According to the Rome Statute of the International Criminal Court (ICC), as approved by the law of 25 May 2000, crimes against humanity occur whenever certain acts[30] are committed
"as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack" (article 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 organisational policy to commit such attack."It is clear from the preparatory work of the ICC 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 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 crucial to note that, in the strictest sense of the term, these legislative texts do not incriminate a crime against humanity but confirm its pre-existent incrimination. The ICC Statute makes this clear in article 10.[32] The Belgian legislator expressed this unequivocally during the preparatory work for the law of 1999.[33]
Once again[34] it is clear that International Customary Law and the ius cogens[35] 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 drawn from "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 'crime against humanity' is – by definition – always incomplete. It is also important to note that the definition in the ICC 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.
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 in the 8 June 1977.[42] Additional Protocol (Protocol 1) to the Fourth 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 ICC 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 did civilians exclusively populate the camps, but the Israeli commander had even been aware of this since the previous day.
As indicated above, Article 7.2 of the ICC Statute specifies the notion of attack against a civilian population by adding two additional sub-criteria:
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 ICC 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 details of the rape and murder of a young woman of 19 who worked at the hospital are well known (cf. the testimony of Ben Alofs), but the phenomenon's recurrence can be found in several passages, mentioned, for example, in Kapeliouk.[46]
The second sub-criterion in the definition of the 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 most recent evolution of the ICTY jurisprudence shows that the criterion of co-operation is no longer considered a constituent element of a crime 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 in the subject, the present facts sufficiently demonstrate that the massacres were planned and organised.
First of all, the highly efficient cooperation between the Phalangist forces and the regular Israeli army (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.
Nordic Commission: So they were forced back into the camp on Thursday?
Astrid Barkved: Yes." [49]
In addition to the facts detailed in this first part of this complaint, the premeditated and coordinated nature of the massacre is evidenced by the following incidents:
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. Gen. 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.
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:
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 7pm, 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.
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.
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.
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...
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."
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.
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 coordination are numerous and convincing. In every hypothesis, the proof of this constituent element, as with all proof of intention required for the crime of genocide, can be gleaned from the objective circumstances of the event.[61]
On this point of jurisdiction 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.
Finally, the crimes must be committed in the knowledge of a generalised or systematic attack against a civilian population.
As demonstrated in the ICC 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 of cause (sciens et volens, cf. article 30 of the ICC Statute). This regulation is founded in customary law as well as in the relevant conventional law.
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 to recall UN General Assembly resolution 37/123D, by which the Sabra and Shatila massacres qualified as an act of genocide. Given that, by definition, every act of genocide in the sense of the 1948 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, point IV).
[The Case Against The Accused]
The above text is an extract from the Complaint lodged in Belgium against Israeli Prime Minister Ariel Sharon, Amos Yaron and other Israelis and Lebanese responsible for the massacre. The full text of the Complaint can be found in the section of this website titled The Case Against The Accused.
[The Case Against The Accused]
Dr. Laurie King-Irani is North American Coordinator of International Campaign for Justice for the Victims of Sabra & Shatila. For media queries, write to coordinator@indictsharon.net. For website queries, write to webmaster@indictsharon.net.
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