Overview:
In 1996, the Human Rights Law Institute embarked on a project to address the growing problem of impunity of individuals guilty of crimes that should be prosecuted under international law. The project culminated in the publication of “Guiding Principles for Combating Impunity for International Crimes.” The principles require criminal prosecution for grave breaches, torture, and genocide (among other crimes), and they direct all states to prosecute crimes against humanity. The principles also require the removal of individuals responsible for such crimes from public office and the military, after according the individual due process in evaluating responsibility. Nonetheless, Ariel Sharon was elected Israel’s prime minister despite being convicted of war crimes in 1982.
Impunity:
In September 1982, the Israeli cabinet resolved to establish a commission led by then-Supreme Court Chief Justice Yitzhak Kahan to examine the facts of the massacre committed by the Lebanese Forces in the Sabra and Shatila refugee camps, areas in Beirut then under the control of Israeli authorities. As many as 2,000 Palestinian civilians were killed in the camps. This year, one of the individuals judged complicit by the Kahan Commission, then-Minister of Defense Ariel Sharon, was elected to the highest political post in Israel after having provoked a violent confrontation by his visit to the Haram al-Sharif. In 1982, he was found to have created the situation which he knew, or should have known, made the massacres a probability. The need has now arisen to bring serious attention to the moral and legal responsibility of Sharon for gross human rights violations and the impunity, and even worse the power, which he has received.
The Kahan Commission’s report states that when word of Lebanon’s President-elect Bashir Jemayel’s assassination reached Israel on the night of 14 September 1982, then-Prime Minister Menachem Begin, Sharon, and then-Chief of Staff Rafael Eitan decided that the Israel Defense Forces (IDF) would enter West Beirut without seeking a Cabinet resolution to that effect. Although Sharon and Eitan purportedly discussed including Phalangists in the operation, the Commission determined it was not mentioned to Begin. Eitan testified that earlier that same evening, he and Sharon agreed that Phalangists would enter the Sabra and Shatila camps. On 15 September 1982, the entry into West Beirut began. Sharon met at the forward command post with Eitan who reported his agreement with the Phalangists for their entry into the camps. Sharon approved the agreement and phoned Begin from the roof of the command post. Yet, according to the report, Sharon only informed Begin that there was no resistance in Beirut and that the operations were going well. On 16 September, the Defense Minister’s office issued a document summarizing in two crucial controversial sentences Sharon’s instructions in this meeting regarding the entry into West Beirut: “Only one element, and that is the IDF, shall command the forces in the area. For the operation in the camps, the Phalangists should be sent in.” That day, the massacre began. At 10:00 a.m., Sharon met in his office with Eitan and others. Eitan announced, “the whole city is in our hands, . . . the camps are surrounded, the Phalangists are to go at 11:00-12:00.” Eitan said that Israeli forces surrounded the Sabra and Shatila camps, and that it was agreed the Phalangists would go in at their discretion, after a coordinating session with the Israeli officials. At approximately 6:00 p.m. on 16 September, the Phalangists entered the camps, initially entering the Shatila camp from the west and southwest, as directed.
Findings:
The Commission determined two levels of responsibility-direct and indirect. According to the Commission, those directly responsible were only those who “actually perpetrated” the massacre itself. The Commission’s report concluded that Israel was indirectly responsible for the massacres: “[T]he decision on the entry of the Phalangists into the refugee camps was taken without consideration of the danger-which the makers and executors of the decision were obligated to foresee as probable-that the Phalangists would commit massacres and pogroms against the inhabitants of the camps, and without an examination of the means for preventing this danger.” Israel was also held responsible for not stopping the massacre once reports came out that it had begun.
Based on the Commission’s conclusions at least seven of nine individuals, including Sharon, should have known of the likelihood of a massacre before the Phalangists’ entry, knew or should have known a massacre was going on, and yet failed to take appropriate steps to protect the civilian population. Under the customary international law of command responsibility and the Nuremberg Principles, those individuals could be charged with war crimes. The Kahan report, no matter how well intentioned, failed to result in any meaningful sanctions, however. The Commission criticized Begin, Sharon, and Shamir, yet Begin stayed in office until he retired, Shamir became the new prime minister, and Sharon remained in the Cabinet (although without his portfolio).
Sharon said that as long as he continues to have “some influence,” he would continue to serve in the government, according to the Jerusalem Post. To quote Jonathan Randal, senior foreign correspondent of The Washington Post: “The main culprit, Ariel Sharon, neatly dodges the spirit if not the letter of the 108-page report enjoining him to resign. Resign he did as Defense Minister, only to stay on as minister without portfolio and to join two key parliamentary commissions on defense and Lebanese affairs. Sharon made clear this was his, and Begin’s, way of rejecting the commission’s verdict of Israel’s ‘indirect responsibility’ for the slaughter.” Sharon was reported to have “lashed out” at his colleagues in the governing Herut party for denying him a portfolio in the newly formed Shamir government.
A New Day for Consequences:
At the very least, Sharon acted with reckless disregard of the likelihood of a massacre, according to the Commission’s findings, but the mens rea element-or the mental state required to commit a certain crime-for genocide may necessitate a finding of purpose or knowledge for that particular liability. Nevertheless, Sharon’s clear responsibility for war crimes constituting grave breaches obligates every state to initiate prosecution for these offenses. Although some courts still cling to the position that sovereign immunity may be available as a defense to war crimes and crimes against humanity, landmark decisions to the contrary-such as the Pinochet decision, the Statutes of the International Tribunal for the Former Yugoslavia, the International Tribunal for Rwanda, and the Treaty of Rome establishing the International Criminal Court-have unequivocally rejected immunity as a defense. International law in this area now carries with it the once missing element often cited to question its nature as “law”: the mandatory imposition of sanctions.
Sharon’s prosecution is required by international law and is not subject to the defenses of sovereign immunity. The Siracusa Principles do not recognize the defenses of sovereign immunity and the statutes of limitations, or the defense of superior orders under the circumstances as found by the Kahan Commission with respect to Sharon.
Israel demands punishment for crimes committed against Israelis even after the state elevated one of its most notorious human rights violators to its highest post. The successful reconstruction of civil society depends upon both Palestinians and Israelis restoring public confidence in governmental institutions and, in this case, establishing new confidence in the Israeli administration. What is desperately needed, in this worldwide epidemic of “choiceless democracies” headed by leaders no one seems to want and who represent only their own political aspirations, are morally responsible leaders who believe in the rule of law and human rights in reconciliation and reconstruction.
Linda Malone is Professor of Law at William and Mary’s Marshall-Wythe School of Law.
