 June 2002, the UnderSecretary-General for Political Affairs addressed another note verbale to Member States and Observer Missions extending the deadline for submissions to 14 June 2002. 7. On 3 June 2002, in response to the letter of the Under-Secretary-General for Political Affairs, the Permanent Observer of Palestine submitted materials regarding recent events in Jenin and other Palestinian cities (see annex I). In addition, five Member States and Observer Missions have submitted information, responding to the note verbale of 14 May (see annexes II-IV). As at the date of submission of this report, the

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Government of Israel has not responded to the information request. In the absence of a response from Israel, the United Nations has relied on public statements of Israeli officials and other publicly available documents of the Government of Israel relevant to the request in resolution ES-10/10. 8. This report covers the period from approximately the beginning of March to 7 May 2002. In keeping with the request of the General Assembly, the substantive portion of the report is based on sources of information available to the United Nations, including those in the public domain and submitted by non-governmental organizations. The report begins by setting out the context and background, before describing recent events. B.

Security, humanitarian and human rights responsibilities

9. Subsequent to the signing on 13 September 1993 of the Declaration of Principles on Interim Self-Government Arrangements, the Government of Israel and the Palestine Liberation Organization (PLO) signed a further agreement that, inter alia, specified the security-related responsibilities of the two sides. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip signed on 28 September 1995 by Israel and the Palestine Liberation Organization details the mechanisms for the extension of Palestinian self-rule to portions of the West Bank. The main feature of the Agreement was the provision for the division of the West Bank into three areas, each with varying degrees of Israeli and Palestinian responsibility. Area A consisted of the seven major Palestinian towns – Jenin, Qalqilya, Tulkarm, Nablus, Ramallah, Bethlehem, Jericho and Hebron – in which Palestinians would have complete responsibility for civilian security. In area B, which comprised all other Palestinian population centres (except for some refugee camps), Israel would retain “overriding security responsibility”. In area C, which includes all settlements, military bases and areas, and State lands, Israel would retain sole security responsibility. Area A comprises approximately 10 per cent of the territory of the West Bank. 10. The Interim Agreement also provides that “Israel shall have the overall responsibility for security for the purpose of protecting Israelis and confronting the threat of terrorism”. It states that “[b]oth sides shall take all measures necessary in order to prevent acts of terrorism, crime and hostilities directed against each other, against individuals falling under the other’s authority and against their property, and shall take legal measures against offenders”. 11. Israel’s obligations in the Occupied Palestinian Territory are set out in the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, to which Israel is a High Contracting Party. Palestinian residents of the Occupied Territory are “protected persons” under the Convention, which provides that they may not be wilfully killed, tortured, taken as hostages or suffer humiliating or degrading treatment. Israel has obligations not to engage in acts of collective punishment or reprisals and is to refrain from appropriating or extensively destroying the property of protected persons unless such destruction is “rendered absolutely necessary by military operations”. 12. The Government of the State of Israel has not, as at the submission of this report, accepted the de jure applicability of the Fourth Geneva Convention of 1949 to all Territory occupied since 1967. Israel has stated that it has undertaken to comply with

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the humanitarian provisions of the Convention in its administration of the Occupied Palestinian Territory. All other High Contracting Parties, as well as the International Committee of the Red Cross, maintain that the Convention does apply de jure to the Occupied Palestinian Territory. 13. The Palestinian Authority is obligated under international customary law to respect human rights, including to refrain from carrying out attacks against civilians, and is required to prevent groups within its territory from engaging in such attacks. Thus, the Palestinian Authority has the responsibility to protect Israeli civilians from attacks, including suicide bombings, emanating from areas under its security control. Those Palestinian groups that have carried out attacks against civilians have also violated the basic international legal principle of the inviolability of civilian life and property. Acts of terror that take life violate the right to life set forth in the International Covenant on Civil and Political Rights. In addition, those groups, and other armed personnel, are prohibited under international humanitarian law from establishing military bases in densely populated civilian areas. C.

Rising violence

14. Since the outbreak of crisis in September 2000, the origins of which have been comprehensively set out in the report of the Sharm el-Sheikh Fact-Finding Committee headed by former Senator George Mitchell, there has been sustained violence between the parties, fluctuating in intensity, causing by 7 May 2002 the deaths of 441 Israelis and 1,539 Palestinians. By the beginning of 2002, the parties were already locked in an accelerating cycle of violent attacks. This cycle of violence further increased in intensity through the early months of this year. The violence reached a high point in the months of March and April, which saw suicide bomb attacks against Israelis by Palestinian groups increase in frequency, and two waves of incursions by the Israeli Defence Forces (IDF) into Palestinian towns and villages in the West Bank, including areas under the administrative and security responsibility of the Palestinian Authority. 15. On 12 March 2002, after a series of terrorist attacks carried out by Palestinians earlier in that month, and as the first wave of IDF incursions into the West Bank was coming to a close, I told the Security Council in a briefing that I believed that Israeli-Palestinian tensions were at boiling point and that the situation was the worst in 10 years. I called on Palestinians to stop all acts of terrorism and all suicide bombings, stating that such attacks were morally repugnant and caused harm to their cause. I called on Israelis to stop the bombing of civilian areas, the extrajudicial killings, the demolitions, and the daily humiliation of ordinary Palestinians. I asserted that such actions gravely eroded Israel’s international standing and fuelled the fires of hatred, despair and extremism among Palestinians. Finally, I urged the political leaders of both peoples – Prime Minister Sharon and Chairman Arafat – to lead their peoples away from disaster. 16. Palestinian terrorist attacks against Israelis continued, followed by Israeli military incursions into Palestinian areas. On 4 April, one week into the second wave of incursions in the West Bank – the Israeli Defence Forces’ Operation Defensive Shield – I again briefed the Security Council and called on all members of the international community to consider urgently how best to intercede with the parties to persuade them to draw back from their present course. I told the Council that self-defence was not a blank cheque, and that responding to terrorism did not in any way free Israel from its 452


obligations under international law, nor did it justify creating a human rights and humanitarian crisis in the Occupied Palestinian Territory. Equally, the Palestinian Authority seemed to believe that failing to act against terrorism, and inducing turmoil, chaos and instability, would cause the Government and people of Israel to buckle – which I believed they would not. I called on the Government of Israel to comply with Security Council resolution ) and withdraw its forces from the Palestinian territory it had occupied during Operation Defensive Shield. I urged Chairman Arafat to exercise political leadership and set the course for the future of his people. 17. On more than one occasion during this very difficult period, I expressed to the Security Council my view that, despite the fact that bitterness and despair were at an all-time high on both sides, we all needed to cling to the conviction that, in the end, however long it would take, there would one day have to be a peaceful settlement of this conflict. While the road back to the negotiating table would not be easy or smooth, both sides, with the help of the international community, must restart a process based on Security Council resolutions 1397 (2002) and 1402 (2002) which, taken together, provide the vision for a permanent settlement of the Israeli-Palestinian conflict and the immediate security and political steps needed to move beyond the present crisis. 18. From the beginning of March until 7 May, Israel endured approximately 16 bombings, the large majority of which were suicide attacks. More than 100 persons were killed and scores more wounded. Throughout this period, the Government of Israel, and the international community, reiterated previous calls on the Palestinian Authority to take steps to stop terrorist attacks and to arrest the perpetrators of such attacks. 19. During this same period, IDF conducted two waves of military incursions primarily in the West Bank, and air strikes against both the West Bank and the Gaza Strip. The first wave began on 27 February 2002 and ended on approximately 14 March. Those incursions, which Israel stated were in pursuit of Palestinians who had carried out attacks against Israelis, involved the use of ground troops, attack helicopters, tanks and F-16 fighter jets in civilian areas, including refugee camps, causing significant loss of life among civilians. 20. Over the course of two days, 8 and 9 March, 18 Israelis were killed in two separate Palestinian attacks and 48 Palestinians were killed in the Israeli raids that followed. 21. Israeli military retaliation for terrorist attacks was often carried out against Palestinian Authority security forces and installations. This had the effect of severely weakening the Authority’s capacity to take effective action against militant groups that launched attacks on Israelis. Militant groups stepped into this growing vacuum and increased their attacks on Israeli civilians. In many cases, the perpetrators of these attacks left messages to the effect that their acts were explicitly in revenge for earlier Israeli acts of retaliation, thus perpetuating and intensifying the cycle of violence, retaliation and revenge. 22. It was against this backdrop that the most extensive Israeli military incursions in a decade, Operation Defensive Shield, were carried out. The proximate cause of the operation was a terrorist attack committed on 27 March in the Israeli city of Netanya, in which 28 people were killed and 140 injured. I condemned the terrorist attack from the Beirut Summit of the League of Arab States as morally repugnant and later described it to the Security Council as a blow against the very possibility of coexistence. On 29 March 2002, the Cabinet of the Government of Israel issued a commu-

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niqué approving “a wide-ranging operational action plan against Palestinian terror” and, to that end, “the mobilization of reserves as per operational need”. The objective was to “defeat the Palestinian terror infrastructure and to prevent the recurrence of the multiple terrorist attacks which have plagued Israel”. D.

Operation Defensive Shield

23. Operation Defensive Shield began on 29 March with an incursion into Ramallah, during which IDF seized most of the buildings in the headquarters compound of Chairman Arafat. Operations followed in Tulkarm and Qalqilya on 1 April, Bethlehem on 2 April, and in Jenin and Nablus on 3 April. By 3 April, six of the largest cities in the West Bank, and their surrounding towns, villages and refugee camps, were occupied by the Israeli military. The Israeli Defence Forces announced the official end of the operation on 21 April as they completed their withdrawal from Nablus and parts of Ramallah, while continuing negotiations to lift the siege at the Church of the Nativity in Bethlehem. The IDF withdrawals from Palestinian cities were, in general, not to pre29 March positions, but rather to positions encircling the cities. Since then, the Israeli Defence Forces have made additional incursions into many of the Palestinian towns and cities from which they had withdrawn at the conclusion of Operation Defensive Shield, and as this report was being prepared had re-entered many Palestinian towns. 24. A few generally applicable observations can be made about the incursions during Operation Defensive Shield. In each incursion, Israeli troops, tanks and armoured personnel carriers entered the cities and IDF imposed curfews on their civilian populations. In each case, the incursions were accompanied by the entry of IDF into nearby villages and refugee camps. The Israeli Defence Forces declared the cities they had entered “special closed military areas”, imposing restrictions on, and at times completely barring, the movement of international personnel, including at times humanitarian and medical personnel as well as human rights monitors and journalists. As a result of these restrictions on movement, including the round-the-clock curfews that lasted with periodic liftings throughout the incursions, the civilian populations of the cities suffered severe hardships, compounded in some places by the extensive fighting that occurred during the operation. As was the case with the first wave of incursions from 27 February to 14 March described above, during Operation Defensive Shield, in many instances, IDF made use of heavy weaponry in Palestinian civilian areas. 25. In each of these incursions, the Israeli Defence Forces arrested Palestinians who they believed were involved in armed actions against Israel, including suicide bombings and other terrorist attacks against Israeli civilians. IDF also, in most of these incursions, destroyed infrastructure they believed to be part of the operating capacity of militant groups, as well as the infrastructure of the Palestinian Authority security services. In addition, widespread damage was caused to the civilian capacity of the Palestinian Authority and to private property. 26. It was not only the Palestinian people whose movement was restricted during Operation Defensive Shield. In many instances, humanitarian workers were not able to reach people in need to assess conditions and deliver necessary assistance because of the sealing of cities, refugee camps and villages during the operation. There were also cases of Israeli forces not respecting the neutrality of medical and humanitarian workers and attacking ambulances. 454


27. The Government of Israel has asserted that ambulances were used to transport Palestinian combatants and weapons; and that the Israeli Defence Forces have in many instances acted to prevent that misuse. It has also stated that IDF policy is to allow free passage in cases of humanitarian need, and that Israeli forces continuously provided food and medical assistance to the Palestinian population. 28. As a result of the severe restrictions on movement, human rights workers and journalists were unable to observe the conduct of the parties and provide independent reporting on that conduct. Some journalists reported being fired at by members of IDF. 29. There were numerous reports of IDF compelling Palestinian civilians to accompany them during house searches, check suspicious subjects, stand in the line of fire from militants and in other ways protect soldiers from danger. Witnesses claim that this was done in the Jenin camp and other Palestinian cities. While IDF soldiers have acknowledged in press reports that they forced Palestinians to knock on doors for house searches, they deny the deliberate use of civilians as human shields. The Government of Israel has denied that its military personnel systematically engage in this practice. In response to a petition filed on 5 May by five Israeli, Palestinian and international human rights organizations, the State Attorney’s Office of the Government of Israel informed the High Court of Justice of Israel that “in light of the various complaints received … and so as to avoid all doubt, the [IDF] has decided to immediately issue an unequivocal order … that forces in the field are absolutely forbidden to use civilians as a means of ‘living shield’.” 30. According to local human rights groups, more than 8,500 Palestinians were arrested between 27 February and 20 May. Reportedly, most of the 2,500 Palestinians arrested during the first wave of incursions in February and March were released within a week, whereas many of the more than 6,000 Palestinians arrested during Operation Defensive Shield after 29 March were held for longer periods without any outside contact. On 5 April, the Commander of the Israeli Defence Forces in the West Bank issued Military Order 1500, which gave soldiers the authority to hold detainees for a period of up to 18 days without access to a lawyer, family members or judicial review. This type of detention can be extended by a military judge for up to 90 days. The order was retroactive to 29 March and was valid for 60 days. By 6 May an alleged 7,000 Palestinians had been arrested under Operation Defensive Shield, of whom 1,500 were still in detention. In many instances during the operation, IDF followed a pattern of using loudspeakers to summon males between 15 and 45. According to human rights reports, significant numbers of the men arrested were blindfolded and handcuffed, not allowed to use a lavatory, and deprived of food or blankets during their first day in detention. 31. In addition to Military Order 1500, the Government of Israel has access to a procedure of administrative detention under which detainees can be held without charge or trial, and which can be renewed indefinitely. The Israeli Defence Forces and the State Attorney have told Amnesty International that from 450 to 990 people were in administrative detention as of May 2002. 32. Of particular concern is the use, by combatants on both sides, of violence that placed civilians in harm’s way. Much of the fighting during Operation Defensive Shield occurred in areas heavily populated by civilians, in large part because the armed Palestinian groups sought by IDF placed their combatants and installations among 455


civilians. Palestinian groups are alleged to have widely booby-trapped civilian homes, acts targeted at IDF personnel but also putting civilians in danger. IDF is reported to have used bulldozers, tank shelling and rocket firing, at times from helicopters, in populated areas. 33. Operation Defensive Shield resulted in the widespread destruction of Palestinian private and public property. Nablus was especially hard hit, especially in its old city, which contained many buildings of cultural, religious and historic significance. Much of the destruction appears to have occurred in the fighting as a result of the use by IDF of tanks, helicopter gunships and bulldozers. United Nations agencies and other international agencies, when allowed into Ramallah and other Palestinian cities, documented extensive physical damage to Palestinian Authority civilian property. That damage included the destruction of office equipment, such as computers and photocopying machines, that did not appear to be related to military objectives. While denying that such destruction was systematic, the Israeli Defence Forces have admitted that their personnel engaged in some acts of vandalism, and are carrying out some related prosecutions. 34. The Government of Israel justified each of the incursions as being necessary to destroy the infrastructure of Palestinian militant groups that had carried out attacks on Israel with increasing frequency in February and March 2002. In each case, Israel has published information about its assessment of the infrastructure of militant groups. More details regarding such information are included in the sections of the report that describe events in specific Palestinian cities. 35. Closures of cities, villages and refugee camps and curfews exacted a substantial humanitarian price from the civilian populations in the affected areas. That burden was exacerbated in most cities occupied during Operation Defensive Shield by significant periods of time during which utilities (electricity, water and telephone) were cut or severely curtailed. After an initial period of round-the-clock curfews without any relief, the Israeli Defence Forces instituted a periodic lifting. The closures and curfews posed particular problems for those with chronic medical problems, who were unable to obtain care and medications. After the lifting of the closures, when they were able to assess the condition of the affected populations, humanitarian agencies reported shortages of food and other basic supplies among Palestinians affected by the incursions. In addition to these humanitarian consequences of the closures and curfews, the restrictions had a devastating economic impact, virtually shutting down the economy of the Palestinian Authority by impeding normal business activity and preventing Palestinians from going to work. 36. Terrorist attacks against Israeli civilians continued in the aftermath of Operation Defensive Shield, and most Palestinian cities endured further incursions after the end of the operation up to the end of the period under consideration in this report. E.

Overall effects of the incursions on the Palestinian population

37. According to a report prepared by United Nations agencies in the Occupied Palestinian Territory, the humanitarian and development effects of the two waves of incursions were as follows:

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(a) A total of 497 Palestinians were killed in the course of the IDF reoccupation of Palestinian area A from 1 March to 7 May 2002 and in the immediate aftermath; (b) Palestinian health authorities and the Palestinian Red Crescent Society reported approximately 1,447 wounded with some 538 live-ammunition injuries (for the same period); (c) Round-the-clock curfews were imposed in cities, refugee camps, towns and villages affecting an estimated 1 million persons; over 600,000 of them remained under a one-week curfew, while 220,000 urban residents lived under curfew regimes for a longer duration and without vital supplies and access to first aid; (d) Severe internal and external closures continue to paralyse normal economic activity, and movement of persons and goods throughout the West Bank; in the Gaza Strip, the unprecedented 38-day-long internal closures divided the Strip into three intermittently isolated areas; (e) Protracted curfews, compounded by severe restrictions on commercial circulation of supplies, rendered the food security situation in the Occupied Palestinian Territory precarious: over 630,000 persons or roughly 20 per cent of the resident population were considered food security vulnerable; (f) Food deficit was increasingly observed in various regions of the Occupied Palestinian Territory, the Gaza food market being particularly distorted. Restrictions on food imports resulted in a mild increase in the overall food price level in the West Bank and in a considerable rise (up to 25-30%) of prices for staple commodities in the Gaza Strip; (g) Over 2,800 refugee housing units were damaged and 878 homes were demolished or destroyed during the reporting period, leaving more than 17,000 people homeless or in need of shelter rehabilitation; (h) Non-refugee housing in Nablus, Ramallah, Bethlehem, Jenin town and Tulkarm and a number of surrounding villages sustained damage ranging from minor to structural; (i) Students in eight West Bank districts were prevented from attending school. It is estimated that, during the reporting period, some 11,000 classes were missed and 55,000 teaching sessions were lost; (j) Fifty Palestinian schools were damaged by Israeli military action, of which 11 were totally destroyed, 9 were vandalized, 15 used as military outposts and another 15 as mass arrest and detention centres. 38. Even before the recent military operation, economic and social conditions in the West Bank and Gaza were in a state of crisis. According to an assessment by the Office of the United Nations Special Coordinator, the 18 months of confrontations and restrictions on movement prior to March and April had witnessed a more than 20 per cent reduction in domestic production levels, unprecedented levels of unemployment, a 30 per cent decline in per capita income and a more than doubling of the poverty rate, to some 45 per cent of the Palestinian population. 39. While it is difficult to ascertain with precision the magnitude of the socio-economic effects of the incursions, available preliminary information indicates a sharp intensifi457


cation of the hardships faced by the population. That information suggests that the principal economic result has been a near-complete cessation of all productive activity in the main West Bank centres of manufacturing, construction, commerce and private and public services. Activities in those centres account for at least 75 per cent of the value of goods and services produced in the West Bank. The production stoppage has imposed immediate income losses on employees and owners of businesses, as well as losses in tax revenues for the Palestinian Authority. In addition, suppliers and buyers in the urban areas directly affected have close economic links to rural areas; the isolation of the former has significant negative effects on the latter. This is also true of the relationship between businesses in East Jerusalem and the West Bank. 40. In addition to the inability of households to access medical, educational or other services during Operation Defensive Shield, people have been separated from their means of income. This has resulted in lost opportunities to earn income, further compressing household income and savings and exacerbating the severe decline in living levels of the last 18 months. As a result, the West Bank will witness even higher levels of poverty in the short- to medium-term. 41. According to the World Bank, reconstruction costs for physical and institutional damage to Palestinian Authority civilian infrastructure resulting from the incursions in the West Bank in March and April 2002 would total US$ 361 million. 42. While the United Nations does not have a mandate to monitor and report on conditions in Israel, as it does in the Occupied Palestinian Territory, it is apparent that the violence, specifically terrorist attacks, has caused enormous suffering for the Israeli people and the country’s economy. F.

Recent events in Jenin

Introduction 43. In the early hours of 3 April 2002, as part of Operation Defensive Shield, the Israeli Defence Forces entered the city of Jenin and the refugee camp adjacent to it, declared them a closed military area, prevented all access, and imposed a round-the-clock curfew. By the time of the IDF withdrawal and the lifting of the curfew on 18 April, at least 52 Palestinians, of whom up to half may have been civilians, and 23 Israeli soldiers were dead. Many more were injured. Approximately 150 buildings had been destroyed and many others were rendered structurally unsound. Four hundred and fifty families were rendered homeless. The cost of the destruction of property is estimated at approximately $27 million. Jenin refugee camp before 3 April 2002 44. On the eve of Israel’s military incursion in April, the Jenin refugee camp, established in 1953, was home to roughly 14,000 Palestinians, of whom approximately 47 per cent were either under 15 or over 65 years of age. It was the second largest refugee camp in the West Bank in population and was densely populated, occupying a surface area of approximately 373 dunums (one square kilometre). The Jenin refugee camp came under full Palestinian civil and security control in 1995. It is in close proximity to Israeli settlements and is near the “green line”.

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45. According to both Palestinian and Israeli observers, the Jenin camp had, by April 2002, some 200 armed men from the Al-Aqsa Martyrs Brigades, Tanzim, Palestinian Islamic Jihad and Hamas who operated from the camp. The Government of Israel has charged that, from October 2000 to April 2002, 28 suicide attacks were planned and launched from the Jenin camp. 46. The Government of Israel has published information regarding infrastructure within the Jenin camp for the carrying out of attacks. The Israeli Defence Forces point to their discovery in the camp of arms caches and explosive laboratories and the numbers of Palestinian militants killed or arrested there during Operation Defensive Shield. They cite posters glorifying suicide bombers and documents describing Jenin as a “martyr’s capital” reportedly found by Israeli soldiers in the camp during the incursion. 47. The Government of Israel and IDF have acknowledged that their soldiers were unprepared for the level of resistance they encountered in Jenin camp, noting that it was “probably the most bitter and harsh” that they had faced. The IDF soldiers who took part in the operation were, for the most part, reservists who had been mobilized only on or after 17 March. Many were called up only after the Passover bombing in Netanya (27 March). Israeli Defence Force incursion into Jenin city and refugee camp, 3-18 April 2002 48. Although available first-hand accounts are partial, difficult to authenticate and often anonymous, it is possible, through Government of Israel, Palestinian Authority, United Nations and other international sources, to create a rough chronology of events within the Jenin camp from 3 to 18 April 2002. The fighting lasted approximately 10 days and was characterized by two distinct phases: the first phase began on 3 April and ended on 9 April, while the second phase lasted during 10 and 11 April. Most of the deaths on both sides occurred in the first phase but it would appear that much of the physical damage was done in the second. 49. There are allegations by the Palestinian Authority and human rights organizations that in the conduct of their operations in the refugee camp the Israeli Defence Forces engaged in unlawful killings, the use of human shields, disproportionate use of force, arbitrary arrests and torture and denial of medical treatment and access. IDF soldiers who participated in the Jenin incursion point to breaches of international humanitarian law on the part of Palestinian combatants within the camp, including basing themselves in a densely populated civilian area and the use of children to transport and possibly lay booby traps. 50. In the account of the Government of Israel of the operation, IDF first surrounded and established control of access into and out of the city of Jenin, allowing its inhabitants to depart voluntarily. Approximately 11,000 did so. According to Israeli sources, in their incursion into the camp IDF relied primarily on infantry rather than airpower and artillery in an effort to minimize civilian casualties, but other accounts of the battle suggest that as many as 60 tanks may have been used even in the first days. Interviews with witnesses conducted by human rights organizations suggest that tanks, helicopters and ground troops using small arms predominated in the first two days, after which armoured bulldozers were used to demolish houses and other structures so as to widen alleys in the camp.

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51. Using loudspeakers, IDF urged civilians in Arabic to evacuate the camp. Some reports, including of interviews with IDF soldiers, suggest that those warnings were not adequate and were ignored by many residents. Many of the inhabitants of the Jenin camp fled the camp before or at the beginning of the IDF incursion. Others left after 9 April. Estimates vary on how many civilians remained in the camp throughout but there may have been as many as 4,000. 52. As described by the Government of Israel, “a heavy battle took place in Jenin, during which IDF soldiers were forced to fight among booby-trapped houses and bomb fields throughout the camp, which were prepared in advance as a booby-trapped battlefield”. The Palestinian Authority acknowledges that “a number of Palestinian fighters resisted the Israeli military assault and were armed only with rifles and … crude explosives”. An IDF spokesman offered a slightly different portrayal of the resistance, stating that the soldiers had faced “more than a thousand explosive charges, live explosive charges and some more sophisticated ones, … hundreds of hand grenades … [and] hundreds of gunmen”. Human rights reports support the assertions that some buildings had been booby-trapped by the Palestinian combatants. 53. That the Israeli Defence Forces encountered heavy Palestinian resistance is not in question. Nor is the fact that Palestinian militants in the camp, as elsewhere, adopted methods which constitute breaches of international law that have been and continue to be condemned by the United Nations. Clarity and certainty remain elusive, however, on the policy and facts of the IDF response to that resistance. The Government of Israel maintains that IDF “clearly took all possible measures not to hurt civilian life” but were confronted with “armed terrorists who purposely concealed themselves among the civilian population”. However, some human rights groups and Palestinian eyewitnesses assert that IDF soldiers did not take all possible measures to avoid hurting civilians, and even used some as human shields. 54. As IDF penetrated the camp, the Palestinian militants reportedly moved further into its centre. The heaviest fighting reportedly occurred between 5 and 9 April, resulting in the largest death tolls on both sides. There are reports that during this period IDF increased missile strikes from helicopters and the use of bulldozers – including their use to demolish homes and allegedly bury beneath them those who refused to surrender – and engaged in “indiscriminate” firing. IDF lost 14 soldiers, 13 in a single engagement on 9 April. IDF incurred no further fatalities in Jenin after 9 April. 55. Press reports from the days in question and subsequent interviews by representatives of non-governmental organizations with camp residents suggest that an average of five Palestinians per day died in the first three days of the incursion and that there was a sharp increase in deaths on 6 April. 56. Fifty-two Palestinian deaths had been confirmed by the hospital in Jenin by the end of May 2002. IDF also place the death toll at approximately 52. A senior Palestinian Authority official alleged in mid-April that some 500 were killed, a figure that has not been substantiated in the light of the evidence that has emerged. 57. It is impossible to determine with precision how many civilians were among the Palestinian dead. The Government of Israel estimated during the incursion that there were “only dozens killed in Jenin … and the vast majority of them bore arms and fired upon [IDF] forces”. Israeli officials informed United Nations personnel that they

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believed that, of the 52 dead, 38 were armed men and 14 were civilians. The Palestinian Authority has acknowledged that combatants were among the dead, and has named some of them, but has placed no precise estimates on the breakdown. Human rights organizations put the civilian toll closer to 20 – Human Rights Watch documented 22 civilians among the 52 dead, while Physicians for Human Rights noted that “children under the age of 15 years, women and men over the age of 50 years accounted for nearly 38 per cent of all reported fatalities”. 58. The Israeli Defence Forces stated at the time that their methods might not change, “because the basic assumption is that we are operating in a civilian neighbourhood”. Other accounts of the battle suggest that the nature of the military operation in Jenin refugee camp did alter after 9 April 2002. On that day, in what both the Palestinian Authority and the Government of Israel describe as a “well-planned ambush” 13 IDF soldiers were killed and a number of others wounded. A fourteenth soldier died elsewhere in the camp that day, bringing the IDF death toll during the operation in Jenin to 23. 59. Following the ambush, IDF appeared to have shifted tactics from house-to-house searches and destruction of the homes of known militants to wider bombardment with tanks and missiles. IDF also used armoured bulldozers, supported by tanks, to demolish portions of the camp. The Government of Israel maintains that “IDF forces only destroyed structures after calling a number of times for inhabitants to leave buildings, and from which the shooting did not cease”. Witness testimonies and human rights investigations allege that the destruction was both disproportionate and indiscriminate, some houses coming under attack from the bulldozers before their inhabitants had the opportunity to evacuate. The Palestinian Authority maintains that IDF “had complete and detailed knowledge of what was happening in the camp through the use of drones and cameras attached to balloons … [and] none of the atrocities committed were unintentional”. 60. Human rights and humanitarian organizations have questioned whether this change in tactics was proportionate to the military objective and in accordance with humanitarian and human rights law. The Palestinian Authority account of the battle alleges the use of “helicopter gunships to fire TOW missiles against such a densely populated area … anti-aircraft guns, able to fire 3,000 rounds a minute … scores of tanks and armoured vehicles equipped with machine guns … [and] bulldozers to raze homes and to burrow wide lanes”. Other sources point to an extensive use of armoured bulldozers and helicopter gunships on 9 and 10 April, possibly even after the fighting had begun to subside. During this stage, much of the physical damage was done, particularly in the central Hawashin district of the camp, which was effectively levelled. Many civilian dwellings were completely destroyed and many more were severely damaged. Several UNRWA facilities in the camp, including its health centre and sanitation office, were badly damaged. 61. Within two days after 9 April, IDF brought the camp under control and defeated the remaining armed elements. On 11 April, the last Palestinian militants in Jenin camp surrendered to IDF, having requested mediation by B’Tselem, an Israeli human rights organization that operates in the Occupied Palestinian Territory, to ensure that no harm would come to them. According to Palestinian Authority sources, those surrendering included wanted Islamic Jihad and Fatah leaders; others were three injured people and a 13-year-old boy.

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Conclusion and aftermath of the IDF incursion, 11 April-7 May 2002 62. As the IDF incursion into Jenin wound down, a range of humanitarian problems arose or worsened for the estimated 4,000 Palestinian civilians remaining in the camp. Primary among these was the prolonged delay in obtaining medical attention for the wounded and sick within the camp. As the fighting began to subside, ambulances and medical personnel were prevented by IDF from reaching the wounded within the camp, despite repeated requests to IDF to facilitate access for ambulances and humanitarian delegates, including those of the United Nations. From 11 to 15 April, United Nations and other humanitarian agencies petitioned and negotiated for access to the camp with IDF and made many attempts to send in convoys, to no avail. At IDF headquarters on 12 April, United Nations officials were told that United Nations humanitarian staff would be given access to the affected population. However, such access did not materialize on the ground, and several more days of negotiations with senior IDF officials and personnel of the Israeli Ministry of Defence did not produce the necessary access despite assurances to the contrary. On 18 April, senior United Nations officials criticized Israel for its handling of humanitarian access in the aftermath of the battle and, in particular, its refusal to facilitate full and safe access to the affected populations in violation of its obligations under international humanitarian law. 63. UNRWA mounted a large operation to deliver food and medical supplies to needy refugees who had fled the camp and to Jenin hospital but was not allowed to enter the camp. The humanitarian crisis was exacerbated by the fact that, on the first day of the offensive, electricity in both the city and the camp were cut by IDF. Electric power was not restored until 21 April. 64. Many of the reports of human rights groups contain accounts of wounded civilians waiting days to reach medical assistance, and being refused medical treatment by IDF soldiers. In some cases, people died as a result of these delays. In addition to those wounded in the fighting, there were civilian inhabitants of the camp and the city who endured medication shortages and delays in medical treatment for pre-existing conditions. For example, it was reported on 4 April that there were 28 kidney patients in Jenin who could not reach the hospital for dialysis treatment. 65. The functioning of Jenin Hospital, just outside the camp, appears to have been severely undermined by IDF actions, despite IDF statements that “nothing was done to the hospital”. The hospital’s supplies of power, water, oxygen and blood were badly affected by the fighting and consequent cuts in services. On 4 April, IDF ordered the Palestinian Red Crescent Society (PRCS) to stop its operations and sealed off the hospital. Hospital staff contend that shells and gunfire severely damaged equipment on the top floor and that at least two patients died because of damage to the oxygen supplies. None of the Palestinians within the hospital was permitted to leave until 15 April. 66. It appears that, in addition to the denial of aid, IDF in some instances targeted medical personnel. Before the Jenin incursion, on 4 March, the head of the PRCS Emergency Medical Service in Jenin was killed by a shell fired from an Israeli tank while he was travelling in a clearly marked ambulance. On 7 March, a staff member of UNRWA was killed when several bullets were fired by Israeli soldiers at an UNRWA ambulance in which he was riding near Tulkarm in the West Bank. On 3 April, a uniformed Palestinian nurse was reportedly shot by IDF soldiers within Jenin camp and on 8 April an UNRWA ambulance was fired upon as it tried to reach a wounded man in Jenin. 462


67. The Government of Israel repeatedly charged that medical vehicles were used to transport terrorists and that medical premises were used to provide shelter. This, according to Israel, necessitated the strict restrictions on humanitarian access. Furthermore, in the specific case of Jenin camp, IDF spokesmen attributed denials of access to the clearance of booby traps after the fighting had subsided. The IDF spokesman also maintained that the “Palestinians actually refused our offers to assist them with humanitarian aid” and that “everyone who needed help, got help”. There is a consensus among humanitarian personnel who were present on the ground that the delays endangered the lives of many wounded and ill within. United Nations and other humanitarian personnel offered to comply fully with IDF security checks on entering and leaving the camp, but were not able to enter the camp on this basis. Furthermore, United Nations staff reported that IDF had granted some Israeli journalists escorted access to the camp on 14 April, before humanitarian personnel were allowed in. United Nations personnel requested similar escorted access to assess the humanitarian condition of people in the camp, but were unsuccessful, despite assurances from senior IDF officials that such access would be possible. 68. On 15 April, 12 days after the start of the military operation, IDF granted humanitarian agencies access to the Jenin refugee camp. The Palestine Red Crescent Society and the International Committee of the Red Cross were permitted to enter the camp under military escort but reported that their movement was strictly confined to certain areas and further constrained by the presence of large quantities of unexploded ordnance including booby traps. After evacuating only seven bodies, they aborted their efforts. A United Nations team including two trucks with water and supplies was forbidden from unloading its supplies and was also forced to withdraw. Supplies were distributed to the camp inhabitants only beginning the following day, 16 April. Acute food and water shortages were evident and humanitarian personnel began calls for specialized search-and-rescue efforts to extract the wounded and the dead from the rubble. 69. Once IDF granted full access to the camp on 15 April, unexploded ordnance impeded the safe operations of humanitarian personnel. Non-United Nations humanitarian agencies reported that large amounts of unexploded ordnance, explosives laid by Palestinian combatants as well as IDF ordnance, slowed their work. Negotiations carried out by United Nations and international agencies with IDF to allow appropriate equipment and personnel into the camp to remove the unexploded ordnance continued for several weeks, during which time at least two Palestinians were accidentally killed in explosions. G.

Recent events in other Palestinian cities

70. Brief descriptions of recent events in Ramallah, Bethlehem and Nablus follow. Ramallah 71. Ramallah was the first city occupied by the Israeli Defence Forces in Operation Defensive Shield. IDF entered on 29 March and withdrew from most of Ramallah on 20 April and the remaining sections of the city on 30 April. While many of the features of the incursion were common to incursions in other cities – a curfew, the severing of telephone, water and electricity services to most of the city, the prevention of the delivery of humanitarian assistance, and detentions – the status of Ramallah as the administrative centre for the Palestinian Authority appeared to be a factor in the actions of IDF. 463


72. The Government of Israel avers that Ramallah has played a central role in terrorist attacks against Israeli civilians because of the presence there of the headquarters of a number of Palestinian security forces (the National Security Force, Preventive Security, Civil Police and Force-17) and the cooperation between those security forces and militant groups. According to IDF, militant groups both collaborate with the security forces and enjoy their protection. The Government of Israel contends that Fatah, which is headquartered in Ramallah and shares personnel with Palestinian Authority security forces, is a terrorist organization. It asserts that the Popular Front for the Liberation of Palestine also uses Ramallah as its base of operation and that Hamas uses Ramallah as a “relay station” for suicide attacks. The Palestinian Authority denies any involvement of its security forces in terrorist attacks. 73. During the course of the military operation in Ramallah, Palestinian Authority civil institutions suffered extensive damage. Reports of human rights monitoring groups contend that those institutions were specifically targeted by IDF, and the World Bank stated in a report that the offices of 21 ministries and agencies were entered and ransacked to varying degrees. According to the Palestinian Authority, IDF entry into the Authority offices appeared to be focused on information-gathering. They cite the common removal of computer servers, hard disc drives, computers and paper records as indicative of this goal. The World Bank states that the destruction was focused on office equipment, computers and data storage facilities; it estimates replacement and repair costs for Palestinian Authority office interiors at $8 million. In addition, the Authority asserts that IDF made efforts to disrupt the ministries’ capacity to function effectively, pointing to what they believe was the systematic destruction of office and communication equipment and removal or destruction of records and data from ministries. Records from the Education, Health and Finance Ministries and the Central Bureau of Statistics were removed during the operation and, as at 7 May, had not been returned. The Palestinian Authority and non-governmental organizations cite cases of vandalism and theft of private property. IDF also caused heavy destruction at the compound of Chairman Arafat. The Government of Israel has denied that IDF personnel engaged in systematic destruction, vandalism and theft during Operation Defensive Shield. Bethlehem 74. On 2 April, IDF entered Bethlehem using tanks and armoured personnel carriers. Exchanges of fire occurred around the city on 2 and 3 April. IDF assert that Palestinian militants fired on Israeli soldiers from churches, while the Palestinian Authority says that IDF attacked civilians and clerics on church premises. On 4 April, according to IDF, Palestinian militants took over the Church of the Nativity. The Palestinian Authority contends that on 3 April 150 people, including women and children, sought refuge in the Church. Israeli forces surrounded the Church of the Nativity and for 37 days a stand-off ensued. Israeli forces withdrew from the city on 10 May, three weeks after the formal end of Operation Defensive Shield, after the conclusion of protracted negotiations over the fate of Palestinian militants who had sought refuge in the Church of the Nativity. 75. The Israeli Defence Forces assert that Bethlehem had been a base for operations of the Al Aqsa Martyrs Brigades, Hamas, Palestinian Islamic Jihad and the Popular Front for the Liberation of Palestine. According to IDF, five attacks on Israelis emanated from

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Bethlehem from 18 February to 9 March 2002, which resulted in the deaths of 24 people and dozens wounded. IDF say that the Al Aqsa Martyrs Brigades claimed responsibility for four of those attacks. 76. A curfew was imposed on Bethlehem and its surrounding villages from 2 April, and from the start of the incursion IDF declared Bethlehem a closed military area. From 2 April to 10 May, the Israeli forces lifted the curfew in parts of the greater Bethlehem area approximately every three days for periods of two to four hours. According to an Israeli human rights organization, in some of Bethlehem’s nearby villages it became difficult to obtain medical care during the brief liftings of the curfew because of the need for residents to travel to Bethlehem or other larger towns to visit hospitals or clinics. As a result, pregnant women were unable to get prenatal care and people with chronic medical problems were unable to replenish medications or receive care. One village, al-Walaja, remained under round-the-clock curfew from 2 April to 10 May. Nablus 77. The IDF incursion into Nablus began on 3 April 2002 and ended on 21 April. Heavy fighting reportedly occurred in various parts of the city, the most intense combat happening in the old city. Most accounts estimate that between 70 and 80 Palestinians, including approximately 50 civilians, were killed in Nablus during the operation. IDF lost four soldiers during the incursion. Of all the Palestinian cities entered during Operation Defensive Shield, Nablus appears to be the one that suffered the most extensive physical damage to property. This is in part because of the substantial damage to the old city, some of which had been restored with the help of UNESCO. According to the World Bank, the reconstruction costs for Nablus alone account for approximately $114 million, more than one third of the total reconstruction cost for all of the cities affected by Operation Defensive Shield. 78. After encircling Nablus on 3 April, IDF entered the city using helicopter gunships, tanks, armoured personnel carriers and ground troops. From 6 to 11 April the most intense fighting occurred in the warren of narrow streets in the old city, where armoured bulldozers were put to use destroying buildings to clear a path for the entry of tanks. By 11 April, most of the fighting had ended. IDF imposed a curfew on 3 April and completely lifted it on 22 April. The first temporary lifting occurred on 10 April for one hour, and thereafter IDF lifted the curfew for two to three hours approximately every two days. 79. The Israeli Defence Forces have alleged that Nablus is a centre for the planning and organization of terrorist attacks on Israel and say that groups in the city directed the work of militant groups in the northern part of the West Bank. IDF hold those groups responsible for 19 attacks in 2002, which resulted in 24 deaths and 313 people injured. According to IDF, the various militant groups operated cooperatively, with Palestinian Islamic Jihad planning attacks, Hamas preparing explosives and Fatah/Tanzim providing suicide bombers. 80. As a result of Operation Defensive Shield and the earlier incursions, IDF assert that 18 explosives laboratories, seven Qassam rocket laboratories, 10 explosive belts, and hundreds of kilos of explosives were found in the old city of Nablus and the nearby Balata refugee camp. They say they found tunnels for hiding and smuggling arms under the old city and discovered arms caches in the homes of the mayor of Nablus and the city’s police commander. 465


81. Humanitarian and human rights groups report that the population of Nablus was particularly affected by the extent of the fighting as well as by the curfew. Substantial portions of the city suffered from water, electricity and telephone cuts throughout the operation. There are also reports of Israeli forces severely hampering the movement of medical personnel and ambulances. The substantial destruction in Nablus included houses, numerous other buildings and religious and historical sites. According to local Palestinian Authority officials, 64 buildings in the old city, including 22 residential buildings, were badly damaged or destroyed and up to 221 buildings suffered partial damage. H.

Observations

82. As I wrote on 3 May 2002 to the President of the Security Council, I share the assessment of President Ahtisaari and his fact-finding team that a full and comprehensive report on recent events in Jenin, as well as in other Palestinian cities, could not be made without the full cooperation of both parties and a visit to the area. I would, therefore, not wish to go beyond the very limited findings of fact which are set out in the body of the text. I am nevertheless confident that the picture painted in this report is a fair representation of a complex reality. 83. The events described in this report, the continuing deterioration of the situation and the ongoing cycle of violence in my view demonstrate the urgent need for the parties to resume a process that would lead back to the negotiating table. There is very wide support in the international community for a solution in which two States, Israel and Palestine, live side-by-side within secure and recognized borders, as called for by the Security Council in resolution 1397 (2002). I believe that the international community has a compelling responsibility to intensify its efforts to find a peaceful and durable solution to the Israeli-Palestinian conflict, as a key element in the search for a just, lasting and comprehensive settlement in the Middle East based on Security Council resolutions 242 (1967) and 338 (1973).

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11. OFFICE OF THE U.N. HIGH COMMISSIONER FOR REFUGEES “NOTE ON THE APPLICABILITY OF ARTICLE 1D OF THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES TO PALESTINIAN REFUGEES” (October 10, 2002)* Article 1D of the 1951 Convention: This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

A.

INTRODUCTION

1. The 1951 Convention relating to the Status of Refugees (hereinafter “the 1951 Convention”) contains certain provisions whereby persons otherwise having the characteristics of refugees, as defined in Article 1A, are excluded from the benefits of this Convention. One such provision, paragraph 1 of Article 1D, applies to a special category of refugees for whom separate arrangements have been made to receive protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees (UNHCR). In today’s context, this excludes from the benefits of the 1951 Convention those Palestinians who are refugees as a result of the 1948 or 1967 Arab-Israeli conflicts, and who are receiving protection or assistance from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). 2. While paragraph 1 of Article 1D is in effect an exclusion clause, this does not mean that certain groups of Palestinian refugees can never benefit from the protection of the 1951 Convention. Paragraph 2 of Article 1D contains an inclusion clause ensuring the automatic entitlement of such refugees to the protection of the 1951 Convention if, without their position being definitively settled in accordance with the relevant UN General Assembly resolutions, protection or assistance from UNRWA has ceased for any reason. The 1951 Convention hence avoids overlapping competencies between UNRWA and UNHCR, but also, in conjunction with UNHCR’s Statute, ensures the continuity of protection and assistance of Palestinian refugees as necessary.1

*

Issued by the Office of the U.N. High Commissioner for Refugees, Geneva, Switzerland.

1

A similar provision to Article 1D of the 1951 Convention is contained in UNHCR’s Statute, paragraph 7(c) of which stipulates that the competence of the High Commissioner shall not extend to a person who “continues to receive from other organs or agencies of the United Nations protection or assistance”.


“NOTE ON THE APPLICABILITY OF ARTICLE 1D OF THE 1951 CONVENTION

B.

PALESTINIAN REFUGEES WITHIN THE SCOPE OF ARTICLE 1D OF THE 1951 CONVENTION

3. UNHCR considers that two groups of Palestinian refugees fall within the scope of Article 1D of the 1951 Convention: (i) Palestinians who are “Palestine refugees” within the sense of UN General Assembly Resolution 194 (III) of 11 December 1948 and other UN General Assembly Resolutions,2 who were displaced from that part of Palestine which became Israel, and who have been unable to return there.3 (ii) Palestinians who are “displaced persons” within the sense of UN General Assembly Resolution 2252 (ES-V) of 4 July 1967 and subsequent UN General

2

The term “Palestine refugees”, while never explicitly defined by the UN General Assembly, almost certainly also encompasses what would nowadays be called internally displaced persons. See, for example, UN Doc. A/AC.25/W.45, Analysis of paragraph 11 of the General Assembly’s Resolution of 11 December 1948, 15 May 1950, Part One, paragraph 1: “During the debate preceding the adoption of [UN General Assembly Resolution 194 (III) of 11 December 1948], the United Kingdom delegation, which had sponsored the draft resolution, stated in reply to a question that the term ‘refugees’ referred to all refugees, irrespective of race or nationality, provided they had been displaced from their homes in Palestine. That the General Assembly accepted this interpretation becomes almost certain if it is considered that the word ‘Arab’, which had preceded the word ‘refugees’ in the first two texts of the United Kingdom draft resolution […] was omitted in the final text which was approved by the Assembly. […] According to the above interpretation the term ‘refugees’ applies to all persons, Arabs, Jews and others who have been displaced from their homes in Palestine. This would include Arabs in Israel who have been shifted from their normal places of residence. It would also include Jews who had their homes in Arab Palestine, such as the inhabitants of the Jewish quarter of the Old City. It would not include Arabs who had lost their lands but not their houses, such as the inhabitants of Tulkam.” For further analysis of the term “Palestine refugees”, see, for example, UN Doc. W/61/Add.1, Addendum to Definition of a “Refugee” Under paragraph 11 of the General Assembly Resolution of 11 December 1948, 29 May 1951; UN Doc. A/AC.25/W.81/Rev.2, Historical Survey of Efforts of the United Nations Commission for Palestine to secure the implementation of paragraph 11 of General Assembly resolution 194 (III). Question of Compensation, 2 October 1961, section III.

3

The UN General Assembly resolved in paragraph 11 of Resolution 194 (III) that “the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date” and that “compensation should be paid for the property of those choosing not to return and for loss of or damage to property”. In the same paragraph, the General Assembly instructed the United Nations Conciliation Commission for Palestine (UNCCP) to “facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation”. The General Assembly has since noted on an annual basis that UNCCP has been unable to find a means of achieving progress in the implementation of paragraph 11 of Resolution 194 (III). See, most recently, General Assembly Resolution 56/52 of 10 December 2001, which notes that the situation of the Palestine refugees continues to be a matter of concern and requests UNCCP to exert continued efforts towards the implementation of that paragraph.

468


Assembly Resolutions, and who have been unable to return to the Palestinian territories occupied by Israel since 1967.4 For the purposes of the application of the 1951 Convention, both of these groups include persons who were displaced at the time of hostilities, plus the descendants of such persons.5 On the other hand, those individuals to whom Articles 1C, 1E or 1F of the Convention apply do not fall within the scope of Article 1D, even if they remain “Palestine refugees” and/or “displaced persons” whose position is yet to be settled definitively in accordance with the relevant UN General Assembly resolutions.6 4. A third category of Palestinian refugees includes individuals who are neither “Palestine refugees” nor “displaced persons”, but who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, are outside the Palestinian territories occupied by Israel since 1967 and are unable or, owing to such fear, are unwilling to return there. Such Palestinians do not fall within the scope of Article 1D of the 1951 Convention but qualify as refugees under Article 1A(2) of the Convention, providing

4

Essentially two groups of Palestinians have been displaced from the territories occupied by Israel in 1967: (i) Palestinians originating from East Jerusalem, the West Bank and the Gaza Strip; (ii) “Palestine refugees” who had taken refuge in East Jerusalem, the West Bank and Gaza Strip. UN General Assembly Resolution 2452 (XXIII) A of 19 December 1968 and subsequent General Assembly Resolutions have called for the return of these “displaced persons”. Most recently, General Assembly Resolution 56/54 of 10 December 2001 reaffirms the “right of all persons displaced as a result of the June 1967 and subsequent hostilities to return to their homes or former places of residence in the territories occupied by Israel since 1967”, expresses deep concern that “the mechanism agreed upon by the parties in Article XII of the Declaration of Principles on Interim Self-Government Arrangements on the return of displaced persons has not been effected”, and expresses the hope for “an accelerated return of displaced persons”.

