The case against Sharon

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There are bound to be difficulties and set-backs in store for the Sharon case. Those who launched it knew that such a case could not be easy, given the diplomatic and political backing Israel can muster. But they began from a belief in the independence of the Belgian judiciary and in the moral necessity of making this effort to claim justice for the victims and survivors of the massacre. It is an effort 19 years overdue. However difficult it may be to bring Sharon to justice, it is essential to rupture the amnesia that has overtaken the international community and much of the Arab world.

The concept of “command responsibility” as it bears on the current Belgian case against Ariel Sharon has appeared in several legal commentaries lately, with some jurists taking the view that Sharon cannot be deemed guilty of direct responsibility for the massacres. Such perspectives usually take their basic referencing in the Kahan Commission Report.

A great quantity of on-the-spot reporting, two international commissions of enquiry, and several historical studies have accumulated a mass of evidence that points to Sharon and the IDF High Command as directly responsible for producing the massacres.

Of course no one will be able to produce a written order signed Ariel Sharon directing the Lebanese militiamen to slaughter civilians in the Sabra/Shatila area. But such a document is not necessary. In most judicial systems — and certainly in war crimes tribunals — all that is necessary is evidence of control of the area in which crimes are carried out, and a hierarchy of military command. Let us first remind ourselves of the notion of “command responsibility” as divided into three kinds: a) if the person concerned ordered the criminal acts; b) if he failed to take action to prevent the occurrence of acts that he could reasonably foresee to be a violation of international humanitarian law; c) if having discovered the commission of violations of humanitarian law by his subordinates, he failed to take action to discipline or punish them.

Of the three, the first is of course the most serious, the second and third less so. From this some jurists have argued that while Sharon may be accused of negligence, he cannot be accused of agency. I propose a counter-thesis, that Ariel Sharon knew perfectly well what the Lebanese militiamen were likely to do in the camps, and that he intended the massacre, using non- Israelis as its instrument. Based on historical sources, I will summarise briefly the main indications of Sharon’s authorship.

First, Sharon’s own autobiography supports evidence given in Ze’ev Schiff and Ehud Ya’ari’s Israel’s Lebanon War that long before the 1982 war began Sharon planned an invasion that would reach Beirut, “take out” the PLO and its infrastructure, and set up a Lebanese government friendly to Israel. The US-brokered Habib Accords, by guaranteeing the security of the civilian population of West Beirut, threatened Sharon’s grand strategy. Only terror could bring about the mass flight that would deprive the PLO of any possibility of a come-back. Sharon himself recounts how he proposed to Philip Habib “a swift, fast move…which will cause such heavy casualties to the terrorists that they will not stay there as a military or political factor.”

His plan for the operation “Peace for Galilee” (completed in November 1981) had as first aim “…the annihilation of the terrorist threat, i.e., the destruction of their military strength as well as their entire infrastructure, including in particular in Beirut.”

The International Commission of enquiry set up by Sean MacBride noted that the Israeli invasion had genocidal intentions aimed at destroying “the national culture, political autonomy and national will” of the Palestinians. It recommended that all parties to the Geneva Conventions and Protocols carry out their legal obligations to prosecute individuals guilty of grave breaches of the laws of war. Such obligations seem particularly relevant to the apprehension of Israeli and Lebanese political and military leaders and participants involved in the massacres of Sabra and Shatila.

Sharon’s personal involvement in the invasion is clear from the ‘Napoleonic’ style in which he directed it, not from his office in Tel Aviv but from the war front in Lebanon. He took at least two momentous decisions without passing them through the Israeli Cabinet. It was Sharon who essentially gave the orders to the IDF to move into West Beirut after the assassination of Bashir Gemayel on 14 September, rupturing the Habib Accords. It was Sharon who gave the orders for the Lebanese militiamen to enter the camps.

Long denied by both sides, the so-called Bikfaya agreement between Ariel Sharon and president-elect Bashir Gemayel to “cleanse” the Beirut camps (12-13 September) is established beyond any reasonable doubt. Benny Morris gives this account of their agreement in his book Righteous Victims: “Sometime toward the end of the month. Israel and the Lebanese Christians were to uproot the remaining ‘terrorist’ presence in West Beirut.”

Sharon himself, in his memoirs, describes the meeting thus: “Afterwards we went on to more substantive issues, first of which was the steps that should be taken to clean the PLO cadres out of West Beirut and create an open, secure city… It was in both our nations’ interests we agreed, to make sure that West Beirut’s stay-behind terrorists were uprooted, a task that could best be handled by the Lebanese government in coordination with our own security services.”

The genocidal hostility of these two men towards the Palestinians is amply recorded, and it is reasonable to assume that this formed the core of their understanding. It should be recalled that Bashir Gemayel had formed the Lebanese Forces during the siege of Tal Al-Zaater camp in 1976, and that the surrender of the camp was sealed with a massacre of an estimated 3,000 Palestinians. The Kahan Report notes: “During the meetings that the heads of Mossad held with Bashir Gemayel, they heard things from him that left no room for doubt that the intention of the Phalangist leader was to eliminate the Palestinian problem in Lebanon when he came to power — even if that meant resorting to aberrant methods against the Palestinians in Lebanon.”

Given what Sharon in particular and the IDF in general knew about the Lebanese Forces, sending them into Sabra and Shatila was to guarantee a massacre. Several IDF senior staff admitted as much to the Kahan Commission.

