A case analysis

An interview with Irit Kohn on the lawsuit filed in Belgium against Ariel Sharon, 19 years after the massacre at Sabra and Shatilla.

Irit Kohn (photo credit: Courtesy)
Irit Kohn
(photo credit: Courtesy)

In 1982 during the Lebanon War, Lebanese Christian militias murdered hundreds of Palestinians in refugee camps in Sabra and Shatilla. In June 2001, several survivors and family members of the victims submitted a complaint in a Belgian court which was not directed against the murderers, many of whom were known. Instead the claim named as defendants Israeli prime minister Ariel Sharon, Israeli chief of staff in 1982 Rafael Eitan and then-head of Northern Command, Gen. Amos Yaron.

Irit Kohn was head of the International Department of the Justice Ministry at the time and led the defense team in this case.
In 2011, she was elected president of the International Association of Jewish Lawyers and Jurists. The following is an abbreviated version of the interview originally published in the book European-Israeli Relations: Between Confusion and Change.
Kohn recounts: “At the time of the submission, Belgian law had universal jurisdiction as far as crimes against humanity, war crimes and genocide were concerned. It did not require any connection to the country involved. Any private citizen in Belgium or elsewhere in the world could submit a complaint against anybody to the Belgian court system that could serve as a claim for criminal prosecution there.
“Yet 19 years had passed since the mass murders by the Lebanese Christian militias. This complaint seemed a politically motivated act. The complainants waited until Sharon became prime minister of Israel. They wanted to subject him to criminal prosecution for alleged war crimes. They claimed that as Sharon was Israeli defense minister in 1982 and collaborated with the Christian militias, he should have known that if they came to the Palestinian refugee camps, there would be a massacre.
“I strongly supported the position that we should defend our prime minister.
The extradition laws in Europe meant that if Sharon wanted to travel to a European country, Belgium might take out an arrest warrant against him. As other European countries have extradition treaties with Belgium, this would mean in practice that Sharon could not visit Europe.
If the matter went to trial in Belgium and we did not contest it, the judge might decide to base himself on the facts as presented by the other side.
“We had originally assumed that, as in most democratic states, the Belgian state prosecutor has discretion as to whether or not to prosecute in criminal cases. As the case evolved, it became clear that in this instance this principle of Belgian law was not upheld.
“Our claim was that the complaint was politically motivated. The Sabra and Shatilla massacres had been investigated by a committee headed by president of the Israeli Supreme Court, Judge Yitzhak Kahan. We now know that there was not one Israeli soldier in Sabra or Shatilla during the time of the murders.
“The Belgian investigating judge accepted our position at the time and decided that there was no reason to prosecute. He concluded that the murderers were the Christian Lebanese militiamen who were not being brought before the court.
“The complainants then turned to the Belgian Court of Appeals. The Belgian procurer general, who appears before the Court of Appeals, spoke in favor of us. In 99 percent of the cases, the procurer general’s opinion is adopted by the Belgian Appeals Court. On February 12, 2003, however, the court decided against us. This seemed like a politically motivated decision both to us and our lawyer.
“In preparing the case, I had reviewed the universal jurisdiction law in many countries, including European ones. All except Belgium required the presence of the subject in the country where the case would be judged before the investigation began.
“In the end, the prosecution of Sharon did not go ahead because of a development that had nothing to do with him or Israel. Under the universal law as mentioned, in 2003 a complaint was also brought against US president George Bush, Sr., secretary of state Colin Powell, and retired Gen. Norman Schwarzkopf concerning the first Gulf War in Iraq.
The United States was more powerful than Israel. They told the Belgian government that if their legal authorities were to go ahead with the process, NATO’s headquarters would be moved away from Brussels.
“This threw the Belgians off balance. They now finally started to understand that they had created problems for themselves.
The parliament rushed to change the law, and amendments to it were passed that would create obstacles for future plaintiffs. These included provisions that a plaintiff or victim must have lived in Belgium for three years. There would also have to be real linkage between the alleged crime, Belgian interests and several other such clauses.
“Initially, there was a major parliamentary effort not to exclude the three Israelis from the universal law but only the Americans. That however would have proved that the motivation of the process against Sharon was political. In the end, the Belgian decision-makers also understood that such a move would not hold up judicially.”
The writer is a board member and chairman emeritus (2000-2012) of the Jerusalem Center for Public Affairs and author of European-Israeli relations: Between Confusion and Change.