5

The concern of the UN General Assembly with the descendants both of “Palestine refugees” and of “displaced persons” was expressed in UN General Assembly Resolution 37/120 I of 16 December 1982, which requested the UN Secretary-General, in cooperation with the Commissioner-General of UNRWA, to issue identity cards to “all Palestine refugees and their descendants […] as well as to all displaced persons and to those who have been prevented from returning to their home as a result of the 1967 hostilities, and their descendants”. In 1983, the UN Secretary-General reported on the steps that he had taken to implement this resolution, but said that he was “unable, at this stage, to proceed further with the implementation of the resolution” without “significant additional information [becoming] available through further replies from Governments” (paragraph 9, UN Doc. A/38/382, Special Identification cards for all Palestine refugees. Report of the SecretaryGeneral, 12 September 1983).

6

For example, a Palestinian referred to in paragraph 3 of this Note may be considered by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country, in which case he or she would be excluded from the benefits of the 1951 Convention in accordance with Article 1E. Moreover, many Palestinians have acquired the nationality of a third country and any claim they make for recognition as a refugee should, therefore, be examined under Article 1A(2) of the 1951 Convention in relation to the country of their new nationality. In certain cases, the Palestinian origins of such persons may be relevant to the assessment of whether they are outside the country of their new nationality owing to well-founded fear of being persecuted “for reasons of ” race, religion, nationality, membership of a particular social group or political opinion.

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that they have neither ceased to be refugees under Article 1C nor are excluded from refugee status under Articles 1E or 1F.7

C.

THE APPLICATION OF ARTICLE 1D OF THE 1951 CONVENTION

5. If it is determined that a Palestinian refugee falls within the scope of Article 1D of the 1951 Convention, it needs to be assessed whether he or she falls within paragraph 1 or paragraph 2 of that Article. 6. If the person concerned is inside UNRWA’s area of operations and is registered, or is eligible to be registered, with UNRWA, he or she should be considered as receiving protection or assistance within the sense of paragraph 1 of Article 1D, and hence is excluded from the benefits of the 1951 Convention and from the protection and assistance of UNHCR. 7. If, however, the person is outside UNRWA’s area of operations, he or she no longer enjoys the protection or assistance of UNRWA and therefore falls within paragraph 2 of Article 1D, providing of course that Articles 1C, 1E and 1F do not apply. Such a person is automatically entitled to the benefits of the 1951 Convention and falls within the competence of UNHCR. This would also be the case even if the person has never resided inside UNRWA’s area of operations.8 8. The fact that such a person falls within paragraph 2 of Article 1D does not necessarily mean that he or she cannot be returned to UNRWA’s area of operations, in which case, once returned, the person would fall within paragraph 1 of Article 1D and thereby cease to benefit from the 1951 Convention. There may, however, be reasons why the person cannot be returned to UNRWA’s area of operations. In particular: (i) He or she may be unwilling to return to that area because of threats to his or her physical safety or freedom, or other serious protection-related problems; or (ii) He or she may be unable to return to that area because, for instance, the authorities of the country concerned refuse his or her re-admission or the renewal of his or her travel documents. 9. The rationale behind “returnability” to effective protection has been developed in the context of addressing irregular movements of refugees, including through Executive

7

There is no consensus whether Palestinians who have not acquired the nationality of a third country are stateless, but many States consider that such Palestinians are stateless in the sense of Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons and assess their claims for refugee status under Article 1A(2) of the 1951 Convention accordingly. It should be noted that Article 1(2)(i) of the 1954 Statelessness Convention provides that the 1954 Convention shall not apply to “persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection or assistance”.

8

For example, a descendant of a “Palestine refugee” or of a Palestinian “displaced person” may never have resided in UNRWA’s area of operations, and also not fall under Articles 1C or 1E of the 1951 Convention.

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Committee Conclusion No. 15 (XXX) (1979) on Refugees Without an Asylum Country and Executive Committee Conclusion No. 58 (XL) (1989) on the Problem of Refugees and Asylum-Seekers Who Move in an Irregular Manner from a Country in Which They Had Already Found Protection.

D.

REGISTRATION WITH UNRWA

10. UNRWA was established pursuant to UN General Assembly Resolution 302 (IV) of 8 December 1949 to “carry out in collaboration with local governments […] direct relief and works programmes” for Palestine refugees and to “consult with the interested Near Eastern Governments concerning measures to be taken by them preparatory to the time when international assistance for relief and works projects is no longer available”.9 Since 1967, UNRWA has also been authorized to assist certain other persons in addition to Palestine refugees. In particular, UN General Assembly Resolution 2252 (ES-V) of 4 July 1967 endorsed the efforts of UNRWA to “provide humanitarian assistance, as far as practicable, on an emergency basis and as a temporary measure, to other persons in the area who are at present displaced and are in serious need of immediate assistance as a result of the recent hostilities”. Subsequent UN General Assembly Resolutions have endorsed on an annual basis UNRWA’s efforts to continue to provide such assistance.10 11. UNRWA has decided, for its working purposes, that a “Palestine refugee” is any person “whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948 and who lost both home and means of livelihood as a result of the 1948

9

UN General Assembly Resolution 302 (IV) of 8 December 1949 directs UNRWA to consult with the UNCCP “in the best interests of [UNRWA’s and UNCCP’s] respective tasks, with particular reference to paragraph 11 of General Assembly resolution 194 (III) of 11 December 1948”. UN General Assembly Resolution 393 (V) of 2 December 1950 further instructed UNRWA to “establish a reintegration fund which shall be utilized for projects requested by any government in the Near East and approved by the Agency for the permanent re-establishment of refugees and their removal from relief ”. The same Resolution authorized UNRWA, as circumstances permit, to “transfer funds available for the current relief and works programmes [and for direct relief to Palestine refugees in need] to reintegration projects”. Neither UN General Assembly Resolution 302 (IV) of 8 December 1949 nor any subsequent UN General Assembly Resolution has specifically limited the scope of UNRWA’s mandate. Accordingly, UNRWA’s mandate has evolved, over the years, with the endorsement of the UN General Assembly. For example, UN General Assembly Resolutions between 1982 and 1993 on the Protection of Palestine refugees called upon UNRWA to play a protection role in the territories occupied by Israel since 1967. The last such resolution was Resolution 48/40 H of 10 December 1993, which urged “the [UN] Secretary-General and the Commissioner-General [of UNRWA] to continue their efforts in support of the upholding of the safety and security and the legal and human rights of the Palestine refugees in all the territories under Israeli occupation since 1967”. Subsequent resolutions, including most recently UN General Assembly Resolution 56/56 of 10 December 2001, refer to the “valuable work done by the refugee affairs officers [of UNRWA] in providing protection to the Palestinian people, in particular Palestine refugees”.

10

Most recently, UN General Assembly Resolution 56/54 of 10 December 2001 endorses the efforts of UNRWA to “continue to provide humanitarian assistance, as far as practicable, on an emergency basis and as a temporary measure, to persons in the area who are currently displaced and in serious need of continued assistance as a result of the June 1967 and subsequent hostilities”.

471


conflict”.11 This “working definition” has evolved over the years,12 and is without prejudice to the implementation of relevant UN General Assembly Resolutions, in particular paragraph 11 of Resolution 194 (III) of 11 December 1948.13 12. Persons registered with UNRWA include: “Palestine refugees”, as defined by the Agency for its working purposes; persons currently displaced and in serious need of continued assistance as a result of the June 1967 and subsequent hostilities; descendants by the male line of the aforementioned persons; and certain other persons.14 UNRWA’s operations are currently limited to five areas, namely, Jordan, Syria, Lebanon, the West Bank and the Gaza Strip.15 13. The question whether a Palestinian is registered, or is eligible to be registered, with UNRWA will need to be determined individually. In cases where this is unclear, further information can be sought from UNRWA.16

E.

CONCLUSION

14. UNHCR hopes that this Note clarifies some pertinent aspects of the position of Palestinian refugees under international refugee law, and that it serves as useful guidance for decision-makers in asylum proceedings.

11

Information provided by UNRWA. As mentioned in endnote 2 above, the UN General Assembly has never explicitly defined the term “Palestine refugees”.

12

See, for example, UN Doc. A/1451/Rev.1, Interim Report of the Director of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, 6 October 1950, paragraph 15: “For working purposes, the Agency has decided that a refugee is a needy person, who, as a result of the war in Palestine, has lost his home and his means of livelihood”; UN Doc. A/2717/Add.1, Special Report of the Director of the Advisory Commission of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, 30 June 1954, paragraph 19: “The definition of a person eligible for relief, as used by the Agency for some years, is one ‘whose normal residence was Palestine for a minimum period of two years preceding the outbreak of the conflict in 1948 and who, as a result of this conflict, has lost both his home and means of livelihood’”; UN Doc. A/8413, Report of the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, 30 June 1971, footnote 1: “A Palestine refugee, by UNRWA’s working definition, is a person whose normal residence was Palestine for a minimum of two years preceding the conflict in 1948 and who, as a result of this conflict, lost both his home and means of livelihood and took refuge, in 1948, in one of the countries where UNRWA provides relief ”.

13

In establishing UNRWA and in prolonging its mandate, the UN General Assembly has consistently specified that the Agency’s activities are without prejudice to the provisions of paragraph 11 of Resolution 194 (III) of 11 December 1948. See, most recently, UN General Assembly Resolution 56/52 of 10 December 2001, extending the mandate of UNRWA until 30 June 2005.

14

Information provided by UNRWA.

15

Currently, UNRWA’s operations are limited to the five areas listed in paragraph 12 of this Note. However, at times, UNRWA has provided assistance to Palestine refugees and other Palestinians registered with the Agency in additional areas of the Near East, including Kuwait, the Gulf States and Egypt.

16

It should be noted that not all “Palestine refugees” residing in UNRWA’s area of operations are registered with UNRWA. It should also be noted that Palestinians satisfying UNRWA’s eligibility criteria do not necessarily cease to be eligible for UNRWA services if they acquire the nationality of a third country. In fact, many such persons continue to receive UNRWA services, particularly in Jordan.

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12. MISSION REPORT BY MS. CATHERINE BERTINI, PERSONAL HUMANITARIAN ENVOY OF THE U.N. SECRETARY-GENERAL, 11-19 AUGUST 2002 (August 19, 2002)*

A.

INTRODUCTION

1. In response to a request from Prime Minister Sharon of Israel to the Secretary-General to assist in addressing humanitarian needs arising from the ongoing Israeli-Palestinian conflict, as well as concerns expressed by the Quartet about the mounting humanitarian crisis, the Secretary-General appointed Ms. Catherine Bertini as his Personal Humanitarian Envoy on 7 August 2002. Ms. Bertini was asked to travel to the region to assess the nature and scale of the humanitarian crisis, to review humanitarian needs in light of recent developments, to identify what needs to be done to respond to the humanitarian situation and prevent its further deterioration, and to clarify the respective responsibilities of all actors with regard to humanitarian needs. She was further tasked to report on her observations and recommendations to the Secretary-General and, through him, to the Quartet. 2. Ms. Bertini traveled to the region from 12 to 19 August accompanied by a small team. The mission was ably supported by the Office of the United Nations Special Coordinator (UNSCO). The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) also provided significant assistance. During the mission, Ms. Bertini had the opportunity to meet with the senior leaders of the State of Israel and the Palestinian Authority, including Prime Minister Sharon, Foreign Minister Peres and Defense Minister Ben-Eliezer as well as with Chairman Arafat, Minister of Local Government Erekat, Minister of Social Affairs Al-Wazeer and Health Minister Zahnoun. She traveled to both the West Bank and Gaza where she met with a wide variety of local leaders, women’s groups, youth, business people, farmers and labour leaders and with Palestinians in their homes and places of work. She visited refugee camps, women’s centres, villages and neighbourhoods throughout the West Bank and Gaza. Ms. Bertini also met with representatives of UN agencies, NGOs, the ICRC and donors. A complete itinerary of the mission is attached as Annex A.

B.

OVERVIEW

3. The mission concluded that there is a serious humanitarian crisis in the West Bank and Gaza. The crisis is not a “traditional” humanitarian crisis, such as those caused by famines or droughts, but is inextricably linked to the ongoing conflict and particularly to the measures imposed by Israel in response to suicide and other attacks against

*

Available at: .


MISSION REPORT BY MS. CATHERINE BERTINI

Israeli military and civilian targets. Unless the situation improves, the lives of Palestinians will continue to deteriorate and the humanitarian crisis will quickly spiral out of control. Conversely, if the overall environment improves sufficiently to enable a free flow of people, goods and services, the humanitarian crisis will rapidly dissipate. 4. The situation is a crisis of access and mobility. Palestinians are subject to a variety of closures, curfews, roadblocks and restrictions that have caused a near-collapse of the Palestinian economy, rising unemployment, increased poverty, reduced commercial activities, limited access to essential services (such as water, medical care, education, emergency services) and rising dependency on humanitarian assistance. The restrictions affect almost all activities, rendering most Palestinians unable to carry out any semblance of a normal life and subject to daily hardships, deprivations and affronts to human dignity. 5. Restrictions on access and mobility largely prevent travel to or from Jerusalem, Gaza and the West Bank and allow for travel abroad only with great difficulty. Palestinians, with limited exceptions, can no longer work in Israel. Within Gaza and particularly the West Bank, Palestinians are subject to a wide variety of restrictions that prevent or seriously inhibit movement and generally keep people confined to their villages or cities and often to their houses for extended periods. Opportunities to earn a living, access basic services or conduct routine business have been drastically reduced. 6. The mission observed numerous indicators of the mounting humanitarian crisis. These include a lack of money to purchase essential supplies, deteriorating health and sanitation and increasing dependency on food assistance. Currently, while malnutrition levels are increasing, some 1.5 million Palestinians of a total population of 3.3 million receive direct food assistance, a more than five-fold increase over assistance levels two years ago. The overall unemployment rate has reached an estimated 50 percent while fully two thirds of the population are now at the poverty level. Coping mechanisms, which initially consist most often of borrowing and drawing on savings, are approaching exhaustion as the economy winds down. 7. There is widespread recognition by all parties in the region of the growing humanitarian crisis. Israeli authorities have relaxed some controls by allowing more permits for work in Israel. The Palestinian Authority, UN agencies, NGOs, the ICRC and donors are reluctantly re-orienting increasing resources from development towards relief. If current conditions persist, the proportion of efforts and resources devoted to direct humanitarian assistance will have to grow significantly. 8. The mission obtained several commitments from Israeli authorities to address some of the most immediate constraints. These include a commitment to clear all ambulances at checkpoints in no longer than 30 minutes, establish mechanisms to permit swift transit of checkpoints by Palestinians in need of critical medical services and to ensure the regular and uninterrupted delivery of water to cities and villages. Previously, Israel had committed itself to improving the situation at checkpoints, including the deployment of more experienced Israeli Defense Forces (IDF) personnel, and full implementation of a twelve-mile fishing zone off the Gaza coast. Implementation of these five measures will save lives, provide a measure of relief and represent a glimmer of hope on an otherwise bleak horizon. It should be recognized that these are small steps forward that address symptoms rather than causes. However, their effective and timely implementation is nevertheless critical. 474


C.

OBSERVATIONS

I.

Crisis of Access and Mobility

a.

Closures and Curfews as Security Measures

9. In reviewing the effects of the closure and curfew regime on the Palestinian population, it should be borne in mind that the Government of Israel maintains that all of restrictions it has imposed on Palestinians and others are intended and necessary to protect its own civilian population from further terrorist attacks. The Government of Israel also believes that the tight internal and external closures and curfews have in fact prevented a significant number of attacks inside Israel. In discussions with the mission, Israeli government officials stated that, in their experience, any lifting of restrictions on movement almost immediately results in attempts to plan or carry out attacks against Israeli military or civilian targets. The Government of Israel also justifies restrictions on the movement of ambulances by citing cases in which they assert ambulances were used to transport explosives or armed men. While acknowledging the impact of the current regime on the Palestinian population and its potential to result in an increase in violence in the medium and long term, Israeli officials see it as their first priority to prevent attacks on their population today. 10. On the other hand, among the Palestinians the mission spoke with, there is a strongly held belief that many of the imposed restrictions have no discernable security purpose. Several Palestinians, including members of the Palestinian Authority, business leaders and ordinary citizens, believe that these measures are instead intended as punishment and humiliation of the Palestinian population as a whole. Some also expressed the view that the measures by the Government of Israel are intended to “break the backs” of the Palestinians in preparation for a political settlement that would otherwise be unacceptable to them. The most common examples that are given for measures that fall into this category are: numerous checkpoints that are easily circumvented on foot with heavy baggage in full view of IDF soldiers; the “back-to-back” system for trucks inside the West Bank, where, according to statements made by Palestinians, often no security checks are carried out; the extensive delays or denials of access for essential supplies and services, such as ambulances and water tankers; the continuing destruction of civilian infrastructure; and extended curfews which prevent entire populations from leaving their homes. 11. Among donor countries’ local representatives, the mission found a high degree of skepticism about the necessity of a range of restrictions for the purpose of maintaining security. Several areas were mentioned where security arguments made by the Government of Israel to justify general restrictions either did not appear to be based on actual security concerns or did not result in the implementation of effective security procedures, even when donors were willing to help fund them. Donor representatives also saw a contradiction between Israeli appeals for increased international assistance to the Palestinian population and the severe constraints often imposed on assistance activities, including the movement of international personnel and essential supplies. Another concern expressed by some donors was that IDF soldiers, responsible for administering the current closure regime, apparently are not being encouraged to ease the burdens on the Palestinian population or the constraints on those trying to assist them. 475


12. The mission was not tasked with reviewing the measures put in place by the Government of Israel on the basis of their necessity or effectiveness for security purposes. The mission was asked to review the humanitarian situation in the West Bank and Gaza. There is a consensus among all parties, and this report confirms, that the current regime of closures and curfews is having a devastating impact on the Palestinian population, both on their economy and the humanitarian situation. As a consequence, it is incumbent upon the Government of Israel to minimize as much as possible these adverse effects on civilians while at the same time safeguarding the security of its civilian population. In striking an appropriate balance between these sometimes competing interests, the necessity, effectiveness and proportionality of all measures taken to ensure security should be reviewed carefully and continuously. In addition, gaps between stated official Israeli policy, which is to minimize harm to civilians and to fully facilitate assistance activities, and its implementation on the ground must be closed. Finally, it must be recognized that the social and economic misery of the Palestinian people is a serious obstacle to achieving lasting peace and security. Sharply declining living conditions help destabilize the political environment and increase the sense of desperation that is so successfully exploited by extremists.

b.

The Closure and Curfew Regime

Closures 13. Israel has been imposing “closures” since the situation started deteriorating in late September 2000. There are three forms of closure restrictions: internal closure within the West Bank and Gaza, closure of the border between Israel and the Occupied Palestinian Territory, and closure of international crossings between the Occupied Territory and Jordan and Egypt. Israel has steadily tightened each form of closure, particularly since the violent events of March and April 2002, resulting, according to the World Bank, in the most severe and sustained mobility restrictions since 1967. Stricter enforcement and an increase in checkpoints, roadblocks and border controls have confined Palestinians to progressively smaller areas. 14. The IDF currently holds positions encircling most Palestinian cities and has established an extensive system of checkpoints and roadblocks, including trenches, earth mounds and concrete blocks. The number of manned checkpoints varies but generally is in the range of 120 in total, with 80 to 90 in the West Bank alone. A recent map of checkpoints in the West Bank is attached as Annex B. The number of additional unmanned roadblocks is estimated to be around 200. The level of internal closure is distributed unevenly across the Occupied Palestinian Territory. The areas which are typically most affected in the West Bank are the Tulkarm/Jenin/Qalqiliya crescent in the north-west, Nablus, Ramallah/Al-Bireh in the central West Bank and Jericho, Bethlehem and Hebron in the south. In Gaza internal closures primarily affect northsouth travel, at times creating three semi-isolated enclaves (Gaza City, the Jalabalia area and Rafah/Khan Yunis). The external and internal movement of goods has been further affected by the introduction in May 2002 of the “back-to-back” system in the West Bank according to which goods have to be offloaded from incoming trucks and then re-loaded onto local trucks at eight checkpoint locations near major Palestinian cities. Previously the “back-to-back” system had only been in place for the transport of goods from Israel to the West Bank and Gaza.

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Curfews 15. In addition to the closures between population centers, curfews have been imposed in most major cities and towns of the West Bank (and some areas of Gaza), at some stage directly affecting approximately 600,000 people according to UNSCO estimates. The curfews are often in force round-the-clock and lifted only periodically, resulting in some West Bank locations being under curfew for 90 percent of the time. During curfews, the population is not permitted to leave their houses and IDF soldiers are authorized to shoot-to-kill any violators. In addition to ambulances, which are generally permitted to operate during curfews, a limited number of permits have been granted to municipal workers conducting emergency repairs. However, with the exception of certain refugee camps and other areas the IDF is less likely to patrol, the entire civilian population essentially remains under house arrest during curfews and commercial activities come to a halt. 16. In some cases, these periods can last for more than one week without interruption. For example, when the mission visited Nablus on 17 August, the curfew was lifted for the first time since the previous Friday, 9 August. Curfews are also imposed on larger villages on a regular basis, such as the curfew that was imposed on Beit Furik, a village near Nablus, about one hour after the mission departed at around 12 p.m. 17. One factor that has made curfews particularly disruptive and dangerous to the civilian population is the unpredictability of the liftings and the lack of reliable information regarding their exact timing. Announcement made by the IDF are often not heard in all areas under curfew and residents are forced to rely on media reports or informal sources (e.g. bakeries which are often told of liftings in advance) to learn when curfews are to be lifted and for how long. 18. While a total of 55 localities in the West Bank remained under total or partial curfew by mid-August 2002, the curfew regime has recently been relaxed in several cities. Curfews were lifted entirely in Qalqiliya and Hebron. In Jenin, Ramallah and Bethlehem the curfew has been lifted for 12 hours daily, except for Fridays. However, Tulkarm and Nablus remain under severe curfew, with sporadic lifting for several hours occurring every few days. In Nablus, the curfew has only been lifted for a total of 52 hours over a period of 62 days. Effects on the Movement of People, Goods and Money 19. As a consequence of the restrictions on movement, most Palestinians remain confined to their own villages and towns, unable to access any other areas for work, education, to purchase goods, receive medical care or any other purposes. Since May 2002, Palestinians in the West Bank can travel between cities and between villages and cities only with a permit issued by the Israeli authorities that allows travel between 5 a.m. and 7 p.m. In addition, Palestinians can no longer travel from the West Bank or Gaza to Israel or East Jerusalem without special permits. These permits remain largely unavailable to ordinary Palestinians and are only issued for one month at a time. Even those Palestinians who have special permits are not allowed to drive to Israel or East Jerusalem in their own vehicles which requires separate driving permits that are no longer available. Travel time for all Palestinians has increased exponentially, in many cases by several hours for short distances.

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20. Movements from villages to surrounding fields have become increasingly difficult. The IDF has been destroying or blocking numerous side roads which farmers used to reach their fields. The mission for example had to bypass several trenches and earth mounds during a visit to olive groves near Beit Furik. An additional factor that has affected access to agricultural areas is settler violence. Farmers working in fields and orchards near settlements (which are typically built on or near mountaintops and overlook large areas) or near bypass roads have been shot at and stoned. Significant areas of agricultural land have therefore become inaccessible to them. 21. Transporting goods, including water, raw materials, vegetables, fruit and other products, within the West Bank and Gaza has also become increasingly cumbersome and in some cases impossible. Travel distances, time and cost for commercial transportation have been rising steadily. Checkpoints and roadblocks that prevent transit force Palestinian trucks to take dirt roads, significantly increasing travel time and maintenance costs. Except for certain food transports and municipal vehicles, trucks generally have no access to any areas under curfew. 22. The mission spoke with the chief executives of two major Palestinian companies about the difficulties they were facing on a daily basis. One stated that he spends most of his time lately on logistical efforts. His company’s storage and maintenance cost had doubled since additional storage facilities had to be established and trucks were forced to travel on dirt roads for most deliveries. Half of the company’s staff currently sleeps on the factory premises since internal closures prevent them from reaching home or because their commuting time has multiplied, in some cases from 20 minutes to more than three hours. The other executive recounted how even sophisticated equipment often had to be transported to remote locations on foot or by mule. 23. Certain measures taken by Israel over the past few months have resulted in minor improvements in the movement of goods to Gaza and access by a small number of people to Israel. The Karni commercial crossing from Israel to Gaza has been reopened to a limited amount of containerized traffic. Inside the Gaza Strip, the Abu Houli checkpoint that had been disrupting the movement of people and goods since May 2002 has been open more frequently. Another measure taken by Israel was the announced extension of the fishing zone off Gaza to 12 miles which still must be effectively implemented. 24. The Government of Israel has also increased the number of available work permits for Palestinian laborers, particularly those crossing from Gaza into Israel. According to UNRWA, on average approximately 8,000 Palestinian workers have recently been granted permits on a daily basis as compared to an average of 2-3,000 permits in the first half of 2002. In addition, Israel has increased the number of permits for industrial parks that are located close to Gaza and the West Bank. According to Israeli authorities, Israel intends to increase the number of permits for the Erez industrial park from 3,000 to 7,000 in the near future. Also mentioned was that an additional 5,000 permits have been issued to tradesmen and a further 3,000 to people working in settlements. Israel intends to increase the total number of permits gradually, depending on security conditions. The average number of permits for workers in Israel that was issued before September 2000 was 55,000.

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c.

Loss of Access to Employment and Income

25. The regime of closures and curfews over the past 23 months has had a cumulative and devastating impact on the Palestinian economy. The most significant effect of this economic collapse on the humanitarian situation has been a steep decline in income levels and purchasing power. Unemployment and Decline in Production 26. The economic decline has been driven by a rapid rise in unemployment in the private sector. During the last quarter of 2000, about 100,000 jobs in Israel were lost according to World Bank estimates, including tens of thousands of workers who had worked in Israel without permits. An additional 60,000 jobs inside the West Bank and Gaza were lost by the end of 2001 as demand collapsed and businesses laid off workers. In addition to the reduction in permits to enter Israel, stricter controls on routes to Israel and the settlements have discouraged the large number of non-permit holding workers who, according to the World Bank, accounted for more than half of the Palestinians working in Israel and the settlements before September 2000. The decrease in remittances from Palestinian workers in Israel, whose wages are significantly higher than in the West Bank and Gaza, has depressed overall purchasing power and employment inside the West Bank and Gaza. In addition to these job losses, more than 120,000 additional people have joined the working-age population since September 2000. 27. By the end of 2001, the World Bank estimated unemployment at 26 percent compared to ten percent in late 2000. According to recent UNSCO estimates, overall unemployment rates have doubled since then, reaching 50 percent during the second quarter of 2002. In addition, a large percentage of the labor force relies heavily on day labor and is deprived of their income during periods under curfew. 28. The closure and curfew regime has also resulted in an almost complete cessation of productive activity in the main West Bank centers of manufacturing, construction, commerce and private and public services, which, according to UNSCO estimates, account for at least 75 percent of the goods and services produced in the West Bank. UNSCO also estimates that income losses to date for 2002 alone are approaching $1 billion, with losses since September 2000 at $3.3 billion. The chart attached as Annex C illustrates the direct correlation between per capita income and the number of annual closure days in effect since 1994. 29. The impact of recent events on agricultural production, which is a source of main and secondary income to a large portion of the rural population, has also been severe. In addition to physical destruction estimated at $167 million and extensive water shortages, the closures have been preventing farmers from pruning, harvesting, processing and marketing a variety of crops. The orange harvest in Gaza, for example, was almost entirely lost because no exports were allowed until the oranges were no longer marketable. A total collapse of the agriculture sector would also have a significant impact on food security. As described in paragraph 54, rural areas already show higher levels of acute malnutrition than urban areas.

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Rising Poverty Levels 30. The level of poverty in the West Bank and Gaza has multiplied over the past two years. In September 2000, the World Bank estimated that 21 percent of the population lived below the poverty line (defined as less than $2 consumption per person per day). By January 2001, the poverty ratio had risen to 33 percent. Data collected by the Palestinian Central Bureau of Statistics (PCBS) in January and February of 2002 suggests that poverty levels have doubled since then, rising to 66.5 percent (57.8 percent in the West Bank and 84.6 percent in Gaza). 31. At the same time as poverty rates have increased threefold, there has not been a general decrease in prices. Despite an overall decrease in demand, supply has also decreased in many areas due to market disruptions caused by access restrictions. In addition, the price structure in both the West Bank and Gaza remains heavily influenced by prices in Israel, resulting in an environment where prices remain high but incomes have collapsed.

d.

Loss of Access to Basic Services and Needs

32. From a humanitarian perspective, the most devastating consequence of the closure regime is that large parts of the civilian population are neither able to access nor be provided with the most basic services. In part, this has been the result of the widespread loss of income. An increasing portion of the population is simply no longer able to afford basic services or to meet basic needs. The closures also have a more direct impact on access to basic services. They physically prevent people in need from reaching services, for example patients with chronic diseases who can not travel to towns and cities to receive treatment. At the same time, the civilian population is often cut off from essential supplies and services that can not reach them, for example patients in need of medicine and villages that rely almost exclusively on water tankers during the summer months. The services most affected have been health, education, food, and water and sanitation. Health 33. Access restrictions continue to prevent many Palestinians in need of medical treatment from reaching health services. This is especially the case for populations under curfew and the more than 60 percent of the population in the West Bank that lives in rural areas. They need access to the hospitals and other secondary and tertiary health care facilities in towns and cities, both in emergencies and for regular treatment, such as dialysis and chemotherapy. Many hospitals have reported a steep decline in access to services. For example, St Luke’s Hospital in Nablus has seen a 49 percent decline in general practice patients, a 73 percent decline in specialty services and a 53 percent decline in surgeries. UNRWA has reported decreases in access to preventive services, including a 52 percent decrease in women attending post-natal care. According to the Ministry of Health (MoH), school health programmes have declined by 60 percent. Medical personnel have also been facing serious difficulties in reaching their workplaces, resulting in non-attendance rates of up to 40 percent in some areas. 34. The extensive delays and denials of access at checkpoints for ambulances and people in need of urgent medical care have been widely reported. The mission saw long lines

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of vehicles which included ambulances at many checkpoints it passed. According to the Union of Palestinian Medical Relief Committees (UPMRC), these delays and denials have resulted in the birth of an estimated 39 children at checkpoints. B’Tselem has documented numerous cases in which the IDF has prevented sick and wounded from crossing checkpoints, in several cases resulting in the death of those being held up. The Palestinian Red Crescent Society (PCRS) and UPMRC have reported more than 600 cases in which their ambulances have been denied access. Often ambulances are unable to reach remote areas due to waiting periods of up to several hours at each checkpoint. Patients are often forced to leave ambulances, subjected to intrusive searches and required to walk across checkpoints, including women in labour. 35. In order to mitigate the effects of closures, the MoH and other health care providers have tried to decentralize specialized services as much as possible, for example through mobile clinics or by increasing the number of available dialysis machines and relocating them to more remote areas. While some of these measures have helped increase access in certain areas of the West Bank and Gaza, they are extremely costly and not sustainable over the long term. The movement of mobile clinics has also been obstructed at checkpoints. A representative of a leading international medical NGO told the mission that their teams are turned back at checkpoints 50 percent of the time. When they are permitted to pass, medical staff are often forced to carry their equipment over checkpoints. Since March 2002, internal closures have brought the mobile clinics UNRWA had developed after September 2000 to a virtual standstill. 36. The import and distribution of medical supplies continues to be hampered, both upon entry into Israel or the Occupied Palestinian Territory and within the West Bank and Gaza. Certain raw materials required by pharmaceutical companies have been banned. Medical and other humanitarian supplies are subject to extensive delays at ports of entry in Israel, Jordan and Egypt. The head of UPMRC told the mission that two of the organization’s ambulances had been held up at the border for more than seven months. Medical equipment from Sweden with a value of $20,000 had to be sent back after its was denied entry. The Minister of Health of the Palestinian Authority stated that 30 new ambulances in Jordan and Egypt were awaiting clearance by Israeli authorities. Within the West Bank – and despite assurances given by the Coordinator for Government Activities in the Territories that essential services such as health would not be hindered – the MoH has been forced to enlist the support of UN agencies and international NGOs to transport medical supplies from central warehouses to more remote locations because Palestinian MoH workers have been denied access to these areas. 37. An example of the difficulties people in villages face was a man who approached the mission for help in Beit Furik. His two daughters, who were seriously ill, urgently required special milk products from Nablus and medicine form Tel Aviv. Because of the internal closures, their father was unable to travel the less than 10 kilometers to Nablus to buy the needed milk. He could also no longer order the required medicine from Israel. The mission asked an international UN (WFP) staff member to buy the milk for him and return to Beit Furik the same afternoon. He was accompanied by the head of the local branch of the Palestinian Agricultural Relief Committees (PARC). After waiting for two hours at the checkpoint just outside Beit Furik on their way back from Nablus, the international UN staff was allowed to proceed while the Palestinian was denied access to his village where a curfew had been imposed in the meantime. 481


38. There is growing concern among health professionals that immunization stocks and vaccination campaigns are inadequate. Immunization campaigns can only be carried out intermittently. The access restrictions and the sharp increase in home deliveries have also affected Hepatitis B vaccinations and phenylketonuria (PKU) tests which screen for two diseases for which the timing of diagnosis and treatment is crucial to prevent mental retardation in children. The PKU screening tests should be performed within seven days of birth. Under the closure regime, infants often either can not be tested at all or the transfer of tests and results between patients, laboratories and clinics is disrupted. The Hepatitis B vaccinations should be given in three doses at birth, one month and six months. 39. Increasingly, lack of income has become one of the main reasons why families lose access to medical care. A study conducted by PCBS more than one year ago showed that one third of families did not obtain needed medical care for financial reasons. In a PCBS survey in July 2002, 76.5 percent of households that were not able to access health services cited lack of resources as a major cause. UNRWA has reported an 18.6 percent increase in the number of refugees using its free health care facilities in the West Bank, indicating that alternatives are not available or that the refugees can no longer afford private medical care. Education 40. The internal closures have had extensive negative effects on education, mainly due to restrictions on the movement of teachers and students. UNICEF estimates that during the 2001/2002 school year more than 600,000 (61 percent) of the 986,000 children in the West Bank and Gaza were unable to attend school on a regular basis. Teaching time has also been reduced because of sharp declines in teacher attendance. UNRWA schools in Gaza have faced particular difficulties, as almost 1,000 of the Agency’s education personnel live in the intermittently isolated southern regions of the Gaza Strip. During a visit to a “Children’s Parliament” in Gaza City, the mission was told by the children that the delegates from southern parts of Gaza were able to attend for the first time since September 2000. UNRWA’s education programme in the West Bank, which includes 95 schools, has also been severely affected during the 2001/2002 school year, with 72,571 teacher days being lost, compared to 5,585 in the previous school year. In April 2002, 76 percent of the teaching staff were absent and 66 percent of school days were lost. Several UNRWA schools sustained damage because they came under fire or were used as temporary detention centers. 41. While no unified examinations at the primary school level could be held at the end of the 2001/2002 school year, last year’s examinations showed a marked deterioration in children’s achievement levels, particularly in numeracy and literacy. The overall success rate decreased by more than 20 percent in both mathematics and Arabic language. Given the extensive disruptions during the 2001/2002 school year it can be assumed that these levels have deteriorated further. There is also increasing concern about the number of drop-outs in the coming school year. The impediments to access and the high adult unemployment rate may force more children to leave school to supplement family income. Before September 2000, the rate of ten to 14 year-olds employed in the West Bank was at 0.6 percent. Under current circumstances this rate is likely to multiply.

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Food 42. Access to food has become more and more difficult as the ability of families to purchase food has been severely curtailed. While this is primarily caused by families’ lack of money to buy food, shortages of certain types of food due to market disruptions have also been reported. According a recent survey conducted by Johns Hopkins University and others and funded by USAID, more than half the Palestinian population reported having to decrease food consumption. The primary reasons cited were lack of money (65 percent) and curfews (33 percent). Fifty-three percent of households said they had to borrow money to purchase food (88.8 percent in Bethlehem). About 17 percent of households were forced to sell assets to buy food, with rates highest in Gaza City and Khan Yunis. Thirty-two percent of all households reported buying less bread, potatoes and rice. Households are also buying less higher priced food items, such as meat, fish and chicken. 43. According to the same survey, extensive market disruptions have resulted in shortages of high protein foods such as fish, chicken and dairy products among wholesalers and retailers in the West Bank and Gaza. Fifty-two percent of wholesalers and 48.3 percent of retailers also reported a shortage of infant formula. In the West Bank, survey respondents said food shortages were caused by a combination of road closures, checkpoints, curfews and military incursions. Shortages in northern Gaza were primarily due to border closures that seal the Gaza Strip off from Israel and the West Bank while central and southern areas were more or less equally affected by border closures and internal closures. Water and Sanitation 44. Water and sanitation services required for maintenance of daily needs and basic health have been affected by the closure regime in several ways. The most direct impact relates to water supply and solid waste disposal. Collecting and disposing of solid waste has been particularly difficult in areas where garbage trucks are unable to move around freely, including towns and cities under extended curfews and areas where several villages are serviced by a small number of trucks. The collection and disposal of solid waste has also been problematic in the Gaza Strip where the landfill for Gaza City, which is located south of the by-pass leading to Netzarim settlement, has been out of reach for extended periods. As a result of the restrictions on garbage trucks, solid waste is often disposed of in the open, inside populated areas. 45. Potentially catastrophic from a humanitarian perspective are the severe water shortages experienced in many rural areas throughout the West Bank. Especially during the summer months when cisterns run dry, an estimated 300 localities depend largely on water delivered by private and municipal water tankers. Water tankers are subject to extensive restrictions on movement imposed by checkpoints and roadblocks throughout the West Bank. In some cases, water tankers are not permitted access to villages for several days. They also are often not permitted to refill in urban areas during curfews. Preliminary findings from an ongoing water and sanitation survey by the Palestinian Hydrology Group shows that 24 of 27 surveyed villages experienced difficulties related to water and sanitation as a result of curfews and closures. The survey also shows that water and sanitation related diseases have occurred in 12 of these 27 villages.

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46. When the mission visited Beit Furik, a village less than 10 kilometers southeast of Nablus, it had not received any tanked water for nine consecutive days since tankers had not been allowed access to the village. Before this period, only a fraction of the required water supply of 30-50 truckloads per day had been delivered. According to statements made by villagers, attempts to reach springs in areas surrounding the village have been stopped by IDF patrols and villagers have on occasion been forced to discard water they had collected. The lack of sufficient water supplies in the village has already resulted in the loss of thousands of chickens, sheep and agricultural production. 47. An additional cause for water shortages in certain rural areas is actions taken by Israeli settlers. According to the Palestinian Hydrology Group, Israeli settlers in one case cut off water pipes which served seven surrounding villages. Other cases in which settlers have interfered with the water supply for West Bank villages have been documented by B’Tselem. 48. As a result of increasing transportation costs and cut-offs, the average price for tanked water has risen considerably, by up to 80 percent in certain West Bank locations. The higher cost of water is making it more difficult for families to meet their basic domestic and vital needs. Urban areas also continue to experience water shortages. In some case, municipalities are unable to import spare parts for well pumps or pumps have to be shut off because of fuel shortages.

e.

The Importance of the Upcoming Olive Harvest

49. During the mission’s visit to the West Bank, a major concern raised by farmers, local officials and NGO representatives was the potential loss of the olive harvest which is due to begin in October. Olive harvests follow a two-year cycle and this year’s olive harvest is expected to yield high levels of production. Under current circumstances, many farmers will not be able to harvest olives and produce and market olive oil. 50. The main constraint, as in most other areas of employment and production, is access. Farmers are unable to access their fields because of blocked roads, including dirt roads that have been dug up by the IDF, threats and violence from nearby settlers, and new requirements for permits that in some cases are needed to reach fields on the other side of by-pass roads. Once olives are harvested, they typically have to be transported to the nearest olive press in neighboring villages, ideally on the same day they are harvested to prevent a rise in the acidity level that will render them unsuitable for oil production. Once the olive oil is produced, farmers and merchants will need access to towns and villages to market and buy the oil. 51. Unless the closure regime in the West Bank changes significantly before October, the movements of people and goods required to harvest, produce and market olives will be curtailed so severely that most of the income farmers derive from olive oil production will be lost. One quarter of the Palestinian agricultural sector is dedicated to olive production. In addition, the number of people dependent on revenue from agricultural production has increased substantially since workers have lost their jobs in Israel and the settlements. Without the income from the sale of olive oil, a large portion of the rural population will be even less able to afford basic goods and services or to pay off their rising debts. 484


II.

Humanitarian Situation

52. Before summarizing the main indicators of a mounting humanitarian crisis, it should be noted that the population in much of the West Bank and, to a lesser extent, in Gaza had reached a standard of living comparable to other middle-income countries, including a sophisticated health care system and a literacy rate of 98 percent. The Palestinian economy had also begun an economic recovery in 1998 that came to an abrupt halt in September 2000. Donor disbursements since 1993 had amounted to a total of $4.4 billion, resulting in one of the highest levels of per capita official development assistance anywhere in the world ($195 per person per year). The value of this enormous collective effort is in danger of evaporating if the situation does not improve in the near future.

a.

Indicators of a Growing Humanitarian Crisis

Increase in Malnutrition 53. Preliminary results of the nutritional assessment conducted by Johns Hopkins University and others indicate a substantial increase in the number of malnourished children over the past two years, with 22.5 percent of children under five suffering from acute (9.3 percent) or chronic (13.2 percent) malnutrition. According to PCBS surveys, the level of acute malnutrition in 2000 was 1.4 percent and the level of chronic malnutrition was 6.2 percent. 54. The preliminary rates are particularly high in Gaza with the survey showing 13.2 percent of children suffering from acute malnutrition, more than three times the rate in the West Bank (4.3 percent). The rate of chronic malnourishment in Gaza (17.5 percent) is five times higher than in the West Bank (3.5 percent). Non-urban areas show higher rates of acute malnutrition, suggesting that the traditional food-producing areas are facing significant food security problems. Chronic malnutrition, on the other hand, is more prevalent in urban areas. Deteriorating Health 55. Given the difficulties faced by the population in accessing health services and medicines, a steady increase in mortality rates and spread of diseases should be expected. There is also rising concern about the spread of diseases such as diarrhea and insect born diseases as a result of water contamination, lack of garbage disposal and the reduced coverage of vaccination programmes, especially for children under the age of five. For example, some 600 cases of shigellosis (bloody diarrhea) have been registered in the Nablus Governorate since July 2002. 56. The Johns Hopkins University survey found that the rate of anemia in Palestinian children under five has reached 19.7 percent (20.9 percent in the West Bank and 18.9 percent in Gaza). Anemia is caused by a deficiency of iron, folic acid and dietary protein and can lead to impaired learning and growth development in children, low birthweight infants and premature deliveries, and decreased immunity from infectious diseases. 57. Lack of access to health services is also resulting in higher rates of infant and maternal mortality although exact overall figures have not been reported. According to UNRWA, the number of stillbirths in the West Bank increased by 31 percent between 485


September 2000 and December 2001. According to UNFPA, unattended home deliveries have increased from three percent to 30 percent and the percentage of births attended by a trained professional has decreased from 97.4 percent to 67 percent. Exhaustion of Coping Mechanisms 58. An analysis of the ways in which Palestinian households have been coping with prolonged closure and reduced income over the past 23 months shows that the humanitarian crisis is likely to deepen rapidly in the very near future. Long-term effects on the ability of the population to re-enter the development process are also becoming increasingly likely. Surveys conducted in Spring 2001 by Bir Zeit University and PCBS and the Johns Hopkins University survey in Summer 2002 show that most coping strategies adopted are unsustainable in the long run and have severe long-term repercussions on households’ ability to sustain themselves. They either reach intrinsic limits or result in a reduction of the productive capacity of the household. In both surveys, approximately half the respondents said they had to borrow money to purchase food. Most borrowing is done informally, from family member and local shops and retailers. In Spring 2001, only five percent borrowed from banks or other financial institutions. About 17 pe rcent of households had to sell assets to buy food (2002) and around 20 percent said they had to sell jewelry or other personal effects (2001). 59. Recent surveys of West Bank villages conducted by Oxfam and its partners, and the mission’s interviews in both the West Bank and Gaza indicate that the networks of support that have enabled households to cope have started breaking down. More and more people have exhausted their savings. Retailers, including shopkeepers and water providers, are no longer able to give credit to poor families, depriving the population of essential supplies and in many cases the means to make a living. Increasingly poor friends and families can no longer afford to provide support to other vulnerable member of their communities whose debts have been rising. Lack of money has also reduced the ability of farmers to purchase basic supplies, including seeds and water.

III.

Humanitarian Response and Coordination

a.

Recent Expansion of Assistance Activities

60. Since September 2000, assistance activities have been expanding in both scope and scale to address the increasing vulnerability of a continuously growing portion of the population. An estimated 1.8 million Palestinians are now receiving food aid and other forms of emergency support from a variety of sources, including local charity institutions. This represents almost 55 percent of the total population of 3.3 million in the Occupied Palestinian Territory and, with regard to direct food aid, a more than fivefold increase over assistance levels two years ago. The main providers of assistance and basic services include: •

the Palestinian Authority, particularly the Ministries of Health, Education and Social Affairs as well as the municipalities;

•

UNRWA, the second-largest provider of social services after the Palestinian Authority, focusing primarily on assistance to refugees; 486


•

other UN agencies, including WFP, UNDP, UNFPA and UNICEF;

•

the International Committee of the Red Cross (ICRC) and the Palestinian Red Crescent Society (PCRS);

•

Palestinian NGOs, which for example account for a large portion of health services; and

•

international NGOs, which have progressively increased their presence since September 2000.

61. Donors have adjusted their programmes in view of the emergency situation and have increased their budget support to the Palestinian Authority, financed job creation and welfare programmes and increased their contributions to other emergency relief. More than 80 percent of disbursements in 2001 were devoted to budget support and emergency relief, compared to less than 10 percent during the previous year. At the same time, support for growth-oriented infrastructure and capacity building projects decreased significantly. 62. Since the primary causes of the humanitarian crisis are loss of income and an inability to access essential services and supplies, the emergency response has focused on four main areas of intervention: food assistance, cash assistance, employment generation, and emergency measures to deliver essential services, especially in the health and education sectors. Food Assistance 63. UNRWA has been providing humanitarian assistance (food and cash) to a total of 216,000 poor refugee families (990,000 persons), representing 67 percent of the refugee population and a more than nine-fold increase in UNRWA’s hardship caseload compared to the year 2000. Likewise, the World Food Programme has increased its beneficiary caseload from about 150,000 before September 2000 to 500,000 people today. This means that almost 1.5 million people (or 45 percent of the total population) currently receive some form of direct food aid. WFP and ICRC, which also provides direct food assistance, target the non-refugee population while UNRWA programmes primarily support refugees. 64. WFP intends to deliver 70,340 metric tons by the end of 2002, 61,250 metric tons of which consist of wheat flour (49,000) and rice (12,250). UNRWA’s emergency food deliveries also consist primarily of flour and rice. Since the Palestinian economy is highly dependent on cereals imported from Israel, WFP and UNRWA do not expect these commodities to have a disincentive effect on domestic food production. 65. ICRC provides food assistance to a total of 300,000 beneficiaries through direct food assistance from WFP stocks for 30,000 families in closed villages in the West Bank (and in ad hoc cases in the Gaza Strip) and a voucher programme that was launched on 13 August 2002. The voucher programme supports 120,000 people in the nine largest urban centers in the West Bank. Each family will receive vouchers of up to $90 a month which they can exchange for food and basic non-food items in previously selected shops, providing a stimulus to local businesses. The approved list of items contains products which must be procured locally from rural communities (e.g. fresh food and olive oil).