In assessing the question of “command responsibility” we need to scrutinise Sharon’s movements on 15 September, the day the IDF advanced into Beirut and established control of the periphery of Sabra and Shatila. In the early hours of that day IDF Chiefs of Staff met with Lebanese Forces heads (Hobeika, Frem, Abi Nader) to secure their agreement to enter the camps. Sharon himself met with some of them at 9am at the IDF headquarters outside Sabra/ Shatila. Yet after this he found it necessary to go to the Lebanese Forces headquarters in Qarantina, before carrying on to Bikfaya to condole with the Gemayel family. Since the cooperation of the Lebanese Forces for the “cleansing operation” was already secured, what was the reason for the detour to Qarantina?

Lawyer and historian Karim Pakradouni, ex- Lebanese Forces spokesman, says that Sharon harangued the mourning militiamen, telling them: “Why weep like women? Take vengeance like men.”

Can such words be termed anything but incitement? Mossad’s notes on Sharon’s meeting with the Gemayels at Bikfaya have not been made public but Sharon himself writes that Pierre and Amin knew and approved of the “cleansing operation” agreement.

Of primary importance in the issue of “command responsibility” is the document dated 16 September, issued by the Israeli Ministry of Defence, stating “only one element, and that is the IDF, shall command the forces in the area. For the operations in the camps, the Phalangists should be sent in.”

This means that any military force acting within this area was de jure and de facto under IDF command. The command to enter the camps was given by Sharon to Eitan on Thursday 16 September at 10am. In the afternoon of the same day, around 16.00, Drori phoned Sharon (now back in Tel Aviv) to tell him that “our friends” were entering the camps. Sharon congratulated him, and said that the operation was authorised.

Many questions that were not asked by the Kahan Commission should be asked now: what were the instructions given by the IDF chiefs of staff to the Lebanese Forces command as to their purpose and mission in the camps? Sharon claims (in Warrior) that he instructed the militiamen not to kill civilians but Schiff and Ya’ari report him as saying: “I don’t want a single one of them left.”

A second crucial question: if the Lebanese militiamen had been instructed to bring out the “terrorists” for interrogation, why was the IDF command not surprised when, as hours went by, no “terrorists” were brought to them? Third, if the Lebanese militiamen did not know they had an Israeli green light for a blood-letting why did they proceed at such a leisurely pace, taking time out to eat, drink and rest? Fourth, if the IDF command really believed that there were 2000 — or even 200 — armed Palestinians in the camp, why did the first Lebanese militia unit to enter the camp consist of only 120 men? Given their command view of the camps area, and the reports of killings that began to reach IDF personnel posted around the camps as early as the evening of the 16th, is there the slightest degree of possibility that IDF commanders did not know what was going on after the entry of the Lebanese militiamen into the camps?

All the evidence points to IDF command knowledge that what was going on in the camp was not arrests but killing; and that it was civilians not “terrorists” who were being killed. If the IDF chiefs of staff knew this, and did nothing, it could only be because Sharon intended what was about to unfold.

No military historian would believe, given the IDF’s formal take-over of command over the Sabra and Shatila area before the massacre began, that it did not have Israeli personnel posted inside the camps’ area. Such evidence as they might give would certainly be suppressed by the Kahan investigation in the interests of national security. If one day one of them retires, or is smitten by conscience, we may know more. But there is absolutely no necessity to prove that IDF personnel took part in the massacre, or were inside the camp, since evidence of their complicity and support is already overwhelming.

The militiamen could not have accomplished their “task” without IDF logistical and practical support, and such support could not have been provided without orders from the top: they were conveyed to the camps through Israeli-controlled areas, conveniently sign- posted; IDF posted around the camp prevented residents from escaping; night flares were dropped to illuminate dark streets; food and other provisions were supplied by the IDF: Israeli bulldozers were used by the militiamen to flatten homes on top of the victims; the IDF cut telephone communications between the camp area and the city.

The subordination of the militiamen to the IDF was evident to observers — journalists and survivors — who saw them helping the IDF to round up men and herd them into the Sports City on Saturday 18 September. Another clear indication of cooperation is the positioning of the commander of the Lebanese units, Elie Hobeika, next to the IDF High Command.

On the second day (17 September), the IDF command allowed a second unit to enter camp; killing continued for twelve hours after. According to their own admission, the IDF High Command knew of the massacres. And even after the general “discovery” of the massacre, the IDF made no move to arrest the Lebanese militia, as was their duty under the Fourth Geneva Convention.

Finally, in relation to the Kahan Commission Report, it should not be forgotten that it accused Sharon of “personal responsibility,” not just the more often quoted “indirect responsibility.” It should also be remembered that evidence placed before the Kahan Commission — thought by many to be Mossad’s notes on IDF and Lebanese Forces meetings including those between Sharon and Gemayel — has yet to be opened to the public.

For Sharon to be exculpated of intention to cause a massacre, i.e., of the first degree of “command responsibility”, he would have to prove that: i) the IDF allowed the Lebanese militiamen into the camps without giving them any explicit orders, which would be extraordinary unless based on prior understandings; or ii) the IDF gave explicit instructions, e.g., to round up — or kill — “terrorists” but spare civilians, and that these order were not obeyed. If Sharon claims the second position, he must then prove beyond a shadow of doubt that the IDF were not aware that a massacre was being carried out in the camps until it was almost over. This is equally incredible.

The writer is a Beirut-based sociologist and author of Too Many Enemies: The Palestinian Experience in Lebanon, 1994.

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