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Cash Assistance 66. Direct cash assistance still represents a small portion of overall assistance activities. The social assistance budget of the Ministry of Social Affairs (MOSA) for 2001 included $47 million for cash assistance to 45,000 families. However, lack of funds has caused the MOSA to be several months in arrears on these payments. UNRWA requires almost $20 million in 2002 to provide cash assistance to several thousand destitute families in Gaza and the West Bank (also see paragraph 63 above). NGOs have also been used by donors to channel cash assistance to poor families. 67. Another form of financial assistance has been provided through UNRWA’s Microfinance and Microenterprise Programme which provides loans to small business owners and micro entrepreneurs. The programme has been severely affected since September 2000. In 2001, the value of its lending fell to 52 percent of the previous year. In addition, many of its clients have been unable to repay their loans. Employment Generation Programmes 68. UNRWA’s emergency employment generation programmes, which require about $56 million in 2002, benefit workers who are hired directly by the Agency and indirectly through community-based projects and private-sector contracts. NGOs have also played an effective and growing role in employment generation, for example through the World Bank’s Palestinian NGO Project and the Palestinian Agricultural Relief Committees (PARC) which has played a pioneering role in rural areas. Delivery of Emergency Services 69. The two main service providers in the West Bank and Gaza, the Palestinian Authority and UNRWA, have tried to maintain previous levels of service delivery as much as possible. In order to reach areas cut off from essential services, they and other service providers had to adopt extraordinary measures, including a “decentralization” strategy pursued by the MoH that aimed at empowering local health officials, redeploying health equipment to smaller towns and rural areas and the creation of mobile clinics. UNRWA adopted similar strategies and for example hired large numbers of additional teaching staff in remote locations. These measures have not been able to compensate for the sharp drop in overall service provision which has resulted from access constraints and a decline in available resources. As a result, a significant increase in demand for health services has been accompanied by severe cutbacks in supply and availability, despite increased efforts by international agencies, NGOs and donors. Emergency supplies of water for villages that depend on local water tankers have generally not been available.

b.

Access and Other Operational Constraints for Assistance Activities

70. Since September 2000, it has become increasingly difficult for both international and Palestinian aid organizations and service providers to provide assistance to the Palestinian population. At the same times as critical needs have multiplied, they have faced a widening range of access and other operational constraints that have made it more and more difficult to meet these needs. The constraints have resulted in a major increase in operating costs as additional international staff had to be deployed and other costs have escalated. They have also had a disproportionate impact on organiza-

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tions that have to rely heavily on Palestinian staff, most notably the Ministries of the Palestinian Authority, UNRWA and Palestinian NGOs. Organizations with higher ratios of international staff are able to operate with relatively fewer difficulties but nevertheless face enormous obstacles. Permits for Palestinian Staff 71. Constraints put in place since September 2000 affect Palestinian staff of the UN, other aid organizations and the Palestinian Authority most severely. They are subject to the same restrictions as other Palestinians, including requirements for permits to enter Israel or East Jerusalem from the West Bank and from Gaza and, in many cases, for permits to move around within the West Bank and Gaza itself. UNRWA, which employs a total of 11,000 Palestinians in the Occupied Palestinian Territory, requires 383 permits for staff from the West Bank to access its field office in Jerusalem. After years in which only a very small number of such permits were denied on security grounds, UNRWA experienced great difficulties in securing permits during most of 2002. In a positive development in mid-August, UNRWA received an additional 140 permits, allowing its local staff members from the West Bank to report to work in Jerusalem. Thus far the Agency has received a total of 247 permits of the 383 required to ensure the normal functioning of its West Bank operation. Permits have also been issued to several international NGOs, allowing some key Palestinian personnel to work in Jerusalem. However, permits are only valid for one month (compared to three months before September 2000) and permit-holders are not allowed to drive to Israel or East Jerusalem in their own vehicles. In addition, the travel time and cost for Palestinian staff has increased exponentially. 72. In Gaza, all of UNRWA’s 36 permits for local staff to enter Israel (and the West Bank) were revoked after September 2000. UNRWA must now apply for one-day entry permits on an exceptional basis. No driving permits are available so the local staff must rely on international drivers. In addition, 765 field staff members and 26 percent of Gaza headquarter staff members have been affected by internal closures in Gaza and are unable to reach their normal duty stations for much of the time. These restrictions have eased somewhat since the opening of the coastal road and the Gush Qatif crossing. General Restrictions on Movement of Personnel and Aid Supplies 73. Freedom of movement for UN and other aid vehicles and staff continues to be constrained by checkpoints and roadblocks at which vehicles face long delays and are sometimes refused entry. Access by humanitarian convoys and medical teams (including ambulances) to areas under curfew is frequently denied. In addition, UN and other aid personnel have been subject to abuse, physical harassment, arrest and violence at checkpoints and elsewhere in the West Bank. UN personnel, including international staff without diplomatic status, continue to be subject to a full search of vehicles and baggage at the Erez crossing between Gaza and Israel. When the mission returned to Israel from Gaza, one of the mission’s three vehicles was subjected to search and was held up at the Erez crossing. This incident occurred despite prior written clearance for all vehicles from Israeli authorities. 74. Trucks of aid organizations are only permitted to enter and circulate within the West Bank upon prior clearance with the IDF District Coordinator’s Office (DCO) and only if

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driven by an international driver. UNRWA trucks can only circulate between UNRWA warehouses in Jerusalem and its programmes in the West Bank with international drivers and Jerusalem identification card holders. WFP had to mobilize a fleet of eight trucks with international drivers and support teams from the Swedish Rescue Service Agency. This short-term arrangement has been extended until October 2002 to help WFP transport its food supplies and also to assist other organizations which do not have access to international trucks with international drivers. In mid-August 2002, WFP for example made the truck fleet available to assist the MoH in transporting 26 tons of medical supplies from the MoH central warehouse in Ramallah to Tulkarm and Bethlehem. 75. Humanitarian and other cargoes for aid organizations and the Palestinian Authority continue to experience significant delays and, in some case, are denied entry to Israel or the Occupied Palestinian Territory. Delays are particularly severe at the port of Ashdod, where average transit time for containerized cargo is more than two weeks, and at Allenby Bridge, the main entry point from Jordan. In many cases, demurrage and storage charges that are incurred while cargoes are being inspected and cleared have exceeded the value of the goods being imported. 76. Another constraint affecting the operations of several UN agencies and international NGOs is that Israel has denied entry visas to staff or contractors of Arab origin or nationalities. International aid agencies urgently require Arabic speaking staff as they expand their presence. Even regular UN staff members have been subject to this restriction. In some cases, Arab nationals are given visas to enter Israel but are not permitted to enter the West Bank or Gaza. 77. The European Union has documented 19 cases since June 2001, of which 13 occurred since the end of March 2002, in which international consultants and experts who were contracted for relief and development projects have been denied entry to Israel at Ben Gurion Airport or Allenby Bridge. In the most recent case, three Italian humanitarian workers were refused access at Ben Gurion Airport on 5 August 2002 despite having cleared their travel with the Israeli embassy in Rome. The same workers had been denied access on 13 July 2002.

c.

The Gap Between Israeli Policy and Implementation

78. One issue that was consistently mentioned by donors, UN agencies and other aid organizations was the existence of a wide gap between official Israeli policy and its implementation on the ground. The mission raised this concern with Israeli officials at the highest levels. 79. In principle, the Government of Israel has agreed on several occasions to facilitate assistance activities by all international assistance providers and to minimize negative effects of its security measures on the civilian population. This includes commitments and policies to allow free access for staff and supplies and to improve the situation at checkpoints, including the passage of Palestinians requiring medical treatment. As mention above, the Coordinator for Government Activities in the Territories has repeatedly given assurances that essential services such as health would not be hindered. 80. Despite these assurances and commitments, there has been little improvement on the ground over the past 23 months. On the contrary, as the conflict has intensified new constraints have been added and many existing restrictions have been tightened. The 490


entry of international staff into Israel has proven to be extremely difficult, as evidenced by the multiple rejections of aid workers contracted by the EU. An even more serious concern is access problems to and within the West Bank and Gaza which have been described above. Even international staff are frequently turned away by IDF soldiers at checkpoints despite previous clearance with Israeli authorities. 81. A persistent problem since September 2000 has been the lack of cooperation from the IDF, particularly at the operational level and among soldiers and mid-level officers on the ground. It is well known and has been recognized by Israeli authorities that many soldiers stationed at checkpoints are relatively inexperienced and have little training in interacting with the civilian population or aid personnel. Recent government reports have recommended that urgent measures be taken to place more senior reservists at checkpoints to decrease levels of harassment and the number of violent incidents. An additional concern raised by many UN agencies and donors is that their regular interlocutor, the Office of the Coordinator for Government Activities in the Territories, while technically part of the IDF, is unable to ensure the effective implementation by IDF operational personnel of most of the measures it agrees to.

d.

Capacity of the Palestinian Authority as Service Provider

82. Throughout the current crisis, the Palestinian Authority, particularly its Ministries of Health, Education and Social Affairs as well as the municipalities, have tried to continue to deliver a minimum level of services, despite damage to their infrastructure and severe impediments to the movements of their staff and supplies. However, the Palestinian Authority has suffered from an acute fiscal crisis since September 2000. Its monthly requirements under an austerity budget amount to $90 million per month, of which about $55 million is needed for salaries. Despite generous contributions from EU members and members of the Arab League, and its own monthly revenues of about $15 million, the Palestinian Authority currently faces monthly budget shortfalls of $30-40 million and is barely able to pay for its salaries and utilities. This has already resulted in a marked decrease in the delivery of services, including cash assistance to destitute families. 83. A major reason for the budget crisis is that Israel, which currently collects about $30 million in taxes (VAT, custom duties and purchase tax) every month on behalf of the Palestinian Authority, has been withholding the amounts it collects, arguing that the funds may be used for corruption and in support of terrorism if released. Israel recently agreed to release three tranches of $15 million each. Since remittances by Israel were suspended in December 2000, the cumulative amount of funds held by Israel is estimated by the IMF to be more than $600 million. 84. An additional consequence of a complete collapse of the Palestinian Authority would be the loss of employment for some 120,000 government employees. Although not its primary purpose, budget support to the Palestinian Authority has in effect been the largest emergency employment scheme. A significant reduction in the number or level of government salaries would significantly increase poverty and vulnerability levels, particularly in Gaza. 85. Recent news reports and discussions with UN agencies indicate an increasing breakdown of law and order in the Occupied Palestinian Territory. Most uniformed Palestinian 491


police have stopped patrolling the streets. Since the IDF does not engage in regular law enforcement activities, this vacuum has already resulted in an increase in economic crimes. As we know from many other crises, a further breakdown of law and order will exacerbate the humanitarian condition of the most vulnerable and undermine the international community’s ability to assist them. 86. A further weakening or complete collapse of the Palestinian Authority therefore would have a major impact on the humanitarian situation. Essential services in several critical areas, including health, education, water, electricity and law enforcement, could no longer be provided, leaving a wide gap that other assistance providers will be unable to fill. The loss of income for a large percentage of the population would further increase poverty, with the consequences described elsewhere in this report. And finally, the effect on the nation-building and peace process would have indirect and potentially far reaching consequences for the humanitarian situation that are difficult to predict.

e.

Central Importance of UNRWA and Support by the Government of Israel

87. UNRWA, as the second largest service provider after the Palestinian Authority, has played a crucial role in the current crisis, responding to the emergency needs of hundreds of thousands of refugees and a significant number of non-refugees. Its mandate encompasses a total of 1.5 million refugees in the Occupied Palestinian Territory of which 42 percent live in refugee camps. Education and health services normally account for 70 percent of the Agency’s budget and have resulted in high literacy, health and other human development indicators among the refugee population. Most of the refugees had become self-reliant before the current crisis, with only 7.4 percent of the refugee population in the Occupied Territory receiving food or other direct assistance from UNRWA. 88. The mission was encouraged to learn that the Government of Israel fully recognizes and supports the positive and important role of UNRWA. Both Prime Minister Sharon and Foreign Minister Perez stressed the importance of UNRWA and assured the mission of their full support for its activities. They specifically advised against creating new UN organizations or structures and encouraged the mission to find ways of strengthening existing ones.

f.

Appropriate Forms of Assistance

89. Since the current situation is not a traditional humanitarian crisis, more extensive analysis and strategic planning is required to determine what types of assistance are appropriate. One of the most consistent messages the mission heard from almost all Palestinians it spoke with was that they would rather not receive charity. Many of them said they wanted jobs instead of handouts and dependency. Some expressed their concern that an increase in direct food assistance would rob people of their sense of dignity and hope. Other forms of assistance, particularly employment opportunities and education, were thought to have the opposite effect. 90. There were also some voices that pleaded for additional food assistance, for example a group of women in Rafah, one of the poorest areas in Gaza. The mission also heard that many children in Rafah save their summer camp lunch for family members in 492


more urgent need of food. When asked why their families do not have enough food, the women responded that most of their husbands had lost their jobs and that they could no longer afford to buy the food that is available in the market. 91. As the recommendations included in part E. of this report suggest, one of the main challenges for future assistance activities will be to strike the right balance between various forms of assistance. On the one hand, there is a strong desire among most people who have been impoverished by the recent developments to be given opportunities to support themselves instead of receiving “handouts”. On the other hand, there are urgent needs, including nutritional needs, among families whose support networks and coping mechanisms have been breaking down. Some of these needs could be met through coupons that would enable destitute families to purchase supplies available in the markets. In other cases, ways will have to be found to make supplies available that currently can not reach retailers and customers due to the closure regime. 92. Discussions among the World Bank, donors and UN agencies are ongoing about the appropriate balance between three main forms of intervention that will help address the dramatic drop in purchasing power: food assistance, cash assistance and employment generation programmes. A comprehensive review of employment programmes is currently under way and will be completed in September 2002. This review will assist in formulating an overall strategy that will take the factors mentioned above into account. 93. An additional and fairly unique feature of the current situation is that, in September 2000, the Occupied Palestinian Territory was in the midst of a major international development assistance effort. As a consequence, a strong development community and mechanisms, which were led by the World Bank and several large bilateral donors, were in place in September 2000. Even under current circumstances, the development actors and the Palestinian Authority are trying to continue their development efforts as much as possible while at the same time ensuring emergency assistance and sufficient budget support. Achieving the right balance between development assistance and emergency assistance has presented a major challenge to the donor community and international organizations active in the region. This challenge is closely linked to the question of what types of assistance are appropriate and most effective in the current circumstances. 94. Representatives of Palestinian and international NGOs as well as Palestinian Authority officials expressed concern that Palestinian structures, coping mechanisms and organizations that have grown over many years should not be replaced or weakened by an increase in international assistance. The strong Palestinian NGO and community network, local market and credit mechanisms, and local food production were emphasized as structures that should be protected and strengthened.

g.

Coordination

95. Numerous coordination bodies have been established to bring together UN agencies, UNRWA, UNSCO, the World Bank, donors, and international and national NGOs as well as Israel and the Palestinian Authority. The focus of these entities, at least until recently, had remained on development activities that have stalled due to the intensified conflict. Considerable efforts have been made to re-orient existing capacities and create new arrangements to also address the emerging humanitarian crisis. However, progress has been uneven and has yet to achieve coherence. 493


96. The consensus view on the ground, in which the mission concurs, is that no new institutions should be established. Rather, coordination needs to be strengthened in order to ensure that: • humanitarian needs are expeditiously identified and met; • coordination mechanisms are inclusive of all humanitarian actors; • existing information collection, collation and analysis capacities are strengthened; • no artificial divisions occur between humanitarian and development planning and activities; and • consistency of assistance to refugees and non-refugees based on need is ensured. 97. The volatile situation and the nature of the key players on the ground are unique and do not lend itself to traditional humanitarian coordination solutions. UNRWA is the major UN provider of humanitarian assistance to refugees. It has also expanded its humanitarian assistance to reach some non-refugees over the last year. Other agencies, especially WFP, have become more active in recent years. UNSCO has a coordination mandate, originally more political/donor relations in focus. International NGOs are increasing their presence while the Palestinian Authority and Palestinian NGOs remain major channels of assistance. The ICRC has begun a large-scale assistance programme in addition to its traditional protection activities. Donors and the World Bank play a pre-eminent role in coordination fora and consultations. 98. The mission consulted extensively with each of the above actors on coordination issues. While there was no broad agreement on the most suitable structure, there was a clear consensus that humanitarian coordination, especially for the current emergency phase, needs improvement. The mission’s recommendations in this regard are included in part E.

IV. International Humanitarian Law and the Protection of Civilians h.

Obligations under International Humanitarian Law

99. The mission was asked to clarify the responsibilities of all parties with regard to humanitarian needs. These responsibilities are specified in international humanitarian law. Applicability of the Fourth Geneva Convention 100. Israel’s obligations in the Occupied Palestinian Territory are set out in the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (the Fourth Geneva Convention), to which Israel is a High Contracting Party. Palestinian residents of the Occupied Territory are “protected persons” under the Convention and Israel, which currently exercises effective control over the Occupied Territory, is considered the Occupying Power. While the Government of Israel has not accepted the de jure applicability of the Fourth Geneva Convention to all territory occupied since 1967, it has stated that it has undertaken to comply with the “humanitarian provisions” of the Fourth Geneva Convention. All other High

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Contracting Parties, as well as the International Committee of the Red Cross, maintain that the Fourth Geneva Convention does apply de jure to the Occupied Palestinian Territory. Both the General Assembly and the Security Council have also stated on numerous occasions that the Fourth Geneva Convention is applicable in the Occupied Territory. Obligations Regarding Relief 101. The Fourth Geneva Convention includes detailed provisions regarding the Occupying Power’s obligation to ensure the well-being of the civilian population. Israel has the affirmative obligation to ensure, to the fullest extent of the means available to it, adequate supplies of food, medicines and other basic needs for the population under its occupation. Israel also has certain obligations to permit the free passage of relief consignments, including medical supplies, food and other items intended for certain vulnerable groups. However, the Fourth Geneva Convention makes clear that relief from other sources, including other States and humanitarian organizations, in no way relieves Israel of any of its affirmative obligations to ensure adequate supplies of food, medicines and other basic needs. 102. Both the ICRC and some donors have insisted that external assistance should not be seen to relieve Israel of its basic obligations as the Occupying Power. For example, the ICRC stated that “[n]either the fact that the ICRC conducts a relief operation in order to respond to urgent humanitarian needs, nor legitimate security concerns of the authorities relieve the Occupying Power from its duties to ensure a sufficient supply for the daily life of the whole population.” Some donor representatives have indicated their countries’ unwillingness to bear what they regard as the financial burden of Israeli occupation and the current closure regime. They were also concerned that the provision of humanitarian assistance may help ease the political pressure on Israel to reconsider its current policies.

i.

Safety and Protection of Civilians

103. Several Palestinians the mission spoke with requested that the number of international staff in the West Bank and Gaza be increased to ensure better protection of the civilian population against violations of international humanitarian and human rights law. They cited the presence of international volunteers as a factor that had often made a major contribution to their safety and protection. 104. The UN currently has very limited capacity to help ensure the safety and protection of civilians, with a permanent presence of international staff that is limited to Jerusalem, Gaza and Jenin. It should be recalled in this context that in the late 1980s, the Secretary-General decided to deploy additional international UNRWA staff with a specific protection mandate. Until the signing of the Oslo Accords, these additional staff members “helped to defuse tense situations, avert maltreatment of vulnerable groups, reduce interference with the movement of ambulances, and facilitate the provision of food and medical aid during curfews”. They also assisted the Commissioner-General in reporting to the Secretary-General on protection concerns on a regular basis. The Secretary-General then reported to the Security Council in accordance with Security Council resolution 681 (1990). UNRWA recently deployed

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a small number of “Operation Support Officers” who perform certain of these functions, in particular facilitating access for UNRWA’s assistance. However, they do not appear to have a specific protection mandate and their activities are limited to UNRWA and therefore mainly concern refugees.

D.

COMMITMENTS MADE BY ISRAEL

I.

Immediate Results of the Mission

105. The Government of Israel made the following commitments to the mission: 1.

Palestinian ambulances will wait no more than 30 minutes at any checkpoints.

2.

Effective mechanisms will be put in place to ensure that Palestinians seeking critical medical services (e.g. giving birth, dialysis, chemotherapy) can quickly pass all checkpoints.

3.

Problems related to water deliveries to Palestinian towns and villages will be addressed to ensure that daily water deliveries in proper quantities can be supplied by Palestinian water tankers.

4.

Israel will fully facilitate the assistance activities of international agencies, with particular reference to UNRWA.

5.

Israel agreed to review and strengthen the liaison arrangements between international agencies and the IDF to facilitate assistance activities.

II.

Previous Commitments Made by Israel

106. On previous occasions, the Government of Israel has made the following commitments, which were reconfirmed to the mission: 1.

Israel will improve the situation at checkpoints, including the deployment of more experienced IDF personnel.

2.

The fishing zone for Palestinian fishing boats off the Gaza coast is 12 nautical miles. This policy needs to be fully implemented.

107. Other areas in which Israeli authorities promised to take action were the need to enable olive farmers access to their fields, an increase in shipments at the Karni commercial crossing, an increase in the number of work permits for workers in Israel (including overnight workers), a review of port and border delays of humanitarian goods, entry and visa denials for humanitarian workers, and improvements in access for UN staff members. 108. Each of the commitments made by the Government of Israel to the mission and on previous occasions to the UN and others should be fully implemented in an effective and expeditious manner. In addition, any gaps between official Israeli policy and its implementation should be closed.

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E.

RECOMMENDATIONS

I.

Measures that should be taken by the Government of Israel

a.

Security

109. This report fully acknowledges the need of the Government of Israel to protect its civilian population from further attacks by Palestinian groups, while recognizing that every effort should be made to minimize the adverse effects of all security measures on the well-being and survival of the Palestinian population.

b.

Access by the Population to Basic Services and Needs

110. Health: In addition to the commitments made with regard to the transit of patients and ambulances through checkpoints, Israel should ensure: (i) full access by all people in need of medical services to areas in which they are provided; (ii) the free flow of all medical supplies, including medicines, vaccines and medical equipment, to and within the Occupied Palestinian Territory, including when they are imported or transported by the Palestinian Authority or Palestinian NGOs; and (iii) that all efforts are made to further reduce waiting time for ambulances to the absolute minimum required for security purposes, if possible even below the agreed 30-minute maximum. 111. Education: Israel should ensure that all children, students and teachers have full access to schools and universities throughout the West Bank and Gaza. In particular, it should take all measures to protect children from exposure to military conflict on their way to and from school. 112. Water and Sanitation: In addition to the commitments made with regard to the movement of water tankers, Israel should (i) ensure free access by rural communities to alternative water sources they are entitled to access and (ii) provide adequate protection to rural communities and water infrastructure.

c.

Access by the Population to Employment and Income

113. Israel should ensure the movement of goods and people to allow trading, farming and other forms of economic activities inside the Occupied Palestinian Territory. In particular, the free movement of workers and Palestinian trucks should be made a priority, including a review of the “back-to-back” system within the West Bank. 114. Transshipment operations at the Karni commercial crossing and other crossings between Israel and Gaza should be streamlined and expanded to allow all commercial and humanitarian goods to enter and leave Gaza in the quantities and with the speed required. 115. Israel should gradually increase the number of permits for Palestinian workers to allow them to work in Israel and Israeli settlements.

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116. Israel should take immediate measures to allow farmers to harvest olives and to produce and market olive oil. In particular, Israel should provide adequate protection to rural communities and enable farmers to have free access to their fields.

d.

Access by Aid Organizations

117. In addition to the general commitment made to facilitate the activities of international assistance providers, Israel should: (i) accelerate the import procedures for aid supplies through all international entry points, including supplies intended for the Palestinian Authority and Palestinian NGOs; (ii) ensure full access by aid workers to the West Bank and Gaza, including international aid workers of Arab origin; (iii) ensure freedom of movement for all aid workers, including Palestinian UN and NGO staff, and for aid supplies to and within the West Bank and Gaza; (iv) improve access of aid workers and supplies to areas under curfew; and (v) ensure full respect of the privileges and immunities of all UN staff and assets.

e.

Release of Funds to the Palestinian Authority

118. To avoid the consequences on the humanitarian situation described in this report, Israel should urgently accelerate the release of funds it holds on behalf of the Palestinian Authority.

II.

Measures that should be taken by the Palestinian Authority

a.

Integrity of Aid Activities and Supplies

119. The Palestinian Authority should ensure with all means at its disposal that its supplies and assets, including ambulances and other means of providing services, are not used for unlawful activities or contain any contraband. It should prosecute and effectively bring to justice any personnel and other individuals suspected of being involved in criminal activities.

b.

Emergency Management Plan

120. The Palestinian Authority should develop, in full consultation with relevant parties, an emergency management plan that will ensure that all available resources are properly prioritized and used in an effective and transparent manner.

III. Assistance Activities a.

Technical Assessment Mission

121. In view of the growing humanitarian crisis, a UN inter-agency technical assessment mission should be deployed as soon as possible, preferably during the second half of September or early October. The mission should be led by OCHA at a senior level 498


and include participation from the main operational agencies active in the region. The mission should assess needs and required assistance for refugees and nonrefugees on a sectoral basis, with particular emphasis on the water, health, education and food security sectors, and should propose specific measures required to address the rising rates of malnutrition and anemia (e.g., changes in the food basket, expansion of voucher programmes, school feeding and iron fortification). It should make recommendations with regard to humanitarian contingency planning, and identify gaps and additional resource requirements. OCHA must review this assessment carefully to ensure that any additional resource requirements that may be appealed for only include those measures critical to the current needs. 122. In close consultation with UNSCO, the World Bank, Palestinian and international NGOs, as well as the relevant Ministries of the Palestinian Authority, the technical assessment mission should also make specific proposals on how coordination mechanisms could be strengthened. The proposals should also include a suggested mechanism for high-level and operational coordination with the IDF, in addition to existing arrangements with the Coordinator for Government Activities in the Territories.

b.

Support to Local Mechanisms

123. International assistance providers should generally aim to protect and strengthen existing Palestinian structures and coping mechanisms and limit direct reliance by the population on international assistance. To this end: •

Assistance activities should avoid disrupting market mechanisms and local production. To the extent possible, assistance supplies should be procured in the West Bank and Gaza, for example locally produced olive oil.

•

Direct food assistance should be limited to special hardship cases and other limited areas of intervention, e.g. school feeding. An expansion of employment generation, cash assistance and microcredit programmes should be considered.

•

After an initial evaluation, an expansion of the ICRC or other voucher programmes to other areas in the West Bank and to Gaza should be considered.

•

Urgent measures that would provide direct financial assistance to families in rural areas should be evaluated to prevent further asset depletion and ensure access to basic supplies.

•

Palestinian NGOs should be effectively included in coordination mechanisms and their activities generally should be protected and supported.

c.

Assistance to the Palestinian Authority and Palestinian NGOs

124. UN agencies and donors should continue to assist the Palestinian Authority and Palestinian NGOs in the import of essential supplies, including vaccines, ambulances and other medical supplies, and in the delivery of essential services. Donors should continue to provide budgetary support to the Palestinian Authority.

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d.

Temporary Increase in International Staff

125. Depending on full support of the donor community, additional international staff should be deployed on a temporary basis to the Occupied Palestinian Territory to facilitate access and enhance protection capacity. Special care should be taken not to displace any Palestinian staff from functions they can continue to perform. For the purposes of enhancing the protection of civilians, the deployment of international staff to locations in southern Gaza and in the West Bank (e.g. Ramallah, Nablus and Hebron) should be considered.

e.

Monitoring of Commitments

126. UNSCO should put in place mechanisms that permit the comprehensive monitoring of, and appropriate follow-up regarding, compliance by Israel and the Palestinian Authority with commitments made to the UN with regard to the facilitation of assistance activities. Whenever possible, a joint approach should be taken towards any new restrictions on the delivery of assistance.

f.

Coordination

127. There are currently a variety of groups, meetings and discussion fora among donors, UN agencies and NGOs. The mission did not evaluate these groups in detail, but would suggest that they may be part of a future review. To enhance the coordination of humanitarian assistance, particularly for the non-refugee population, the mission recommends that UNRWA, as the lead operational agency in the region, chairs a group at a senior level that is charged with action-oriented humanitarian coordination. OCHA should provide the secretariat for this group. Existing sectoral working groups and operations rooms, led by agencies and NGOs, should be strengthened and closely linked to this group.

g.

Funding for UNRWA and Other Aid Organizations

128. UNRWA, which plays a crucial role in the current crisis and enjoys the full support of both the Government of Israel and the Palestinian Authority, is facing a severe funding shortfall of $90 million (52 percent) under its 2002 Emergency Appeal. Donors should urgently increase their contributions to ensure that UNRWA can implement its assistance programmes. 129. Several other UN agencies and aid organizations, which have been expanding their programmes since September 2000, also remain severely underfunded and should be supported. Annex D provides an overview of the current funding status of the main UN agencies active in the region.

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13. REPORT OF THE U.N. SPECIAL RAPPORTEUR ON ADEQUATE HOUSING AS A COMPONENT OF THE RIGHT TO AN ADEQUATE STANDARD OF LIVING, MR. MILOON KOTHARI, ON HIS VISIT TO THE OCCUPIED PALESTINIAN TERRITORIES, 5-10 JANUARY 2002 (JUNE 12, 2002)*†

COMMISSION ON HUMAN RIGHTS Fifty-ninth session Item 10 of the provisional agenda

Introduction 1. The Special Rapporteur visited Israel and the occupied Palestinian territories from 5 to 10 January 2002, at the invitation of Ben-Gurion University and Adalah: Legal Center for Arab Minority Rights in Israel. The Special Rapporteur availed himself of the opportunity to meet with a group of non-governmental organizations, United Nations and intergovernmental agencies and Palestinian authorities, in order to collect information necessary pursuant to Commission on Human Rights resolution S-5/1 of 19 October 2000, in which the Special Rapporteur, along with several other thematic rapporteurs, was requested to “carry out immediate missions to the occupied Palestinian territories and to report the findings to the Commission at its fifty-seventh session and, on an interim basis, to the General Assembly at its fifty-fifth session”. 2. Unfortunately, the Special Rapporteur was not able to fulfil this request immediately owing to Israeli visa requirements. On 6 December 2000, he sent a letter to the Permanent Representative of Israel to the United Nations Office at Geneva requesting an invitation, to which the Government responded that it “would not cooperate in the implementation of the operative part of this resolution”. On 27 June 2001, at the annual meeting of special rapporteurs and independent experts, he once again requested an invitation from the Government, together with other thematic rapporteurs mentioned in the resolution. To date, there has been no reply from the Government. Prior to undertaking the visit, the Special Rapporteur informed the Permanent Representative

*

U.N. document number E/CN.4/2003/5/Add.1.

†

The content of this report was originally introduced orally by the Special Rapporteur on 9 April 2002 during the fifty-eighth session of the Commission (E/CN.4/2002/SR.32). In a letter addressed to the Chairperson of the Commission on 26 April 2002, the Special Rapporteur requested that the report “be processed under item 10, in accordance with applicable rules and procedures of the Commission on Human Rights.”


REPORT OF THE U.N. RAPPORTEUR ON ADEQUATE HOUSING MR. M. KOTHARI

of Israel to the United Nations Office at Geneva, in a letter dated 3 January 2002, of his intention to use the opportunity of the visit to gather information with a view to reporting to the Commission as requested in resolution S-5/1. 3. To assess the situation of housing during the visit, the Special Rapporteur met with Palestinian and Israeli non-governmental organizations, United Nations and other international agencies in the region and members of the Palestinian authority, including from the Ministries of Housing, Planning and International Cooperation, and Health. The Special Rapporteur visited East Jerusalem including the “walled city” and Shu’fat refugee camp, Bethlehem, Beit Jala, Ramallah and the Gaza Strip, including the refugee camps of Khan Younis and Rafah. 4. In carrying out his assessment, the Special Rapporteur was guided by the mandate given to him by the Commission and his interpretation of the mandate as outlined in his first two reports to the Commission (E/CN.4/2001/51 and E/CN.4/2002/59). Keeping in view the indivisibility of all human rights, this approach sees the right to housing as including dimensions of land rights, forced evictions, population transfer, the right to a safe environment and the right to water. The Palestinian people’s deep historical understanding of the right to housing (including through a particular affinity with their land) and its widespread violation in the occupied Palestinian territories validates the approach adopted by the Special Rapporteur. A number of congruent rights take on a particular, if tragic, meaning in the occupied Palestinian territories: the right to life; the right to an adequate standard of living; the right to freedom of movement and residence; the right to popular participation; the right not to be subjected to arbitrary interference with one’s privacy, family and home; and the right not to be subjected to cruel, inhuman and degrading treatment or punishment. 5. The principle features of the condition of housing rights in the occupied Palestinian territories arise from breaches of the laws of war and humanitarian law. These include not only violations of the Geneva Convention, relative to the Protection of Civilian Persons in Time of War, on which Israel has reneged, but even more basic prohibitions of the Hague Regulations of 1907, which the Israeli judiciary and military have formally accepted as applying.1 6. Since the massacre of Palestinian civilians at the Noble Sanctuary and the emergent wave of Palestinian resistance in September 2000, the Israeli military forces have targeted Palestinian homes with unprecedented use of destructive force. On January 2002, during the visit of the Special Rapporteur, Israeli forces carried out a night attack on the refugee camp at Rafah (Gaza Strip), destroying at least 58 Palestinian refugee family homes. The serial destruction of Palestinian households, property and patrimony is a continuous process that has culminated dramatically in the current phase of the conflict over Palestine. The number of Palestinian homes destroyed by Israeli administrative and military acts climbs almost daily.

1

Since the Beit El case (High Court of Justice 606, 610/78, Suleiman Tawfiq Ayyub et al. v. Minister of Defence et al, Piskei Din 33 (2)), the High Court of Justice has ruled that the Hague Regulations (1907) are customary law, therefore automatically part of municipal law and judiciable in Israel.

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7. Before the Noble Sanctuary massacre, Israel’s occupation authorities had ordered 10,000 Palestinian homes demolished in Arab East Jerusalem and the West Bank. Human rights organizations assert that actually some 28,000 Palestinian homes in Jerusalem alone are threatened with demolition by Israel. The occupation imposes spatial restrictions on Palestinian physical development by imposing planning criteria and supplanting local codes in violation of the international laws of war and humanitarian provisions applying to occupied territories. Israel favours illegal settlers with generous land allotments, subsidies, impunity for violent criminal activity, State-sponsored and private financing, and all manner of services at the expense of the indigenous Palestinian host population and international peace and security. Essentially, the institutions, laws and practices that Israel had developed to dispossess the Palestinians (now Israeli citizens) inside its 1948 border (the Green Line) have been applied with comparable effect in the areas occupied since 1967, the actual focus of this report. 8. A number of special rapporteurs, the Commission of Inquiry and the United Nations High Commissioner for Human Rights have also examined the state of house demolition and its devastating effects on the population in the occupied Palestinian territories. In his most recent report to the Commission (E/CN.4/2002/32), Mr. John Dugard, the current Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, devoted a separate section to the issue of demolition of houses and destruction of property; he did the same in his report to the General Assembly (A/56/440). The High Commissioner for Human Rights, during her visit to Rafah refugee camp in November 2000, inspected a number of private houses and apartments that had been heavily damaged (E/CN.4/2001/114, paras. 39-40). The Commission of Inquiry also examined this issue in detail and concluded that such demolition “has caused untold human suffering to persons unconnected with present violence” (E/CN.4/2001/121, para. 50). Both Mr. Dugard and the Commission of Inquiry point out that the demolition of houses and destruction of properties, as well as the restriction on movement, constitute a violation of the right to an adequate standard of living, including the right to adequate housing, under article 11, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights (ibid., para. 94). The previous Special Rapporteur, Mr. Giorgio Giacomelli, also stated that measures of collective punishment such as closures and house demolitions have caused disruption on the fabric of society, with particularly serious effects on the family, including children (see E/CN.4/2001/30, para. 13 and E/CN.4/2000/25, paras. 38, 43 and 62). 9. Following the above, this analysis of housing rights in the occupied Palestinian territories addresses State behaviour on two levels: (a) through the continuum of dispossession by administrative means as a constant feature of the occupation; and (b) the upsurge of Israeli military action against Palestinian civilians’ homes and habitat since the September 2000 Noble Sanctuary massacre and the ensuing al-Aqsa intifada. The latter is the principal focus of the present report; however, it would be a disservice to the Commission not also to remind it of Israel’s long record of depopulation and demographic manipulation by way of expulsion, destruction of homes and villages, and implantation of settlers prior to and since its establishment as a State.

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I.

The Right to Land

10. Land, as a housing resource, is an essential element of the right to housing. This is most conspicuous in the breach of individual and collective land tenure rights, as seen in the practice of ethnic cleansing and expulsion of land-based people and communities, as has historically been the case in Palestine.2 It should be recalled that population transfer constitutes a particularly grave violation of human rights and humanitarian law that, regrettably, persists in the recent and ongoing conflicts. In this connection, the Special Rapporteur notes the increase in forced eviction of Palestinians and implantation of settlers in the territories and period covered by this review. 11. Israel’s confiscation of land and properties belonging privately and collectively to the Palestinians in the occupied Palestinian territories is a dominant feature of the occupation and an essential component of Israel’s population transfer programme. This practice violates the long established public law principle of the unacceptability of the acquisition of territory by force, as well as specific resolutions concerning Israel’s confiscation of land and settlement activities.3 Since 1967, Israel has confiscated land for public, semi-public and private (Jewish) use in order to create Israeli military zones, Jewish settlements, industrial areas, elaborate “bypass” roads, nature reserves,

2

Under its article 20 (a) (vii), the International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind sets forth that unlawful deportation or transfer of a population constitutes a war crime. Populations transfer, once considered a bygone feature of war, has returned alarmingly to several cases of armed conflict in the past decade. In other areas, it remains an aspect of standard policy and practice for the purpose of demographic manipulation. Owing to the grave human consequences of the practice in history, humanitarian law norms, notably the Fourth Geneva Convention (art. 49) prohibits forcible population transfer and the Rome Statute of the International Criminal Court, defines “forcible transfer of population” (art. 7.2 (d)) and identifies it as a crime against humanity (art. 7.1 (d)), and therefore a war crime, a grave breach of the Fourth Geneva Convention (art. 8.2 (a) (vii)) and a serious violation of international law (art. 8.2 (b) (viii)). The United Nations Special Rapporteurs on the human rights dimensions of population transfer identified population transfer (E/CN.4/Sub.2/1993/17) as a prima facie violation of international law, and the International Law Commission also identified it as a crime against humanity in its Draft Code of Crimes against the Peace and Security of Mankind (art. 18 (g)).

3

General Assembly resolution 51/190 “Permanent sovereignty of the Palestinian people in the occupied Palestinian territories, including Jerusalem, and of the Arab population in the Syrian Golan over their natural resources”, of 16 December 1996; and Security Council resolutions 446 (1979) of 22 March 1979, 452 (1979) of 20 July 1979, 465 (1980) of 1 March 1980, 471 (1980) of 5 June 1980, and 904 (1994) of 18 March 1994; and Security Council resolutions concerning Jerusalem: 252 (1968) of 21 May 1968, 267 (1969) of 3 March 1969, 298 (1971) of 25 September 1971, 476 (1980) of 30 June 1980, and 478 (1980) of 20 August 1980.

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“green areas” and quarries, as well as to hold “State lands” for exclusive use by Israeli citizens and others whom Israeli law entitles with the status of “Jewish nationality”.4 12. The land confiscation complement to population transfer, including the implantation of settlers, has actually escalated during the political process following the Oslo Agreements. This “Oslo Phase of Occupation”, as it has become known, has witnessed Israel’s confiscation of hundreds of thousands of dunams (one thousand square metres). 13. In the period leading up to Oslo, when Ariel Sharon served as Minister of Housing, Israel (in collaboration with the World Zionist Organization/Jewish Agency) launched a settlement campaign in the construction of the “Seven Stars” colonies straddling the Green Line. More recently, Israel’s military closure of Bayt Sira, Qattana and Midia villages in the West Bank has actually moved the Green Line demarcation points, adding Palestinian land to Israel. In the case of Midia village, Israeli authorities ordered five houses, 500 metres from new line, to be demolished and confiscated 2,200 dunams of village land. This case remains a subject of litigation. 14. One example of land confiscation during the recent period was marked by the announcement by then Prime Minister Ehud Barak and Israeli Defense Forces (IDF) Deputy Chief of Staff Moshe Allon, on the same day as the Sharm al-Sheikh Agreements were signed, that the Israeli Government had newly confiscated 250,000 dunams of Palestinian land. The Wye River negotiations extracted a Palestinian noncontestation of Israel’s construction of bypass roads serving the settler colonies. This resulted in the confiscation of a further 1.54 per cent of West Bank land, and the roads served as scissors cutting the Palestinian geographical body into 64 pieces.5 4

Under Israeli law, anyone considered eligible for “Jewish nationality” can obtain this preferential status on the basis of (a) a claim to profess the Jewish religion and (b) arrival in the country. By contrast, a citizen of the State of Israel who is not bona fide as Jewish can never hold this status, even if s/he is born there. In the case of George Tamarin v. the State of Israel (1971), a Jewish Israeli petitioned the High Court of Israel unsuccessfully to have the official registration of his nationality changed from “Jewish” to “Israeli.” The High Court ruled that “there is no Israeli nation separate from the Jewish nation … composed not only of those residing in Israel but also of Diaspora Jewry”. Then President of the High Court Justice Shimon Agranat explained that acknowledging a uniform Israeli nationality “would negate the very foundation upon which the State of Israel was formed”, New York Times, 21 January 1972, p. 14; cited in Oscar Kraines, The Impossible Dilemma: Who is a Jew in the State of Israel (New York: Bloch Publishing, 1976). Nationality status in Israel is not linked to origin from, or residence in a territory, as is the norm in international law. Rather, the basic theocratic character of the Israeli legal system establishes ethnic criteria as the grounds for the enjoyment of full rights. The Israeli Citizenship Law (ezrahut), officially mistranslated as “Nationality Law”, establishes a civil status distinct from “Jewish nationality”.

5

Since the signing of the Wye River Accord, an estimated 27,385 dunams have so far been confiscated: 12,238 dunams up to the end of 1998 and a further 15,147 dunams in the first three months of 1999. The expropriated land will be used for the construction of bypass roads, settlement expansion and construction of industrial zones, among other purposes. According to field work by the LAW Society for Human Rights and the Environment, Israeli authorities have confiscated 3,459 dunams to construct gas stations and industrial zones on the Palestinian village lands of Kufur Qaddum, Asamou, Jab’a, Tal Mariam, Bayt Sira and Athahiriah. The land confiscations in the first three months of 1999 took place in: Ramallah (2,395 dunams), Hebron (1,558 dunams), Bethlehem (580 dunams), Jenin (558 dunams), Salfit and Nablus (3,290 dunams), Tulkarem (200 dunams), Qalqilya (450 dunams), Jerusalem (4,019 dunams), Gaza (17 dunams), Rafah (50 dunams) Khan Yunis (30 dunams), and Jericho and the northern Jordan Valley (2,000 dunams).

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15. Estimates place the proportion of Palestinian land confiscated by Israel at more than 70 per cent of the West Bank and 33 per cent of the Gaza Strip; at least 32.5 km2, or approximately 33 per cent, of Palestinian land in East Jerusalem has been confiscated,6 and all but 7 to 8 per cent of the area has been closed to Palestinian construction.7

II.

Banning Palestinian Construction

16. In the occupied Palestinian territories, planning since 1967 has been assumed by the military authorities and, for instance, continues to be carried out for Areas B and C in the West Bank by the civil Israeli administration based in the Jewish settlement of Bayt El. Immediately after seizing East Jerusalem, the West Bank and Gaza Strip in 1967, Israel disbanded the regional councils that were legally responsible for physical planning. Thus, the Israeli occupation forces have dismissed those legally responsible for planning in favour of the occupiers’ military and demographic imperatives. This practice violates the Hague Regulations (1907), which prohibit an occupying Power from altering the legal system in occupied territories (art. 43).8 Israeli domestic laws, including Basic Laws, military orders and planning regulations, are applied with discrimination against, and disadvantage to the Palestinian population. 17.These planning regulations are legally invalid and discriminatory by nature. Israel simultaneously grants vast areas of land for the planning of illegal Jewish settlements on Palestinian territories, in addition to the facilities and services Israeli institutions provide to them. (See discussion of settlement implantation below.) The consequences for the indigenous Palestinian population involve, among other things, increased housing density, acute land shortage, depletion of water resources and exorbitant land prices.

III.

Administrative House Demolitions

18. While applying very tight restrictions and granting very few building permits, Israeli occupation forces frequently carry out punitive and violent demolitions of Palestinian homes for lack of licence. Interlocutors reported myriad difficulties confronting and

6

“Greater Jerusalem” (Washington: Foundation for Middle East Peace, Summer 1997). As of May 1999, the source indicated, Israel had confiscated 5,845 acres (23,380 dunams): “Israel’s Uncertain Victory in Jerusalem” (Washington: Foundation for Middle East Peace, Spring 1999). This does not account for the Palestinian lands, villages, homes and other properties Israel seized in the conquest of West Jerusalem in 1948, and continues to possess.

7

7.3 per cent cited on ; 8 per cent cited in Department of International Relations, Orient House, “Forced Eviction and Dispossession of Palestinians in Occupied Jerusalem by Current Israeli Policies” (February 2000), p. 13.

8

The Hague Convention of 18 October 1907 and Annexed Regulations concerning the Laws and Customs of War on Land (Convention No. IV of 1907). Article 43 reads: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

506


discrimination practised against Palestinians seeking to obtain building permits and information about imposed master plans. Sometimes the punishment is retroactive to the establishment or public disclosure of a master plan. This practice leaves Palestinian families underhoused, and those whose houses Israel demolishes are left homeless and often impoverished. Since 1987, at least 16,700 Palestinians (including 7,300 children) have lost their homes under this policy. 19. The rate of Israel’s demolition of Palestinian homes in the West Bank and East Jerusalem has not fallen since 1993, and has remained at a high level. In fact, although the number of Palestinians living under constant and direct Israel civilian control and the areas where they live are smaller (jurisdictional Areas C), the average yearly demolition of Palestinian homes showed an increase throughout 1995-1999.9 Since September 2000, Israel’s administrative actions against Palestinian homes in East Jerusalem alone have destroyed at least 70 housing units.10 In the past year, the municipality of Jerusalem has targeted multifamily residences built by local contractors, with devastating consequences for businesses in the construction sector.11 These demolitions in Jerusalem alone have left 405 evictees, including 238 children, and destroyed three water wells.12 During his visit to the occupied Palestinian territories, the Special Rapporteur learned of eight demolition orders in Jerusalem that became known on 6 January 2002. Some 28,000 Palestinian homes in Jerusalem remain under threat of administrative demolition by the municipality of Jerusalem. The Special Rapporteur is aware of 57 current demolition orders against Palestinian families’ homes in al-Khalil/Hebron (mixed jurisdiction, West Bank). Some 50 are pending in the West Bank (in Areas C), where demolition orders are most common near settler colonies and their adjacent bypass roads.13 20. The 23 demolition orders carried out against Shu’fat homes came in response to complaints from settlers at Pisgat Ze’ev.14 In addition, there are six current orders known against Palestinian homes near the Har Homa colony on Jabal Abu Ghunaym. 21. The Special Rapporteur visited the demolished home of Salim Shuwamira, in Shu’fat refugee camp, Jerusalem. There the Special Rapporteur witnessed the scale of destruction and loss to poor families, collateral damage to neighbours’ homes and the residual suffering and quiet anger that naturally follows. He observed also that, whatever

9

Amnesty International, “Israel and the Occupied Territories – Demolition and dispossession: the destruction of Palestinian homes” (London: Amnesty International, December 1999).

10

In Shu’fat, Bayt Hanina, Ashqariya and Qaddum/Silwan. Land and Housing Research Centre, “Annual statistical report on house demolition in Jerusalem”, 10 January 2002.

11

For example, occupation forces demolished 11 housing units belonging to Jerusalem contractor Ibrahim Julani on 20 August 2001.

12

These numbers do not include the homes families are forced, under court order, to demolish by themselves.

13

Meeting with Land and Housing Research Center (Jerusalem), 6 January 2002.

14

Land and Housing Research Center, “Israel destroys 23 houses in Jerusalem on one day” (July 2001).

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the pretext in terms of builders breaking administrative norms, such destruction and suffering cannot be justifiable under the principles of necessity and proportionality in the State’s use of force in the application of civil law. 22. Israel’s administrative housing destruction as a punitive action does not comply with the norms of the rule of law with a view to ensuring human rights. The demolitions ordered either for lack of permit or another pretext have a military dimension and a gratuitously cruel nature. Orders are often issued without specifying the affected home(s), without indicating the date of the order or demolition, and without sufficient warning to inhabitants. Some administrative demolitions are carried out with no orders at all. In most cases of demolition for lack of permit, authorities wait until construction is complete before coming to destroy the home, inflicting the heaviest possible material loss to the victim. With regard to the arbitrary, disproportionate and discriminatory nature of this form of Israeli punishment, housing rights defenders note that even the Israeli assassin of former Prime Minister Yitzhak Rabin was not subjected to the demolition of his family’s home, the common collective punishment for Palestinians merely suspected of a real or potential act of resistance. 23. Israel’s demolition policies have been a subject of discussion at the meetings of the United Nations treaty bodies each time a report of the State party is examined. The Committee on Economic, Social and Cultural Rights (CESCR) has been seized with the issue since its review of Israel’s implementation of the Covenant in 1998, deploring “the continuing practices … of home demolitions, land confiscations and restrictions on family reunification and residency rights, and its adoption of policies [which] result in substandard housing and living conditions, including extreme overcrowding and lack of services …”.15 Most recently, the Committee against Torture (CAT) expressed concern that “Israeli policies on house demolitions … may, in certain instances, amount to cruel, inhuman or degrading treatment or punishment”.16 24. The Human Rights Committee, examining Israel’s report on its implementation of the International Covenant on Civil and Political Rights, stated in 1998 that it “deplores the demolition of Arab homes as a means of punishment. It also deplores the practice of demolitions, in part or in whole, of ‘illegally’ constructed Arab homes … The Committee considers the demolition of homes to conflict directly with the obligation of the State party to ensure without discrimination the right not to be subjected to arbitrary interference with one’s home (article 17), the freedom to choose one’s residence (article 12) and equality of all persons before the law and equal protection of the law (article 26)” (CCPR/C/79/Add.93, para. 24).

15

E/C.12/1/Add.27 of 4 December 1998, para. 22. See also paras. 11, 12, 22, 28 and 41, in which CESCR addressed the practice of demolishing Palestinian homes and policies leading to declining living conditions on both sides of the Green Line (Israel’s 1948 border). CESCR reiterated its concern in its subsequent letter to the Permanent Representative of Israel to the United Nations Office at Geneva, of 1 December 2000, its letter to the Economic and Social Council of 4 May 2001, and in its concluding observations of 31 August 2001 (E/C.12/1/Add.69).

16

Under article 16 of the Convention. See conclusions and recommendations of CAT CAT/C/XVII/Concl.5 of 23 November 2001, para. 6 (j).

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IV.

Military Destruction of Housing

25. Israeli military shelling has heavily damaged and/or destroyed 7,571 Palestinian homes.17 In the week preceding the Special Rapporteur’s visit, Israeli military forces destroyed four Palestinian homes without any known security or military purpose. In the course of militarily destroying Palestinian housing, Israel has killed at least 136 people (mostly civilians) by shelling from land and air at Bethlehem, Ramallah, Khalil and Jenin.18 In addition to the toll on homes and human life, Israel has shelled public buildings, demolishing at least 73 Palestinian National Authority (PNA) buildings, 49 educational institutions, 22 religious buildings and 7 health facilities. 26. Often, the pattern shows no military objective, rather the fulfilment of settler colony designs. As in the typical case of Abu ‘Ajlin, in the Dayr al-Balah area of the Gaza Strip, Palestinian residents have been sandwiched between the Kissufim and Gush Qatif settler colonies, which continuously expand towards them from both sides. In a move that seeks to implement the planned contiguity of the settler colonies by eliminating the indigenous population and their land tenure, the Israeli army surrounded a cluster of Abu ‘Ajlin homes in the early morning of Tuesday, 19 February and announced that the residents had until that afternoon to evacuate. The Israeli occupation forces began their bulldozing at 10.30 a.m., destroying 1 home and threatening 18 more. In this case, human rights organizations were able to obtain an order nisi (temporary injunction) to ward off the remaining demolitions. Number of buildings damaged in the West Bank, by building use, 28 September 2000 to 3 September 2001 Use of building Residential

No. 4,994

Commercial

51

Educational

269

Government

21

Charities

12

Health

24

Religious

65

Tourism

4

Total

5,440

Source: Ministry of Housing of the Palestinian Authority, “Damages to public and private buildings and infrastructure facilities, 28/9/2000-3/9/2001”.

17

According to data collected by al-Haq: Law in the Service of Man (Ramallah). Special Rapporteur’s meeting with Sha’wan Jabareen, al-Haq, Ramallah, 6 January 2002.

18

According to data collected by the LAW Society for Human Rights and the Environment (Jerusalem). Special Rapporteur’s meeting with Hasib Nashashibi, LAW, Ramallah, 6 January 2002.

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27. These figures are already out of date, but demonstrate the pattern of Israeli destruction of an overwhelming number and proportion of residential structures. During the Special Rapporteur’s visit, from 10 to 12 January, Israeli forces in Gaza destroyed, severely damaged or made uninhabitable an additional 211 Palestinian homes.19 On 10 January,20 Israeli forces at Block “O” along the Rafah border with Egypt demolished at least 58 homes in a night blitz that set sleeping families running for their lives and rendering 614 people homeless. The next morning, Israeli forces demolished another 18 homes in the al-Barama section of Rafah Refugee Camp.21 As relief workers were scrambling to rehouse these evictees in tents, the news was still reverberating in the press and among the public of the burning death of five children from the Hunaydiq family, when cooking oil set alight their International Committee of the Red Cross relief tent on 6 January; Israeli settlers shelling their homes had forced them to take refuge east of Khan Yunis, where unforeseen, secondary hazards awaited. 28. In addition to the cost to life and limb during Israel’s destructive actions against Palestinian homes, negative psychological effects are in evidence. The violent and abrupt loss of one’s home has a collective dimension for Palestinians.22 It invokes the long history of Israel’s forcible transfer and dispossession, which adds feelings of humiliation to the personal sense of loss. 29. Social science research has highlighted the psychological effects of house demolitions for both victims and witnesses. These include high levels of compound mental anxiety manifesting as dread of the occupation army, diminished concentration, constant weeping and re-experiencing the traumatic event. Witnesses shared the effects in the form of dread of the occupation army, bouts of volatility, and night terror.23 In addition to the other causes of stress and trauma, the experience of house demolition has had enduring psychological consequences for the victims. Women have been shown to have longer and more severe bouts of depression – in both the loss and witness groups – as they cope with the hardship. Children tend to suffer disproportionately the violent loss of homes, shelter and possessions.24

19

Facsimile letter from Raji Sourani, Director, Palestinian Centre for Human Rights, to the Special Rapporteur, 15 January 2002.

20

While operating under the 16 December 2001 ceasefire.

21

Palestinian Centre for Human Rights, Press Release 4/2001, 12 January 2002.

22

E. El Sarraj, A.A. Tawahina and F. Abu Hein, “The Story of Uprooting”, presented at the first International Conference on the Mental Health and Psychological Well-being of Refugees and Displaced Persons, Stockholm, 6-11 October 1991, cited in S. Quota, Raija Leena Punamäki and E. El-Sarraj, “House Demolition and Mental Health: Victims and Witnesses”, Journal of Social Distress and the Homeless, vol. 6, No. 3, 1997, p. 210.

23

A study of the mental health effects on victims of Israel’s demolition of Palestinian homes at alAmmal and Bayt Labia (Gaza) in February 1993 records the experiences of a loss group, witness group and control group. See Quota, Punamäki and El-Sarraj, op. cit.

24

See for example, “The First GCMHP Study on the Psychosocial Effects of the Al-Aqsa Intifada: Significant Increase in Mental Disorders and Symptoms of PTSD among Children and Women”, forthcoming (2002) from the Gaza Center Mental Health Programme (GCMHP).

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30. Former Commander of the IDF Southern Command General Yom-Tov Samia in a September 2001 radio interview summarized the strategic rationale for military demolition of Palestinian homes: “The IDF must raze all the houses [in the Rafah Refugee Camp adjacent to the Egyptian border] within a strip of 300 to 400 metres in width … Arafat must be punished, and after each incident another two to three rows of houses must be razed … We must apply this extreme instrument; it is workable … and I am happy it is being used. Sadly, in steps which are too small. It must be done in one big operation.”25 31. Israel’s active military command has rationalized house demolitions and the use of lethal force on the pretext that it is operating a combat zone, and that the Hague Regulations therefore apply as a justification for measures taken under its own criteria for “security” and “necessities of war”, including civilian house demolitions, and crop and agricultural land destruction (e.g. by bulldozing away topsoil).26 32. In Areas C, Palestinian farmers, their homes, property and crops are often the targets of Israel’s military tactic of economic devastation of Palestine. Since the massacre at al-Aqsa mosque, farmers have lost an estimated US$ 431 million from destruction. The occupation army has destroyed 150 agricultural roads. Infamous is the Israeli practice of extirpating productive fruit and olive orchards. One example among many is the Israeli army and settlers’ destruction of thousands of 60- to 70-year-old olive trees at ‘Abud village.27 33. Settlers also have resorted to rustling livestock belonging to rural Palestinians, such as the case of 61 head of sheep that Israeli settlers stole from ‘Awarta village.28 Israeli military operations and property destruction have concentrated on potential Palestinian tourism zones, such as Bethlehem, occupying hotel and other tourism facilities, militarizing religious sites (see E/CN.4/2001/30) and stifling an important Palestinian economic sector. The physical damage to structures alone has been estimated at US$ 135-165 million from October 2000 to June 2001;29 over 70 per cent

25

Jeff Halper, “Rafah: Holding Israel Accountable”, at .

26

Submission by the Executive Assistant to Israeli State Prosecutor Yehuda Shaefer, 17 January 2001.

27

Randy Engel, “The Bishops’ Collective: A Report and Commentary on the NCCB/USCC [National Conference of Catholic Bishops/United States Catholic Conference] Atlanta Meeting, 14-16 June 2001”, at ; also testimony of Palestinian Agricultural Relief Committee (PARC). Special Rapporteur’s meeting with Jawda Abdalla, PARC, Ramallah, 6 January 2002.

28

Testimony of a West Bank NGO in meeting with the Special Rapporteur, Ramallah, 6 January 2002.

29

See World Bank, “One Year of Intifada”, Jerusalem, February 2002, p. 23. The price of cement increased from NIS 330 to NIS 650 per ton, according to a Ministry of Planning and International Cooperation (MoPIC) assessment.

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account for agricultural losses and nearly 28 per cent are losses from damaging or destroying private buildings. From figures covering only through June 2001, out of the US$ 27.7 million in destruction, US$ 19.7 million was to residential buildings.30 34. New estimates from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) indicate that a value of no less than US$ 3.8 million was lost in structures in Israel’s operation against the refugee camps and Gaza City in March 2002. This includes the destruction of at least 141 refugee shelters valued at US$ 2.3 million alone.31

V.

Implantation Of Settlements And Settlers

35. The Special Rapporteur can only add his confirmation to the conclusion that Israeli settlements in the occupied territories are an obstacle to peace. As stated above, the implantation of settlements and settlers is also, prima facie, a violation of the basic principles of international humanitarian law32 and also has been recognized as a violation of human rights norms, particularly economic, social and cultural rights.33 Illegal settlement activity is a significant factor in Israel’s confiscation of more than 70 per cent of the West Bank and 33 per cent of the Gaza Strip and East Jerusalem. 36. At the beginning of 2001, Israel maintained 19 Jewish settlements in the Gaza Strip that occupy 23,000 dunams of confiscated Palestinian land, surrounded by more than 23,000 additional dunams of confiscated land. In the West Bank, Israel maintains some 205 Jewish settlements, including some 16 Jewish settlements in occupied Jerusalem. In addition, Israel established 74 outposts (habitations built that are noncontiguous with the established settlements) after signing the Oslo Accords.34 37. According to the Yesha Council for settlers, the total settler population currently numbers 227,000, excluding the settlers in West Jerusalem (since 1948) and East Jerusalem (since 1967).35 Since the current Israeli Government came to power in February 2001, Israel has set up an additional 34 settlements in the occupied Palestinian territories.36

30

US$ 11.38 million in Gaza and US$ 8.28 million in the West Bank. “One Year of Intifada”, ibid., Sectoral Damage Tables, pp. 87-89. See also Ministry of Housing Table (in the text), also reflecting similarly high proportions of residential building destruction.

31

“Israeli attacks on the camps imposes heavy costs on UNRWA”, UNRWA press release, 20 March 2002, at .

32

Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), art. 49.

33

See supra note 15.

34

Special Technical Unit (STU), MoPIC, January 2000, at .

35

Ibid. The combined figures indicate more than 403,249 settlers in the West Bank, 211,788 of whom live in East Jerusalem.

36

Figures as of 19 March 2002, reported by Settlement Watch Project of Peace Now, at .

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38. In January 2002, the Special Rapporteur witnessed the continued construction of some 6,500 housing units for the new Jabal Abu Ghunaym/Har Homa settlement on 2,056 dunams of confiscated Palestinian land, completing the circle of Jewish settlements around occupied Jerusalem. He also visited areas of new construction in the West Bank and Gaza Strip settlement. 39. Israel has built 6,000-8,000 housing units for settler colonies in occupied Palestinian territories between 1967 and 1998. While Israel maintains that this reflects “natural” population growth, the 11-12 per cent annual increase in settler numbers far exceeds the 2 per cent population growth inside Israel.37 The active and sustained implantation of Jewish settler colonies serves the geostrategic purpose of acquiring territory and natural resources and limiting the living space of the Palestinian host population. By contrast, Israeli planning authorities assign jurisdictional areas to Jewish settlements in vast disproportion to the restricted land use for comparable Palestinian population centres in the occupied Palestinian territories.38 Illustrative of this is Migilot settler colony in the Judean desert. Israeli settlement planners have attributed 700,000 dunams of land to its settler population of 900. 40. Colonial settlements implanted near Palestinian built-up areas impose a 500-metre “buffer zone”, removing Palestinian homes and buildings within that distance from the settlement’s edge. In addition, the ganglia of settler bypass roads also impose the demolition of structures and closure of over 150 m of Palestinian lands to each side. Israel claims that the closure of these areas to their Palestinian owners and destruction of Palestinian properties there conform to local law and planning regulations. However, at the base of these practices is a breach of international law of treaties, as pointed out above.39 41. Since the advent of the Ariel Sharon (Likud) Government, local residents report an increase in settler paramilitary activity, notably in the confiscation of lands (as well as crops, farm equipment and livestock). In that context, Jewish settlers, already favoured by the Israeli controlled physical planning regime, since September 2000 are imposing their own boundaries and using physical force and death threats to intimidate Palestinian land holders, as in the case of settler colonies at ‘Ayn Yubrid (West Bank).40 42. In addition to the 34 new settler colonies, Prime Minister Sharon’s Government has approved 14 new settlement plans. For the 2002 budget of Israel, US$ 154 million

37

As of figures for December 1999 released by the Council for Jewish Communities in Judea, Samaria and Gaza and compared with Israeli Central Bureau of Statistics counts in December 1998. Nadav Shragai, “Number of Jews in settlements skyrockets”, Ha’aretz, 21 February 2000.

38

According to findings of B’Tselem (Jerusalem). Special Rapporteur’s meeting with Ezekiel Lein and Jessica Montell (B’Tselem), 7 January 2002, and subject of a forthcoming B’Tselem study, “Land grab: Israel’s settlement policy in the West Bank”, at .

39

In addition to references supra, the Vienna Convention on the Law of Treaties (art. 27) provides that “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

40

Testimony of Isa Samandar, Land Defence Committee, in meeting with Special Rapporteur, Ramallah, 6 January 2002.

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were proposed for infrastructure projects, industrial investment grants, housing, agricultural programmes and educational subsidies for the illegal settlements in 2002. This is in addition to private and other sources of settlement funding, including that allotted by the Jewish National Fund and World Zionist Organization/Jewish Agency. The Israeli Government finances 50 per cent of settlement costs in the occupied Palestinian territories, while it finances 25 per cent of housing inside the Green Line. Illegal Jewish settlers in the occupied Palestinian territories, who recorded the highest per capita income of Israelis in the 1990s, receive US$ 520.22 per capita in subsidies from the budgets publicly disclosed, while, in the communities of Arab citizens of Israel, the most disadvantaged, individuals receive the equivalent of US$ 234.83 in public benefits.41

VI.

Violence Against Palestinian Residential Communities

43. The Israeli occupation army frequently imposes curfews on Palestinian towns and villages in the occupied Palestinian territories. Typically, residents are allowed only four hours (between 10.00 a.m. and 2.00 p.m.) to move from their homes to carry out their daily business. There have been cases in which Jewish settlers have destroyed and confiscated Palestinian property while these communities are under curfew. Since September 2000, settlers have used firearms and other forms of violence under Israeli army and police cover, killing 18 Palestinians to date.42 44. In an apparently positive development, on 27 February 2002, the Israeli High Court agreed to accept for consideration a petition requesting the Minister of Police, represented by the State Attorney’s Office, the Attorney-General and the Commander of the Hebron police to respond to numerous requests for information regarding criminal complaints filed by Palestinian victims of violence committed by Israeli settlers. 45. Isolated villages and historical urban centres suffer especially. Access and movement are restricted, especially in those areas near Jewish settlements, suppressing livelihood activities and rendering impossible the maintenance and supply of households. Israel’s land grabbing and a lack of ability to upgrade construction have led Palestinian communities to opt to build low grade structures in the historical heritage areas. Gaza City, with virtually no vestige of its three millennia of urban heritage, exemplifies this phenomenon. Assaults by Jewish settlers and uniformed Israeli military have harassed and forced many Palestinian residents of al Khalil/Hebron to leave their recently renovated homes.

41

Based on exchange rate of 4.45 new Israeli shekels to the US dollar. Figures provided in the Adva Center, “Governmental Funding of the Israeli Settlements in the West Bank, Gaza Strip and Golan Heights in the 1990s of Local Governments, Home Construction, and Road Building”, 27 January 2002, summarized in Nehemia Strasler, “Every settler a king”, Ha’aretz Daily, 1 February 2002.

42

See detailed list in Palestinian Human Rights Monitoring Group, “Summary of Palestinian Fatalities from 29/9/2001 till 18/3/2002”, at <www.phrmg.org/aqsa/settlers.htm>.

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46. The Special Rapporteur interviewed Ms. Na’ila al-Zaru, who was evicted twice from her historic home in the Old City of Jerusalem. The first time, she had regained her right to remain in her house following litigation brought by Israeli settlers who had squatted in her home and stolen all of her family’s possessions, under Israeli police protection, while she was attending to her ailing mother in Amman, Jordan, in June 1985. Then, during the term of former Prime Minister Benjamin Netanyahu – who had pledged to occupy more Palestinian homes in the Old City – settlers brought a new case in the Jerusalem Central Court. On the morning of 25 May 1998, Israeli army and police violently evicted the widowed Ms. al-Zaru and her two children following a politicized trial in which the Israeli judge ruled on the basis of settler ideology, rather than law. Since that date, the al-Zarus have lived in a converted space in the Red Crescent Society clinic, without adequate housing or tenure. That Ms. al Zaru owed the occupation authority-imposed “arnona” tax was used as a pretext in the original attempt to evict her from her ancestral home, to which she had title. This is one administrative device that Israel uses to carry out forced evictions and supplant the indigenous residents of the Old City with privileged Jewish settlers.43

VII. General Housing Conditions 47. Among the most common complaints of Palestinians, when asked about their housing rights, is the palpable and constant problem of high housing density. Palestinian families and communities crave space to live in and develop, as is natural for indigenous people in their own country. However, the Israeli occupation forecloses such a choice by imposing domination by a colonizing population. 48. As explained above, population transfer, confiscation of land and the combined effect of other Israeli measures have concentrated the majority of the remaining Palestinians into refugee camps, dilapidated historic city centres, high-density villages and slums. Forty per cent of the 3 million Palestinians in the occupied Palestinian territories live in housing that is inadequate by any definition.44 Refugees are the most consistently and gravely affected victims of the rekuz (“concentration”) pattern of living preferred by Israeli planners for Palestinians, but additional thousands of non-refugee residents share comparably squalid living conditions. Under present conditions, the proportion and numbers of Palestinians underhoused in the occupied territories are expected to burgeon. 49. The combined factors of the conflict over the past 18 months have caused impoverished families whose houses have been demolished to camp with relatives and neighbours, sharing rents and space, and the economically destitute to seek inadequate temporary housing. This leads to further concentration of people in an already overcrowded space. The Special Rapporteur heard testimony about 16 families living on one floor in Betunia/al-Tirah (West Bank). Social and health problems naturally arise

43

See also Jerusalem Center for Women, “Settler attacks: in the eyes of the women of Jerusalem”, November 2001.

44

Viktoria Waltz, “A Social Orientated Housing Program and Policy for Palestine” (Ministry of Housing, 10 November 1999).

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from such high density and cause secondary forms of suffering for the displaced. That all of these problems have become worse in the currently depressed economic conditions is obvious in both villages and cities, including East Jerusalem.

VIII. Closure, Imposed Economic Depression and Housing 50. Closure of the occupied Palestinian territories has remained a standard practice since 1993, in what is locally known as the “Oslo Phase of Occupation”. During the period under review (from October 2000 to September 2001), the main Gaza crossings were closed to Palestinians 74 per cent of the time. However, nominal openings meant that only 20 per cent of the previously restricted level of 29,000 passages were allowed. Only the Karni/Muntar (commercial) crossing in Gaza remained closed for 8 per cent of the time, while others (Erez/Bayt Hanun and Sufa/Qarara) remained completely closed for 61 per cent of the time.45 51. In the West Bank, the 90,000-100,000 daily passages dropped in the last quarter of 2000 to approximately 20,000 crossings, with some increase in 2001. However, an unknown number of people were entering clandestinely. 52. The Israeli occupation forces closed the international border with Egypt at Rafah 55 per cent of the time, and sealed the borders with Jordan for 56 per cent of the time. Gaza airport remained closed 98 per cent of the time, and Israeli shelling and bombing have damaged and completely closed it.46 In addition to the military closures of the occupied Palestinian territories, Palestinian access to Israeli ports has been restricted by arbitrary and administrative obstructions that have multiplied the costs of processing and storage, as well as by arbitrarily imposed duties and fees. 53. In the Israel-PNA negotiation process between Oslo I and Oslo II, Palestinians lost two of the three safe passage roads originally agreed upon. The only remaining “safe passage” that Israel allowed open was closed on 6 October 2000, and has remained closed ever since. 54. The closure has had devastating effects on the housing sector, including needed construction, as it has become impossible to build in the absence of free movement of personnel and materials. Consequently, investment has decreased and capital has withdrawn from the housing market, while investment resources are being spent to subsidize losses and cover dearer, more immediate needs in terms of dwellings. 55. The manufacture of construction material has fallen to 65 per cent of capacity in the occupied Palestinian territories, owing to transport, storage, raw material and other cost increases. Profits drop and clients with plunging incomes have difficulty paying, so that greater portions of company assets are tied up in accounts receivable, leading to liquidity shortages. The delays and inflation in the Israeli-controlled cement market alone amounted to a US$ 230 million loss for Palestinian companies.47

45

World Bank, op. cit., pp. 9-11.

46

Ibid., pp. 10-11.

47

Ibid., p. 93.

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56. Under present conditions, the Palestinian Legislative Council cannot function and there are other constraints on legal infrastructure redevelopment; the contractual environment is hazardous and repels risk-averse investors, including the banking sector. The Israeli military attacks on and attempts to engage the civil police as if they were “combatants” have weakened law enforcement capacity further coupled with low investor and public confidence in court-based dispute resolution and the general rule of law. Building has declined which causes fiscal crises in many Palestinian municipalities, such as Bethlehem and Jerusalem, that rely not on utilities-use collections, but on building permit fees for revenue to fund local services. 57. Much of donor assistance has been repackaged as “emergency assistance”, or shifted to basic food and other survival services and has shifted away from labour-intensive activities, including construction (which is often a large part of a project).48 With incomes dropping, as many as 50 per cent of families in a recent survey reported delaying payment of an average of three utility bills.49 58. The secondary impacts of the closure have meant a 25 per cent drop in employment in the West Bank in the first quarter of the current uprising period (October 2001). Some later improvement was attributed to emergency donor infusions.50 In certain blighted areas, as in the southern Gaza Strip, as much as 72 per cent of Palestinians are living under the poverty line. The closure has forced many Palestinian residents of the southern Gaza Strip to remain permanently in Gaza City, since they can no longer commute to their source of livelihood. As a result, the increased demand has boosted minimum Gaza City monthly rents to US$ 250. Many local Palestinians seeking housing cannot afford available rental units, and some local Palestinian governmental and non-governmental institutions have provided emergency grants and loans to those hardest hit. 59. The movement of construction materials and personnel has been nearly impossible for international and United Nations redevelopment efforts as well. The closure has inflated the costs of donor-supported projects through the loss of productive time, inflated transportation costs, and road closures and damage, among other factors. The losses measured in either capital stocks or revenue flows reveal a scenario of plummeting resources for livelihood, but these indicators (emerging through available methods) tell only part of the story. 60. Based on the indicators available, it is expected that the general economy would recover to its pre-crisis level in two years only if Israel were immediately to lift all economic constraints from the occupied Palestinian territories and commerce were to develop unimpeded for that biennium.51 The alternative is economic implosion and hardships yet unseen.

48

Ibid., p. 71 and note 95. As much as 66 per cent is typically spent on construction. Constructions projects can have a labour content of 45 per cent.

49

Ibid., p. 41.

50

Ibid., p. 19.

51

Ibid., p. 17 and chap. 5.

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61. The emerging situation is what the World Bank asserts that “all rational participants wish to avoid”. The continuing conditions “would not [be] a sustainable scenario in any conventional sense, and would lead in all probability to a functional collapse of normal civil governance within a year, a reversion from any semblance [of] modern business activity into barter trade and subsistence farming, and a growing dependence on donor food aid, as under such conditions a monetized economy can scarcely function (thus dampening the impact of further conventional donor contributions). Unemployment could climb to about 40 per cent by the end of 2002, poverty rates could reach 60 per cent of the population, and [gross national income] per capita could fall a further 30 per cent, leaving GNP per capita at only half the pre-intifada level.”52

IX.

Refugees

62. Palestinian refugees made homeless as a consequence of war (principally in 1948 and 1967) and interim expulsions remain inadequately housed since their displacement. They are victims of land, home and other property confiscation and large-scale demolition of their villages by Israel. Currently, at least 1,460,396 Palestinian registered refugees and other holders of the right of return (as well as compensation and/or restitution) reside in the territories.53 The majority of these refugees still live in 30 camps created after the 1948 war (8 in Gaza and 22 in the West Bank, including Jerusalem). 63. The Special Rapporteur found the continuing violation of the right of return to be a vivid issue in his meetings with communities, human rights organizations and service providers during his visit. Refugees feel that they are the subjects of continuing violation, while serving as potentially expendable bargaining chips for political purposes outside the rule of law. Although the international community continues to provide services for Palestinian refugees, the refugees and their defenders emphasize also that there is a lack of adequate protection because they do not fall under the 1951 Convention relating to the Status of Refugees, and because the United Nations institution theoretically responsible for protection and restitution (the Palestine Conciliation Commission) is defunct. While it is arguable that the United Nations (and, particularly, the Member State of Israel) also bear a responsibility to provide protection for these civilians, the present suffering of Palestinian refugee victims of house demolitions emphatically demonstrates the failure of the international community to offer Palestinian refugees the minimum rights to which they are entitled. 64. Israel is the primary duty holder for the implementation of the right of return without delay,54 but has demonstrated no will to do so. The Commission and the international

52

Ibid., p. 80.

53

UNRWA figures as of 30 June 2001, including Jerusalem. “UNRWA in Figures” (Gaza: UNRWA Public Information Office, June 2000). The figures are considered to be a “guideline”, as true numbers are likely greater.

54

Under General Assembly resolution 194 (III) of 10 October 1948, para. 11; 2963 (XXVII) D of 13 December 1972; 3089 (XXVIII) of 7 December 1973 and 3236 (XXIX) of 22 November 1974, esp. para. 2; and Security Council resolution 237 (1967) of 14 June 1967.

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community must respond practically within a human rights framework, noting that violations of the right of return increase with the number of rights holders and the values of their potential compensation and restitution claims. It is not a dilemma that will soon recede. In fact, the political and logistical tasks of implementation are made more complicated and difficult with the passing of time and changing demographic conditions.

X.

Misuse And Hoarding Of Water Resources

65. In addition to land, access to safe and sufficient water – including drinking water – is an essential element of adequate housing. Patterns of land use and consumption indicate severe discrimination against Palestinians in access to water throughout the occupied Palestinian territories, and lavish consumption by the occupying population.55 Water is not only an essential human need, but its place in human rights lies at the confluence of human rights and housing, health and food. 66. The Special Rapporteur observed six principle methods of institutionalized Israeli violations of the Palestinian people’s right to water affecting housing and habitat in the occupied Palestinian territories. These involve: (a) Destruction by military and paramilitary (settlers) of Palestinian water sources, pumps, wells and distribution infrastructure; (b) Non-provision of water infrastructure, including networks and facilities for local solutions; (c) Lack of proper maintenance of existing infrastructure so as to prevent leakage and water loss; (d) Outright prevention of Palestinians from drilling and constructing water-delivery facilities, most notably in areas of Jewish settler colonies; (e) Discriminatory distribution and insufficient water supply to Palestinians in areas that the Israeli water utility (Mekorot) controls; and (f) Pollution and contamination of Palestinian acquifers through the combined dumping of lethal waste, hazardous use of chemical fertilizers and overpumping, leading to salinization. 67. The Palestinian use of the Jordan River before 1967 involved the use of some 140 pumping units. Israel either confiscated or destroyed all of those facilities. In addition, Israel closed as military zones the large, irrigated areas of the Jordan Valley used by Palestinians that later were transferred to Jewish settlers. 68. Palestinian entitlements to water include the West Bank and Gaza aquifers, in addition to their rightful shares as riparians of the Jordan River. The West Bank’s hydrological system includes three major aquifers: the western, north-eastern and eastern basins. The annual renewable freshwater yield of this aquifer ranges from 600 million cubic metres (MCM) to 650 MCM.

55

See CESCR concluding observations E/C.12/1/Add.27, op. cit., paras. 10, 24, 32, 41 and E/C.12/1/Add.69, op. cit., paras. 42, 20, 23 and 26.

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69. At present, Israel extracts more than 85 per cent of the Palestinian water from the West Bank aquifers, accounting for about 25 per cent of Israel’s water use. As a result of Israeli imposed restrictions, under typical circumstances (before the intifada), Palestinians use 246 MCM of the water resources to supply nearly 3 million Palestinians in both the West Bank and Gaza Strip with their domestic, industrial and agricultural needs. This compares with Israel’s use of 1,959 MCM for its population of approximately 6 million. That translates into a per capita water consumption by Palestinians of 82 m3 as compared with 326.5 m3 for Israeli citizens and settlers. Figures for daily per capita water use indicate that Israelis – at 350 litres – use five times more than Palestinians (70 litres). In the water-scarce Gaza Strip, Israeli settlers consume 584 litres per day, or about sevenfold the Palestinian per capita consumption there.56 Owing to leakage from undermaintained networks, the actual Palestinian per capita consumption is assumed to be lower than this indicator.57 Both the United States Agency for International Development (USAID) and the World Health Organization (WHO) recommend 100 litres per capita for minimum daily consumption.58 70. By contrast, Israel provides its illegal Jewish settlers with a continuous and plentiful water supply, largely from Palestinian water resources. Much of the administration and distribution of water for urban consumption in the occupied Palestinian territories remains controlled by Israel, especially in the West Bank (56 per cent).59 The supply to Palestinians is intermittent, especially during summer months. At present, over 150 Palestinian villages (population 215,000), and perhaps as many as 282 communities in the West Bank have no direct access to a public water-distribution system.60 When Israel nominally turned over the maintenance of the water sector to the PNA, 20 per cent of the Palestinian residents of the occupied Palestinian territories were not connected to a water network. These factors conspired to raise costs for Palestinians and reportedly have led to a black market in water in the occupied Palestinian territories. 71. Some communities, such as Burin (population 2,002), south-west of Nablus (West Bank), have no independent water supply. The closures and movement restrictions have cut them off completely from any water source. Settlers and uniformed Israeli military destroy cisterns and contaminate collection tanks and damage pumps. Under the pretext of retaliating for resistance, Israeli soldiers have destroyed water supplies of refugee camp families by shooting holes in rooftop cisterns.61

56

B’Tselem, Thirsty for a Solution, position paper (Jerusalem: B’Tselem, 2000), p. 6.

57

Loss could be as much as 25-36 per cent, as explained in ibid., pp. 53-54.

58

United States Agency for International Development, “Report of the West Bank and Gaza Mission” (Washington: USAID, 1999), at and WHO, “Guidelines for Drinking Water Quality” (Geneva: WHO, 1998), at .

59

“Palestinian Water Consumption” in B’Tselem, op. cit.

60

B’Tselem, op cit., cites 150, while the Palestinian Ministry of Planning and International Cooperation (MoPIC) counts 282. MoPIC, Regional Plan for the West Bank Governorates Water and Waste Water Existing Situation (Gaza: PNA, 1998), at .

61

See E/CN.4/2001/30 and B’Tselem, “Not Even a Drop: The Water Crisis in Palestinian Villages without a Water Network” (Jerusalem: B’Tselem, 2001), p. 9.

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72. Aerial photos show the Gaza border as demarcating a land deprived of water. The only significant green area in the northern Gaza Strip east of Bayt Hanun has been the site where the Israeli army recently razed some 26,000 trees.62 Other green areas, such as Mawasi on the south Gaza coast, is one of the sites of intense settler activity and the current subject of Israeli military siege and comprehensive curfew, where adequate housing is one of the gamut of human rights denied to 15,000 Palestinian citizens. 73. The institutionalized nature of the Israeli occupation of Palestinian water resources was further entrenched in the Interim Arrangements with the Palestinian National Authority. Israel has retained the power to veto any water project through the mechanism of the Joint Water Committee and its “Civil Administration”. Although this constitutes a violation of international law with regard to State responsibility, the principle concern of this review is the violation of the right to housing, of which access to safe, clean water is an integral element.

XI.

Environmental Issues

74. The “right to a safe place to live in peace and dignity” cannot be realized without also realizing the right to a safe and clean environment. In the occupied Palestinian territories, however, Israelis dump solid waste without restriction on Palestinian land, fields and side roads. The solid waste generated in West Jerusalem, for example, is transferred to the unsanitary dumping site east of Abu Dis, adjacent to the area where Israel has dumped the serially displaced Jahhalin Bedouin. That site in the West Bank overlays the infiltration area of the eastern sector of the water aquifer, and is adjacent to the area where Israel has forcibly evicted the Jahhalin Bedouin (originally evicted from the Negev, inside the Green Line, in 1979-1980) to transfer their commonly held lands to the sprawling Ma’ale Adumim settler colony. Also, the settler colonies of Ari’el, Innab, Homesh Alon Morieh, Qarna Shamron, Kadumim and others dispose of their solid waste in the West Bank, as do military camps and Israeli settler colonies inside the Green Line. 75. Israeli settler colonies in the West Bank and Jerusalem are typically placed on high ground, serving to enhance strategic domination over, and intimidation of the lowerlying Palestinian towns and villages. While wastewater from many settler colonies is collected and discharged into the nearby valleys without treatment, this also facilitates the settler colonies’ pollution of Palestinian lands. The Special Rapporteur observed that the Kfar Darom Israeli settler colony in the Gaza Strip releases its sewage and chemical waste from the industrial plants into the Palestinian Al-Saqa Valley in the central part of the Gaza Strip. 76. Industrial, chemical and human waste are dumped in the West Bank and Gaza (e.g. near Salfit). A German-funded treatment plant for Salfit was planned in Area C, west

62

The World Bank counts 23,000 by early November 2001. See “One Year of Intifada” op. cit., p. 92. Subsequent figures are taken from the Applied Research Institute of Jerusalem ARIJ (Bethlehem). Special Rapporteur’s meeting with Jad Isaac (ARIJ), Bethlehem, 7 January 2002.

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of Salfit, and the municipality obtained a permit from the civil authority, but only on the condition that the plant be used for the Ariel settler colony’s sewage treatment.63 77. The Israeli Government has constructed at least seven industrial zones in the West Bank and one major centre in Gaza (Erez). The West Bank examples occupy a total area of approximately 302 hectares, located mainly on hilltops, from which they dump industrial wastewater onto adjacent Palestinian lands. Information as to the nature of the enterprises in the Israeli industrial zones is not accessible to the Palestinians. They can only guess on the basis of the liquid waste flowing from the industrial area and from the solid waste found in nearby areas. Palestinian sources estimate that at least 200 Israeli factories operate in the West Bank. Some of the products are identifiable. The aluminum, leather tanning, textile dyeing, battery manufacture, fiberglass, plastics and chemicals industries are among those known to exist within these Jewish settler colonies, but detailed information on quantities produced, and waste generated is not available. 78. The Barqan industrial zone in the West Bank is a clear example of environment pollution. Aluminum, fiberglass, plastics, electroplating and military industries are known to operate inside Barqan. The industrial wastewater flows untreated to the nearby valley and damages agricultural land belonging to the neighbouring Palestinian villages of Sarta, Kafr al Dik, and Burqin, polluting the groundwater with heavy metals. Access and resource problems are leading to deteriorating solid waste collection and disposal, with clear public health consequences.

XII. Conclusions And Recommendations 79. This attempt by the Special Rapporteur to appraise the cumulative damage to the Palestinian home and land validates the assessment of the international community, including the Commission on Human Rights and the United Nations treaty bodies, that Israeli occupation has had a devastating impact on the Palestinians’ housing and living conditions and that Israel bears legal responsibility. The policies of belligerent occupation and collective punishment have been marked by land confiscations, punitive house demolitions, implantation of settlements and settlers, the dismemberment of the Palestinian territories through the building of bypass roads and other infrastructure to serve illegal settlers, and the control or theft of water and other natural resources in the occupied territories. All of these have had the result of consolidating occupation on the lands occupied by force in 1967. 80. The Special Rapporteur commends the work of many local PNA institutions, non governmental organizations and international agencies that have monitored, informed, defended and sought to remedy housing rights violations and improve the living conditions of the Palestinian civilian population in the occupied Palestinian territories under the harshest possible conditions. By no means the least of such efforts have been carried out by all of the United Nations implementing agencies, including UNDP and UNRWA, as well as the World Bank and the European Commission programmes to

63

ARIJ, ibid.

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alleviate poverty and mitigate the impact of Israel’s military occupation. The Special Rapporteur notes, however, that Israel continues to impede the United Nations and other international development operations by closing off access to the United Nations personnel and other international staff, imposing arbitrary restrictions on the movement of materials, unlawful searches and detentions, and even assaults on United Nations staff and vehicles. 81. It is ironic that the methods used to consolidate occupation have accelerated under the guise of the Oslo Peace Accords. Since the massacre of Palestinian civilians at the Noble Sanctuary, however, and the resultant Palestinian resistance marked by the second intifada, the violence of occupation has assumed unprecedented proportions. A particularly destructive strategy has involved the use of missiles, tanks and the Israeli army’s practice of “walking through the walls” used to serially damage homes in the February-March 2002 attacks on the Palestinian refugee camps. 82. The Special Rapporteur therefore concludes that Israel has: (a) Failed to fulfil its obligations under the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of the Child;64 (b) Manipulated the ethnic character of the West Bank (including Jerusalem) and the Gaza Strip through the illegal implantation of settlers and settlements, and denied residency status and family unification to Palestinian Jerusalemites; and (c) Impeded development activities, including those of the United Nations and other international agencies, aimed at fulfilling housing rights and building infrastructure for the Palestinian community. 83. It is in light of these effects of Israeli occupation that the international community of States remains duty bound to intervene to protect the Palestinian community, their homes and lands from further destruction and to ensure that the occupying Power is held to account for breaches of humanitarian law and other treaty obligations so as to ensure restitution of the Palestinian’s human right to housing, including their public and private lands and other natural resources. The Special Rapporteur, therefore, presents the following practical recommendations for the Commission’s consideration: (a) Fulfilment of the right to adequate housing and all other economic, social and cultural rights should constitute a framework for any political initiatives and negotiations towards a resolution of the conflict in Israel and the occupied Palestinian territories and the preservation of regional peace and security;

64

See concluding observations (Israel) of the Committee on the Elimination of Racial Discrimination, CERD/C/304/Add.45; concluding observations (Israel) of the Committee on Economic, Social and Cultural Rights, E/C.12/1/Add.27 of 4 December 1998, with particular reference to the obligations to uphold the right to housing, paras. 10, 21-28 and 41 and concluding observations (Israel), E/C.12/1/Add.69 of 31 August 2001, with reference to housing rights, para. 15; report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (E/CN.4/S-5/3 of 17 October 2000), para. 6.

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(b) In order to restore peace and order, it is imperative that an international protection force (under the jurisdiction of the United Nations) be dispatched to the occupied territories on an urgent basis. Such a force must have as a priority the protection of Palestinian homes and lands from further incursions by Israeli authorities and the safe and unimpeded conduct of the United Nations and other international development efforts within the provisions of international law;65 (c) The occupation should end completely including: (i)

Dismantling of all illegal settlements, including an immediate halt to new Jewish settlement and other outpost planning and construction, expansion of existing settlements and outposts, and planning and construction of bypass roads and tunnels;

(ii)

A moratorium on land confiscations and house demolitions for any purpose, and the cancellation of all existing demolition orders;

(iii)

A halt to further construction of bypass roads, tunnels and other infrastructure for Jewish settlements;

(iv)

Restoration of public and private Palestinian land and properties to their rightful owners;

(v)

A complete halt to, and diligent prosecution of all criminal acts by settlers, particularly the use of firearms, other forms of violence, occupation, theft and damage to homes, lands and infrastructure; and

(vi)

The prompt and complete withdrawal of all Israeli forces and agents from all areas occupied in 1967, in accordance with binding Security Council resolutions;

(d) Immediate respect for and restoration of the economic, social and cultural rights of Palestinians, including their rights to housing, through international cooperation with the Palestinian National Authority and implementation of the Palestinian National Human Rights Plan of Action. International cooperation may also include active involvement of the United Nations Housing Rights Programme, and its lead agencies (OHCHR and UN-HABITAT) to address the grave housing crisis in the occupied Palestinian territories; (e) Reparations66 for the material losses of Palestinian civilian victims based on replacement value, loss of livelihood/income, unauthorized use of property, as well

65

With particular reference to the full implementation of the Convention on the Privileges and Immunities of the United Nations (1946) and the Convention on the Privileges and Immunities of the Specialized Agencies (1947).

66

See, in this context, the Basic principles and guidelines on the right to reparation for victims of [gross] violations of international human rights and humanitarian law, prepared by Mr. Theo van Boven, former Special Rapporteur of the Sub-Commission (E/CN.4/1997/104, annex) and subsequently revised (“Basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights and humanitarian law”) by Mr. Cherif Bassiouni, independent expert of the Commission (E/CN.4/2000/62, annex) for consideration by the Commission.

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as adequate compensation for non-material losses, including the physical and psychological impact of home demolitions and land confiscations and the resulting displacements, including the creation of refugees; (f) The Special Rapporteur suggests that he should continue consulting with official and non-governmental institutions concerned with monitoring the right to housing and, particularly, to work with international and local partners to develop and apply a common methodology for quantifying the losses and costs in cases of housing rights violations.67 This would serve to understand more clearly the consequences, reconstruction priorities and terms of adequate compensation; (g) The Special Rapporteur requests that the Commission call for an assessment of the United Nations operations in the occupied Palestinian territories with a view to providing local capacity in legal affairs to respond to military and other obstacles to civil projects, particularly in view of the fact that it is the Israeli Military Government that controls areas of the occupied Palestinian territories where the United Nations agencies operate, and Israeli breaches of international law require a specialized response beyond the administrative capacity of the United Nations field operations; (h) The Special Rapporteur requests the Commission to authorize another mission to the occupied Palestinian territories that would allow him to continue his monitoring activities on the housing rights situation in the occupied Palestinian territories and report to the Commission and to comply with the Commission’s call in resolution S-5/1 for up-to-date information to be presented to the General Assembly; (i) In light of the grave situation regarding a range of economic, civil, cultural, social and political rights in the occupied Palestinian territories, the Commission may wish to reiterate its request to all relevant thematic special rapporteurs urgently to conduct visits to the occupied Palestinian territories and report to the Commission and to the General Assembly.

67

The Special Rapporteur notes, in particular, the “housing rights barometer/tool kit” developed by the Habitat International Coalition (available at ).

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14. REPORT OF THE SPECIAL RAPPORTEUR OF THE U.N. COMMISSION ON HUMAN RIGHTS, MR. JOHN DUGARD, ON THE SITUATION OF HUMAN RIGHTS IN THE PALESTINIAN TERRITORIES OCCUPIED BY ISRAEL SINCE 1967, SUBMITTED IN ACCORDANCE WITH COMMISSION RESOLUTIONS 1993/2A AND 2002/8 (DECEMBER 17, 2002)*

COMMISSION ON HUMAN RIGHTS Fifty-ninth session Item 8 of the provisional agenda: QUESTION OF THE VIOLATION OF HUMAN RIGHTS IN THE OCCUPIED ARAB TERRITORIES, INCLUDING PALESTINE

Executive Summary In the past year the situation in the occupied Palestinian territory (OPT) has deteriorated substantially from the perspective of human rights. In large measure this is the result of repeated military operations carried out by the Israel Defence Forces (IDF) in the West Bank and Gaza. The IDF has justified its actions as self-defence and anti-terrorism measures. That Israel has legitimate security concerns cannot be denied. That it is entitled to take strong action to prevent suicide bombings and other acts of terror is not disputed. On the other hand, there must be some limits on the extent to which human rights may be violated in the name of anti terrorism. A balance must be struck between respect for basic human rights and the interests of security. The principal balancing factor – proportionality – is the main focus of this report. Neither party to the conflict in the region has paid proper respect to civilian life and the death toll has continued to rise. Since the start of the second intifada in September 2000, over 2,000 Palestinians and over 700 Israelis have been killed. Most have been civilians.

*

U.N. document number E/CN.4/2003/30. Normally, in order to prepare his annual report for the March-April session of the U.N. Commission on Human Rights, the Special Rapporteur makes a trip to the area four months before its is due. This end-of-year report is usually supplemented by an updating addendum written after another visit to the region the following February. However, in the case of the fifty-ninth session of the Commission on Human Rights (2003), the Special Rapporteur was unable to make the follow-up trip in February 2003. Consequently, the text of his updating addendum, U.N. document number E/CN.4/2003/30/Add. 1 (February 27, 2003), simply reads: “Since all United Nations missions to the area have been suspended, for reasons beyond the Special Rapporteur’s control, he will not be presenting an addendum to his report.”


REPORT OF MR. J. DUGARD, ON THE SITUATION OF HUMAN RIGHTS

The IDF military incursion of March to May, code-named Operation Defensive Shield, caused material devastation in many cities – particularly Jenin and Nablus. This was followed by Operation Determined Path in June which resulted in the reoccupation of seven of the eight major cities in the West Bank. Curfews imposed on Jenin, Qalquiliya, Bethlehem, Nablus, Tulkarem, Ramallah and Hebron have subjected over 700,000 persons to a regime similar to house arrest. The curfews are complemented by a system of roadblocks and checkpoints which have effectively divided the West Bank into some 50 separate “cantons”, between which movement is difficult and dangerous. The reoccupation has affected every feature of Palestinian life. There have been shortages of basic foodstuffs; interference with medical services by the denial of access to doctors and hospitals; interruption of family contacts; and stoppages of education. Unemployment has now reached over 50 per cent and 70 per cent of the population live in poverty. In this situation there is a desperate need for humanitarian assistance. It has, however, been suggested that such assistance in effect means that the international donor community funds the military occupation. Military operations have led to widespread arrests and detentions. Children have probably suffered most from the present conflict. Both Palestinian and Israeli children have been exposed to threats to personal safety, while Palestinian children have, in addition, felt the breakdown of family life, health care and education. Israeli territorial expansion has accelerated in the past year as a result of seizure of Palestinian land to build a security wall and for the continued growth of settlements. The report concludes that it is difficult to characterize the Israeli response to Palestinian violence as proportional when it results in an excessive use of force that disregards the distinction between civilians and combatants, a humanitarian crisis that threatens the livelihood of a whole people, the killing and inhuman treatment of children, the widespread destruction of property and territorial expansion.

1.

Introduction

1. The Special Rapporteur visited the occupied Palestinian territory (OPT) and Israel twice in 2002. The first visit, in February, laid the foundation for the report to the Commission on Human Rights at its fifty-eighth session (E/CN.4/2002/32), while the second, in late August, provided the basis for the report to the General Assembly (A/57/366 and Add.1). The present report, written four months before its presentation in order to comply with administrative requirements relating to the submission of reports, will be supplemented by an addendum written after a further visit to the region in February 2002. 2. In 2002 the situation in the region deteriorated substantially from the perspective of human rights. Repeated Israeli military operations in the West Bank and Gaza have left physical, economic and social devastation in their wake. This devastation, coupled with the curfews imposed in the major Palestinian cities and the intensification of checkpoints that obstruct mobility between towns and villages have brought about a humanitarian crisis which has added poverty to the woes of the Palestinians. The serious violation of economic, social and cultural rights has been accompanied by the continued violation of civil rights and international humanitarian law. The death toll in 528


both Palestine and Israel has risen sharply, largely as a result of indiscriminate suicide bombings in Israel and the excessive use of force against civilians by the Israel Defence Forces (IDF) in Palestine. Detentions, inhuman treatment and the destruction of property have also multiplied. Meanwhile, Jewish settlements in the West Bank and Gaza continue to grow despite unanimous international condemnation and assurances from the Government of Israel that restrictions have been placed on such growth. 3. Much will happen in the region between the writing of this report and its presentation in March 2003. Elections in Israel and, possibly, Palestine are anticipated early in 2003, and the threat of war in Iraq remains a reality. The effect of events of this kind, and the consequences of the ongoing violence, are impossible to predict with accuracy. One prediction, however, seems sure: the situation will deteriorate further unless, miraculously, serious negotiations between Israelis and Palestinians resume.

I.

Human Rights And Terrorism

4. Many of the rights contained in the Universal Declaration of Human Rights and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights have been violated by IDF in their actions against the Palestinian people. Many of the obligations of international humanitarian law have likewise been violated. That this is so is not seriously contested by Israel. Loss of life, inhuman and degrading treatment, arbitrary arrest and detention without trial, restrictions on freedom of movement, the arbitrary destruction of property, the denial of the most basic economic, social and educational rights, interference with access to health care, the excessive use of force against civilians and collective punishment are instead justified as self-defence and legitimate anti-terrorism action. That Israel has legitimate security concerns cannot be denied. That it is entitled to take strong action to prevent suicide bombings and other acts of terror is not disputed. On the other hand, there must be some limits on the extent to which human rights may be violated in the name of antiterrorism action. Even in the present international environment, in which anti-terrorism measures challenge old liberties and freedoms, it is not denied that a balance must be struck between respect for basic human rights and the interests of security. 5. In searching for this balance many factors must be considered, including the causes of the terrorism, the possibility of achieving a peaceful end to terrorism by addressing its causes, and the proportionality of the response taken to the acts of terrorism. The Special Rapporteur remains convinced that Israel’s military occupation of the Palestinian territory is a major cause of terrorism and that the ending of the occupation is politically achievable. The Government of Israel has previously condemned these assessments as political judgements falling outside themandate of the Special Rapporteur. Consequently, the principal balancing factor – proportionality – will be the main focus of this report. The violation of human rights and international humanitarian law will be described and the question asked whether the measures taken by Israel to defend itself can legitimately be said to fall within the bounds of proportionality. It is not possible to adopt an armchair attitude in making this assessment. Israel is entitled to a wide margin of appreciation in its response. But, even allowing for this, it may be that Israel’s response to terror is so disproportionate, so remote from the interests of security, that it assumes the character of reprisal, punishment and humiliation. 529


II.

Loss Of Life And The Killing Of Civilians

6. For both human rights law and international humanitarian law the protection of human life is the primary goal. Article 6, paragraph 1, of the International Covenant on Civil and Political Rights states that “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” While accepting that combatants engaged in an armed conflict will be exposed to life-threatening situations, international humanitarian law seeks to limit harm to civilians by requiring that all parties to a conflict respect the principles of distinction and proportionality. The principle of distinction, codified in article 48 of the Additional Protocol I to the Geneva Conventions of 1949, requires that “the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited (art. 51, para. 2). The principle of proportionality codified in article 51, paragraph 5 (b) prohibits an attack on a military target which may be expected to cause incidental loss of civilian life, injury to civilians and damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated. That these principles apply to both Israelis and Palestinians was confirmed by the High Contracting Parties to the Fourth Geneva Convention when, in a declaration issued on 5 December 2001, they called on both parties to the conflict to: “… ensure respect for and protection of the civilian population and civilian objects and to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives. They also call upon the parties to abstain from any measures of brutality and violence against the civilian population whether applied by civilian or military agents and to abstain from exposing the civilian population to military operations.1 7. Sadly, neither party to the conflict in the region has paid proper respect to these principles as the death toll has continued to rise. Since the start of the second intifada in September 2000, over 2,000 Palestinians and over 700 Israelis have been killed and 25,000 Palestinians and 4,700 Israelis have been injured. Most have been civilians. 8. Within Israel, most deaths have been caused by suicide bombers who have carried their lethal weapons of destruction onto buses and into busy shopping centres. Israel has been subjected to more than 1,100 terrorist attacks since September 2000. Between March and June 2002, when there was a spate of suicide bombings in Israel, more than 250 Israelis were killed, of whom 164 were civilians and 32 children.2

1

Declaration issued by the participating High Contracting Parties to the reconvened Conference of High Contracting Parties to the Fourth Geneva Convention, 5 December 2001, paragraph 8.

2

Amnesty International, Israel and the Occupied Territories and the Palestinian Authority: Without Distinction: Attacks on Civilians by Palestinian Armed Groups (AI Index: MDE 02/003/2002), July 2002.

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Despite condemnation from the Palestinian Authority and prominent Palestinian community leaders – and the international community – this instrument of terror, which shows no regard for either the principle of distinction or that of proportionality, continues to be used by paramilitary Palestinian groups.3 9. IDF, well educated in the rules of international humanitarian law, have likewise shown little regard for the principles of distinction or proportionality. Military incursions into the West Bank and the reoccupation of Palestinian towns and cities in 2002 resulted in heavy loss of civilian life. According to Amnesty International, in the four months between 27 February and the end of June 2002 – the period of the two major IDF offensives and the reoccupation of the West Bank – IDF killed nearly 500 Palestinians. Although many Palestinians died during armed confrontations many of these killings by IDF appeared to be unlawful and at least 16 per cent of the victims – more than 70 – were children.4 10. Disregard for civilian life was evident in Operation Defensive Shield, in March and April 2002, in which the refugee camp of Jenin and the city of Nablus were subjected to heavy bombardment from air and land before IDF troops entered, employing bulldozers to facilitate their movement and allegedly using Palestinian civilians as human shields against snipers. Of the 80 persons killed in Nablus, 50 were civilians, and of the 52 killed in Jenin, 22 were civilians. Since November 2000, IDF has targeted and killed a number of selected militants in precision bombings. These assassinations have often been carried out, however, with no regard for civilians in the vicinity. Of the 179 persons killed in such actions, at least one third have been civilians. The following incident starkly illustrates the manner in which such attacks have sometimes been made. On 22 July, IDF carried out a late night air strike aimed at Hamas military leader Salah Shehada while he was in a densely populated residential area of Gaza City; the raid killed 15 persons (including 9 children) and injured over 150 others. 11. No attempt is made to seek an equivalence between civilian deaths caused by suicide bombings carried out by non-State actors, where civilians are deliberately targeted, and civilian deaths that result from “collateral damage” in military action carried out by a State actor with reckless disregard for human life. Terror bombings and military offensives in civilian areas conducted without adequate regard for the safety of civilians serve completely different purposes. But the result is the same: loss of innocent civilian lives. From a moral perspective both are reprehensible: the former, because they deliberately disregard the lives of innocent civilians; the latter because they recklessly disregard human life.

3

See Human Rights Watch, Erased in a Moment: Suicide Bombing. Attacks against Israeli Citizens (October 2002), for a full account of the impact of suicide bombings on Israeli society.

4

Amnesty International, Israel and the Occupied Territories: Shielded from Scrutiny: IDF Violations in Jenin and Nablus (AI Index: MDE 15/143/2002), November 2002.

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III.

The Humanitarian Crisis Caused By Military Occupation

12. In the past year Palestinian society has been subjected to a military occupation that has damaged, possibly beyond repair, political institutions, commercial enterprises, public services, hospitals, schools, families and lives. The IDF military incursion of March to May, code-named Operation Defensive Shield, caused material devastation in many cities – particularly Jenin and Nablus. This was followed by Operation Determined Path in June which resulted in the reoccupation of seven of the eight major cities in the West Bank and adjoining refugee camps and villages. Curfews imposed on Jenin, Qalquiliya, Bethlehem, Nablus, Tulkarem, Ramallah and Hebron have subjected over 700,000 persons to a regime similar to house arrest which confines them to their homes, except every third or fourth day when the curfew is lifted for several hours to allow residents to obtain essential supplies. The curfew is strictly enforced by IDF and there have been many incidents of shooting of civilians who failed to observe the curfew. By October 2002 15 civilians, mainly children, had been shot dead by IDF soldiers enforcing curfews. Curfews have been lifted and reimposed according to the security situation. In September 2002, 688,000 Palestinians in 39 towns, villages and refugee camps in the West Bank were confined to their homes under curfew for varying numbers of days. 13. Military action and curfews are not the only instruments of repression. Military checkpoints and roadblocks complement these instruments. There are some 300 roadblocks of which 120 are manned. According to the ex-Minister of Defence, Benjamin BenEliezer, “The directive of the Military Command is to freeze all traffic on West Bank roads, including taxis, buses, private vehicles and others according to security needs.”5 The “freezing” of traffic on the West Bank has resulted in the strangulation of Palestinian society as the West Bank is now effectively divided into some 50 separate “cantons” and movement between them is both difficult and dangerous. Checkpoints are largely manned by young soldiers who are given arbitrary power to allow or refuse vehicles and pedestrians permission to continue their journeys. 14. Humanitarian considerations are often not taken into account by those manning checkpoints. Vehicles carrying humanitarian aid are stopped and searched, with resulting delays. Still worse, ambulances are sometimes denied access to hospitals or delayed unnecessarily, with resulting loss life. In November, IDF first shot United Nations Relief and Works Agency for Palestine Refugees in the Near East official John Hook and then allowed him to bleed to death by denying the ambulance carrying him access to a hospital in time. 15. Equitable access to scarce water resources is a central feature of the Palestine-Israel conflict. According to the Humanitarian Plan of Action 2003 for the Occupied Palestinian Territory compiled by the United Nations Technical Assessment Mission of October 2002:

5

Reported in Ha’aretz, 4 November 2002 (Danny Rubinstein, “A Land of Roadblocks and Barriers”).

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“In the West Bank alone, more than 200,000 people who depend on supplies brought in by water tankers are left without adequate water supply for long periods because of curfews and closures. In addition to problems caused by access, a number of water systems (water pipes, pumps and wells) were destroyed by the IDF during ‘Operation Defensive Shield’ and the ongoing reoccupation of the Palestinian self-rule Areas. Furthermore, a sizeable number of wells and reservoirs in rural areas have been damaged, destroyed or made inaccessible because of violence. A number of the West Bank villages adjacent to Israeli settlements have been and are currently suffering from recurrent closures of main valves on their water networks.”6 16. The reoccupation has affected every feature of Palestinian life. There have been shortages of basic foodstuffs, interference with medical services by the denial of access to doctors and hospitals, interruption of family contacts and stoppages of education. Municipal services, including water, electricity, telephones and sewage removal, have been terminated or interrupted, and IDF has denied permission to repair damaged municipal service supply units. There has also been a near complete cessation of productive activity in manufacturing, construction and commerce as well as private and public services, which has had serious consequences for the livelihood of most of the population. 17. Unemployment, which stood at 9 per cent in September 2002, has now reached 50 per cent, 60 per cent or 80 per cent in different areas. Poverty, defined as living on less than US$ 2 per day per capita, is at 70 per cent. A total of 1.8 million Palestinians receive food aid or other forms of emergency humanitarian support from a variety of sources, notably UNRWA, the World Food Programme and the International Committee of the Red Cross. (And, sadly, to add to the woes of the Palestinians, settlers have stolen their olive crops in some areas.) Twenty two per cent of children under the age of five suffer from acute or chronic malnutrition, while 20 per cent suffer from iron-deficiency anaemia. Mental health problems have increased alarmingly among children. Health care has suffered drastically as a result of the unavailability of medication and the inability to reach health centres. As usual, the situation in the refugee camps is particularly bleak, as was evident when the Special Rapporteur visited the Balata refugee camp near Nablus in August. 18. Many provisions of the International Covenant on Civil and Political Rights have been violated by the reoccupation, notably articles 6 (right to life), 7 (freedom from inhuman and degrading treatment), 9 (freedom from arbitrary arrest), 12 (freedom of movement) and 17 and 23 (right to family life). But it is the economic, social and cultural rights of Palestinians that have suffered most as a result of the reoccupation. The right to work and to earn a living (International Covenant on Economic, Social and Cultural Rights, arts. 6 and 7), to adequate food, clothing and housing (art. 11), to physical and mental health (art. 12), and to education (art. 13) are meaningless in a society subject to curfew and closure. How action that causes so much suffering to so many can ever be seen as a proportional response to terrorism is beyond comprehension.

6

Humanitarian Plan of Action 2003 for the Occupied Palestinian Territory, United Nations, New York and Geneva, November 2002, p. 30.

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IV.

The Dilemma Of Humanitarian Assistance

19. The law governing occupation, reflected in international custom, the Hague Regulations Respecting the Laws and Customs of War on Land of 1907 and the Fourth Geneva Convention, is designed to ensure that, notwithstanding the security needs of the occupying Power, the day to-day lives of civilians in an occupied territory will continue normally. In today’s world, this means that civilians must have adequate food, shelter, electricity and water; that municipal services such as garbage and sewage removal will continue; that the sick will have access to proper medical care; and that education will not be obstructed. 20. The Fourth Geneva Convention elaborates on the responsibility of the occupying Power to ensure that the basic needs of the inhabitants of an occupied territory are provided. It imposes obligations on the occupant to ensure “the food and medical supplies of the population” and to “bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate” (art. 55); to ensure and maintain “the medical and hospital establishments and services, public health and hygiene in the occupied territory” (art. 56); and to facilitate “the proper working of all institutions devoted to the care and education of children” (art. 50). Moreover, article 60 provides that “[r]elief consignments shall in no way relieve the Occupying Power of its responsibilities under Articles 55 [and] 56”. Obligations to provide postal services, telecommunications and transport and to maintain public welfare institutions may also be inferred from the Fourth Geneva Convention and the Hague Regulations.7 Together, these provisions amount to an obligation on the occupant to establish an adequate civil administration in an occupied territory. 21. In terms of the Oslo Accords, the responsibility for civil administration in the West Bank and Gaza was transferred to the Palestinian Authority. Today, however, the identity of the authority responsible for the civil administration of the West Bank and Gaza is not so clear. The military operations of 2002 have effectively destroyed much of the infrastructure of the Palestinian Authority. Electricity and water supplies have been cut, municipal services terminated, access to food denied, health care obstructed and education seriously interrupted. Consequently, responsibility for the civil administration of OPT would seem to have shifted to Israel. Israel has, however, made it clear that, although it anticipates a prolonged occupation, it does not intend resuming responsibility for the civil administration of the territory.8 22. The current situation is untenable. Israel cannot, in terms of international humanitarian law, deny the Palestinian Authority the capacity to provide an adequate and functioning civil administration, and at the same time refuse to accept any responsibility for such an administration itself. In law, it is obliged either to assume this responsibil-

7

M. Greenspan, The Modern Law of Land Warfare, Berkeley, CA, University of California Press, 1959, pp. 230-235. See, too, E. Benvenisti, The International Law of Occupation, Princeton, NJ, Princeton University Press, 1993.

8

See the statements by Mr. Ben-Eliezer, Minister of Defence, and Major General Amos Gilad reported in the International Herald Tribune, 24 June 2002.

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ity or to permit the Palestinian Authority to provide the services that comprise an adequate civil administration. There is a heavy burden on all parties to the Fourth Geneva Convention to take measures to ensure the restoration of a proper civil administration in the Palestinian territory in accordance with their obligation under article 1 of the Convention “to ensure respect” for the Convention “in all circumstances”. 23. The international community’s response has been to provide humanitarian aid itself, rather than insist on Israel’s duty to provide such relief. Undoubtedly this is the only possible response in the present crisis. If the international community does not respond generously by providing humanitarian assistance, the Palestinian people will suffer irremediable harm. The Special Rapporteur therefore endorses, and adds his own voice to, calls for humanitarian assistance from the international community. 24. At the same time, it must be made clear that, by providing aid of this kind, the international donor community relieves Israel of the burden of providing such assistance itself and in this way might be seen to be contributing to the funding of the occupation. This dilemma was considered by the United Nations Technical Assessment Mission in October 2002 which in the Humanitarian Plan of Action 2003 for the Occupied Palestinian Territory stated: “In presenting its plans, the mission was acutely aware of the central dilemmas before it. At its most fundamental, this is whether to respond to growing needs of the civilian population at all. Many of the Palestinians and donors the mission spoke with argued that, by meeting these needs, the international community would be ‘financing the occupation’ and enable Israel to continue its current policies. It would de facto relieve Israel of its own responsibilities, as the Occupying Power, to ensure adequate supplies of food, medicines and other basic needs for the population under its occupation. At the same time, not to meet urgent needs of the population when the international community has some capacity to do so, and when Israel is unwilling to do so, would doubly punish the civilian population – and fly in the face of the humanitarian imperative to save lives and protect the victims of conflict. Absent political decisions to address the causes of this humanitarian emergency, the international aid community thus has no choice but to help relieve suffering as the crisis continues to deepen.”9

V.

Destruction Of Property

25. It is the Israeli policy and practice of destroying property – residential homes, commercial buildings, Palestinian Authority offices, olive trees and agricultural property – that raise the most serious questions about Israel’s willingness to respond proportionately to Palestinian violence.

9

Op. cit., p. 2.

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26. For the first 18 months of the second intifada the Gaza Strip was the main target of Israel’s policy of destruction. Hundreds of homes in the refugee camps of Khan Yunis and Rafah were reduced to rubble, buildings in Gaza City were bombed and fertile agricultural land “swept” by bulldozers to create wasteland buffer zones for roads specially reserved for settlers. Commenting on this action B’Tselem (The Israeli Information Center for Human Rights in the Occupied Territories) comments: “Examination of the circumstances in which Israel implemented its policy – the extreme magnitude of the house demolitions, the uprooting of trees, the destruction of agricultural fields, the manner in which Israel chose to implement its policy – clearly and unequivocally indicate that these contentions [that the damage caused by IDF was proportional and justified by military necessity] are baseless. The injury to the civilian population was excessive in proportion to the military advantage that Israel ostensibly sought to achieve by implementing this policy. … “A policy that harms thousands of innocent people and whose consequences are so horrendous and long lasting constitutes collective punishment, which is forbidden by international humanitarian law”.10 27. In 2002 it was the turn of the cities in the West Bank for destruction of property as IDF launched offensives against Jenin, Nablus and Ramallah following a spate of suicide bombings in Israel. Statistics, reports of non-governmental organizations (NGOs) and the Special Rapporteur’s own observations in August strongly suggest that retribution and punishment guided IDF action rather than military necessity and regard for the principle of proportionality. 28. During Operation Defensive Shield, from 29 March to 7 May, 800 dwellings were destroyed in Jenin leaving 4,000 people homeless. Losses were estimated by the World Bank at US$ 83 million. According to Amnesty International much of the destruction of the Jenin refugee camp occurred after 11 April, after the last group of Palestinian fighters had surrendered. In the opinion of its delegate, Major David Holley: “There were events post 11 April that were neither militarily justifiable nor had any military necessity: the IDF levelled the final battlefield completely after the cessation of hostilities. It is surmised that the complete destruction of the ruins of battle, therefore, is punishment for its inhabitants.”11 29. In Nablus 64 buildings in the Old City, including 22 residential buildings, were completely destroyed or badly damaged, and a further 221 buildings partially damaged. Repair costs were estimated by the World Bank at US$ 114 million. According to Amnesty International:

10

Policy of Destruction. House Demolitions and Destruction of Agricultural Land in the Gaza Strip, February 2002, pp. 32, 35.

11

Amnesty International, op. cit. at note 4, p. 41.

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“A number of religious or historical sites were partially destroyed or severely damaged in what frequently appeared to be wanton destruction without military necessity.”12 30. Refugees were the hardest hit in the military offensives of 27 February to 17 March and 29 March to 7 May. Over 2,800 refugee housing units were damaged and 878 homes destroyed or demolished, leaving 17,000 persons homeless or in need of shelter rehabilitation. The World Bank estimates that Operation Defensive Shield caused physical damage amounting to US$ 361 million in the West Bank as a whole, compared with the US$ 305 million caused by damage in the first 15 months of the second intifada.13 Private businesses suffered the most (US$ 97 million), followed by housing (US$ 66 million), roads (US$ 64 million) and cultural heritage sites (US$ 48 million). 31. In the past, there has often been a disciplined, retributive approach to the destruction of property. The destruction of property in Operation Defensive Shield, however, had a wanton character that surprised even the harshest critics of IDF. In many houses entered by IDF, soldiers broke holes through the walls in order to reach neighbouring houses. Sometimes, holes were made from one apartment to another where it was possible for soldiers to have entered from a veranda or window. Worse still, there were reports of vandalism, of wanton destruction of televisions and computers in homes, schools and office buildings and of looting.14 32. The demolition of the homes of families as punishment for crimes committed against Israel by a family member has long been an Israeli practice. In August, the Israeli High Court denied judicial review in such cases, as had previously been the position, thereby giving military commanders complete discretion to order the demolition of houses. Since then the demolition of the homes of suicide bombers and Palestinian militants has accelerated. In many instances the families of militants had been unaware of their activities, but they were punished nonetheless. Between July and November 61 homes were demolished, leaving more than 500 persons homeless, more than 220 of them children. 33. Collective punishment is a serious violation of international humanitarian law. Article 50 of the Hague Regulations of 1907 contains a prohibition on such conduct as does article 33 of the Fourth Geneva Convention, which provides that “No protected person may be punished for an offence he or she has not personally committed”. Moreover, article 147 of the Fourth Geneva Convention criminalizes, as constituting grave breaches under international law, the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”.

12

Ibid., p. 57.

13

International Herald Tribune, 16 May 2002.

14

Amnesty International, Israel and the Occupied Territories: The Heavy Price of Israeli Incursions, 12 April 2002.

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VI.

Detentions

34. The assaults on Palestinian towns in March and April in Operation Defensive Shield and subsequent military operations in the West Bank resulted in widespread arrests and detentions. In the period between 29 March and 5 May alone, some 7,000 Palestinians were arrested. In many towns and refugee camps, all males between the ages of 16 and 45 were arrested. Most were held for several days only. Arrests of this kind constitute a form of collective punishment as in most instances there is no regard for the personal responsibility of those arrested. In many cases, arrested persons were subjected to humiliating and inhuman treatment. They were stripped to their underpants, blindfolded, handcuffed, paraded before television cameras, insulted, kicked, beaten and 1detained in unhygienic conditions. Those not released have been held without trial or access to a lawyer. Some are held in administrative detention; others are held under the terms of Military Order 1500, issued on 5 April to permit lengthy detention of those arrested since 29 March. There have been widespread allegations of torture, consisting of sleep deprivation, severe beating, heavy shaking, painful shackling to a small chair, subjection to loud noise and threats of action against family members.

VII. Deportation/Assigned Residence 35. On 3 September, the Israeli High Court of Justice issued a ruling allowing the deportation of two Palestinians from their home town of Nablus to the Gaza Strip on the ground that they had allegedly assisted their brother (extrajudicially executed by Israeli forces on 6 August) to commit attacks against Israelis. The Court held that, although every person has a basic right to retain his place of residence, article 78 of the Fourth Geneva Convention recognizes that there are circumstances in which this right may be overridden. Article 78 of the Fourth Geneva Convention provides: “If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment.” The Court further held that in the circumstances of the case, the preconditions set out in article 78 were fulfilled. The West Bank and the Gaza Strip were to be regarded as one territory subject to a belligerent occupation, and therefore the case did not involve the transfer of a person outside the area subject to the belligerent occupation. For this reason the Court held that article 49 of the Fourth Geneva Convention prohibiting deportation to the territory of the occupying Power or to that of another country was not applicable.

VIII. Children In The Conflict 36. Children have probably suffered most from the present conflict. Both Palestinian and Israeli children have been exposed to threats to personal safety; while Palestinian children have, in addition, felt the breakdown of family life, health care and education. In his report to the Commission in March 2002 (E/CN.4/2002/32, paras. 40-53), the Special Rapporteur drew attention to the plight of Palestinian children, particularly 538


those arrested and detained, and appealed to the Israeli authorities to investigate allegations of inhuman treatment. Sadly, there has been no response to this appeal. Since then UNICEF and NGOs such as Defence for Children International15 and Amnesty International16 have likewise addressed the suffering of children and appealed to all groups involved in the conflict to protect children. On 15 November 2002 the Third Committee of the General Assembly adopted a draft resolution in which the Committee, concerned that Palestinian children under Israeli occupation remain deprived of many basic rights under the Convention on the Rights of the Child, stressed the urgent need for Palestinian children “to live a normal life free from foreign occupation, destruction and fear, in their own State” and called upon the international community “to provide urgently needed assistance in an effort to alleviate the dire humanitarian crisis being faced by Palestinian children and their families”. 37. Over 400 Palestinian and 100 Israeli children have been killed since September 2000 and thousands seriously injured. Israeli children have mainly been killed in suicide bombings and attacks on settlements. Palestinian children have often been shot and killed in stone-throwing assaults on IDF but in most cases, particularly in the past year, Palestinian children have been killed when IDF randomly opened fire, shelled or bombarded residential neighbourhoods at times when there was no exchange of fire and in circumstances in which the lives of IDF soldiers were not at risk. Others have been killed in the course of the assassination of Palestinian militants, when vehicles or houses have been subjected to missile attack. The loss of children’s lives is often simply dismissed as “collateral damage”. The evidence seems to indicate that neither IDF nor Palestinian militant groups have shown concern for children’s lives. 38. Over 1,500 Palestinian children under the age of 18 have been arrested and detained since September 2000 in connection with crimes relating to the uprising. Most have been arrested on suspicion of throwing stones at Israeli soldiers. On 28 August, Defence For Children International reported that 350 children were detained by the Israeli authorities, 15 being held in administrative detention. During the period March to May some 700 children were arrested and detained, albeit for short periods. As stated in the report to the Commission (paras. 48-53), there are serious reports of torture and inhuman treatment of juveniles while they await trial or after they have been imprisoned. Whether torture is justified in the case of the “ticking bomb” scenario remains a question of debate within Israel. This debate is, however, irrelevant to the treatment of children arrested for stone-throwing. There can be no justification, legally or morally, for the torture or inhuman treatment of children. 39. Military offensives and curfews severely disrupted the education of Palestinian children during the spring and summer of 2002. After the start of the new school year in September the situation remained serious, although most children had either returned to school or were receiving alternative schooling. UNICEF reported in October that more than 226,000 children and over 9,300 teachers were unable to reach their regular class-

15

Violations of Children’s Rights Stemming from the Israeli Occupation (August 2002).

16

Israel and the Occupied Territories and the Palestinian Authority: Killing the Future. Children in Line of Fire, MDE 02/005/2002 (October 2002).

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rooms owing to IDF-imposed restrictions on movement. Moreover, over 580 schools had been closed because of military curfews and closures. This has resulted in the creation of a substitute schooling system in which children are taught at homes or in mosques. Many parents are unable to send their children to school. According to UNICEF some 317,000 Palestinian schoolchildren are in desperate need of financial assistance. 40. The humanitarian crisis resulting from repeated military incursions, house demolitions, curfews and closures has left its mark on Palestinian children. Thousands have been rendered homeless; two thirds live below the poverty line; 22 per cent under the age of 5 suffer from malnutrition; and most have been psychologically traumatized. Children, who comprise 53 per cent of the Palestinian population, live in a hostile environment resulting from Israel’s military occupation in which they are continuously exposed to life-threatening attacks, deprived of a proper family life, adequate nutrition and health care, denied a normal education and, frequently, confined to their homes in time of curfew. Such treatment inevitably engenders hatred of the military occupant which augurs ill for the future.

IX.

Territorial Expansion: The Wall And Settlements

41. The prohibition on the acquisition of territory by the use of force, even where force has been used in self-defence, is an accepted principle of international law (see the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV)). This explains why the international community has consistently refused to recognize Israel’s annexation of East Jerusalem (Security Council resolution 478 (1980)) and the Golan Heights (Security Council resolution 497 (1981)). When territorial expansion occurs openly, as in the case of the purported annexation of East Jerusalem and the Golan Heights, the response of the international community, speaking through the United Nations, has been clear and firm. The response to Israel’s present annexation by stealth has not, however, received the same strong condemnation. The wall 42. The erection of a security wall between Israel and OPT is widely portrayed as a security measure. Had the wall strictly followed the Green Line marking the 1967 borders between Israel and OPT, it might have been possible to confine the debate over the wall to the question whether a security wall of that kind would achieve its purpose. But when it is intended that the wall encroach deeply upon Palestinian territory, enclosing an estimated 7 per cent of Palestinian land, including fertile agricultural land, water resources and villages, it is difficult to resist the conclusion that it is a case of de facto annexation in which the security situation is employed as a pretext for territorial expansion. Settlements 43. Settlements may be seen as another part of this strategy. The international community has made it clear that the settling of members of Israel’s own civilian population in OPT violates article 49, sixth paragraph, of the Fourth Geneva Convention and has repeatedly called on Israel to “freeze” settlement growth pending a peace settlement 540


which will result in the dismantling of all settlements. Israel’s response that it will limit the expansion of settlements to “natural growth” is now widely seen to be untrue. Indeed, it is the continued growth in the number of settlers (5.6 per cent since January 2001), the expansion of settlements (by the devious method of redrawing the boundaries of existing settlements by establishing outposts on these settlements) and the financial incentives to settle in OPT that brought about the collapse of the Government coalition between Likud and Labour. It is now clear that the Government of Israel is unwilling to dismantle illegal settlements and is determined to encourage new settlers and settlements. In November, following a gun battle between Palestinians and Israelis in Hebron, which left 12 Israeli security officers dead, the Government announced that it would allow the construction of a new settlement to link Kiryat Arba, a settlement near Hebron with a population of about 7,000 residents, with the Jewish enclave in Hebron, accommodating 450 settlers. 44. It will no doubt be argued that comment on territorial expansion by means of the “Great Wall”, settlements, and the wide security roads that link settlements with each other and Israel does not fall within the Special Rapporteur’s “human rights mandate”. This is not so. Territorial expansion is of concern to international humanitarian law and human rights law for three reasons: first, because the settlements violate the Fourth Geneva Convention; second, because Israeli territorial expansion and the territorial fragmentation of OPT by settlements interferes with the right of the Palestinian people to self-determination; third, because actions of this kind raise serious questions about the genuineness of Israel’s claim that it conducts a proportional response to Palestinian violence. Territorial expansion, accompanied by the influx of new settlers, can hardly be seen as a proportional response to terror.

X.

Conclusion: Proportionality Revisited

45. It is not the function of the Special Rapporteur to pronounce judgement on the proportionality of measures taken by Israel in response to Palestine violence. This is a matter for the Commission on Human Rights or the Security Council to decide. The task of the Special Rapporteur is simply to raise the issues that should be considered on this subject. 46. As has already been said, Israel has legitimate security concerns. Its right to respond to terror attacks and to prevent further attacks cannot be disputed. When this response takes the form of life-threatening military action against militants and their bases, few will question the military necessity of such action or the link between attack and response. But when this action results in an excessive use of force that disregards the distinction between civilians and combatants, a humanitarian crisis that threatens the livelihood of a whole people, the killing and inhuman treatment of children, the widespread destruction of property and territorial expansion, serious questions must be asked about the proportionality of Israel’s response and the boundaries of military necessity.

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15. CONCLUDING OBSERVATIONS OF THE COMMITTEE ON THE RIGHTS OF THE CHILD: ISRAEL (OCTOBER 9, 2002)*

COMMITTEE ON THE RIGHTS OF THE CHILD Thirty-first session CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 44 OF THE CONVENTION Concluding observations: Israel 1. The Committee considered the initial report of Israel (CRC/C/8/Add.44) which was received on 20 February 2001, at its 829th and 830th meetings (see CRC/C/SR.829 and 830) held on 2 October 2002, and adopted at its 833rd meeting (CRC/C/SR.833) held on 4 October 2002, the following concluding observations.

A.

Introduction

2. The Committee notes that the initial report (submitted over seven years after it was due) follows the guidelines for reporting, is very elaborate, analytical and, in some parts, self-critical. Given the responsibility of the State party for the implementation of the Convention in the occupied Palestinian territories, the Committee deeply regrets the lack of any information about the situation of children in the occupied Palestinian territories. The Committee appreciates the additional material that was provided prior to and during the discussion and the informative written replies which were submitted. The Committee also appreciates the presence of a well-qualified and cross-sectoral delegation, which contributed to a better understanding of the process of implementation of the Convention in the State party.

B.

Positive aspects

3. The Committee welcomes: (a) The establishment and work of the Rotlevy Committee on Children and the Law and the various parliamentary committees dedicated to advancing the rights of children, including the Committee on Legislation for Children and the Committee for the Advancement of the Status of the Child, as well as the establishment of local status of children committees at the municipal level;

*

U.N. document number CRC/C/15/Add.195 (Concluding Observations/Comments). The Convention on the Rights of the Child is abbreviated as “CRC.”


CONCLUDING OBSERVATIONS OF THE COMMITTEE ON THE RIGHTS OF THE CHILD

(b) The enactment of progressive legislation, including the 2002 law on information regarding the influence of legislation on children’s rights, and laws on minor victims’ rights and legal assistance for children; (c) The prohibition of corporal punishment in homes, schools and other institutions. (d) The active involvement of civil society in the promotion and protection of human rights in the State party, including through public-interest litigation, and the many court rulings based upon the articles of the Convention; (e) Affirmative-action programmes for education of Israeli Arabs; (f) The various measures taken to support families in need (e.g. single-parent families).

C.

Factors and difficulties impeding the implementation of the Convention

4. In the present context of violence, the Committee recognizes the difficulties of the State party in fully implementing the Convention. Amidst continuing acts of terror on both sides, especially the deliberate and indiscriminate targeting and killing of Israeli civilians, including children, by Palestinian suicide bombers, the Committee recognizes the climate of fear which persists and the State party’s right to live in peace and security. At the same time, the Committee recognizes that the illegal occupation of Palestinian territory, the bombing of civilian areas, extrajudicial killings, the disproportionate use of force by the Israeli Defence Forces, the demolition of homes, the destruction of infrastructure, mobility restrictions and the daily humiliation of Palestinians continue to contribute to the cycle of violence.

D.

Principal subjects of concern and recommendations 1.

General measures of implementation

5. The Committee emphasizes that a peaceful and stable future for children in the region can only be achieved on the basis of international human rights and humanitarian law, compliance with which is essential to guarantee respect for the equal dignity of all people in Israel and the occupied Palestinian territory. Legislation 6. The Committee notes the enactment of new legislation in the area of children’s rights. However, it is concerned that the implementation of these measures has been impeded by factors, including insufficient budgetary allocations. 7. The Committee recommends that the State party take all necessary measures, including the allocation of the required resources (human and financial), to ensure and strengthen the effective implementation of existing legislation. 8. The Committee welcomes the commitment of the various parliamentary committees campaigning to promote children’s rights through, among other things, proposals for

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new legislation (i.e. on implementation of the Convention and on the right to quality education on an equal basis) in the area of children’s rights. 9. The Committee encourages the State party: (a) To ensure the speedy promulgation of legislation relating to child rights and its effective implementation; (b) To consider the adoption of a comprehensive children’s code, which would incorporate the principles and provisions of the Convention; (c) To continue to support the work of these committees through the allocation of adequate resources. 10. The Committee is concerned that religious laws, particularly in the area of personal status, may not be in compliance with the principles and provisions of the Convention. 11. The Committee encourages the State party to take all possible measures to reconcile the interpretation of religious laws with fundamental human rights. Coordination 12. The Committee is concerned that the absence of a central mechanism to coordinate the implementation of the Convention makes it difficult to achieve a comprehensive and coherent child rights policy. 13. The Committee recommends that the State party: (a) Establish a central mechanism for intersectoral coordination and cooperation at and between the national and local levels of government; (b) Ensure the preparation and implementation of a national plan of action for children, including the implementation of the Convention, that is comprehensive, human rights based and undertaken through an open, consultative and participatory process. Data 14. The Committee welcomes the comprehensive statistical volume provided by the State party, but is concerned that the data are not sufficiently analysed so as to be able to assess progress in the implementation of the Convention, and regrets that no data were provided with respect to children living in the occupied Palestinian territories. 15. The Committee encourages the State party: (a) To collect data on all persons under 18 years for all areas covered by the Convention, including the most vulnerable groups (i.e. children living in remote areas) and in the occupied Palestinian territories; (b) Use these data to assess progress and design policies to implement the Convention. Monitoring structures 16. While noting the different channels open to children for making complaints (i.e. the Open Line, the Ombudsman of the Ministry of Health, etc.), the Committee is concerned that the responses of these mechanisms are not sufficiently coordinated to ensure the effective implementation of the Convention. Moreover, the Committee is

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concerned at the absence of an independent mechanism with the mandate to regularly monitor and evaluate progress in the implementation of the Convention. 17. The Committee recommends that the State party: (a) Improve coordination between the various existing complaints mechanisms to ensure that they effectively contribute to the implementation of the Convention; (b) Consider the establishment of an independent national human rights institution, in accordance with the Principles relating to the status of national institutions for the promotion and protection of human rights (The Paris Principles) (General Assembly resolution 48/134, annex) and the Committee’s General Comment No. 2, to monitor and evaluate progress in the implementation of the Convention at the national and local levels. This institution should be adequately resourced, accessible to children and empowered to receive and investigate complaints of violations of child rights in a child-sensitive manner and to address them effectively. Resource allocation 18. Against the backdrop of a declining economy, the Committee is concerned that the proposed budget cuts in social spending will negatively affect the economic, social and cultural rights of children belonging to the most vulnerable groups. 19. The Committee recommends that the State party: (a) Ensure the economic, social and cultural rights of all children, to the maximum extent of available resources; (b) Continue to prioritize and target budgetary allocation for children belonging to the most vulnerable groups (e.g. Israeli Arab children, Bedouins, children of foreign workers); (c) Systematically assess the impact of budgetary allocations on the implementation of child rights. Cooperation with civil society 20. Recognizing under the prevailing conditions the important role of civil society, as well as international humanitarian organizations, in the implementation of the provisions of the Convention, particularly in the occupied Palestinian territories, the Committee is concerned at the inadequate efforts by the State party to fully cooperate with and facilitate their efforts. 21. The Committee recommends that the State party strengthen its cooperation with nongovernmental and international organizations, including United Nations agencies, and guarantee the safety of their personnel in the course of their work on behalf of children and their access to the children concerned. Training/dissemination of the Convention 22. The Committee welcomes the efforts by the State party to disseminate the Convention and notes the delegation’s acknowledgement of the need to disseminate the Convention more widely throughout the State party.

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23. The Committee encourages the State party: (a) To strengthen, expand and make ongoing its programme for the dissemination of information on the Convention and its implementation in all official languages among children and parents, civil society and all sectors and levels of government, including initiatives to reach those vulnerable groups who are illiterate or without formal education; (b) To develop systematic and ongoing training programmes on human rights, including children’s rights, for all professional groups working for and with children (e.g. judges, lawyers, law enforcement officials, civil servants, local government officials, personnel working in institutions and places of detention for children, teachers and health personnel).

2.

Definition of the child

24. The Committee is concerned that Israeli legislation discriminates in the definition of the child between Israeli children (e.g. persons under 18 in the 1962 Guardianship and Legal Capacity Law, and the Youth (Trial, Punishment and Modes of Treatment) Law) and Palestinian children in the occupied Palestinian territories (i.e. persons under 16 in Military Order No. 132). 25. The Committee recommends that the State party rescind the provision of Military Order No. 132 concerning the definition of the child and ensure that its legislation conforms to articles 1 and 2 of the Convention in this regard.

3.

General principles

Non-discrimination 26. The Committee is concerned that discrimination, contrary to article 2 of the Convention, persists in the State party, and that non-discrimination is not expressly guaranteed under the Constitution. In particular, the Committee is concerned about discrimination against girls and women, especially in the context of religious laws, discrimination on religious grounds, inequalities in the enjoyment of the economic, social and cultural rights (i.e. access to education, health care and social services) of Israeli Arabs, Bedouins, Ethiopians and other minorities, children with disabilities and children of foreign workers, and of the rights and freedoms of Palestinian children in the occupied territories. 27. The Committee recommends that the State party: (a) Take effective measures, including enacting or rescinding legislation where necessary, to ensure that all children enjoy all the rights set out in the Convention without discrimination, in accordance with article 2; (b) Strengthen its efforts with respect to affirmative-action initiatives; (c) Carry out comprehensive public education campaigns to prevent and combat negative societal attitudes in this regard;

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(d) Mobilize religious leaders to support such efforts; (e) Consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (General Assembly resolution 45/158, annex). 28. The Committee requests that specific information be included in the next periodic report on the measures and programmes relevant to the Convention on the Rights of the Child undertaken by the State party to follow up on the Durban Declaration and Programme of Action adopted at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance and taking account of the Committee’s General Comment No. 1 on article 29, paragraph 1, of the Convention (aims of education). Best interests of the child 29. The Committee is concerned that the general principle of the best interests of the child contained in article 3 of the Convention is not incorporated in all legislation concerning children and is not always considered in practice, for example by rabbinical courts. 30. The Committee recommends that the State party continue its efforts to fully incorporate in legislation and in practice article 3 of the Convention. Right to life 31. The Committee deeply regrets the killing and injuring of all children in the State party committed by all actors prior to and during the present armed conflict. It is extremely concerned about the consequences of the climate of terror which seriously harms the development of children. 32. The Committee strongly urges the State party and all relevant non-State actors: (a) To take immediate and all necessary measures to end the violence; (b) To take immediate and all necessary measures to ensure that children are not recruited and do not participate in the conflict; (c) To investigate immediately and effectively all killings of children and bring the perpetrators to justice; (d) To take all necessary measures to provide child victims of these human rights violations with possibilities for adequate compensation, recovery and social reintegration. 33. Finally, the Committee recommends that the State party include in its second periodic report information about the implementation of the above recommendations. Respect for the views of the child 34. The Committee welcomes the efforts by the State party to promote respect for the views of the child, including in Knesset debates, schools and communities, and before the courts (i.e. the Youth (Care and Supervision) Law, and the Youth (Trial, Punishment and Modes of Treatment) Law). 35. The Committee recommends that the State party: (a) Continue to promote and facilitate, within the family, the school, institutions, the courts, including rabbinical courts, and administrative bodies (i.e. decision and 548


placement committees), respect for the views of children and their participation in all matters affecting them, in accordance with article 12 of the Convention; (b) Develop skills-training programmes in community settings for parents, teachers, social workers and local officials to help children to express their informed views and opinions and to have them taken into consideration.

4.

Civil rights and freedoms

Protection from torture and inhuman or degrading treatment or punishment 36. The Committee is seriously concerned at allegations and complaints of inhuman or degrading practices and of torture and ill-treatment of Palestinian children by police officers during arrest and interrogation and in places of detention (i.e. Ma’ale Adummim, Adorayim, Beit El, Huwarra, Kedumin, Salem and Gush Etzion police station and prisons such as Terza, Ramleh, Megiddo and Telmond). 37. The Committee strongly recommends that the State party: (a) Establish and strictly enforce instructions for full compliance with the principles and provisions of the Convention by all persons involved in the arrest, interrogation and detention of Palestinian and other children in the State party; (b) Investigate effectively all cases of torture and inhuman or degrading treatment or punishment by police officers or other government officials and bring the perpetrators to justice; (c) Pay full attention to the victims of these violations and provide them with opportunities for adequate compensation, recovery and social reintegration; (d) Include in its next report information concerning the above recommendations.

5.

Family environment and alternative care

Violence/abuse/neglect/maltreatment 38. The Committee welcomes the many efforts of the State party to prevent and combat all forms of violence and abuse within the family, in schools and in other institutions which care for children, but is concerned at the apparently limited impact of these efforts owing to, among other things, the lack of a comprehensive strategy and adequate resources. 39. The Committee recommends that the State party: (a) Establish a national and comprehensive strategy to prevent and combat violence and abuse within the family, in schools and in other institutions caring for children, which should include, among other things, a study to assess the nature and extent of ill-treatment and abuse of children, and design policies and programmes to address these practices; (b) Carry out public education campaigns about the negative consequences of illtreatment of children and promote positive, non-violent forms of discipline as an alternative to corporal punishment; 549


(c) Strengthen procedures and mechanisms to receive, monitor and investigate complaints, including intervening where necessary; (d) Allocate sufficient resources for the provision of care, recovery and reintegration for victims; (e) Train teachers, law enforcement officials, care workers, judges and health professionals in the identification, reporting and management of cases of ill-treatment. 40. The Committee notes the efforts (e.g. training and support programmes) of the State party to improve the care provided by foster families, but remains concerned that a relatively high number of children continue to live in residential care. 41. The Committee recommends the State party further strengthen the foster care system by, among other things, conducting public programmes to increase the number of foster families and providing sufficient financial and other resources.

6.

Basic health and welfare

Children with disabilities 42. The Committee notes the various efforts of the State party to address the rights and special needs of children with disabilities. However, it remains concerned at the large gap between the needs and services provided, and the gap between services provided to Jewish and Israeli Arab children. 43. The Committee recommends that the State party continue and strengthen its efforts to prioritize and target resources (human and financial) to ensure that the needs of children with disabilities are met and the necessary services provided. Furthermore, it recommends that the State party ensure that Israeli Arab children receive the same level and quality of services as Jewish children. Health 44. The Committee is deeply concerned about the serious deterioration of health and health services of children in the occupied Palestinian territories, especially as a result of the measures imposed by the Israeli Defence Forces, including road closures, curfews and mobility restrictions, and the destruction of Palestinian economic and health infrastructure. In particular, the Committee is concerned about the consequent delays of and interference with medical personnel, the shortages of basic medical supplies and malnutrition in children owing to the disruption of markets and the prohibitively high prices of basic foodstuffs. 45. The Committee recommends that the State party guarantee safe and unconditional access by all Palestinian children to basic needs and health services, including medical supplies and personnel. 46. The Committee welcomes the information that the National Health Insurance Law covers all citizens of Israel, but remains concerned at the persistent and significant gap in health indicators between Israeli Jews and Arabs. 47. The Committee recommends that the State party strengthen and increase the allocation of resources to ensure that all citizens benefit equally from available health services. 550


Adequate standard of living 48. The Committee notes the State party’s activities to improve support for vulnerable families (e.g. single-parent families), but is concerned at the recent cuts in the budget for social welfare and at the very high percentage of children living in poverty, particularly those living in large families, single-parent families and Arab families. 49. The Committee recommends that the State party develop and implement a comprehensive strategy for the eradication of poverty, and provide it with adequate financial and human resources. 50. The Committee is deeply concerned at the large-scale demolition of houses and infrastructure in the occupied Palestinian territories, which constitutes a serious violation of the right to an adequate standard of living for children in those territories. 51. The Committee recommends, with reference to international humanitarian law, notably the Geneva Convention relative to the Protection of Civilian Persons in Time of War, that the State party fully comply with the rules of distinction (between civilians and combatants) and proportionality (of attacks that cause excessive harm to civilians) and thus refrain from the demolition of civilian infrastructure, including homes, water supplies and other utilities. It further recommends that the State party provide the victims of such demolitions with support for the rebuilding of their houses and with adequate compensation.

7.

Education

Education 52. The Committee is concerned about the serious deterioration of access to education of children in the occupied Palestinian territories as a result of the measures imposed by the Israeli Defence Forces, including road closures, curfews and mobility restrictions, and the destruction of school infrastructure. 53. The Committee recommends that the State party guarantee that every Palestinian child has access to education, in accordance with the Convention. As a first step, the State party should ensure that restrictions on mobility are lifted throughout the occupied Palestinian territories during school hours. 54. The Committee welcomes the information that the budget for education has been protected from recent cuts in spending, but is concerned that investment in and the quality of education in the Israeli Arab sector is significantly lower than in the Jewish sector. 55. The Committee recommends that the State party continue and strengthen its affirmative-action programmes and further increase the budget allocated for education in the Arab sector. 56. The Committee is concerned that the aims of education outlined in article 29 of the Convention, including the development of respect for human rights, tolerance and equality of the sexes and religious and ethnic minorities, are not explicitly part of the curricula throughout the State party.

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57. The Committee recommends that the State party and all relevant non-State actors, including the Palestinian Authority, taking into account the Committee’s General Comment No. 1 on the aims of education, include human rights education, including children’s rights, in the curricula of all primary and secondary schools, particularly with regard to the development of respect for human rights, tolerance and equality of the sexes and religious and ethnic minorities. Religious leaders must be mobilized in this effort.

8.

Special measures of protection

Armed conflict 58. The Committee is seriously concerned about the impact of terrorism on the rights of children in the State party, as well as the impact of military action on the rights of children in the occupied Palestinian territories. Moreover, the Committee is concerned about the insufficient cooperation of the State party in relation to demining efforts in southern Lebanon and the lack of redress available to the child victims of Israeli Defence Forces operations there. 59. The Committee recommends that the State party and other non-State actors: (a) Establish and strictly enforce rules of engagement for military and other personnel which fully respect the rights of children as contained in the Convention and protected under international humanitarian law; (b) Refrain from using and/or targeting children in the armed conflict and comply fully with article 38 of the Convention, and as much as possible with the Optional Protocol on the involvement of children in armed conflict; (c) Provide full support and cooperation for demining efforts in southern Lebanon, and possibilities for adequate compensation, recovery and rehabilitation to the child victims of Israeli Defence Forces actions in southern Lebanon; (d) Ratify and fully implement the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction, of 1997. Sexual exploitation 60. The Committee notes the establishment of an inter-ministerial and inter-organizational committee to combat the commercial sexual exploitation of minors, its activities, and the involvement of non-governmental organizations in this area. However, the Committee is concerned that these and other efforts have so far had a limited impact. 61. The Committee recommends that the State party take all necessary measures to increase the effectiveness of these efforts to address the commercial sexual exploitation of minors by, among other things, providing the necessary financial and other resources.

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Administration of juvenile justice 62. The Committee is concerned about: (a) The differential application of law concerning children, such as with respect to the definition of a child in Israel and in the occupied Palestinian territories; (b) The practice relating to the arrest and interrogation of children in the occupied Palestinian territories; (c) Military Orders Nos. 378 and 1500, as well as all other military orders which may allow prolonged incommunicado detention of children, and which do not provide due process guarantees, access to legal assistance and family visits. 63. The Committee recommends that the State party: (a) Ensure that the provisions of the Convention, in particular articles 37, 39 and 40, are fully integrated into the legislation and practice of the system of juvenile justice, along with other relevant international standards in this area, such as the Beijing Rules, the Riyadh Guidelines, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the Guidelines for Action on Children in the Criminal Justice System; (b) Ensure that deprivation of liberty is only used as a measure of last resort, for the shortest possible time, is authorized by the court, and that persons under 18 are not detained with adults; (c) Ensure that children have access to legal aid and independent and effective complaint mechanisms; (d) Train professionals in the area of rehabilitation and social recovery of children; (e) Rescind all provisions in the military orders which violate international standards on the administration of juvenile justice.

9.

Optional Protocols

64. The Committee encourages the State party to ratify the Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and on the involvement of children in armed conflict.

10.

Dissemination of the report

65. In light of article 44, paragraph 6, of the Convention, the Committee recommends that the report and written replies submitted by the State party be made widely available to the public at large and that the publication of the report be considered, along with the relevant summary records and concluding observations adopted by the Committee. Such a document should be widely distributed in order to generate debate and awareness of the Convention and its implementation and monitoring within all levels of administration of the State party and the general public, including concerned non-governmental organizations.

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66. In light of the recommendation on reporting periodicity adopted by the Committee and described in the report on its twenty-ninth session (CRC/C/114), the Committee, aware of the considerable delay in the State party’s reporting, underlines the importance of a reporting practice that is in full compliance with the provisions of article 44 of the Convention. An important aspect of States parties’ responsibilities to children under the Convention is to ensure that the Committee on the Rights of the Child has regular opportunities to examine the progress made in the implementation of the Convention. In this regard, regular and timely reporting by States parties is crucial. The Committee recognizes that some States parties experience difficulties in initiating timely and regular reporting. As an exceptional measure, in order to help the State party catch up with its reporting obligations in full compliance with the Convention, the Committee invites the State party to submit its second, third and fourth reports in one consolidated report by 1 November 2008. The Committee expects the State party to report thereafter every five years, as foreseen by the Convention.

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16. CONCLUDING OBSERVATIONS OF THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS: ISRAEL (MAY 23, 2003)*

COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS Thirtieth session: 5-23 May 2003 CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLES 16 AND 17 OF THE COVENANT Concluding observations of the Committee on Economic, Social and Cultural Rights: Israel 1. The Committee on Economic, Social and Cultural Rights considered the second periodic report of Israel on the implementation of the International Covenant on Economic, Social and Cultural Rights (E/1990/6/Add.32) at its 17th, 18th and 19th meetings, held on 15 and 16 May 2003 (E/C.12/2003/SR.17, 18 and 19), and adopted, at its 29th meeting, held on 23 May 2003 (E/C.12/2003/SR.29), the following concluding observations.

A.

Introduction

2. The Committee welcomes the submission of the second periodic report of the State party, which was prepared in general conformity with the Committee’s guidelines. The Committee appreciates the extensive written replies to the list of issues, as well as the readiness of and efforts made by the high-level delegation to respond to the oral questions. The members of the delegation were knowledgeable with respect to most of the Covenant rights, but the Committee regrets that a number of the questions it posed during the dialogue remained unanswered. 3. The Committee notes with appreciation the large amount of information received from non-governmental organizations concerning the implementation of the Covenant in the State party.

B.

Positive aspects

4. The Committee welcomes the steps undertaken by the State party to implement the Multiyear Plan for the Development of Arab Sector Communities (2000), aimed at closing the gap between Jews and Arabs by promoting equality in the enjoyment of economic, social and cultural rights.

*

U.N. document number E/C.12/1/Add.90 (Concluding Observations/Comments). The International Covenant on Economic, Social and Cultural Rights is abbreviated as “CESCR.”


OBSERVATIONS ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

5. The Committee notes with appreciation the various affirmative action measures taken, as mentioned in the State party’s replies to the list of issues, with respect to various disadvantaged sectors such as the Arab Druze, Circassian and Bedouin communities, despite the decline in economic growth in the State party in recent years. 6. The Committee further notes with appreciation that the Supreme Court’s rules of standing have been relaxed, allowing any person, regardless of citizenship, residency or other status, who contends that his or her rights were unlawfully denied or infringed, formal access to the Court, and allowing even for an actio popularis. In particular, the Committee particularly appreciates that in the State party, plaintiffs seeking remedy for alleged violations of economic, social and cultural rights have access to and can make use of the judiciary system, which provides opportunities for the justiciability of the rights enshrined in the Covenant. In this regard, the Committee welcomes the information given on cases before the courts, in which reference has been made to Covenant provisions. 7. The Committee further notes the amendment to the Women Equal Rights Act in April 2000. 8. The Committee welcomes the improvements in the conditions for foreign workers, allowing them to change employers for the legal duration of their stay, prohibiting employers from withholding workers’ passports, as well as the regulations regarding the system of compulsory health insurance for these foreign workers. 9. The Committee notes that, while gaps still remain, the State party has achieved some positive results towards expanding basic education and special education for nonJewish sectors. 10. The Committee notes with appreciation the efforts undertaken by the State party to address the problem of trafficking and exploitation of persons, such as the criminalization of trafficking, increased penalties for trafficking of minors, and the enhanced cooperation between government agencies to combat trafficking with a victim-sensitive approach.

C.

Factors and difficulties impeding the implementation of the Covenant

11. The Committee reiterates its statement made in previous concluding observations that Israel’s continuing emphasis on its security concerns, which have even increased in recent years, has impeded the realization of economic, social and cultural rights within Israel and the occupied territories.

D.

Principal subjects of concern

12. The Committee notes with regret that a number of the issues raised in its concluding observations of 1998 (E/C.12/1/Add.27) and 2001 (E/C.12/1/Add.69) remain outstanding issues of concern. In this regard, the Committee reiterates its concerns raised in 1998 (E/C.12/1/Add.27, paras. 11, 25, 26 and 28) and in 2001 (E/C.12/1/Add.64, para. 14). 556


13. Despite the positive measures mentioned in paragraph 6 of the present concluding observations, the Committee reiterates its concern that the Covenant has not been incorporated in the domestic legal order, and can therefore not be directly invoked before the courts. 14. The Committee regrets that the judgement of the Qa’dan case has still not been implemented. 15. The Committee also reiterates its concern about the State party’s position that the Covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction, and that the Covenant is not applicable to populations other than the Israelis in the occupied territories. The Committee further reiterates its regret at the State party’s refusal to report on the occupied territories (E/C.12/1/Add.27, para. 11). In addition, the Committee is deeply concerned at the insistence of the State party that, given the circumstances in the occupied territories, the law of armed conflict and humanitarian law are considered as the only mode whereby protection may be ensured for all involved, and that this matter is considered to fall outside the sphere of the Committee’s responsibility. 16. The Committee is deeply concerned about the continuing difference in treatment between Jews and non-Jews, in particular Arab and Bedouin communities, with regard to their enjoyment of economic, social and cultural rights in the State party’s territory. The Committee reiterates its concern that the “excessive emphasis upon the State as a ‘Jewish State’ encourages discrimination and accords a second-class status to its nonJewish citizens” (ibid., para. 10). This discriminatory attitude is apparent in the continuing lower standard of living of Israeli Arabs as a result, inter alia, of higher unemployment rates, restricted access to and participation in trade unions, lack of access to housing, water, electricity and health care and a lower level of education, despite the State party’s efforts to close the gap. In this regard, the Committee expresses its concern that the State party’s domestic legal order does not enshrine the general principles of equality and non-discrimination. 17. The Committee is concerned that in spite of the enactment of the Equal Rights for People with Disabilities Law in 2000, the majority of its provisions have not been implemented. The situation is aggravated for persons with disabilities from the Arab sector. 18. The Committee is particularly concerned about the status of “Jewish nationality”, which is a ground for exclusive preferential treatment for persons of Jewish nationality under the Israeli Law of Return, granting them automatic citizenship and financial government benefits, thus resulting in practice in discriminatory treatment against non-Jews, in particular Palestinian refugees. The Committee is also concerned about the practice of restrictive family reunification with regard to Palestinians, which has been adopted for reasons of national security. The Committee reiterates its concern in this regard (ibid., para. 13 and E/C.12/1/Add.69, para. 14). 19. The Committee deeply regrets the refusal of the State party to provide in its second periodic report additional information on the living conditions of population groups other than Israeli settlers in the occupied territories as requested in its 2001 concluding observations. The Committee continues to be gravely concerned about the deplorable living conditions of the Palestinians in the occupied territories, who – as a result of the continuing occupation and subsequent measures of closures, extended

557


curfews, roadblocks and security checkpoints – suffer from impingement of their enjoyment of economic, social and cultural rights enshrined in the Covenant, in particular access to work, land, water, health care, education and food. 20. The Committee expresses its concern about the general increase in unemployment in the State party, which rose from 6.7 per cent in 1996 to 10.5 per cent in 2002, as well as about the significant increase in unemployment of the non-Jewish sectors: 13.5 per cent for the Arab sector and more than 15 per cent for the Bedouin sector. The Committee also expresses concern about the rate of unemployment in the occupied territories, which is over 50 per cent as a result of the closures which have prevented Palestinians from working in Israel. 21. The Committee is concerned about the persisting inequality in wages of Jews and Arabs in Israel, as well as the severe under-representation of the Arab sector in the civil service and universities. 22. The Committee is concerned about the fact that it is extremely difficult for Palestinians living in the occupied territories and working in Israel to join Israeli trade unions or to establish their own trade unions in Israel. 23. The Committee expresses concern about the fact that the Jewish religious courts’ interpretation of personal status law with respect to divorce is discriminatory as regards women, especially the regulation that allows the husband to remarry even when the wife is opposed to the divorce, whilst the same rules do not apply to the wife. 24. The Committee is particularly concerned about information received concerning the construction of a “security fence” around the occupied territories, which allegedly would infringe upon the surface area of the occupied territories and which would limit or even impede access by Palestinian individuals and communities to land and water resources. The Committee regrets the fact that the delegation did not respond to questions by the Committee concerning the security fence or wall during the dialogue. 25. The Committee is particularly concerned about limited access to and distribution and availability of water for Palestinians in the occupied territories, as a result of inequitable management, extraction and distribution of shared water resources, which are predominantly under Israeli control. 26. The Committee reiterates its grave concern about the continuing practices by the State party of home demolitions, land confiscations and restrictions on residency rights, and its adoption of policies resulting in substandard housing and living conditions, including extreme overcrowding and lack of services, of Palestinians in East Jerusalem, in particular in the old city (E/C.12/1/Add.27, para. 22). Furthermore, the Committee is gravely concerned about the continuing practice of expropriation of Palestinian properties and resources for the expansion of Israeli settlements in the occupied territories (ibid., para. 24). 27. The Committee continues to be concerned about the situation of Bedouins residing in Israel, and in particular those living in villages that are still unrecognized (ibid., para. 28). Despite measures by the State party to close the gap between the living conditions of Jews and Bedouins in the Negev, the quality of living and housing conditions of the Bedouins continue to be significantly lower, with limited or no access to water, electricity and sanitation. Moreover, Bedouins continue to be subjected on a regular basis

558


to land confiscations, house demolitions, fines for building “illegally”, destruction of agricultural crops, fields and trees, and systematic harassment and persecution by the Green Patrol, in order to force them to resettle in “townships”. The Committee is also concerned that the present compensation scheme for Bedouins who agree to resettle in “townships” is inadequate.

E.

Suggestions and recommendations

28. The Committee urges the State party to take into consideration the subjects of concern and to give effect to the recommendations contained in its 1998 and 2001 concluding observations. 29. The Committee urges the State party to undertake steps towards the incorporation of the Covenant and its provisions in the domestic legal order. The Committee refers the State party to its general comment No. 9 on the domestic application of the Covenant. 30. The Committee urges the State party to undertake steps to facilitate the implementation of the judgement in the Qa’dan case. 31. The Committee recognizes that the State party has serious security concerns, which must be balanced with its efforts to comply with its obligations under international human rights law. However, the Committee reaffirms its view that the State party’s obligations under the Covenant apply to all territories and populations under its effective control. The Committee repeats its position that even in a situation of armed conflict, fundamental human rights must be respected and that basic economic, social and cultural rights, as part of the minimum standards of human rights, are guaranteed under customary international law and are also prescribed by international humanitarian law. Moreover, the applicability of rules of humanitarian law does not by itself impede the application of the Covenant or the accountability of the State under article 2 (1) for the actions of its authorities. The Committee therefore requests that the State party provide more extensive information on the enjoyment of economic, social and cultural rights enshrined in the Covenant by those living in the occupied territories in its next periodic report. 32. The Committee reiterates its recommendation that the State party take steps to ensure equality of treatment for all Israeli citizens in relation to all Covenant rights (ibid., para. 34). 33. The Committee urges the State party to undertake effective measures to combat discrimination against persons with disabilities, especially by providing access to public facilities and promoting access to basic services and employment, with particular attention to persons with disabilities from the Arab sector. 34. The Committee reiterates its recommendation (ibid., para. 36) that in order to ensure equality of treatment and non-discrimination, the State party undertake a review of its re-entry and family reunification policies for Palestinians. 35. The Committee reiterates its request that the State party provide detailed information on the enjoyment of economic, social and cultural rights of all population groups living in the occupied territories in its next periodic report (ibid., para. 46 and E/C.12/1/Add.69). The Committee also calls upon the State party to give full effect to 559


its Covenant obligations and, as a matter of the highest priority, to undertake to ensure safe passage at checkpoints for Palestinian medical staff and people seeking treatment, the unhampered flow of essential foodstuffs and supplies, free movement to places of employment, and the safe conduct of students and teachers to and from schools (E/C.12/1/Add.27, para. 39). 36. The Committee recommends that the State party take effective measures to reduce the rate of unemployment, and pay particular attention to reducing the inequalities between the Jewish and non-Jewish sectors with respect to employment. The Committee further recommends that the State party ensure that workers living in the occupied territories are permitted to continue to work in Israel. 37. The Committee strongly recommends that the State party take measures to reduce the inequalities in wages between Jews and Arabs, in conformity with the principle of equal pay for work of equal value, as enshrined in article 7 of the Covenant. 38. The Committee recommends that the State party take steps to ensure that all workers working in Israel can exercise their trade union rights, in accordance with article 8 of the Covenant. 39. The Committee recommends that the State party take steps to modify the Jewish religious courts’ interpretation of the law concerning divorce to ensure equality between men and women, as provided for in article 3 of the Covenant. 40. The Committee urges the State party to ensure that any security measure it adopts does not disproportionally limit or impede the enjoyment of economic, social and cultural rights enshrined in the Covenant, in particular access to land and water resources by Palestinians, and that adequate restitution and compensation are provided to those who have incurred damage to and loss of property and lands as a result of these security measures. 41. The Committee strongly urges the State party to take immediate steps to ensure equitable access to and distribution of water to all populations living in the occupied territories, and in particular to ensure that all parties concerned participate fully and equally in the process of water management, extraction and distribution. In that connection, the Committee refers the State party to its general comment No. 15 on the right to water. 42. Reiterating its earlier recommendation (ibid., para. 41), the Committee urges the State party to cease the practices of facilitating the building of Israeli settlements, expropriating land, water and resources, demolishing houses and carrying out arbitrary evictions. The Committee also urges the State party to take immediate steps to respect and implement the right to an adequate standard of living, including housing, of the Palestinian residents of East Jerusalem and the Palestinian Arabs in cities with mixed populations. The Committee recalls in this connection its general comments No. 4 (the right to adequate housing) and No. 7 (forced evictions). The Committee requests the State party to provide detailed information on this issue in its next periodic report. 43. The Committee further urges the State party to recognize all existing Bedouin villages, their property rights and their right to basic services, in particular water, and to desist from the destruction and damaging of agricultural crops and fields, including in unrecognized villages. The Committee further encourages the State party to adopt an adequate compensation scheme for Bedouins who have agreed to resettle in “townships”. 560


44. The Committee encourages the State party to continue to provide human rights education in schools at all levels and to raise awareness about human rights, in particular economic, social and cultural rights, among State officials and the judiciary. 45. The Committee also encourages the State party to develop the system of mixed schools for Jewish and Arab pupils, in order to promote understanding, tolerance and friendship among the citizens of the country. 46. The Committee requests the State party to disseminate its concluding observations widely among all levels of society and to inform the Committee of all steps taken to implement them in its next periodic report. It also encourages the State party to continue to consult with non-governmental organizations and other members of civil society when preparing its third periodic report. 47. The Committee requests the State party to submit its third periodic report by 30 June 2008.

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17. CONCLUDING OBSERVATIONS OF THE HUMAN RIGHTS COMMITTEE: ISRAEL (AUGUST 5, 2003)*

HUMAN RIGHTS COMMITTEE Seventy-eighth session CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT Concluding observations of the Human Rights Committee: SECOND PERIODIC REPORT OF ISRAEL Israel 1. The Committee considered the second periodic report of Israel (CCPR/C/ISR/2001/2) at its 2116th, 2117th and 2118th meetings (see CCPR/C/SR.2116-2118), held on 24 and 25 July 2003, and adopted the following concluding observations at its 21282130th meeting (CCPR/C/SR.2128-2130), held on 4 and 5 August 2003.

A.

Introduction

2. The Committee welcomes the second periodic report submitted by Israel and expresses its appreciation for the frank and constructive dialogue with a competent delegation. It welcomes the detailed answers, both oral and written, that were provided to its written questions.

B.

Factors and difficulties affecting the implementation of the Covenant

3. The Committee has noted and recognizes the serious security concerns of Israel in the context of the present conflict, as well as the difficult human rights issues related to the resurgence of suicide bombings which have targeted Israel’s civilian population since the beginning of the second Intifada in September 2000.

C.

Positive factors

4. The Committee welcomes the positive measures and legislation adopted by the State party to improve the status of women in Israeli society, with a view to promoting gen-

*

U.N. document number CCPR/CO/78/ISR (Concluding Observations/Comments). The International Covenant on Civil and Political Rights is abbreviated as “CCPR.”


CONCLUDING OBSERVATIONS OF THE HUMAN RIGHTS COMMITTEE: ISRAEL

der equality. In this context, it welcomes in particular the amendment to the Equal Rights for Women Law (2000), the Employment of Women Law (Amendment 19), the adoption of the Sexual Harassment Law (1998), the Prevention of Stalking Law (2001), the Rights of Victims of an Offence Law (2001), and other legislative measures designed to combat domestic violence. It further welcomes the establishment of the Authority for the Advancement of the Status of Women but would appreciate up to date further information on its responsibilities and functioning in practice. 5. The Committee welcomes the measures taken by the State party to combat trafficking in women for the purpose of prostitution, in particular the prohibition on trafficking law enacted in July 2000 and the prosecution of traffickers since that date. 6. The Committee notes, the efforts to increase the level of education for the Arab, Druze and Bedouin communities in Israel. In particular it notes the implementation of the Special Education Law and the Compulsory Education Law Amendment (2000). 7. The Committee also notes the State party’s information about the significant measures taken for the development of the Arab sector, in particular through the 2001-2004 Development Plan. 8. The Committee welcomes legislation adopted by the State party in respect of persons with disabilities, in particular the enactment of the Equal Rights for People with Disabilities Law (1998). It expresses the hope that those areas where the rights of disabled people, acknowledged by the delegation as not being respected and requiring further improvements, will be addressed as soon as possible. 9. The Committee notes the efforts by the State party to provide better conditions for migrant workers. It welcomes the amendment to the Foreign Workers Law and the increase in penalties imposed on employers for non-compliance with the law. It also welcomes free access to labour courts for migrant workers and the provision of information to them about their rights in several foreign languages. 10. The Committee welcomes the Supreme Court’s judgment of September 1999, which invalidated the former governmental guidelines governing the use of “moderate physical pressure” during interrogations and held that the Israeli Security Agency (ISA) has no authority under Israeli law to use physical force during interrogations.

D.

Principal subjects of concern and recommendations

11. The Committee has noted the State party’s position that the Covenant does not apply beyond its own territory, notably in the West Bank and in Gaza, especially as long as there is a situation of armed conflict in these areas. The Committee reiterates the view, previously spelled out in paragraph 10 of its concluding observations on Israel’s initial report (CCPR/C/79/Add.93 of 18 August 1998), that the applicability of the regime of international humanitarian law during an armed conflict does not preclude the application of the Covenant, including article 4 which covers situations of public emergency which threaten the life of the nation. Nor does the applicability of the regime of international humanitarian law preclude accountability of States parties under article 2, paragraph 1, of the Covenant for the actions of their authorities outside their own territories,

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including in Occupied Territories. The Committee therefore reiterates that, in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by its authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of state responsibility of Israel under the principles of public international law. The State party should reconsider its position and to include in its third periodic report all relevant information regarding the application of the Covenant in the Occupied Territories resulting from its activities therein. 12. While welcoming the State party’s decision to review the need to maintain the declared State of Emergency and to prolong it on a yearly rather than an indefinite basis, the Committee remains concerned about the sweeping nature of measures during the State of Emergency, which appear to derogate from Covenant provisions other than article 9, derogation from which was notified by the State party upon ratification. In the Committee’s opinion, these derogations extend beyond what would be permissible under those provisions of the Covenant which allow for the limitation of rights (e.g. articles 12(3), 19(3), and 21(3)). As to measures derogating from article 9 itself, the Committee is concerned about the frequent use of various forms of administrative detention particularly for Palestinians from the Occupied Territories entailing restrictions on access to counsel and to full reasons of the detention. These features limit the effectiveness of judicial review, thus endangering the protection against torture and other inhuman treatment prohibited under article 7 and derogating from article 9 more extensively than what in the Committee’s view is permissible pursuant to article 4. In this regard, the Committee refers to its earlier concluding observations on Israel and to its General Comment No. 29. The State party should complete as soon as possible the review initiated by the Ministry of Justice of legislation governing States of Emergency. In this regard and pending the adoption of appropriate legislation, the State party should review the modalities governing the renewal of the State of Emergency and specify the provisions of the Covenant it seeks to derogate from, to the extent strictly required by the exigencies of the situation (article 4). 13. The Committee is concerned that the use of prolonged detention without any access to a lawyer or other persons of the outside world violates articles the Covenant (articles 7, 9, 10 and 14, paragraph 3 (b) of the Covenant). The State party should ensure that no one is held for more than 48 hours without access to a lawyer. 14. The Committee is concerned about the vagueness of definitions in Israeli counter-terrorism legislation and regulations which, although their application is subject to judicial review, appear to run counter in several aspects to the principle of legality due to the ambiguous wording of the provisions and the use of several evidentiary presumptions to the detriment of the defendant. This has adverse consequences on the rights protected under article 15 of the Covenant, which is non-derogable under article 4, paragraph 2, of the Covenant. The State party should ensure that measures designed to counter acts of terrorism, whether adopted in connection with Security Council Resolution 1373 (2001) or in the context of the ongoing armed conflict, are in full conformity with the Covenant. 565


15. The Committee is concerned by what the State party calls ‘targeted killings’ of those identified by the State party as suspected terrorists in the Occupied Territories. This practice would appear to be used at least in part as a deterrent or punishment, thus raising issues under article 6. While noting the delegation’s observations about respect for the principle of proportionality in any response to terrorist activities against civilians and its affirmation that only persons taking direct part in hostilities have been targeted, the Committee remains concerned about the nature and extent of the IDF’s responses to Palestinian terrorist attacks. The State party should not use ‘targeted killings’ as a deterrent or punishment. The State party should ensure that the utmost consideration be given to the principle of proportionality in all its responses to terrorist threats and activities. State policy in this respect should be spelled out clearly in guidelines to regional military commanders, and complaints about disproportionate use of force should be investigated promptly by an independent body. All measures to arrest a person suspected of being in the course of committing acts of terror must be exhausted in order to avoid resorting to the use of deadly force. 16. While fully acknowledging the threat posed by terrorist activities in the Occupied Territories, the Committee deplores what it considers to be the partly punitive nature of the demolition of property and homes in the Occupied Territories. In the Committee’s opinion, the demolition of property and houses of families, some of whose members were or are suspected of involvement in terrorist activities or suicide bombings, contravenes the obligation of the State party to ensure without discrimination the right not to be subjected to arbitrary interference with one’s home (art. 17), freedom to choose one’s residence (art. 12), equality of all persons before the law and equal protection of the law (art. 26), and not to be subject to torture or cruel and inhuman treatment (art 7). The State party should cease forthwith the above practice. 17. The Committee is concerned about the IDF practice, in the Occupied Territories, of using local residents as “volunteers” or shields during military operations, especially in order to search houses and to help secure the surrender of those identified by the State party as terrorist suspects. The State party should discontinue this practice, which often results in the arbitrary deprivation of life (article 6). 18. The Committee is concerned that interrogation techniques incompatible with article 7 of the Covenant are still reported to be frequently resorted to, and the “necessity defence” argument, which is not recognized under the Covenant, is often invoked and retained as a justification for ISA actions in the course of investigations. The State party should review its recourse to the “necessity defence” argument and provide detailed information to the Committee in its next periodic report, including detailed statistics covering the period since the examination of the initial report. It should ensure that alleged instances of ill-treatment and torture are vigorously investigated by genuinely independent mechanisms, and that those responsible for such actions are prosecuted. The State party should provide statistics from 2000 to the present day on how many complaints have been made to the Attorney-General,

566


how many have been turned down as unsubstantiated, how many have been turned down because of the defence of necessity applied and how many have been up-held, and with what consequences for the perpetrators. 19. While again acknowledging the seriousness of the State party’s security concerns that have prompted recent restrictions on the right to freedom of movement, for example through imposition of curfews or establishment of an inordinate number of roadblocks, the Committee is concerned that the construction of the ‘Seam Zone’, by means of a fence and, in part, of a wall, beyond the Green Line, imposes additional and unjustifiably severe restrictions on the right to freedom of movement of, in particular , Palestinians within the Occupied Territories. The ‘Seam Zone’ has adverse repercussions on nearly all walks of Palestinian life; in particular, the wide ranging restrictions on freedom of movement disrupt access to health care, including emergency medical services, and access to water. The Committee considers that these restrictions are incompatible with article 12 of the Covenant. The State party should respect the right to freedom of movement guaranteed under article 12. The construction of a “Seam Zone” within the Occupied Territories should be stopped. 20. The Committee is concerned by public pronouncements made by several prominent Israeli personalities in relation to Arabs, which may constitute advocacy of racial and religious hatred that constitutes incitement to discrimination, hostility and violence. 21. The State party should take necessary action to investigate, prosecute and punish such acts in order to ensure respect for article 20, paragraph 2, of the Covenant. 21. The Committee is concerned about Israel’s temporary suspension order of May 2002, enacted into law as the Nationality and Entry into Israel Law (Temporary Order) on 31 July 2003, which suspends for a renewable one-year period, the possibility of family reunification, subject to limited and subjective exceptions especially in the cases of marriages between an Israeli citizen and a person residing in the West Bank and in Gaza. The Committee notes with concern that the suspension order of May 2002 has already adversely affected thousands of families and marriages. The State party should revoke the Nationality and Entry into Israel Law (Temporary Order) of 31 July 2003, which raises serious issues under articles 17, 23 and 26 of the Covenant. The State party should reconsider its policy with a view to facilitating family reunification of all citizens and permanent residents. It should provide detailed statistics on this issue, covering the period since the examination of the initial report. 22. The Committee is concerned about the criteria in the 1952 Law on Citizenship enabling the revocation of Israeli citizenship, especially in its application to Israeli Arabs. The Committee is concerned about the compatibility with the Covenant, in particular article 24 of the Covenant of the revocation of citizenship of Israeli citizens. The State party should ensure that any changes to citizenship legislation are in conformity with article 24 of the Covenant. 23. Notwithstanding the observations in paragraphs 4 and 7 above, the Committee notes with concern that, the percentage of Arab Israelis in the civil service and public sector

567


remains very low and that progress towards improving their participation, especially that of Arab Israeli women, has been slow (Articles 3, 25 and 26). The State party should adopt targeted measures with a view to improving participation of Arab Israeli women in the public sector and accelerating progress towards equality. 24. While noting the Supreme Court’s judgment of 30 December 2002 in the case of eight reservists of the Israeli Defence Forces (Judgment HC 7622/02), the Committee remains concerned about the law, criteria and generally adverse determination, in practice, by military judicial officers in individual cases of conscientious objection (article 18). The State party should review the law, criteria and practice governing the determination of conscientious objection, to ensure compliance with article 18 of the Covenant. 25. The State party is invited to disseminate widely the text of its second periodic report, the replies provided to the Committee’s list of issues and the present concluding observations. 26. In accordance with article 70, paragraph 5, of the Committee’s rules of procedure, the State party is invited to provide, within one year, relevant information on the implementation of the Committee’s recommendations in paragraphs 13, 15, 16, 18 and 21 above. The State party’s third periodic report should be submitted by 1 August 2007.

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BOOK REVIEWS 1. THE OSLO ACCORDS: INTERNATIONAL LAW AND THE ISRAELI-PALESTINIAN PEACE AGREEMENTS Geoffrey R. Watson Oxford: Oxford University Press (2000), pp. 442 Reviewed by Naseer H. Aruri*

This book raises and tries to answer four questions: (1) are the Oslo accords legally binding agreements or are they simply political undertakings?; (2) to what extent has each party complied with the terms of these agreements?; (3) what effect, if any, did any possible violations by both parties have on their respective obligations?; and (4) how might international law help shape resolution of “final status” issues such as Jerusalem, refugees, settlements and water? The author declares his intention to stay away from any analysis of the history and politics of the Arab-Israeli conflict and instead to concentrate on the legal aspects insofar as they relate to the Oslo Accords only. He denies any intent to present “a legal brief for one side or the other. Anyone looking for an exclusively pro-Israel or pro-Palestinian legal argument will be disappointed” (p. viii). Instead, Watson devotes eleven chapters to legal analysis of the numerous components of the Oslo package, which he considers “as a sort of ‘basic law’ or a Constitution for an unhappy polity” (p. ix). In reality, however, the claim of impartiality is anything but credible. Part I, which delineates a brief legal history of the Arab-Israeli conflict prior to Oslo, is far from what might be considered factual and straightforward. U.N. General Assembly Resolution 181 of November 1947, which divided Palestine into an Arab state and a Jewish state, is considered dead as of the decade following the creation of Israel. The fact that subsequent resolutions referred to the 1949 armistice agreements rather than to the partition resolution “suggests acquiescence in its death” (p. 24). Instead, Watson considers Security Council Resolution 242 as the relevant framework instead of the partition resolution. He even cites Oslo’s reference to 242 rather than 181 as a strong indication that the real beginning of the conflict for legal purposes was 1967 rather than 1948. He goes on to deny that there was ethnic cleansing of Palestinian civilians in 1948 when he asserts that “the truth lies somewhere between” the Israeli and Palestinian narratives, saying “[t]he plan (Dalet) did not endorse ethnic cleansing of all Arabs from the future Israel, but it did give military commanders discretion on how to secure their objectives, and in some cases commanders did

*

Dr. Naseer H. Aruri is Chancellor Professor (Emeritus) of Political Science at the University of Massachusetts at Dartmouth. His most recent book is Dishonest Broker: The United States’ Role in Israel and Palestine (Cambridge: South End Press, 2003).


THE OSLO ACCORDS

expel Arab inhabitants who resisted” (p. 25). One might have thought that since the time that Israel’s revisionist historians broached this subject during the past decade, the matter of Nakbah denial would have ceased to exist in scholarly discourse. Moreover, when the author deals with Israel’s claims to statehood, which he considers consonant with the traditional objective criteria, he asserts that U.N. membership was “further evidence” of the claims, forgetting that U.N. membership was conditioned on Israeli compliance with G.A. Resolution 194, which expected Israel to repatriate the refugees and compensate those who did not wish to return (p. 27). Even the 1967 war is supposedly considered justified by “most scholars,” including this international law treatise, as a measure of self-defense. While Watson selectively cites the closure of the Strait of Tiran to Israeli shipping, he fails to mention the fact that Egypt had requested U.N. forces stationed on Egyptian territory at the invitation of Egypt in 1956 to withdraw. The author should have remembered that Israel had refused to station any U.N. forces on its territory after it launched what its American ally described as aggression in 1956. Moreover, his notion of a “clearly imminent” attack by Egypt is not consistent with the fact that the Egyptian vice president was traveling to Washington to head off an Israeli attack, nor with the later pronouncements of Israeli generals, such as Mattityahu Peled, who fought in that “preventive” war. Such pro-Israel bias extends to the true meaning of Resolution 242 and the absence of the article “the,” considered by Israel, and Watson, as precluding the necessity to withdraw from all the occupied territories. Quoting Allan Gerson, one of his most frequently cited sources, Watson says that “many of the drafters [of the resolution] intended that withdrawal is required from some but not all of the territories” (p. 31). One wonders why the principal author of 242, then U.K. ambassador to the U.N. Lord Caradon, is excluded from the “many” oracles? Not needing to vouch for his fluency in the English language, Caradon is on record as confirming that the article “the” was not a requirement to denote all the territories. Moving on to the October 1973 war, Watson again reveals his bias when he describes it as “a surprise attack on Israel on Yom Kippur” (p. 36). The fact is that neither Syria nor Egypt attacked Israel. Their armed forces were dispatched to Israeli-occupied Syrian and Egyptian territory but not to Israel proper. Watson’s rendering of war and conflict continues on to include the 1982 Israeli invasion of Lebanon, which again is attributed to Arab intransigence. “The invasion immediately followed a PLO attempt to assassinate the Israeli ambassador to Great Britain, but its fundamental purpose was to stamp out PLO bases in southern Lebanon, which had been used to shell Israeli settlements and other targets in northern Israel” (p. 37). The informed reader might ask Watson whether he has ever heard of the real assailant, Abu Nidal, the PLO dissident leader whose assassination attempts went well beyond the Israeli ambassador to include numerous Arafat loyalists. In fact, Abu Nidal was under a PLO death sentence at that time. Nor does Watson seem to remember that there was a year-long truce then in effect between the PLO and Israel, reached under the auspices of the Reagan administration. It was observed scrupulously by the PLO until Israel violated it with its massive bombing of the city of Beirut. Israel’s strategic goals in 1982 went far beyond border skirmishes to include altering the domestic political map of Lebanon, preempting a Palestinian state-in-waiting, and reducing Syria to manageable proportions. Moreover, the PLO shift “away from a strategy of military confrontation towards one of diplomacy” (p. 38) did not begin after 1982, “once installed in Tunis,” as Watson claims. It began in the early 1970s when the PLO reached a quid pro quo understanding with the Arab governments to scale down the armed struggle and to opt for a parallel diplomatic struggle.

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Moving beyond the brief historical survey of the conflict, Watson begins to address the legal aspects of Oslo, devoting three chapters (3, 4 and 5) to the question of whether the accords are legally binding instruments or merely purely political undertakings. In Part II, Watson concludes, after detailed analysis, that they are indeed binding, as if that deterred Sharon from unleashing his forces in the spring of 2002 (two years after publication of this book) on West Bank cities, refugee camps, and the infrastructure of both the PA and the private sector, thereby demolishing the very foundations of Palestinian society and erasing the Oslo “borders” in their totality. The three chapters in Part II are almost entirely consumed with an analysis leading to the conclusion that the accords are indeed binding, not within the meaning of treaty under the 1969 Vienna Convention on the Law of Treaties but rather under customary international law. Under this theory, the PLO does not qualify as a state but as a “subject of international law,” a legal designation that encompasses international entities and the Holy See. Accordingly, the accords might have “legal consequences in the same way that certain General Assembly declarations have legal consequences – perhaps as ‘evidence’ or ‘codification’ of existing customary international law” (p. 78). Further legal analysis undertaken in Part II of the many components and codicils of the Declaration of Principles confirms the binding nature of the Oslo package for Watson. Thus, the Gaza-Jericho Agreement is an “agreement” accompanied by six maps and four detailed annexes. Watson concludes that those Oslo agreements which followed Gaza-Jericho were in fact “treaties within the meaning of the Vienna Convention” (p. 68). An example would be the Interim Agreement of 1995, which was signed at a time when “the Palestine Authority was closer to statehood – but it was still not quite there” (p. 69). Further juridical bolstering is supplied by the term “protocol,” as in the Hebron Protocol of 1997, and the Wye River Memorandum, which is a bit less formal. Moreover, virtually every one of these agreements speaks of “entry into force.” In the quest to prove the binding nature of Oslo, the author devotes chapter 5 to an examination of agreements concluded since the seventeenth century affecting tribes and indigenous people less than fully sovereign, on the one hand, and colonialist powers, on the other. Together with an examination of more recent encounters, such as the conflict between Polisario and Mauritania, France and Algeria, the Angolan MPLA and FNLA, he tries to demonstrate that the PLO has the proper standing to enter into “agreements” with sovereign powers. The fact that the PLO has negotiated “for the benefit” of the PA (a creature of Oslo and Israel) might also serve to avoid the “presumption that the PA is merely a puppet of the Government of Israel” (p. 99), at least for Watson. Having concluded that the Oslo Accords are legally binding and that that there is “a legal basis for the assertion that the Oslo process is ‘irreversible’ ” (p. 101), the author goes on to consider in Parts III and IV whether Israel and the Palestinians have, in turn, complied with their obligations under the accords. That examination consumes most of the remainder of the book, comprising four chapters for each party, taking the reader through chapter 13. Chapter 6 examines Israel’s compliance with its obligations to redeploy troops from the West Bank and concludes that it had a “mixed” record. While Watson interprets “redeployment” effectively to mean “withdrawal,” he nevertheless disagrees that such withdrawal should have extended to 90 percent of the occupied territories, as the Palestinians expected. On the issue of settlements, Watson asserts in chapter 7 that the accords “do not outlaw existing settlements but do limit new settlements … and perhaps impose some good faith restriction on new settlements in East Jerusalem” (p. 132). He further concludes that the law of belligerent occupation is applicable to the occupied territories and that certain aspects of Israeli settlement policy are inconsistent with the law of 571

THE OSLO ACCORDS

occupation, particularly when “state-sponsored and subsidized settlement does begin to look like an ‘impermissible’ transfer of civilians to occupied territory, a violation of Article 49 [of the Fourth Geneva Convention]” (p. 141). In chapter 8, Watson concludes that Israel passes the test of compliance regarding its obligations to give the Palestinians safe passage, the Gaza port, and the Palestinian airport, where “Palestinian Airlines is up and running” (p. 150). Of course today there is no passage, let alone free passage, as the entire area looks like a prison camp and the port and airport lie in total ruin. With regard to Israel’s withholding of PA funds, the author concludes that such action is inconsistent with its obligations under the Paris Protocol. Yet he gives Israel some leeway, “given that the PA had at least partly performed its anti-terror obligations … (in which case) a partial suspension of payments by Israel would have been a more proportional response” (p. 167). On the issue of human rights obligations, Israel receives a mixed grade of compliance despite egregious violations documented by the major international human rights organizations, some of which accuse Israel of having committed war crimes. Any fair-minded person might wonder how an assertion like the following could be made in a scholarly work of international law: “[o]n the whole, Israel’s record of compliance has been uneven, but it has steadily improved over the past few years, to the point at which Israel is now in substantial compliance” (p. 198). As the book turns to an examination of the PA’s record of compliance in Part IV (chapters 10 through 13), the author gives the PA very low marks for having supposedly “violated or at least neglected many of its important obligations, including its obligation to cooperate on security matters, to combat terrorism, to amend its Charter, to observe the geographical and functional limits on the governmental activity, and to respect human rights” (p. 262). The frame of reference for this evaluation of both records of compliance suffers from a conceptual problem – treating an agreement signed under a colossal imbalance of power as good law. One of the serious shortcomings of this study is that the legal evaluation is based sometimes on international law but many times on the Oslo Accords themselves. Thus, for example, it would have been more fruitful to consider the very absence of a human rights component in these accords. Another example is that in strict Oslo terms, the PA was perhaps in violation of observing what the author calls “the geographical and functional limits on the governmental activity,” i.e. conducting PA business in Jerusalem, but then one might ask the more fundamental question of whether Israel’s occupation of Jerusalem was itself even legal under international law. Arafat’s acquiescence to these accords is seen by a large segment of the Palestinian people as an act performed under duress in circumstances where the so-called peace process was driven by the geopolitical factor, rather than by international law, and under conditions where the peacemaker and self-designated honest broker was at the same time Israel’s chief diplomatic backer, bankroller and arms supplier. The major theme dealt with in the last part, consisting of chapters 14 and 15, is what legal questions might arise in final status issues and how international law might shape a final settlement. The sad fact is, however, that the analysis of these issues – which make up the very essence of the Palestine question – is so terribly one-sided that it calls into question whether it could really be said to constitute legal analysis at all. Thus, for example, “West Jerusalem has been a part of the state of Israel since its inception” (p. 268). Did it not become so as a result of aggression, annexation and administrative measures carried out to gerrymander and manipulate boundaries? Are not most of the neighborhoods there actually ethnically-cleansed Palestinian villages whose only current traces of existence are

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cactus trees sprouting between a sprawling metropolis? And was not that same process duplicated in what is now called East Jerusalem? Consider Watson’s assertion that “[e]ven if East Jerusalem is occupied territory, that does not necessarily imply any ultimate conclusion about territorial sovereignty” (p. 269). Or let us ponder another conclusion: “[a] final status agreement conferring upon Israel sovereignty over East Jerusalem would not deprive Palestinians there of self-determination, so long as the agreement was freely negotiated and so long as the agreement fully protected the civil and political rights of Palestinians there” (p. 273). Another so-called final status issue is the right of return for Palestinian refugees, which also receives short shrift based on another Watson conclusion that the language in Resolution 194 says that the refugees “wishing to return to their homes ….‘should’ [not ‘shall’] be permitted to do so at the earliest practicable date…” Not only does he consider this formulation “hortatory” rather than “obligatory” but he also reminds his readers that General Assembly resolutions are “not legally binding” anyway. Even the safeguard of the Universal Declaration of Human Rights is diminished by another interpretation that denies the applicability of the phrase “seeking to return to their country” on the grounds that Israel is technically not the refugees’ country! What is truly amazing is that Watson defends colonial settlers against being “arbitrarily deprived of their property” under Article 17(2) of the Universal Declaration while at the same time he denies the rights of the indigenous population to their property, much of which has been stolen by the settlers (p. 293). In the end, Watson recommends that the final status issues would better be resolved through compromises and extended deferral (as if the power imbalance could ever permit equitable deal making), thereby concluding that international law can only offer “general guidelines,” “draw baselines for the parties” and “set limits,” rather than provide the actual tools for conflict resolution in this case (p. 307). In his conclusion, Watson admits that the Oslo Accords will not be remembered as great works of political theory but rather that they teach broader lessons, such as the value of vagueness and ambiguity in the peaceful settlement of disputes. It could be argued that such deliberate ambiguity was indeed intended to provide the necessary gridlock that was needed to impede a viable settlement, to preserve the status quo, to extend the occupation and repackage it under a different heading, and to enable the stronger party to make land and resource conquests under presumed peaceful conditions while diplomatic negotiations provided a perfect cover. Oslo is an imperfect agreement to reach agreement and hardly the appropriate instrument for the peaceful settlement of disputes. The collapse of the Camp David summit in July 2000 was the natural outcome of the structural flaws of the Oslo Accords.

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2. THE OCCUPATION OF JUSTICE: THE SUPREME COURT OF ISRAEL AND THE OCCUPIED TERRITORIES David Kretzmer Albany: State University of New York Press (2002), pp. 262 Reviewed by Anis F. Kassim*

This is a much needed work on the role of Israel’s Supreme Court in matters relating to the Occupied Palestinian Territories (“OPTs”). The Supreme Court entertains a very prestigious position in Israeli society, and from there it has exported its prestige to the outside world. The Supreme Court has positioned itself, or has been positioned, on the international level as the guardian of human rights, democratic principles and the rule of law. Although this is for the most part true regarding cases adjudicated concerning Israel proper, the Court’s demeanor changes radically when confronted with cases involving the OPTs. It is this side of the Supreme Court that is being exposed in this well written and carefully documented book by a distinguished professor of law at the Hebrew University in Jerusalem. David Kretzmer’s book is, in effect, an excellent narrative of how the Supreme Court of Israel has become an effective tool in the machinery of the military occupation. From the very start, Kretzmer writes: “From a radically different perspective, it may be argued that the main function of the Court has been to legitimize government actions in the [Occupied] Territories” (p. 2). In the ten chapters comprising this book, Kretzmer cites decisions of the Court that support his thesis and adds his own evaluation and recommendations. In chapter 1, titled “Jurisdiction, Justiciability, and Substantive Norms,” the author makes the notable observation that [i]n some cases in which the principles of administrative law should clearly have been relevant, the Court has simply ignored them. In many other cases, especially those dealing with demolition or sealing of houses, the Court has mentioned the test of reasonableness but failed to apply the test in the way the Court itself has claimed that it should be applied, namely, to examine the balance between the various considerations taken into account by the administrative body (p. 26, citations omitted). The Court has demonstrated a high level of servility with the net result being conformity with governmental policy. When Justice Witkon advocated the view in the Rafiah Approach case that military orders should be regarded as primary legislation not subject to judicial review, Justice Kister ruled that in every “enlightened country,” the military commander is bound to comply with the rules of international law that limit his authority (p. 28).

*

Consulting Editor, The Palestine Yearbook of International Law.


THE OCCUPATION OF JUSTICE

However, when the VAT case1 was being adjudicated, the Court, while purporting to adopt both Israel’s administrative law and international law, in reality “has not consistently carried out such an examination.” The author asserts that the Court, in many cases, “has done its utmost to avoid resort to standards of international law” (p. 29). This egregious dereliction of public international law and its relationship to the OPTs was fairly exemplified by the author in chapter 2. In the Beth El case2 Justice Witkon was not hesitant to state that the situation in the OPTs was “one of belligerency, and the status of the respondents in respect of the occupied territory is that of an occupying power” (p. 36, emphasis added by Kretzmer). In spite of this clear statement, Justice Witkon refused to accept the argument that Jewish settlements in the OPTs constitute a violation of Article 49 of the Fourth Geneva Convention. The Court’s ambivalence towards international law is best demonstrated in chapter 3, dealing with the interpretation of the Fourth Geneva Convention. The Court has rejected the view that the Convention forms part of customary international law enforceable in domestic (Israeli) courts. According to this position, the Court “need never have expressed an opinion on the interpretation of the Convention’s substantive provisions or on arguments that certain IDF actions are incompatible with those provisions” (p. 43). Nevertheless, in the Beth El and Elon Moreh cases,3 both involving Jewish settlements in the OPTs, Justice Landau held in the former that the legality of such settlements should be regarded as “non-justiciable,” while in the latter case, the Court refused to accept the state attorney’s argument that under the Convention, it was permissible to transfer land to settlers. Furthermore, in deportation cases, the Court has gone into detailed interpretations of Article 49(1) of the Convention, in contrast to its position with respect to settlements. In summarizing the Court’s two different approaches to the interpretation of the Convention, Kretzmer concludes that one would get the following picture: article 49 should not be interpreted literally and therefore, despite what it says, it does not prohibit all deportations. Article 76 should be interpreted literally. If it says “accused and convicted persons,” it should be applied to those categories of persons only, and should not be applied to administrative detainees who have not been formally accused or convicted (p. 53, emphasis added). Whether the Court prefers the textual method of interpretation over the contextual method or vice versa, the end result is almost always the same: the Court will adopt the interpretation most favorable to the authorities (p. 55). Chapter 4 deals with a new and highly interesting topic, the concept of the “benevolent occupant.” In the Christian Society case, Justice Sussman reasoned that the occupying power must take into account changing circumstances and adopt measures, including legislative measures, needed to ensure “civil life” as prescribed by Article 43 of the Hague

1

See the text of the decision, available at 4 PAL. Y.B. INT’L L. 186 (1987/88). See also Gerhard von Glahn, Obiter Dictum: An Unofficial Expression of Opinion on the VAT Case Judgement, Id., at 210.

2

See the text of the decision, available at 2 PAL. Y.B. INT’L L. 134 (1985).

3

See the text of the decision, available at 1 PAL. Y.B. INT’L L. 134 (1984).

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Regulations of 1907. Sussman’s statement aimed to legitimize the issuance of military orders in the OPTs, including the order that amended the Labor Law in the West Bank to facilitate mandatory arbitration of labor disputes. This approach, called by the author the “benevolent occupant,” “paves the way for farreaching changes in occupied territory under the guise of measures taken for the good of the local population” (p. 59). Following this approach, severe security measures have become permissible to ensure public order such as in restricting the freedom of the press (Al-Taliya case), refusal to allow local elections (Amar case), imposing a bond on parents to ensure good conduct of their minor children (Tahaa case),4 and imposing new taxes (the VAT case). Eventually, the well-being of the Palestinians in the OPTs has been expanded to include the well-being of the settlers (Electricity Co., (No. 1) case). Kretzmer notes that such an approach is “reminiscent of a colonial model of governors who know what is best for the natives” (p. 70). Chapter 5, titled “Civilian Settlements and Development Projects,” is a typical exposé of how “settlers law” develops by a colonizing power and is legitimized by the highest court. Except for the Elon Moreh case, all cases involving settlement activities were won by the government attorneys. Even in the Elon Moreh case, the Court in effect provided the government with “legal advice” on the best way to colonize Palestinian land. The Court has invariably utilized “military” considerations, “security” grounds or “political” factors in order to reach the conclusion that the colonization process is legitimate. The Court was not even bashful in holding that confiscation of large tracts of Palestinian land for the construction of highways was for the benefit of the West Bank residents (p. 97). Kretzmer remarks that “the Court provided legitimization for government actions that are highly questionable, not only on political grounds, but on legal grounds as well” (p. 99). Having legitimized the colonization of Palestinian land, the Court has further legitimized the stripping from Palestinians of both their legal status and fundamental human rights. This is the subject of chapter 6, titled “Residency and Family Unification”.5 The petitioners in the La’afi case were husband and wife from a village in the West Bank. Before their marriage, the husband was working in Kuwait, and his wife joined him in 1962. She was included in the census carried out immediately after the West Bank fell under Israel’s occupation in 1967. The family remained in Kuwait for four years, after which the wife applied to the military authorities to allow her husband and their three children return and remain in the West Bank. As the application was rejected, they petitioned the Court. The Court held that once the petitioners had taken up residency in another country, they lost their residency status in the land in which they were born and in which all their family lived. The Court acknowledged that the petitioners’ matter was difficult, “but vital interests of the state prevent their return after they built their houses in another country.” In a later case, the Court cited the “political circumstances” as a reason to deny a similar

4

See the text of Military Order No. 1235 (Order Concerning Supervision of the Conduct of Minors (Imposition of Bail) (Provisional)), available at 5 PAL. Y.B. INT’L L. 242 (1989).

5

On the issue of family reunification, see the text of the Supreme Court decision in the Mushtaha case, available at 3 PAL. Y.B. INT’L L. 132 (1986), and the Supreme Court decision in the Shaheen case, available at 6 PAL. Y.B. INT’L L. 72 (1990/91).

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THE OCCUPATION OF JUSTICE

application for residency. The author is correct in concluding that the “vital interests of the state” and the “political circumstances” are “related to a restrictive immigration policy for Palestinians, part of the attempt to maintain a ‘demographic balance’ between Jews and Arabs in the territories under Israeli control” (p. 103). One should recall that under Israel’s Law of Return, every Jew who resides anywhere in the world has the right to immigrate to Israel and upon arrival, he/she, according to the Nationality Law, will be clothed “immediately” with Israel’s citizenship unless he/she opts against such an imposition. The comparison between the residency right for a native Palestinian and that of a foreign settler shows the inherent racist attitude of the Court and the State of Israel. Chapter 7 deals with “security powers,” such as house demolition,6 administrative detention, curfew and other punitive measures. In the Beit Hadassah case, the Court held that Jewish settlers who had moved into a building in Hebron and occupied it with the support of the IDF had a right to be in the building and that the Palestinian petitioners had no property rights in the building. The author remarks that the case is an example of how “the law is dragged behind the measures of de facto annexation” (p. 118). Professor Kretzmer is very critical of the application of the Defence (Emergency) Regulations of 1945 to “security” issues such as deportation7 and house demolition (as explained in chapter 9). He points out that these regulations were repealed as of May 14, 1948 by virtue of an Order-in-Council that was signed in London and tabled in the U.K. parliament (p. 121). Chapter 8, dealing with “Liberty and Security of the Person,” is revealing. In the Shawe case, the Court conceded that curfews should not be used as punitive measures. However, it held that the military commander had shown that the curfew was a measure to ensure security and public order. Thus, the Court found no basis to question the commander’s judgment. Justice Landau had headed a Commission of Inquiry to investigate the practices of the General Security Service (“GSS”) during interrogations, which found that the GSS had systematically lied to courts. The commission, in its own report, was argued to have “licensed torture, which is absolutely prohibited under international law” (p. 137). In the Balebisi and Khamdan cases, the Court’s rulings, in effect, approved the use of force in interrogation and concluded such use could be legal (p. 140). The last chapter, titled “Deportations,” shows that the Court has not changed its course of interpretation. The Court has consistently held that Article 49 of the Fourth Geneva Convention does not apply to deportation of individuals on security grounds.

6

On the issue of house demolitions, see the text of three Supreme Court decisions, available at 1 PAL. Y.B. INT’L L. 121 (1984).

7

On the issue of deportation, see the text of the Supreme Court decision in the Qawasmi et al. case, available at 3 PAL. Y.B. INT’L L. 90 (1986); Israel’s collected laws of deportation, Id., at 135; Affidavit by Attorney Aziz Shehadeh on the legality of deportation, Id., at 150; Joost Hiltermann, Israel’s Deportation Policy in the Occupied Territories, Id., at 155.

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David Kretzmer has provided us with a thorough insight into the Supreme Court’s role in serving the political ends of the rapacious Israel. It has authorized and legalized land colonization, served the demographic cleansing process (by allowing deportation of individuals, demolition of houses, and denial of family reunification and residency status) and neutralized the rules of international law, both conventional and customary, by interpreting the law restrictively or liberally, depending upon the military government’s needs. It remains an effective instrument in developing the “settlers’ law.” Professor Kretzmer’s book is an indispensable legal reference with respect to Israel’s Supreme Court and its pernicious jurisprudence.

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3. NEW PERSPECTIVES ON PROPERTY AND LAND IN THE MIDDLE EAST Edited by Roger Owen Cambridge: Harvard University Press (2001), pp. 341, including index Reviewed by Anthony Watson*

This book is a collection of seven essays prepared by various authors regarding land and property rights in the Middle East. The editor of the collection is Roger Owen, the A.J. Meyer Professor of Middle East History at Harvard University, and the author of The Middle East in the World Economy (London & New York: I.B. Tauris, rev. ed. 1993) and State, Power and Politics in the Making of the Modern Middle East (New York: Routledge, 3rd ed. 2004). The essays were initially presented at workshops on land and land records held at the Harvard Center for Middle Eastern Studies in 1995 and 1996. They pertain to both positive law and actual practice in the Ottoman Empire and its successor states during the nineteenth and twentieth centuries. Many of the subjects addressed in this volume set the stage for further consideration of property rights in Palestine whether they discuss land laws and practices that were implemented in Palestine or in other parts of the Ottoman Empire. As the editor points out in the introduction, the study of property law in the Middle East has generally been encumbered by (1) too great a reliance on Islamic legal terms that often do not reflect actual practice; (2) an assumption of a linear progression of property ownership in the Middle East from pre-modern forms to forms of property ownership that are more similar to those of the West; and (3) a tendency by scholars to translate Arabic and Turkish legal terms neatly into Western legal terms where subtle differences demand further critique. The chapters of this book tackle these problems by focusing in detail on various types of land ownership and exploring them in their historical and local legal contexts. The editor distinguishes between the right of access to land and the right of access to its surplus. Although these two rights were distinct in the nineteenth century, over time, they melded together to form a single right to both land and its surplus, which is a right similar to the Western concept of individual private property. Understanding how this process developed gives the student of Middle Eastern history a greater appreciation for the differences between Middle Eastern and Western legal terms. The essays presented here are not for general consumption; they are written for a specific audience of insiders whose vocabularies include Arabic and Turkish legal terms. For instance, in the second essay of this volume, Martha Mundy discusses implementation of the Ottoman Land Code of 1858 in two villages located in what is now northern Jordan. She examines the registration of land, called tapu registration, using the term defined in the Ottoman Land Code of 1858. Similarly, Amy Singer considers the Islamic charitable

*

Anthony Watson is an international lawyer who specializes in the Middle East. He earned a J.D. and an M.B.A. from Northeastern University in 1997 and a B.A./M.A. from Boston University in 1990.


NEW PERSPECTIVES ON PROPERTY AND LAND IN THE MIDDLE EAST

institution called waqf and examines management of an Ottoman waqf established in Jerusalem in the sixteenth century. A basic knowledge of such terms is required in order to appreciate their historical significance. Although most of the chapters in this volume do not speak directly to the problem of land ownership in Palestine, all of them concern land ownership in the Middle East. Therefore, many of the subjects addressed have an indirect bearing on the contentious issue of land registration, ownership and alienation in Palestine during the first half of the twentieth century. For instance, in the last chapter of the book, Birgit Schaebler discusses the musha‘ system of periodically redistributing access to village lands in the Hawran region of southern Syria during the nineteenth and early twentieth centuries. She shows that a certain Druze clan’s gobbling up of land in the Hawran region through the musha‘ system of redistribution resulted in a peasant’s revolt in 1889 and 1890. In another chapter, AbdulKarim Rafeq discusses how individuals, often protégés of foreign governments, were able to obtain access to or ownership of real property in Syria during the latter half of the nineteenth century. Although the settings of neither of these essays is Palestine, both essays discuss contests for land that have remarkable similarities to the competition for land that has historically been at the heart of the conflict between Zionists and Palestinians. In the first chapter of the book, Huri Islamoglu traces the evolution of Ottoman real property taxation from a complex system of revenue claims to a system that sought to recognize individual ownership for the purpose of collecting taxes to be paid directly to the Ottoman state. Although the syntax of this essay suggests that it is an imperfect translation, the author successfully argues that the change in Ottoman taxation policy reflected changes in state power and was implemented through the Ottoman Land Code of 1858. Continuing the examination of the Ottoman Land Code, Denise Jorgens compares it to the Egyptian Land Code also enacted in 1858. She argues that the Egyptian Land Code was enacted in response to extreme social changes in rural Egypt such as the creation of large plantation estates and increased taxation under Muhammad Ali. According to Ms. Jorgens, the Egyptian Land Code, like the Ottoman Land Code, was enacted, in part, to restore the traditional small peasant family farm system on state-owned land. Government policies aimed at encouraging ownership by small landowners or cultivators of land is a subject raised often in this volume and takes on substantial historical significance in Palestine during the British Mandate. The chapter that is most relevant to the issue of landholding in Palestine is written by Martin Bunton. It examines the evolution of British policy toward land ownership during the Mandate period. Initially, the British Mandatory government encouraged private ownership of property as a means of encouraging economic development. This policy is illustrated by a special Land Commission’s determination of a settlement claim that arose near Beisan in 1920. The land was called jiftlik land, which was a classification of land in Palestine acquired by the Ottoman Sultan in the 1870s and turned over to the Ottoman treasury after 1908. The Land Commission permitted registration of the Beisan jiftlik land in the names of its cultivators as individual owners of miri (that is state-owned) land. This decision is remarkable because it reflects the British Mandatory government’s policy of encouraging private ownership of land in the early years of the Mandate. Over time, this policy changed under the stress of displacement of Arab tenants created by their expulsion from agricultural lands. Although the Land Transfer Ordinance of 1920 attempted to prevent the expulsion of tenants from agricultural land by requiring gov582


ernment consent before a landowner could transfer title, landowners who were determined to sell their property simply paid tenants to vacate the premises prior to applying for such government consent to sell. As Bunton observes, the result was that the Land Transfer Ordinance proved to be insufficient to prevent the expulsion of cultivators from land. Thus, the displacement of tenants in Palestine continued almost unchecked throughout the 1920s. The contest for land in Palestine took on ethnic implications because Jewish purchasers often obtained title to land formerly cultivated by Arab tenants. Following riots by displaced Arab tenants in August 1929, an official of the British Mandate government acknowledged the difficulty of implementing conflicting policies. Although the British government encouraged Jewish immigration to Palestine, the Mandate Administration sought to insure that the position of the Arabs was not prejudiced by Jewish immigration. The Mandate Administration’s solution to the conflict was to attempt to encourage agricultural development. However, with limited arable land, this policy was unrealistic. Bunton compares the results of the Beisan contest settled in 1920 with a subsequent decision regarding jiftlik lands issued in 1931 in the villages of Sajad and Qazaza. In accordance with the Land Settlement Ordinance of 1928, a British settlement officer found that title to the jiftlik lands of Sajad and Qazaza should be held by the British Mandatory government because the land had been registered as miri land owned by the Ottoman Sultan and transferred to the Ottoman government in 1908. He also found that the cultivators on the Sajad and Qazaza land should be legally registered as having “heritable and assignable rights of occupancy and tenancy.” Thus, the settlement officer’s decision left the tenants of Sajad and Qazaza with rights similar to the tenants of Beisan. However, the attorney general for the Mandate government appealed the settlement officer’s decision to the Mandatory land court. The land court overturned the settlement officer’s decision, holding that the inhabitants of Sajad and Qazaza were “tenants, and merely tenants.” Bunton argues that the land court’s holding reflected the anxiety of British administrators to expanding the rights of individuals in land. Bunton reasons that if the cultivators of Sajad and Qazaza had obtained hereditary and assignable rights over the land, they might have been tempted to sell it. The cultivators might then become homeless. In order to prevent this situation from arising, the British Mandatory government, had by the 1930s, changed its policy from encouraging private ownership of land to discouraging assignable rights to land. The issue of land ownership during the Ottoman and Mandatory periods is relevant even in the twenty-first century because of the unresolved question of displaced Palestinians whose status has remained undetermined for over fifty years. As Israeli and Palestinian negotiators consider yet another round of talks, the rights of Palestinians who were displaced or whose ancestors were displaced remains a bone of contention. Roger Owen notes that the articles presented in this volume are works in progress and he looks forward to further exploration of property and land law of the Ottoman Empire and its successors. Such scholarship may prove useful to revolving outstanding issues such as a Palestinian right of return or to compensation for land confiscated from Palestinians. These questions are rooted in complex legal and administrative proceedings regarding property and land law in the Middle East. We look forward to the continuing edification that the essayists of this volume may provide.

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4. PALESTINE AND INTERNATIONAL LAW: ESSAYS ON POLITICS AND ECONOMICS Edited by Sanford R. Silverburg Jefferson and London: McFarland & Co. (2002), pp. 430 Reviewed by Nicolas Jacobs*

This book consists of thirteen essays and is divided into two main parts, Part I tackling Palestinian affairs along the political dimension and Part II, the economic one. In his introduction to the reader, the editor, Sanford R. Silverburg – who is Professor of Political Science at Catawba College in Salisbury, North Carolina – presents the common denominator of the volume: the dialectical interplay between law, politics and economics in pursuing conflict resolution in the Middle East. The contributors, predominantly American academics and lawyers, provide the reader with usually insightful analysis of core issues standing out as landmarks for the creation of a Palestinian state: the form of Palestinian statehood; the conduct of foreign relations; constitutional considerations; the need for legal reform; the role played by international law and international actors; and challenges to economic development. In the first essay, entitled “Diplomatic Recognition of States in statu nascendi: The Case of Palestine,” Sanford Silverburg presents the creation of the Palestinian National Authority (PNA) as “an opportunity to witness a unique development in international law” (p. 9). He observes, based on a careful historical and legal analysis, that if Palestine has yet to reach the required standards for statehood according to positive public international law, the PNA has undoubtedly received diplomatic recognition from states and international organizations, in particular through the conclusion of commercial agreements. In spite of the clear terms of the Declaration of Principles which preclude the PNA to have powers in the sphere of foreign relations, political dynamics led to a sui generis model of autonomy. This phenomenon provides de facto evidence that a choice has been made by states and international organizations to recognize the potential of the PNA to transform into a sovereign body. Professor John Quigley’s essay is also concerned with the issue of Palestinian statehood although from a very different angle, as he develops a convincing analysis showing the relevance of a strong claim of sovereignty for a Palestine state. Put in its historical, political and legal context, the question of statehood is interestingly seen as a problem relating to its implementation and not its existence. The author successfully deconstructs the discourse held on Palestinian statehood by the different actors since the Madrid peace conference and delivers a thorough legal argumentation that supports his position.

*

Research Associate, Institute of Law, Birzeit University.


PALESTINE AND INTERNATIONAL LAW: ESSAYS ON POLITICS AND ECONOMICS

In contrast to the other essays, “Israel and the Creation of a Palestinian State: The Art of the Impossible and the Possible,” written by Professor Joseph H. Weiler, proposes a phased model to Middle East conflict resolution that aims at breaking the current impasse surrounding the creation of a Palestinian state. In this considerable article, the author seeks to go beyond traditional legal political constructs, starting from the premise that the entrenched legal positions of both parties to the conflict and the absence of a judicial authority to determine rights and wrongs work to impede a solution based solely on the application of the requirements of public international law. Weiler explains how the dynamics of the conflict led to such a deadlock in the first part of his essay, before providing, in the second part, an overview of the European Common Market, where supranational legal and political structures were successfully developed. In the last part, he then proposes the application of elements of such a supranational model as a way to overcome the problems set out at the beginning. Interestingly, the author does not believe that the mere creation of a Palestinian state will be sufficient to put an end to the Middle East conflict. Rather, he suggests the path to genuine peace will be through a phased implementation of a common market, based upon prior mutual acceptance and recognition of the right of the other to exist. In so doing, Weiler seeks to propose a solution to the conflict potentially able to put aside the difficult issues of Palestinian self-determination and statehood. While leaving the appreciation of his proposal to the reader’s judgment, he has surely achieved his stated aim of stimulating debate on new approaches to resolution of the ArabIsraeli conflict. In the next essay, entitled “Palestine and the World of Law: A Structural Analysis,” Professor Silverburg investigates the question of the conduct of foreign affairs as spelled out in the provisional Palestinian Basic Law and provides a comparative analysis with other constitutional texts in this matter. To some extent, the result may appear redundant with some of the points already raised in the first essay of this book, notably concerning the interplay between the PLO and the PNA. Also, if one agrees with the author that the provisions on the conduct of foreign relations in the Palestinian Basic Law should be more detailed in order to respond adequately to international legal obligations of a democratic state, this essay probably suffers, more than the others, from the fact that the Oslo process has now collapsed. Joel Singer, an active participant in the peace negotiations, analyzes in his essay the special treatment that the issue of foreign relations has received in the three main agreements on interim self-government concluded to date between Israel and the PLO. One must indeed bear in mind that the capacity to conduct foreign relations is one of the recognized elements of statehood and sovereignty. After considering principles of international law applicable to this issue (foreign relations and statehood, autonomy and status of occupied territory), Singer provides a brief but comprehensive overview of how the matter was dealt with during the negotiations and subsequent agreements, as well as in the Israeli legislation internally implementing the Cairo Agreement. The conclusion he reaches on the basis of these texts is, not surprisingly, that if some exceptions exist in the sphere of foreign trade and economic assistance, the Palestinian Authority lacks competence for conducting foreign relations. Nevertheless, as Professor Silverburg pointed out in the first essay of this book, a variance can be witnessed between the formal letter of the agreements and the subsequent practice that followed, considering the extent of diplomatic relations that have been established between the Palestinian Authority (as distinct from the PLO) and states or international organizations.

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The next essay, entitled “From Liberation to State Building in South Africa: Some Constitutional Considerations for Palestine,” Professor Adrien Wing, in a clear and straightforward manner, highlights the most relevant aspects of the South African experience for the attention of Palestinian decision makers. As a successful, and rare, model of transition from oppression to democracy, much can effectively be learned from the South African Constitution, thanks to which a genuine democratic system and culture has been institutionalized. In “Peace and the Political Imperative of Legal Reform in Palestine,” Professor George Bisharat calls for the implementation of an aggressive program of reform by the Palestinian Authority as a necessary element for the conclusion of a permanent and just peace between Israelis and Palestinians. Based upon solid experience of Palestinian politics, the author identifies in a systematic manner the various well-known problems, in particular in relation to the administration of justice. His conclusions consist of a set of recommendations addressed mainly to policymakers in the U.S., where the building of a strong independent judiciary, through legal reforms, appears to be a paramount priority. It is worth noting that even though the reform of the PA – notably through the establishment and filling of a position of prime minister – effectively has become since 2002 the leitmotiv of the Bush administration (and of the Europeans) and that the Law on the Independence of the Judiciary has been, finally, ratified in 2002, still no dramatic change has occurred on the ground. In spite of serious concerted efforts made in order to reform the judiciary, the reoccupation and closure of major population centers by the Israel army hinders any genuine reform from taking place. Professor John Strawson’s essay, entitled “Mandate Ways: Self-Determination in Palestine and the ‘Existing Non-Jewish Communities’,” provides the reader with an original contribution on how the British Mandate for Palestine played a decisive legal role in marginalizing the Palestinian people and their right to self-determination. John Strawson demonstrates, through a very well-documented analysis, that “international law is not an innocent bystander in Palestine” (p. 251). The wording used in the text of the mandate and the way it was administered has undermined the very identity of the Palestinian people, which is defined in the negative as “existing non-Jewish communities” living in Palestine besides the Jewish community. The author convincingly shows how colonial and postcolonial international law has played a role of accomplice in the injustice that doomed the fate of the Palestinian people in the twentieth century. The next essay deals with the relationship between Palestine and the United Nations from an historical and legal perspective. Professor Neri Sybesma-Knol, after a brief review of the historical background before 1948, traces the subsequent treatment of the Palestinian question at the United Nations, coming to the conclusion that it has not been adequately addressed and stressing the United Nations’ inability to play a significant role in imposing a lasting solution to the Arab-Israeli conflict. Part I of the book ends with the essay of Professor Juan Delgado, a review of Spanish foreign policy towards the Middle East since 1939. From a situation of ostracism under Franco’s rule, Spain slowly developed a foreign policy more commensurate to its position in the Mediterranean region, to play today an important role in the diplomacy of the Middle East, and in particular since the 1991 Madrid peace conference.

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PALESTINE AND INTERNATIONAL LAW: ESSAYS ON POLITICS AND ECONOMICS

Part II of the book, dealing with economic issues, comprises three essays. The first one, by Professor David Fidler and Fadi G. Harb, examines the question of Palestinian economic development in the era of globalization. Starting from the hypothesis that a Palestinian state will, one day, come to life, they analyze what the impact of globalization will be on its economic development and sovereignty. After explaining what the influence of globalization on economic development is in general, the authors review the strategies adopted since the Declaration of Principles in 1993 for fostering Palestinian economic development. However, the issue at stake here is to determine how best to prepare the Palestinian economy to face the tremendous challenges and constraints imposed by globalization. The authors present the results of a privately sponsored initiative – the Palestinian National Trade Dialogue Project – that concluded that Palestine has no alternative other than adopting the free market capitalism model. In the second essay, entitled “Legal and Structural Hurdles to Achieving Political Stability and Economic Development in the Palestinian Territories,” Dr. Keith Molkner gives a good overview of the different problems hindering economic development for Palestine. The most interesting part relates to the critical appraisal of the Palestinian investment, banking and tax laws. Written in 1996, it is needless to note that his findings will sometimes appear outdated considering that contrary to the optimism then expressed by the author about the future, the hurdles have only become higher today. The final essay, by Mel Levine, also dates from the same period and the same considerations thus apply. He reviews economic progress under the Oslo Accords and pinpoints that the main constraints come from the security requirements of the Israeli side that impede freedom of movement for persons and goods. He also calls for greater support from international financial institutions. This book, rich and diverse, where contrasting and sometimes contradictory points of view are presented, achieves its aim of exploring combined legal, political and economic dimensions of the Israeli-Palestinian conflict. The reader should surely not expect another volume on the ongoing cycle of violence that started in September 2000. Rather, unpolemical in its nature, this new reader represents a valuable contribution to the academic discourse on the thorny question of Palestine. If none of the essays take into account the current situation, most of them nevertheless retain their relevance, even if the dramatic turn of events have rendered obsolete some of the conclusions or theories presented.

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5. PALESTINIAN REFUGEES: THE RIGHT OF RETURN Edited by Naseer Aruri London and Sterling: Pluto Press (2001), pp. 294 Reviewed by Stéphanie David *

Palestinian Refugees: The Right of Return, edited by Naseer Aruri, a diaspora Palestinian living in the United States where he is Chancellor Professor (Emeritus) of Political Science at the University of Massachusetts at Dartmouth, was published in 2001 following the failure of the latest round of negotiations between the PLO and Israel. This comprehensive compilation of sixteen contributions from Palestinian, Israeli and international authors, mainly academics and journalists, is divided into four parts that in turn look back to discover the roots of the refugee question and look forward in the search for a just solution: (1) the historical context; (2) the interests of the major actors; (3) return or permanent exile; and (4) refugee claims. In perusing the chapters in this book, one realizes that the title synthesizes the two main themes dominating discourse of the “refugee question” today: first, recognition of the refugee problem per se, and second, the right of return.

The Refugee Problem Part II of the book addresses the interests of the major actors. Israeli society ignored for a long time “the refugees” as a problem stemming from 1948. The issue of the refugees and the right of return eventually was allowed to be put on the negotiating table, but not as concepts to be recognized as in the implementation of a right paving the way to a suitable solution. Rather, they were seen as items to be negotiated away. According to Ilan Pappé, refugees were excluded from the Israeli collective memory and replaced [] in the consciousness of Israelis as well as in the Hebrew vocabulary with derogatory terms such as terrorists and saboteurs. There was no refugee problem on the agenda as far as the various Israeli governments were concerned; there was only Palestinian terror, which had to be dealt with military means. The refugee problem, the heart of the Palestine conflict, a reality acknowledged by all the Palestinians wherever they are and by anyone sympathizing with the Palestinian cause, was marginalized in the Oslo documents .… Five years after the bifurcation and cantonization of ‘the Palestinian entity’ and its transformation into a Bantustan, the Palestinian leadership was given permission to express its wish to deal with the refugee problem as part of the negotiations over

*

Stéphanie David is a PhD candidate in public international law at La Sorbonne University in Paris and a program officer for the International Federation for Human Rights in Paris.


PALESTINIAN REFUGEES: THE RIGHT OF RETURN

the permanent settlement of the Palestine question. The Israeli discourse at this point distinguishes between the introduction of the ‘refugee problem’ as a negotiable issue on the agenda – a legitimate Palestinian move – and the demand for the right of return, which is described as a Palestinian provocation.” (pp. 73-74) Noam Chomsky joins Ilan Pappé in pointing out that U.S. influence has had a decisive impact on what happens in the region. At the first meeting of the General Assembly that took place shortly after the Oslo Accords were signed in 1993 “[i]n effect, the Clinton administration at the United Nations rescinded Resolution 194 and voted against it for the first time” (p. 77). “Rescinding Resolution 194 meant rescinding Article 13[2] of the Universal Declaration of Human Rights also” (“Everyone has the right to leave any country, including his own, and to return to his country”) (p. 78). According to Chomsky, the question of Palestinian rights was ignored at Oslo: the Declaration of Principles on Interim Self-Government Arrangements referred only to Resolution 242, which says nothing about Palestinian rights. Thus, the final outcome of the negotiations has already been predetermined by the U.S. position on the major issues at stake. European influence on the refugee question has been virtually nonexistent. As analyzed by Alain Gresh, Europe “played no significant role in Madrid negotiations and was kept out of the secret Oslo talks. It was reduced to acting as a funding agency and, in the years that followed the accords, became a major source of funds for the Palestinian Authority (PA)” (pp. 84-85). However, the EU did participate in the multilateral Refugee Working Group set up by the Madrid Conference, which started work in 1991. Later on in 1998, the COMEP decided to form an informal working group on refugees, which approved a French proposal to prepare an internal memorandum on guiding principles for a common European position on the refugee question. France is one of the few European countries that has actually taken a position on the refugee question. In November 1999, Hubert Védrines, the minister of foreign affairs, made official statements to the effect that the refugee question is an important issue that does not concern only Israel and the PA but also the “host countries,” and it should be resolved in accordance with principles of international law. These positions, could, if they were taken up by the various parties, gather momentum, enabling the refugee problem to be formulated in a more positive fashion. Thus Gresh’s analysis points to the conclusion reached by Chomsky: the most important changes will have to take place in the U.S., otherwise it is not going to matter much what happens in Palestine. Part I of the book addresses the historical roots of the Palestinian refugee question. Nur Masalha stresses that Israel’s need to “dissolve” the refugee problem “stemmed from the deep fear of refugee return and the determination to extirpate the problem from the heart of the Arab-Israeli conflict. But that is where the Palestinian refugee problem has remained. A comprehensive and durable settlement depends on addressing the refugee problem seriously” (p. 36). “Only by understanding the centrality of the nakba is it possible to understand the Palestinians’ sense of the right of return” (p. 36). “Any genuine reconciliation between the two peoples … can begin only by Israel and most Israelis taking responsibility for the displacement and dispossession of the refugees” (p. 37) and by acknowledging that demography and the land issue were at the heart of the Zionist transfer mentality. In terms of defining a “narrative” for what happened in 1948, it is not surprising that perspectives differ between the Zionist approach and that of the direct victims of this ideology on the soil of historical Palestine. Michael Prior, in his chapter entitled “The Right

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to Expel: The Bible and Ethnic Cleansing,” recalls that “colonizers invariably seek out some ideological principle to justify their actions” (p. 9). For Zionists, the Bible constituted the “potentially most convincing apologia legitimizing the Zionist enterprise of establishing a state for Jews at the expense of an indigenous population” (p. 9). For the realization of the Zionist program “involved more than a return of Jews: it required the dislocation of an identifiable indigenous population” (p. 10). The “return of the Jews” required for the creation of a state for Jews necessarily implied the expulsion of the Palestinians, the occupation of the land and the expropriation of the private property, as the Zionist leadership well knew. Prior reviews the different ways that the Zionist movement since the nineteenth century has used the Bible to legitimize and justify the right of return for the Jews and their presence on the soil of historical Palestine. This ideology is still alive and flourishing for much of the settler population living in the occupied territories and it is still being used as a justification for the “right” to expel. Despite the frequently anti-religious dispositions of major Zionist ideologues, the biblical narrative and its scientific counterpart – archeology – have always been available in the background as support. “Since the establishment of the State of Israel in 1948, archaeology has become a cornerstone of Israel’s civic religion, testifying to exclusively Jewish claims to the land, with the biblical narrative providing legitimacy for cleansing it of its indigenous Arab population. Archaeology’s intensive search for ‘ancient Israel’ has been driven by the desire … to underpin Israeli national identity” (p. 13). One conclusion to be reached from the above analysis, as underlined by Ilan Pappé, is the need for a campaign to educate the public about the essence of the conflict – the events of 1948 – and about ways to resolve it, for example through restitution, return and reconciliation. In this regard, an example of one such undertaking is offered in a chapter by Ingrid Jaradat Gassner in Part IV of the book titled “A Programme for an Independent Rights Campaign.” Gassner describes an independent popular (grassroots) initiative for the defense of refugee rights in the post-Oslo era. The author concludes by shedding light on how the principles and agenda defined for the local grassroots campaign were followed by certain NGOs in building a Palestinian-international campaign for the defense of Palestinian refugee rights. Naseer Aruri offers another suggestion in his chapter, also in Part IV of the book, in which he proposes the convening of a congress of return and selfdetermination.

Rights of the Refugees and Obligations of the Host Countries under International Law Some fifty-five years after they were expelled from historical Palestine, the Palestinian refugees are still scandalously poorly treated in Lebanon, Egypt and, to an extent, Syria. Edward Said asks a vital question in the introduction to the volume: “why it is that a destiny of confinement and isolation has been imposed on a people who quite naturally fled to neighboring countries when driven out of their own, countries that everyone believed would welcome and sustain them?” It appears that host countries, over the years, have failed to comply with their obligations under international law regarding the refugees living in their territories. This is particularly true in the case of Lebanon, as is aptly demonstrated in two chapters in Part III of the book by Wadie Said and Nahla Ghandour illustrating the unbearable situation of the 591


Palestinian refugees there. More than any other group of refugees, the Palestinians in Lebanon have suffered from the neglect and cruelty of the Lebanese government and the refusal of Israel to repatriate them. The bloody internal conflict in Lebanon only added to their already poor conditions. Wadie Said demonstrates that the Palestinian refugees currently represent the poorest sector in all of Lebanese society as well as the poorest grouping of Palestinian refugees in any Arab country. He stresses that the refugees enjoy no special refugee or residency status that would allow them to obtain work permits in Lebanon, they have suffered infringements on their right to travel to and from the country, and medical care and social security coverage as well as other basic civil rights are denied to them. Nahla Ghandour reinforces this dismal picture by giving a description of her personal experience in providing services to some Palestinian refugees in Lebanon. She gives an overall description of the camps and assesses the organizations that are active in the camps within this situation of social and political “marginalization,” with particular emphasis on the services provided by UNRWA (the United Nations Relief and Works Agency for Palestinian Refugees).

The Right of Return For Palestinian refugees themselves, the right of return is seen as “sacred, legal and possible.” This is the catch phrase that has been coined by Salman Abu Sitta, a contributor to this volume. Abu Sitta notes that “[h]undreds of resolutions have been passed affirming [the] rights [of the refugees], offering assistance and condemning violations of [their] human rights” (p. 195). Turning to this legal aspect of the question, Susan Akram, in her lead chapter in Part IV of the volume, calls for a reinterpretation of Palestinian refugee rights under international law, recalling that the status of this particular group of refugees “is unique under international law” (p. 165). Akram notes that the Palestinians received “exceptional treatment in the major international legal instruments governing the rights and obligations of states towards refugees and stateless persons” and that “[a]lmost all states … have interpreted the relevant provisions in these instruments as severely restricting the rights of Palestinian refugees in comparison to the rights guaranteed every other refugee group” (p. 165). Akram observes that the “Palestinian refugees have been treated as ineligible for the most basic protection rights international law provides to refugees and stateless persons in general” (p. 165). She then offers a systematic survey of those international instruments that are applicable to the case of the Palestinian refugees. Akram argues persuasively that the current interpretation of the application of the legal protection framework to Palestinian refugees by states and international agencies is insufficient to afford them their rights as guaranteed under international law. She offers a “laundry list” of corrective actions that need to be taken by various actors to correct this situation. Salman Abu Sitta also addresses the legal basis of the right of return, citing UN General Assembly Resolution 194 as the preeminent reaffirmation (the “embodiment and restatement”) of this right as grounded in international law (p. 197). Abu Sitta posits three principles emanating from this right: “first, it affirms the right of the refugees to return home, that is, to their places of origin; second, it provides welfare to the refugees until they return; and third, it creates a mechanism to effect that return: the Conciliation Commission

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of Palestine” (p. 197). In that perspective, Abu Sitta explains the resilience of Resolution 194 and why it survives subsequent resolutions related to the question of Palestine. Resolution 194 is still reaffirmed annually by the General Assembly. However, the author moves beyond discussion of the existence of the right to an even more interesting aspect of it, its implementation in practice. He persuasively counters, in a very innovative argument, the obstacles usually raised to assert the “physical impossibility” of implementing this right: the alleged lack of geographic space inside Israel proper with which to absorb the refugees, in addition to the traditional argument that the return would change the Jewish character of the state. Abu Sitta’s demographic/geographic/spatial analysis leads him to conclude that “the return of the refugees is the most important stabilizing factor, without which there can be no permanent peace in the Middle East. The return of the refugees to their land and to their agricultural pursuit will … put to proper use the wasted water in the vast, unutilized, currently confiscated refugees’ land” (p. 204). Jaber Suleiman examines how the emphasis on the right of return in the political discourse of the PLO has been transformed as the orientation of the organization has evolved over time. From the “national liberation movement” of the Palestinian people, which aimed at the liberation of all of Palestine, the PLO transformed into a national independence movement, exerting efforts to secure a Palestinian entity alongside Israel. In doing so, it emphasized UN resolutions as the basis for the right of return and as the framework for resolving the refugee issue. Nevertheless, Suleiman condemns the PLO position on the right of return since Oslo that has led to a “bantustan” in Palestine and has “tampered with the legal framework of Palestinian rights as found in international law and the resolutions of the United Nations” (p. 100). Writing about “Valuing Palestinian Losses in Today’s Dollars,” Atif Kubursi recalls that before 1948, the Palestinian economy was “viable and thriving … with a significant flow of output and income that sustained a growing population of two million people” (p. 217). Projecting the estimated value of the Arab share of wealth into current dollars, Kubursi comes up with estimates for Arab NDP and wealth in Palestine in 1948 – U.S. $19.2 billion and $480 billion, respectively. Nevertheless, Kubursi cautions that “[r]egardless of how high these estimates are, a homeland is much too precious to be assigned a monetary value” (p. 217). Despite this, he finds value in assessing these figures: “the Arab wealth in Palestine which was confiscated by the Zionists in 1948 was substantial, and an accurate assessment of these assets would serve, at least, to indicate the magnitude of the losses and the difficulties the Palestinians had to endure in their absence. It also helps define the range of values that might be considered as a basis for compensation should they choose this alternative” (p. 217). In the last chapter of the book, Norman Finkelstein also briefly addresses the issue of compensation in his chapter titled “Lessons of Holocaust Compensation.” The reparations payments that Germany paid out after World War II did significantly contribute to the construction of the new state of Israel. But Finkelstein, drawing a parallel with the Jewish experience, cannot but invite the Palestinians to be cautious regarding the issue of compensation as “[i]t would be regrettable should monies earmarked for the Palestinian victims of Israel’s establishment … end up in undeserving hands” (p. 275). In conclusion, this volume is a welcome addition to the steadily growing body of literature that addresses the Palestinian refugee question in a systematic and scholarly manner. The quality of contributions contained in it makes it an excellent starting point for

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studying the topic, both for newcomers and for those already versed in the issues. The wide range of topics addressed demonstrates the richness of this subject matter and the need for continued attention to it. Perhaps a follow-up companion volume might be contemplated, to further elaborate upon issues addressed and questions raised in this volume, since the refugee question will undoubtedly continue to play a central role in Middle East peacemaking for some time to come.

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603

INDEX

A Abdullah bin Abdulaziz, Crown Prince of the Kingdom of Saudi Arabia 425, 427, 437 Abdullah (I) bin Al-Hussein, King of Jordan 129 Abu Nidal Group 222 n1, 570 Abu Sitta, Salman 592-593 The Accused 185-186 Ackerman, Gary 98 Adalah (“Legal Center for Arab Minority Rights in Israel”) 501 Afghanistan 163 Africa 166 Great Lakes 98 African-Americans 8, 305 Ahtisaari, Martti 448, 450, 466 Akram, Susan 334, 592 El Ali, Amer Mohammed 329-332, 338 Algeria 111, 571 Allen, Andrew 186 Allon, Moshe 505 Allon, Yigal 132, 147 n3 Almong, David 315 Alofs, Ben 238, 246 Amnesty International 60, 109 n113, 110-111, 184, 185, 455, 531, 536, 539 Angolan FNLA 571 Angolan MPLA 571 Anti-Semitism 185 Al-Aqsa Intifada (2000) 134, 503, 511, 563 Al-Aqsa Martyrs Brigades 459, 464-465 Arab-Israeli War (1967) 134-135, 150164, 333, 518, 569-570 Arab States 138, 149, 151, 157, 170, 334-335, 337, 423, 425-426, 429, 432, 570 Relations with Israel 134,159, 187 Arafat, Yassir 452, 453-454, 464, 473, 511, 570, 572 Argentina 62, 134, Argov, Schlomo 222, Aruri, Naseer 589-590 Arusha Peace Agreement (1999) 6-7 Associated Press 269

Association for Civil Rights in Israel 293 Auschwitz 13 Australia 184 Austria 175 Vienna 81 Avocats san Frontières 184 Axis Powers 138 B Bagosora, Theoneste 95 Balfour Declaration (1917) 123 Bangladesh 111 Barak, Ehud 323, 505 Barkved, Astrid 247-248 Bedouins 305, 316, 546-547, 556-560, 564 Begin, Menachem 125, 129, 152, 268, 322 Beijing Rules 553 Beilin, Yossi 172 Belgium 2-3, 28-29, 31, 33-34, 36, 42, 43, 48, 53, 69, 75, 144, 181, 282 Brussels 53, 112, 183, 184, 185 n3, 187, 188, 189, 189 n6 Conseil d’Etat 95, 102, 104, 106, 115 Constitution 104, 106, 263 Council of Ministers 105, 107, 208209 Diplomatic Corps 188 Federal Prosecutor 99, 100, 107, 113, 115, 208-209, 213 Judiciary 47 n57, 85, 87, 88, 95, 99101, 105, 106, 113, 114, 187, 188, 193, 281-282, 288 Court of Appeals 114, 184, 185 n4, 186, 189, 261, 284, 289 Chamber of Indictments 94, 95, 100, 107, 113, 282, 284 Court of Arbitration 107, 263 Court of Cassation 94, 95-98, 100-106, 110, 183, 188, 189 n6, 190 n7, 208-209, 216-217, 263, 280, 284, 287, 289

INDEX

Public Prosecutor or Prosecutor General 95-96, 99, 100-101, 110-111, 188, 199, 208-209, 216217, 261, 280, 284 Law 22 March 1996 Law 254 Act of 10 April 2003 on the Suppression of Military Tribunals in Peacetime 215, 216 n1 Code of Criminal Investigation 200, 214-215, 287 Code of Criminal Procedure 99, 114 Judicial Code 209, 215, 287 Law of 16 June 1993 on the Punishment of Grave Breaches of the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 18 June 1977 and 1999 and 2003 amendments (“Act Concerning Serious Violations of International Humanitarian Law”) 2-3, 28, 35, 40, 45, 47, 53, 69, 79, 82, 87-88, 92-99, 101, 109-110, 112-114, 181, 183-184, 186, 192-217, 221, 242-243, 246, 254, 257, 262263, 281-283, 285, 287, 289 Military Code of Penal Procedure 200 Penal Code 114, 198-199, 212217, 257, 263, 281 Preliminary Title of the Code of Criminal Procedure 81, 82, 85, 86, 93-96, 106, 113, 211-214, 217, 262, 281-282, 287 War Crimes Act 43 Legislature 83, 84-85, 88, 193-194, 243, 255, 262-263 Parliament 102, 115, 191 Senate 95-97, 112, 186, 188, 191192, 194 Minister of Justice 102, 192-193, 208-209, 213-214, 216, 243 n33, 287

Political Parties 112, 114 Prime Minister 186 Relations with Israel 75 n124, 98, 109, 183-190, 186 n5, 190 n7 Relations with the United States 2-3, 53, 98, 107, 109, 112, 113, 121 n2, 289 Ben-Eliezer, Benjamin 473, 532 Ben-Gurion Airport 490 Ben-Gurion, David 128-129, 132-134, 147 Ben-Gurion University 501 Bentov, Mordecai 152 Ben-Yehuda, Netiva 130 Bernadotte, Folke (Count) 130 Bertini Report 430 Bertini, Catherine 473 Bible 188, 307, 591 Birzeit University 486 Bisharat, George 587 Black September 226 Bolivia 109 n113 Borneman, John 184 Bosnia 16 n58, 17, 25, 174 Bosnian Muslims 15, 25 Bosnian Serbs 174, 175, Boston University Law School 334 Botswana 157 British Broadcasting Corporation 185 B’Tselem (“Israeli Information Center for Human Rights in the Occupied Territories”) 461, 481, 484, 536 Bulgaria 149 Burg, Avraham 225 n13 Burton, Martin 582-583 Burundi 11, 109 n113 Bush, George Herbert Walker 98 Bush, George Walker 69 n101, 427-428, 587 C Cairo Agreement 586 Cambodia 6, 111, 120, 180 Camp David 135, 324, 573 Canada 175 Montreal 188, Ottowa 112,

606

INDEX

Caradon (Lord) 570 Castel Massacre 129 Castro, Fidel 43 Catawba College 585 Chai Ang, Swee 238 Channel 4 187 Cheney, Richard 98 Childers, Erskine 134 Chile Santiago 271 China 170, 274, Chomsky, Noam 590 Christian Science Monitor 185 n3 Circassian 556 Clinton, Bill 417-420, 423, 590 C.O.E. Criminal Law Convention on Corruption 86 the Cold War 44 Collignon, Patrick 163 Colombia 171 Committee for the Advancement of the Status of the Child 543 Committee on Economic, Social and Cultural Rights (CESR) 508, 555561 Committee on Legislation for Children 543 Committee on the Rights of the Child 543-554 Comprehensive Convention on International Terrorism 91 Congo, see Democratic Republic of the Congo Convention against Transnational Organized Crime (“Palermo Convention”) and Additional Protocols 85, 91 Convention for Restrictions on the Use of Conventional Weapons 316 Convention for the Protection of Cultural Property in the Event of Armed Conflict (1956) 142, 205-206, 210, 217, Convention for the Suppression of Unlawful Acts against Safety of Civil Aviation 80

Convention for the Suppression of Unlawful Seizure of Aircraft (1970) 79-80 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (“Trafficking Convention”) 85 Convention of Special Missions (1969) 43 Convention on Offences and Certain Other Acts Committed on Board Aircraft (“Tokyo Convention”) 91 Convention on Psychotropic Substances 81 Convention on the Law of the Sea 86 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 140, 141, 143 Convention on the Physical Protection of Nuclear Material 81 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention of 1948”) 13, 14, 14 n54, 17, 52, 82, 88, 96-97, 139, 191-195, 201, 221, 239-240, 242, 252, 254, 281-283 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (“Ottawa Treaty”) 169170, 552 Convention on the Rights of the Child 85, 523, 539, 543-549, 551-554 Convention Relating to the Status of Refugees (1951) 330-351, 467-472, 518 Convention Relating to the Status of Stateless Persons (1954) 470 n7 Copelon, Rhonda 168 Crimes Against Humanity 221 Cuba 12 Czechs 66

607

INDEX

Ethiopians 547 Europe 123, 180, 183, 273, 335, 337, 590 European Convention on the Suppression of Terrorism 81 European Convention on Human Rights 243 n33, 244 n34, 257, 301 European Court of Human Rights 42, 43, 103, 263 European Union 186, 426-432, 437, 441, 490-491 European Commission 522 European Union Convention on the Fight against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union 86 European Union Convention on the Protection of the Financial Interests of the European Communities and Protocol 85

D Dalet Plan 129, 132, 569 Daraz 329-330, 332, 338 David, Eric 184, Dayan, Moshe 3 Declaration of Principles on Interim SelfGovernment Agreements (1993) 451, 469 n4, 521, 571, 585, 588, 590 Defence for Children International 539 Delgado, Juan 587 Demjanjuk, John 62 n63, 67 Democratic Republic of the Congo (“DRC”) 28, 29, 33-34, 36-37, 39-40, 42, 53, 69, 70, 75, 89-90, 94, 97, 98 Kinshasa 28 Denmark 158 Dinstein, Yoram 151 Draft Code of Crimes against the Peace and Security of Mankind, see International Law Commission Drori 256 Druze 556, 564, 582 Dubie, Josy 186, Dugard, John 503, 527 Durban Declaration and Programme of Action 548

F Fatah 461, 465 Fidler, David 588 Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences (“Kamminga Report”) 51, 53 n16, 60 n55, 73 Finkelstein, Norman 593 First World War 187, 273 Fisk, Robert 123, 137, 173, 238, 270 Fitzgerald, Peter 448 Flapan, Simha 129 Flint, Julie 186, 270 France 8, 52 n15, 92, 171, 173, 175, 176, 181, 274, 335, 337, 571, 590 Judiciary 30, 38, 175, 244 n36, 253 Law 175 Ministry of Defense 177 Parliament 181 n30 Franco 587 Franks, Tommy 107 Frederick (II), King of Prussia 111 Free University of Brussels 2 Friedman, Thomas 240-241, 266

E East Timor 7 Eedle, Paul 270 Efrat, Yona 266 Egypt 333, 336-337, 425, 429, 472 n15, 476, 481, 510-511, 516, 570, 591 Law Egyptian Land Code (1858) 582 Relations with Israel 134, 147156, 147 n4, 173, 322 Relations with Occupied Palestinian Territories 136 Eichmann, Adolf 62, 63, 64, 65, 66, 276 Eitan, Rafael 223 n3, 241 Eliason, Marcus 269 n18 El Salvador 109 n113 Erdemovic, Drazen 143 Erekat 473 Eshkol, Levi 150

608

INDEX

Gulf States 472 n15 Gulf War (1991) 98, 163, 257 n81

G Gasner, Ingrid Jaradat 591 Gaza Airport 516 Gaza Strip 3, 127, 146, 147, 147 n4, 148, 149, 151, 157, 163, 316, 333, 418, 425, 430, 453, 457, 469 n4, 472474, 476-483, 485-492, 497-500, 502, 506, 510, 512-513, 516-523, 527-529, 534, 536, 538, 564, 567, 572 Gaza-Jericho Agreement 571 Gemayel, Bashir 223, 230, 233, 248, 256, 269-270 Genet, Jean 238 Geneva Convention (1929) 137-138 Geneva Conventions (1949) and Protocols I and II (1977) 18, 20, 21 n71, 28, 40, 42, 53, 78, 82, 87, 96, 104, 115, 137, 142, 163, 166, 167170, 167 n4, 172, 193-196, 199, 202203, 205, 209, 221, 222 n2, 239, 245, 252-253, 255, 257, 273, 276, 281-283, 285, 433-435, 445, 451-452, 494-495, 502, 504 n2, 530, 534-535, 537-538, 540-541, 551, 572, 576, 578 Geneva Convention on the High Seas (1958) 59 n50 Genocide Convention of 1948, see Convention on the Prevention and Punishment of the Crime of Genocide Gérard, Philippe 280 Germany 12-14, 53, 109 n113, 119, 593 Dresden 111 Judiciary 16, 52, 273, 341 Gerson, Allan 570 Ghandour, Nahla 591-592 Giacomelli, Giorgio 503 Grahl-Madsen 340 Grey, David 239 Gypsies 66 Golan Heights 149, 425 Goldberg, Arthur 157 Goldstone, Richard 168 Goodwin-Gill 332-333, 339 Grabowski, Avi 242, 249 n60, 271 Grafé, Jean-Pierre 102 Guidelines for Action on Children in the Criminal Justice System 553

H Habib, Philip 222, 248 Habib Accords 222, 245 Habre, Hissen 43 Haganah 118, 124-126, 129, 130, 131, Hague 79, 137, 142, 210, 217 Hague Conventions 137-138, 168, 273 Hague Regulations Respecting the Laws and Customs of War on Land (1907) 502, 506, 511, 534, 537, 576-577 Hamas 459, 464-465, 531 Hanegbi, Zahi 323, Al-Haq (Law in the Service of Man) 509 n17 Harb, Fadi G. 588 Harvard Center for Middle Eastern Studies 581 Harvard Draft Convention on Jurisdiction with Respect to Crime 51 Harvard University 581 Hathaway 334-335, 340, Hebrew University 575 Hebron Protocol 571 Herzegovina 16 n58, 17, 174, Herzog, Chaim 151, 154, Hezbollah 332, Hitler, Adolf 64, Hobeika, Elias 186, 187, 188, 189, 242, 261 Holley, David 536 Holocaust 593 Hook, John 532 Al-Hout, Bayan Nuwayhid 184 Huber, Max 121 n2 Huguet, Sophie 183 Human Rights Watch 111, 184, 246 n45, 461 Humanitarian Plan of Action 2003 for the Occupied Palestinian Territories 532, 535 Hurwitz, Deena 184, 273 n25 Hussein, Saddam 183 Hussein, Sana 185

609

INDEX

Hussein bin Talal, King of Jordan 178 Hutus 28

201-202, 205, 208, 216, 242, 244247, 281-283, 504 n2 International Criminal Tribunal for Rwanda (“ICTR”) 1, 6, 10, 20, 23, 30-32, 35, 45-46, 87, 94, 142, 168, 173-174, 186, 189, 190 n7, 191, 216, 242 n27, 251 n61, 253-254 International Criminal Tribunal for the former Yugoslavia (“ICTY”) 1, 6, 7, 9-10, 13, 15-18, 20, 21 n75, 22-23, 25, 30-32, 35, 45-46, 87, 142-143, 168, 173-174, 191, 216, 242, 244-245, 247, 251 n61, 254 Appeals Chamber 15 Judges 178 Statute 9 n17, 174-175, 178 International Federation of Human Rights Leagues 111 International Human Rights Law Institute at De Paul University 2 International Humanitarian Law (“IHL”) 99, 108-111 International Law Association 51, 73 International Law Commission 143, 156, 173, 175, 179, 504 n2 International Military Tribunal for the Far East 6, 30-31, 45-46, 111, 251, 275 INTERPOL 29 Iran 109, 167 Iran-Iraq War 222 Iraq 98, 107, 135, 163, 180, 183, 257 n81, 337 Relations to the Palestinians 222 Irgun Zvai Leumi 118, 124-125, 129, 131 Irish Centre for Human Rights 1 Islamoglu, Huri 582 Israel 3, 12, 18, 62-67, 142-143, 166, 255, 257 n81, 266, 276, 292, 295, 319, 326, 333-335, 448, 451-453, 473481, 483-484, 489-498, 500-525, 528530, 532, 534-541, 543-544, 547, 550553, 555, 560, 563-564, 569-573, 575579, 585, 589-591, 593 Authority for the Advancement of the Status of Women 564 Bir’am 321-323, 327 Cabinet 449, 453

I Illinois Public Defender 2 The Independent 270-271 India 155, 167 INDICT 183 Indonesia 111, 167 International Committee of the Red Cross (“ICRC”) 111, 125, 127, 138, 167, 169, 170, 224, 245, 434-435, 443, 452, 463, 473-474, 487, 494-495, 499, 510, 533 International Convention for the Prevention of Pollution from Ships (“MARPOL”) 86 International Convention for the Suppression of Counterfeiting Currency 78 International Convention on the Elimination of All Forms of Racial Discrimination 305, 523 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 548 International Court of Justice (“ICJ”) 1, 2, 14, 28-48, 51-53, 69-70, 74, 75, 8990, 92, 96-98, 144, 251 n61, 264 President of ICJ 51, 70 International Covenant on Civil and Political Rights 243 n33, 244 n34, 257, 263, 301, 452, 508, 529-530, 533 International Covenant on Economic, Social and Cultural Rights 503, 508, 523, 529, 533, 555-560 International Criminal Court (“ICC”) 4, 6, 18, 30, 31, 35, 41, 45-46, 73, 92-93, 100, 110-112, 115, 140, 142, 156, 166-169, 171-174, 178-181, 183, 208, 213-214, 216, 263, 283 Prosecutor 166, 174, 178, 179, 208, 216 Rome Statute of ICC 4, 9, 11, 18, 26, 32,38 n34, 41, 73 n115, 83, 87, 92-93, 96, 97, 140-142, 144, 155156, 166-181, 186, 191-193, 195,

610

INDEX

Commissions Kahan Commission 186-187, 224, 240-241, 248, 249 n57, 249 n58, 256, 262-263, 265-269, 271273, 277 Libai Commission 322-328 Peel Commission 133 Custodian of Absentees’ Property 320 Eron River Area 292, 304 General Security Service (“GSS”) 578 Iqrit 320-325, 327 Israel Defense Forces (“IDF”) 131132, 134, 149, 153, 164, 223, 247249, 253, 264, 276, 316-317, 319, 322-326, 429, 448, 452-466, 474, 478, 481, 484, 489, 491-492, 496, 499, 505, 511, 527-529, 531-533, 536-537, 539-540, 544, 550-552, 566, 568, 576 Israel Farmers’ Association 291, 293295, 304, 308 Israel Lands Administration (“ILA”) 291-299, 301, 303-306 Development Authority 296-297, 319, 321, 323, 325, 327-328 Israel Lands Council 296-298, 301 Israel Security Agency 564, 566 Judiciary 7, 13, 63, 66-67, 244, 273, 276-277, 502, 515 Supreme Court/High Court of Justice 292, 295, 320-322, 455, 514, 537-538, 556, 564, 568, 575579 Kafr Kassem 134, 276-277 Knesset 223, 224, 225 n13, 268, 297, 322-323, 326, 548 Law 252, 262, 273, 316, 506, 547 Absentees’ Property Law 128, 422 Basic Law: Human Dignity and Liberty 303, 306, 325 Basic Law: Freedom of Occupation 303 Basic Law: Israel Lands 296 Citizenship and Entry into Israel Law 413-416, 505 n4 Compulsory Education Law 564 Constitution 547

Convention between the State of Israel and the Jewish Agency for Israel 295, 298, 309-311 Defense Regulations (1945) 321, 578 Detention of Unlawful Combatants Law 405-408 Emergency Regulations (1949) 320, 578 Employment of Women Law 564 Equal Rights for People with Disabilities Law (2000) 557, 564 Equal Rights for Women Law (2000) 564 Foreign Workers Law 564 Government Resolution 489 (1965) 298 Guardianship and Legal Capacity Law (1962) 547 Israel Lands Administration Law 296-298, 303-304 Labor Law 577 Land Acquisition Law (1953) 321, 328 Land Ordinance (1943) 324, 328 Law of Civil Wrongs 409-412 Law of Return 294, 308, 557, 578 Law on the Status of the World Zionist Organization and the Jewish Agency for Israel (“Agency Status Law”) 295, 309-311 Military Service Law 293 National Health Insurance Law 550 Nationality and Entry into Israel Law 567, 578 Nazis and Nazi Collaborators (Punishment) Law (Nazis’ Law) 62, 63, 65, 66 n86, 67 Prevention of Stalking Law 564 Regulation 125 (1972) 321 Rights of Victims of an Offence Law 564 Special Education Law 564 Women Equal Rights Act (2000) 556 Youth Law 547-548

611

INDEX

Ministerial Committee for National Security 323, 449 Ministry of Construction and Housing 291-296, 303-304 Ministry of Defense 185, 185 n4, 242, 315, 319-320, 448, 462, 532 Ministry of Finance 319, 321, 324, 327 Ministry of Foreign Affairs 187, 448449, Ministry of Housing 505 Ministry of Justice 322-323 Negev region 127, 132, 558 Netzarim 316 Operation Defensive Shield 447-448, 452-466, 528, 531-533, 536-538 Operation Determined Path 528, 532 Political Parties Labor 172, 187, 541 Likud 513, 541 National Religious Party 130 Proclamation of Foundation of the Communal Settlement 304 Proclamation of Independence 299, 301, 306-308 Relations with Belgium, see Belgium Relations with Egypt, see Egypt Relations with Lebanon, see Lebanon Relations with the Palestinian Authority, see Palestinian Authority Relations with the United Kingdom, see United Kingdom Relations with the United States, see United States Relationship to the ICC 171-173, 178, 180-181 Security Service 187, 226-238, 240241, 246, 248-252, 267, 270-272, 325, 423-424, 502 Shin Beth, or Secret Service 185, 270-271 State Attorney’s Office 455, 514 Tal-Eron Local Council 291, 293294, 303 Tel Aviv 183, 186, 481 Israeli Arabs 292-296, 303-304, 306, 308, 544, 546-547, 550-551, 557-558, 560-561, 564, 567-568

Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip (1995) 451, 521, 571 Italy 24, 109 n113, 173, 181, 490 Palermo 85 Rome 490 J Jad’in, Khalil 324 Japan 173 Hiroshima 111 Tokyo 111 Jenkins, Loren 270 Jennar, Raoul 184 Jerusalem 125, 154, 159, 162, 417-420, 425, 430, 433, 435, 458, 468 n2, 469 n4, 474, 477, 489-490, 495, 502-503, 504 n3, 505 n5, 506-507, 512, 515518, 521, 536, 540, 558, 560, 569, 571-573 Jesus of Nazareth 44 Jewish Agency for Israel 291-296, 303304, 306, 308-314, 505, 514 Jewish National Fund Lands Department/Development Division 128-129, 296-298, 514 Jewish settlers/settlements 65-66, 118, 123-124, 129 Communal Settlement Katzir 292294, 296, 303-306, 308, 310-313 Central Hill 292, 303 Western Hill 292 Harish Settlement 292, 294, 303 Katzir Cooperative Society for Communal Settlement in Samaria Ltd. 291-296, 306 Yesha Council for Settlers 512 Johns Hopkins University 485-486, Jordan 128, 136, 154, 178, 333, 429, 472, 476, 481, 490, 515, 581 Relations with Israel 322 Jordan River 519 Jorgens, Denise 582 Jorgic, Nikola 52

612

INDEX

Withdrawal from Southern Lebanon 323-324, 425 Sabra and Shatila Refugee Camps Massacre 3, 12, 20, 98, 119, 134, 144, 183-190, 221, 223-225, 239241, 243 n30, 245-249, 251-253, 256, 264, 267, 269-272, 277, 289 Plaintiff-Survivors 220-221, 225239, 241, 250-251, 271-272, 279, 281, 285-287, 289 Lebanese Army 223-224, 226, 229, 231, 248 n53, 250, 271 Lebanese Collaborators 270-271 Lebanese Victims 241, 270, 289 Lehman, Tyge 448, Levine, Mel 588 Libai, David 322 Libya 134 Libya Project 134, Lieber Code (1863) 137 Limiti, Stefania 184 London Agreement for the Prosecution of the Major War Criminals of the European Axis 136, 138 n46 London Accord 244 n40 London Conference 123 London University 186 Luxembourg 109 n113, 274

K Kabila, Laurent 98 Kahan Commission, see Israel Kahan, Yitzhak 224, 268 Kamminga Report, see Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences Kant, Emmanuel 190 Kapeliouk, Amnon 224, 246, 256 Karadzic, Radovan 143, 174-175 Khmer Rouge 120 King-Irani, Laurie 184 Kissinger, Henry 47 n57, 71, 72 Korean War 161, 163 Kosovo 7, 25, 58 n48 Kosygin, Alexei 157-158 Kothari, Miloon 501 Kretzner, David 575-579 Kristic, Radislav 25 Kubursi, Atif 593 Kuwait 472 n15 L Latin America 120, 159, 166 Lauterpacht, Elihu 14 League of Arab States 491 Arab Summit/Beirut Declaration (1996) 425-427, 445, 453 League of Nations Mandate for Palestine 123, 183, 185, 189 Lebanon 3, 12, 13, 127, 134, 136, 152, 241, 248, 256, 266, 321, 331-333, 335, 339, 472, 552, 591-592 Beirut 119, 186-188, 186 n5, 190 n7, 222-224, 226, 239, 241-242, 248, 256, 261, 266, 270-271, 289, 570 Bikfaya 223, 267, Christian militias 126, 270-272 Civil War 268 Hazmiyye 187 Law Amnesty Law during Civil War 263 Relations with Israel 427, 431-432 Invasion (1982) 222, 241, 246, 252, 256, 270, 276, 324, 570

M MacBride Commission (International Commission to Enquire into Reported Violations of International Law by Israel During its Invasion of the Lebanon) 222 n2, 225, 248, 253 n65, 256 n77, 265 Madrid Peace Conference (1991) 190, n7, 425, 427, 439, 585, 587, 590 Mallat, Chibli 163, 164, 221, 261, 279, 289 MARPOL, see International Convention for the Prevention of Pollution from Ships Massalha, Nur 590 Masset, Adrien 261, 280, Mauritania 571 McCoy, Bryan 107

613

INDEX

Meir, Golda 266, 321, 326 Melenki, Shmuel 276-277 Meridor, Yaakov 134 Michel, Louis 103, 189 Middle East 158, 164, 183, 425, 431433, 437, 439, 466, 581-583, 585-587, 593-594 Miehlumshagen, Per 238 Milosevic, Slobodan 25, 178, Mitchell Report 428, 437, 439, 452, Mladic, Ratko 143, 174, 175, Molkner, Keith 588 Montego Bay Convention (1982) 59 n50 Moratinos’ “Nonpaper” on the Taba Negotiations 417-424 Morlet, Pierre 80, 261, Morris, Benny 126, 132, Muhammad-Ali 582 Multiyear Plan for Development of Arab Sector Communities 555 Mundy, Martha 581 Muslims 15, 16, 58 n45, 268 Muslim States 426

Nuremberg Charter 8, 18, 30, 31, 46, 137-138, 139, 138 n46, 140, 141, 155, 173, 176-177, 244, Nuremberg Trials 6, 8, 11, 18, 45, 111, 119, 136-137, 138, 139, 141, 143, 251, 257, 275, O O.E.C.D. Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 86 Occupied Palestinian Territories/Palestine 4, 7-9, 11, 18, 26, 124, 136, 139, 143144, 166, 173, 178, 181, 185, 333, 433, 435, 447, 451-453, 456-458, 461, 476-481, 486, 489-495, 497, 500, 501504, 506-507, 512, 514-517, 519-521, 524-525, 527-528, 532, 534-536, 540541, 543-547, 550-552, 556-557, 559, 565-567, 569, 575-577, 585-588, 590591, 593 ‘Abu ‘Ajlin 509 ‘Abud 511 Acre 126 Asamou 505 n4 Ashqariya 507 n10 Athahiriah 505 n4 Awapta 511 Balad al-Sheikh 125 Balata Refugee Camp 465, 533 Bayt Hanina 507 n10 Bayt Hanun 516, 521 Bayt Sira 505 Beersheba 127, 132 Beisan 127 Beit Furik 478, 481, 484 Beit Jala 502 Bethlehem 451, 454, 457, 464-465, 476-477, 483, 490, 502, 505 n5, 509, 511, 517, 528, 532 ad-Dawayima 126, 130 Deir Yassin 3, 124, 125, 126, 129, 130, 131, 138 Eilabun 126 Ein Ghazal 127 Galilee 127 Gaza City 476, 482-483, 505 n5, 512, 514, 517, 531, 536 Haifa 125, 127

N Nagasaki 111 Nash, William 448 Nasser, Gamal Abdel 151-152, 153 National Public Radio 185 n3 Nazis 9, 12-14, 62-63, 119, 130 Treatment of Jews 8, 13-14, 63-65, 119, 130 Ndombasi, Abdulaye Yerodia 2, 28, 33, 36- 40, 42-43, 47, 94, 98 Netanyahu, Benjamin 323, 515 Netherlands 121 n2 New Testament 44, 189 New York Times 127 New Zealand 109 n113 Nicaragua 12 Nigeria 111, 167 Nikolic, Dragan 143 Noble Sanctuary Massacre 502-503, 523 Nordic Commission 225, 247-248, 265, 269 North Atlantic Treaty Organization 53, 58 n48, 98, 112, 113, Supreme Headquarters Allied Powers Europe (SHAPE) 113 614

INDEX

Hebron 126, 451, 476-477, 500, 505 n5, 507, 514, 528, 532, 541 Ijzim 127 Jaba 187, 505 n4 Jaffa 125, Jenin 134, 164, 443, 447-448, 450451, 454, 457-463, 476-477, 495, 505 n5, 509, 528, 531-532, 536 Jericho 451, 476, 505 n5 al-Kabri 129 Al-Khalil 507, 509, 514 Khan Yunis 476, 483, 502, 505 n5, Kufur Qaddam 505 n5, 507 n10, 510 Lydda 126, 127, 132 Midia 505 Nablus, Palestine 127, 451, 454, 456457, 465-466, 476-477, 480-481, 484-485, 500, 505 n5, 520, 528, 531-533, 536, 538 an-Nahr 129 Nasir al-Din 126 Nazareth 127 Qalqilya 134, 451, 454, 476-471, 505 n5, 528, 532 Qattana 505 Qazaza 124 Qibya 133 Qisarya 127 Rafah 476, 492, 502-503, 505 n5, 510, 511, 516, 536 Ramallah/Al-Bireh 447, 451, 454, 456-457, 463-464, 476-477, 490, 500, 502, 505 n5, 509, 528, 532, 536 Ramle 126, 127 Sacsac 125 Safad 127 Salfit 505 n5, 521-522 Salha 125 Shu’fat 507 Silwan 507 n10 Tal Mariam 505 n5 Tantura 126, 129 Tiberias 126-127, 331 Tulkarm 451, 454, 457, 462, 468 n2, 476-477, 490, 505 n5, 528, 532 Tyre Albass 332 Umm al Faraj 129 Al-Walaja 465 Ogata, Sadako 448, 450

Ohio State University College of Law 3 Osgoode Hall Law School 334 Oslo Accord 327, 495, 505, 516, 523, 534, 569, 571-573, 586, 588, 589-591, 593 Ottoman Empire 581-583 Laws Land Code (1858) 581-582 Land Settlement Ordinance (1928) 583 Land Transfer Ordinance (1920) 582-583 Ottawa Treaty, see Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction Owen, Roger 581-583 Oxfam 486 Oxford Manual 137 P Pail, Meir 125 Pakistan 167 Pakradouni, Karim 269 Pale 15 Palermo Convention, see Convention against Transnational Organized Crime Palestine, see Occupied Palestinian Territories/Palestine Palestine War (1948) 118, 123-141, 144, 320, 324, 333-334, 518, 569 Palestinian Agricultural Relief Committees (PARC) 481, 488, Palestinian Authority 164, 447-454, 456, 458-461, 463-464, 466, 474-475, 486-494, 497-500, 502, 509, 520-522, 524, 531, 534-535, 552, 571-572, 585587, 590 Law Amended Basic Law 377-403, 586 Law No. (1) of 2002 on the Judicial Authority 353-375, 587 Legislative Council 429, 517 Ministry of Education 486, 491 Ministry of Finance 429 Ministry of Health 480-481, 486, 488, 490-491, 502, 545 615

INDEX

Ministry of Housing 502 Ministry of Social Affairs 486, 488, 491 Planning and International Cooperation 502 Relations with Israel 3, 58 n45, 119120, 124-144, 146, 157-164, 171173, 180-181, 265, 322-324, 327, 334, 425-445, 447 Security Forces 464 Palestinian Center for Human Rights 315 Palestinian Central Bureau of Statistics (PCBS) 480, 482, 485-486 Palestinian Hydrology Group 483-484 Palestinian Islamic Jihad 459, 461, 464465 Palestinian Liberation Organization 161, 222, 240-242, 248, 269-270, 570, 571, 586, 589, 593 Palestinian National Human Rights Plan of Action 524 Palestinian National Trade Dialogue Project 588 Palestinian Red Crescent Society (“PRCS”) 457, 462-463, 481, 487, 515 Palestinians 3, 12, 12 n34, 98, 118, 124, 124 n5, 125, 126, 127, 129, 130, 131, 132, 134, 135, 137, 139, 172, 178, 180, 183, 185, 187 (victims), 222 (civilian victims) 231 victims, 240-1 victims, 248 (expelling them from Lebanon), 256 (living in Lebanon), 266 (living abroad), 267, 269 (Lebanese violence against them and association with Gemayel killing), 270 (prisoners in Beirut sports center), 271-272 (missing), 292 (cannot build on agency land), 316 (Bedouins killed by flechettes), 324 (refugees), 331-337 (refugees), 421 (refugees), Palmach 124-125, 127, 130 Pappé, Illan 589-591 Paraguay 134 Paris Principles 546 Paris Protocol 572 Pavarotti 272 Peel Commission, see Israel Peled, Mattityahu 152, 570

Peres, Shimon 322 Perez 473, 492 Permanent Court of International Justice (“PCIJ”) 29, 41, 75 n126, 90, 189 Peru 109 n113 Phalangists 223-224, 227-230, 233-238, 240-242, 247-250, 253, 256, 266-267, 269-271, 277 Physicians for Human Rights 315, 461 Pinochet, Augusto 43, 84, 271 Poland 129 Poles 66 Polisario 571 Popular Front for the Liberation of Palestine 464 Powell, Colin 69 n101, 98 Princeton Conference 2, 73-74 Princeton Principles on Universal Jurisdiction 2, 50, 52, 54, 73-74, 91 Princeton University 184 Principes de Bruxelles contre l’impunite et pour la justice internationale 92 Principles of Perpetual Peace 190 Prior, Michael 590 Q Quigley, John 585 R Rabin, Yitzhak 127, 132, 152, 322, 508 Rafael, Gideon 149, Rafeq, Abdul-Karim 582 Rafsanjani, Akbar Hashemi 43, 98 Randall, Kenneth C. 50 Ranta, Helena 448 Reagan, Ronald 570 Republic of the Congo 92 Reuters 270 Revolutionary Council, see Abu Nidal Group de Reynier, Jacques 125-126, 127, 138 Riyadh Guidelines 553 Robinson, Nehemiah 13 Rome Statute of International Criminal Court, see International Criminal Court Al Rosan, Nawal 222 n1 Rotlevy Committee on Children and the Law 543 616

INDEX

Ruggiu, Georges Omar 95 Rumsfeld, Donald 112 Russian Federation 426-432, 437, 441 Rwanda 1, 6, 95, 111, 120, 156, 168, 180, 184, 194

Slavs 14 Slovenes 66 Sommaruga, Cornelio 448, 450 South Africa 184, 587 Truth and Reconciliation Commission 120, South Korea 180 Soviet Union 8, 12, 14, 149, 155, 157, 158, 162 Spain 181, 587 Laws Code of Criminal Procedure 81 Srebrenica 15, 25, 143 Stern Gang 118, 125, 131 Stern, Shifra 269 Straits of Tiran 151, 153, 570 Strasbourg, France 81 Strawson, John 587 Sudan 111 Suleiman, Jaber 593 Sweden 481, Swedish Rescue Service Agency 490 Switzerland 181 Geneva 78, 448, 501-502, 508 n15 Laws 109 n113, Penal Code 81 Sybesma-Knol, Neri 587 Syria 14, 17, 134, 153-155, 333, 472, 582, 591 Damascus 154 Relations with Israel 427, 431-432, 570 Taba Negotiations 324, 417-424 Tadic, Dusko 143 Takkenberg 340-341 Tanzim 459, 465 Tel al Zaater Massacre 228 Tenet Work Plan 428-429, 437, 439 Thant, U 154 Times of London 150, Tokyo Convention, see Convention on Offences and Certain Other Acts Committed on Board Aircraft Trafficking Convention, see Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others

S Sabra and Shatila, see Lebanon Sachem, Alexandre 280 Said, Edward 591 Said, Wadie 591-592 Sanssouci 111 Sayegh, Rosemary 185, 269 n18 Schaebler, Birgit 582 Schechtman, Joseph 128 Schiff, Ze’ev 225, 256, Schwarzkopf, Norman 98 Second World War 6, 14, 21, 24, 54 n25, 62, 119, 123, 136, 273-276 Serbia 15, 16 n58, 25 Sèvres, Treaty of 6 Shahak, Israel 135 Shapira, Haim Moshe 130 Sharett, Moshe 132-134, 183-190 Sharm al-Sheikh Agreements 505 Sharon, Ariel 3, 12 n34, 20, 43, 47 n57, 69 n101, 75 n124, 94, 97-98, 133-135, 183, 185-187, 185 n2 and n4, 221225, 233, 241-242, 248-249, 252, 256257, 261, 265-269, 271-273, 277, 280282, 287, 322-323, 325, 452, 473, 492, 505, 513, 571 Autobiography (Warrior) 241, 248, 267 Shehada, Salah 531 SHERPA NGO 4 Shiites 241 Sidon 187 Siegel, Ellen 238 Sierra Leone 6 n3, 111, 120 Courts 6 Silk, Jim 184, Silverburg, Sanford R. 585 Sinai Peninsula 148-149 Singer, Amy 581 Singer, Joel 586 Single Convention on Narcotic Drugs 78, 81 617

INDEX

Tsemel, Leah 184 Tunisia Tunis 570 Tutsi 28

Conciliation Commission for Palestine (“UNCCP”) 333-334, 422, 471 n9, 468 n3, 471 n9, 518, 592-593 Development Program (“UNDP”) 487, 522 Economic and Social Council (“ECOSOC”) 44, 336, 465 FPA 486-487 General Assembly 12, 83, 118, 123, 128, 135-136, 138, 143, 146, 156164, 173, 333-334, 336, 338, 451, 467-472, 495, 501, 503, 525, 528, 539, 571, 590, 593 Resolution 95 (I) 239 Resolution 96 (I) 239 Resolution 181 118-119, 123-124, 136, 138, 333 Resolution 186 (S-2) 334 Resolution 194 128, 130, 135, 266, 333-334, 421-422, 425, 468, 472, 518 n54, 569-570, 573, 590, 592-593 Resolution 242 159, 163, 417, 421, 570, 590 Resolution 302 (IV) 333-334, 471 Resolution 393 (V) 471 n9 Resolution 394 (V) 334 Resolution 428 (V) 335 Resolution 429 (V) 336 Resolution 2252 (ES-V) 333, 468, 471 Resolution 2341 B 333 Resolution 2452 (XXIII) 469 n4 Resolution 2625 (XXV) 540 Resolution 2963 (XXVII) 518 n54 Resolution 3089 (XXVIII) 518 n54 Resolution 3236 (XXIX) 518 n54 Resolution 3314 136 Resolution 37/120 (I) 469 n5, Resolution 37/123 144, Resolution 37/123D 225, 239, 252 Resolution 45/158 548 Resolution 48/40H 471 n9 Resolution 48/134 546 Resolution 51/190 504 n3 Resolution 56/52 468 n3, 472 n13 Resolution 56/54 333, 469 n4, 471 n10

U Union of Palestinian Medical Relief Committees (UPMRC) 481 Union of Soviet Socialist Republics, see Soviet Union United Kingdom 8, 14, 123-124, 163, 173, 175, 181, 183, 191, 272, 331332, 337, 468 n2, 570, 578 Courts 24 Immigration Appeal Tribunal (“IAT”) 330-332, 339-340 House of Lords 30, 38, 42 London 183, 222 n1, 578 Mandate for Palestine 118, 123-124, 146, 147, 164, 333, 582-583, 587 Military 127, 128 Ministry of State 331 Relations with Israel 147, 147 n4 Scotland Yard 222 n1 Secretary of State 329, 331-332, 339 Mandate Refugee Policy 331-333 United Nations 3, 6 n3, 12, 42, 65, 103, 123, 146-147, 149, 151, 153, 157, 160164, 178, 204, 253 n65, 289, 334-335, 337, 339, 426-432, 437, 441, 447, 449451, 456, 458-460, 462-463, 474, 481, 489-496, 498, 500, 501-502, 508, 517518, 522-525, 540, 546, 570, 582, 593 Charter 29, 32, 92, 136, 146, 148, 154, 159, 160-161, 163, 164, 180, 203 Commission of Experts to Investigate Violations of International Humanitarian Law in the Former Yugoslavia 6 Commission on Human Rights 14, 144, 501-503, 518, 522-523, 525, 527-528, 538, 541 Committee Against Torture 104, 143, 508 Committee on the Exercise of the Inalienable Rights of the Palestinian People 162

618

INDEX

Resolution 56/56 334, 471 n9 Resolution 476 161, 163 Resolution ES-7/9 239 Resolution ES-10/6 433 Resolution ES-10/7 433 Resolution ES-10/10 447-466 High Commissioner for Human Rights 503 High Commissioner for Refugees (“UNHCR”) 331, 335, 338, 340-341, 467-468, 470-472, Housing Rights Program (“UN-HABITAT” and “OHCHR”) 524 Human Rights Committee 508, 563568 UNICEF 482, 487, 539-540 Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”) 331-334, 338340, 422, 434-435, 443, 461462, 467, 469 n5, 470-473, 478, 480-482, 485-490, 512, 522, 532-533, 592 Rules for the Protection of Juveniles Deprived of Their Liberty 553 Secretariat 162, 449-450 Secretary General 6, 10, 22, 154, 157, 162, 437, 439, 441, 443, 447448, 469 n5, 473, 495 Special Unit on Palestinian Rights 162 Security Council 6, 9, 10, 22, 32, 35, 46, 111, 124, 133-134, 146, 148150, 153-164, 176, 180, 225, 426, 443, 448-450, 452-453, 466, 495, 524, 541 Resolution 237 518 n54 Resolution 242 425, 427, 432, 437, 439, 443, 445, 466, 569 Resolution 252 504 n3 Resolution 267 504 n3 Resolution 298 504 n3 Resolution 338 425, 427, 432, 437, 439, 443, 445, 466 Resolution 446 504 n3 Resolution 452 504 n3 Resolution 465 504 n3 Resolution 471 504 n3

Resolution 476 504 n3 Resolution 478 504 n3, 540 Resolution 497 540 Resolution 521 225, 239 Resolution 681 495 Resolution 904 504 n3 Resolution 1373 565 Resolution 1397 427, 432, 437, 439, 441, 443, 445, 453, 466 Resolution 1402 439, 441, 443, 445, 453 Resolution 1403 441, 443, 445 Resolution 1405 443, 447-450 Resolution 1435 445 Special Committee on Palestine (“UNSCOP”) 123 Special Committee on the Question of Defining Aggression 136, Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories 162 Special Coordinator’s Office (“UNSCO”) 473, 477, 479, 493494, 499-500 Special Fund for Relief of Palestinian Refugees 333 Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living 501-504, 507, 513, 515, 518-519, 521-523, 525, 527-529, 533, 535-536, 538, 541 Sub-Commission on Prevention of Discrimination and Protection of Minorities 15 World Food Programme (“UNWFP”) 481, 487, 490, 494, 533 United States 8, 14, 21, 24, 58, 73, 111112, 129, 170, 172-173, 178, 180-181, 186, 305, 335, 426-432, 437, 441, 448, 570, 587, 590, 593 Congress 98-99, 183 Judiciary 21, 67-68, 274 Laws Export Administration Act of 1979 78 n6 Helms-Burton Act of 1996 78 n6 619

INDEX

Military Codes 255, 274 Universal Jurisdiction Rejection Act of 2003 98 Ministry of Defense 177 New York 81 Relations with Belgium, see Belgium Relations with Israel 147, 147 n4, 149, 157-158, 162-164, 172, 178, 180-181, Secretary of State 183 United States Agency for International Development (“USAID”) 483, 520 Uniting for Peace, see Korean War Universal Declaration on Human Rights (1948) 301, 529, 573, 590 University of Massachusetts (Dartmouth) 589 University of Paris VII 3

West Bank of the Jordan River 3, 118, 146, 147, 149, 151, 155, 156, 157, 163, 164, 333, 417-418, 423, 425, 430, 447, 451-454, 457-458, 465, 469 n4, 472-491, 495, 498-500, 503, 505507, 512-513, 515-523, 527-529, 531534, 536-538, 564, 567, 571, 577 William (II) of Hohenzoller, Emperor of Germany 173 World Bank 458, 464-465, 476, 479480, 488, 493, 499 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance 548 World Health Organization 520 World Zionist Organization 298, 505, 514 Wye River Accord 505, 571 Y Ya’ari, Ehud 225, 256 Yale Law School 184, 273 n25 Yaron, Amos 94, 97, 183, 184, 188, 221, 240, 245 n43, 248, 256-257, 261, 265-266, 277, 280-281, 284-285, 288 Yediot Aharonot 125 Yitzhaki, Aryeh 129 Yugoslavia 1, 6, 7, 14, 15, 18, 111, 120, 156, 168, 180, 254 n69

V Van den Auweraert, Peter 186 Van Quickenborne, Vincent 186 Vandermeersch, Damien 84 Vatican 170, 189 Védrines, Hubert 590 Verhaeghe, Michael 183, 221, 261, 279, 286, 289 Versailles, Treaty of 6, 173 Verstraeten, Michaël 280 Verstraeten, Raef 184, 280 Vienna Convention on Consular Relations 36 Vienna Convention on Diplomatic Relations 28, 29, 36, 44-45 Vienna Convention on the Law of Treaties 8, 122, 122 n3, 244 n35, 336, 338, 571

Z Zahnoun 473 Zionism 3, 133, 135, 138, 310, 312, 582, 590-591, 593 Zisling, Aharon 130

W Walleyn, Luc 183, 221, 261, 279, 286, 289 The Washington Post 270 Watson, Geoffrey R. 569-573 Al-Wazeer 473 Weiler, Joseph H. 586 Weitz, Yosef 128, 133, 134

620

TABLE OF CASES

INTERNATIONAL I.C.J. 8 April 1993 254 n68 I.C.T.Y., 29 October 1997 IT-95-14-AR 254 n69, Al-Adsani v. United Kingdom, Eur. Ct. H.R., App. No. 35763/97 (Nov. 21, 2001) 42 n39, 43, Akayesu (Arusha), I.C.T.R. 96-4-T (Sept. 2, 1998) 242 n27, 253 Arrest Warrant of 11 April 2000, 2002 I.C.J. 121 1-3, 7 n10, 28-48, 51-53, 69, 70, 74-75, 89, 264, Blaskic, IT-95-14-T (3.3.2000) 245 n41, Island of Palmas Case (Netherlands, United States), 2, R.I.A.A. 831 (April 4, 1928) 121 n2, Kanyabashi v. Prosecutor, No. ICTR-9615-A, Dissenting Opinion of Judge Shahabuddeen (June 3, 1999) 8 n13, Kordic, IT-95-14/2-T, (12.2.2001) 245 n 41, 247 n47, Nicar v. United States, 1986 I.C.J. 10203, 120 (June 27) 154 n54, Pinochet case, 6 November 1998, R.D.P.C. 199 244 n40, 254, Prosecutor v. Aleksovski, Judgment on Appeal by Anto Nobilo against Finding of Contempt, No. IT-95-14/1AR77 (May 30, 2001) 23 n81, Prosecutor v. Bagasora et al., Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Jude Dismissing an Indictment against Théoneste Bagasora and 28 Others, No. ICTR 98-37-A (June 8, 1998) 8 n13, Prosecutor v. Brdjanin & Talic, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, No. IT-99-36PT (June 26, 2001) 23 n82, Prosecutor v. Delalic et al., (Celebici) Nos. IT-96-21-A (Feb. 20, 2001) & IT96-21-T (Nov. 16, 1998) 19 n69, 2223, 257 n80, 275 n35,

Prosecutor v. Erdemovic, Judgment No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah (Oct. 7, 1997) 8 n13, 143, Prosecutor v. Furundzija, No. IT-9517/1-T (Dec. 10, 1998) 11 n31, 23 Prosecutor v. Galic, Appeals Judgment, No. IT-98-29-AR73.2 (June 7, 2002) 22 n77, Prosecutor v. Had?ihasanovi? et al, Decision on Joint Challenge to Jurisdiction, No. IT-01-47-PT (Nov. 12, 2002) 22 n79, Prosecutor v. Jelisic, Judgment, No. IT95-10-T (Dec. 14, 1999) 13 n42, 17, Prosecutor v. Jelisic, Judgment, No. IT95-10-A (July 5, 2001) 17 n63, Prosecutor v. Karadzic and Mladic, Confirmation of Indictment, No. IT95-18-I, 4 (Nov. 16, 1995) 15 n57, 143, 174-175, 178, Prosecutor v. Karadzic and Mladic, Nos. IT-95-18-R61 & IT-95-5-R61 (June 17, 1996) 13 n41, Prosecutor v. Krajisnik, No. IT-96-21-A (Sept. 20, 2000) 22 n79, Prosecutor v. Krnojelac, Judgment, No. IT-97-25-T (March 15, 2002) 10-11, 10 n28, Prosecutor v. Krnojelac, Judgment, No. IT-97-25-PT (May 11, 2000) 23 n82, Prosecutor v. Krstic, Judgment, No. IT98-33-T (Aug, 2, 2001) 13 n43, 16, Prosecutor v. Kunarac et al., Judgment, Nos. IT-96-23 & IT-96-23/1-A, (June 12, 2002) 9 n22, 11, 18 n66-67 Prosecutor v. Milosevic et al., Indictment, No. IT-99-37-I (May 22, 1999), Prosecutor v. Milosevic et al., Amended Indictment, No. IT-99-37-I (June 29, 2001) and Prosecutor v. Milosevic et al., Second Amended Indictment, No. IT-99-37-PT (Oct. 16, 2001) 25 n88

TABLE OF CASES

Prosecutor v. Nikolic, Review of Indictment Pursuant to Rule 61, No. IT-95-2-R61 (Oct. 20, 1995) 16 n58, 143 Prosecutor v. Sikirica et al., Judgment on Defence Motions to Acquit, No. IT95-8-I (Sept. 3, 2001) 13 n43, Prosecutor v. Stakic, Decision on Rules 98bis Motion for Judgment of Acquittal, No. IT-97-24-T (Oct. 31, 2002) 22 n79 Prosecutor v. Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1AR72 (Oct. 2, 1995) 7 n12, 9, 10, 17 n64, 18-19, 23-25, 87, 143, 168, 174 Prosecutor v. Tadic, Judgment, No. IT-941-A (July 15, 1999) 10 n25, Case Concerning Certain Criminal Proceedings in France (Republic of Congo v. France), CR2003/20 (April 28, 2003) 92 n58 and (Dec. 9, 2002) 92 n59, S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7) 29 n7, 40, 41, 75, 90 United States v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 232 (1844) 57 n40, United States v. List, 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1952) 275 n34, United States v. Soemu Toyoda, I.C.T.F.E. 275 United States v. Von Leeb, 11 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1950) 275 n34, United States v. von Weizsaecker, 14 Trials 308 (1952) 275 n34, Vukovar hospital case, IT-95-13-R61 246 n44,

CANADA Canada v. Meyer, 4 L.R.T.W.C. 98 (1948) (Can. Mil. Ct. 1945) 21 n72, R. v. Logan, 2 S.C.R. 731, 735 (1990) 25 n87 R. v. Rodney, 2. S.C.R. 687 (1990) 25 n87 Abbaye Ardenne (The Trial of S.S. Brigadeführer Kurt Meyer) Military Court 274 FRANCE Barbie, French Court of Cassation, Judgment of 20 December 1985, Bulletin of Judgments of the Cassation Court, 1985 244 n36, 253 Government Commissioner of the General Tribunal of the Military Government for the French Zone of Occupation in Germany v. Roechling, Judgment on Appeal to the Superior Military Government Court of the French Occupation Zone in Germany, 14 Trials 1097 275 n34 GERMANY Nikolai Jorgic, 2 BvR 1290/99 (Dec. 12, 2000) 16 n59, Bverg 1 C 42.88 (1999) 4 (3) IJRL 387 Case 1200 341, ISRAEL A. Abada Ltd. v. The Development Authority under the Auspices of the Israel Lands Administration, Piskei Din 53 (4) 117, CA 6996/97 327 The Abu-Gosh Kiryat Yearim Music Festival v. The Minister of Education and Culture, PDI 25 (2) 821, HCJ 175/71 307, Amar 577 Atlantic Fishing and Shipping Company Ltd. v. Minister of Trade and Industry, Piskei Din 39 (1) 29, HCJ 580/83 326, Attorney Gen. v. Eichmann, 36 I.L.R. 5 (Isr. D.C., Jerusalem), Affirmed 36 I.L.R. 277 (Isr. S. Ct. May 29, 1962) 7 n11, 8, 11, 13, 62- 68, 244, 276,

BELGIUM Dutroux (No citation) 43 Sharon et al. (No citation) 95, 184, 185, 185 n2, 186-189, 219-289 Yerodia (No citation) 95, 262 622

TABLE OF CASES

Avitan v. Israel Lands Administration, PDI 43 (4) 297, HCJ 528/88 305, Balebisi 578, Bavli v. The Great Rabbinical Court of Jerusalem, PDI 48 (2) 221, HCJ 1000/92 305-306 Beith Hadassah, 1 PAL. Y.B. INT’L L. 121 (1984) 578 “Beit Rivka” National-Religious High School for Girls v. The Jewish Agency for Israel, PDI 47 (2) 661, HCJ 4212/91 309-310 Ben Shalom v. The Central Committee for Elections to the Twelfth Knesset, PDI 43 (4) 221, E.A. 2/88 300, 307, Berger v. The District Planning and Construction Committee, Haifa District, PDI 27 (2) 764, HCJ 392/72 301-302, 307 Beth El, 2 PAL. Y.B. INT’L L. 134 (1985) 576 Bracha v. Prime Minister, PD 56 (3) 1, HCJ 5872/01 317 Burkan v. The Minister of Finance, PDI 32 (2) 800, HCJ 114/78 299, 301, 305 C.A.L. Cargo Air Lines v. The Prime Minister, HCJ 1703/92 (not published) 300 The Center of Contractors and Builders in Israel v. The Government of Israel, PDJ 34 (3) 729, HCJ 840/79 300 Christian Society 576 Committee of Displaced Persons of Iqrit, Kfar Rama et al. v. Government of Israel et al, Piskei Din 36 (1) 129, HCJ 141/81 (Third Iqrit Peition) 321, 325, Daud et al. v. Minister of Defense et al., Pisksei Din 5 1117, HCJ 64/51 (First Iqrit Petition) 320, 324, 326 Daud v. Appeals Committee for Security Zones in the Galilee, Piskei Din 6 229, HCJ 239/51 (Second Iqrit Petition) 320, 326 Electricity Co., (No. 1) 577 Elon Moreh, 1 PAL. Y.B. INT’L L. 134 (1984) 576-577

Ezra v. Tel Mond Local Council, Piskei Din 47 (5) 94, CA 4928/92 326 Flechettes Case, (Isr. S. Ct. 2003) 315317 GeorgeTamarin v. the State of Israel HCJ (1971) 505 n4 Honigman v. Attorney Gen., 18 I.L.R. 542 (Isr. S. Ct. 1953) 63 n65 Horev v. The Minister of Transportation, PDI 51 (4) 1, HCJ 5016/96 302-303 Iqrit Case, (Isr. S. Ct. 2003) 319-238 Isaacson v. The Registrar of Parties, PDI (50) 2 529, LCA 2316/96 307-308, Israel Women’s Network v. The Minister of Labor, PDI 52 (3) 630, HCJ 2671/98 302, 306, Kaplan v. The State of Israel, PDI 21 (2) 718, C.A. 55/67 297 Katzir Case H.C.J. 6698/95 (Isr. S. Ct. 2000) 291-313 Khamdan 578 Kiryat Ata Local Planning and Building Board v. Holzman, Piskei Din 55 (4) 629, CC 5546/97 325 Kol Ha’am Ltd. V. The Minister of the Interior PDI 7, HCJ 73/53 302 Krasik v. State of Israel, Piskei Din 55(2) 625, HCJ 2390/96 324, 327-328 La’ati 577 Levy v. Haifa Assessing Office, Piskei Din 32(1) 421, CA 831/76 326 Melinki v. Chief Military Prosecutor, (Israel Military Court of Appeal) 276-277 Miller v. The Minister of Defense, PDI 49 (4) 194, HCJ 4541/94 302 Mushtaha, 3 PAL. Y.B. INT’L L. 132 (1986) 577 n5 Neiman v. The Chairman of the Central Committee for Elections to the Eleventh Knesset, PDI 39 (2) 225, E.A. 2/84 307 Peretz v. The Chairman, Local Council Members and Residents of Kefar Shemaryahu, PDI 16, 2101, HCJ 262/62 300-301 Poraz v. The Mayor of Tel Aviv Jaffa, PDI 42 (2) 309, HCJ 953/87 299-301 623

TABLE OF CASES

Qa’dan 557, 559 Qawasmi et al., 3 PAL. Y.B. INT’L L. 90 (1986) 578 n7 Rafiah 575 Re’em Contractor Engineers Ltd. V. The City of Upper Nazaqreth, PDI 47 (5) 189, C.A. 105/92 299 Rosenberg v. The Ministry of Construction and Housing, PDI 50 (1) 221, MLA 5817/95 301 Shaheen, 6 PAL. Y.B. INT’L L. 72 (1990/91) 577 n5 Shakdiel v. The Minister for Religious Affairs, PDI 42 (2) 221, HCJ 153/87 300 Shawe 578 Speckman v. Municipality of Herzliya, Piskei Din 56(1) 447, HCJ 4383/91 326 Suleiman Tawfiq Ayyub et al. v. Minister of Defence et al, Piskei Din 33 (2), HCJ 606, 610/78 502 n1 Tahaa, 5 PAL. Y.B. INT’L L. 242 (1989) 577 Al-Taliya 577 Temple Mount Faithful Movement v. The Government of Israel, PDI 51 (2) 509 302-303 The Union of Local Authorities v. The Knesset, PDI 50 (3) 485, HCJ 7111/95 299 VAT case, 4 PAL. Y.B. INT’L L. 186 (1987/88) 576-577 Watad v. The Minister of Finance, PDI 38 (3) 113, HCJ 200/83 307 Weiss v. Prime Minister, Piskei Din 55 (2) 455, CA 5167/00 327 Yassin v. The Registrar of Parties, PDI 50 (2) 45, LCA 7504/95 307 Yeredor v. The Chairman of the Central Committee for Elections to the Sixth Knesset, PDI 19 (3), E.A. 1/65 307 Zvili v. Chairman of the Central Committee for Elections to the Thirteenth Knesset, PDI 46 (2) 692, HCJ 869/92 299

UNITED KINGDOM A v. Minister for Immigration and Ethnic Affairs, (1997) 190 CLR 225 336 Adan v. SSHD, (1999) 1 AC 293 338 Case of El-Ali and Daraz v. The Secretary of State for the Home Department, 2002 EWCA Civ 1103 329-351 Regina v. Bartle & Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet Ugarte (Amnesty International et al. intervening) (No. 3), 2 All E.R. 97 (H.L. 1999) 42 n38, 183, 191 UNITED STATES Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) 305 Burton v. Wilmington Parking Authority, 365 U.S. 721 (1961) 309 Demjanjuk v. Petrovsky, 612 F. Supp. 571 (N.D. Ohio 1985), aff’d, 776 F.2d 571 (6th Cir. 1985) 67 n91, 255 Eldridge v. B.C. (A.G.), 3 S.C.R. 624 (1997) 309 In re Extradition of Demjanjuk, 612 F. Supp. 544, 555-556 (N.D. Ohio 1985) 67 n90 In re Yamashita, 327 U.S. 1 (1946) 21n72 Sharon v. Time Magazine, 1985 267

624

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