-Caveat Lector-
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Prime Minister Ariel Sharon, A War Criminal
Linda Malone
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. The above text, based on a presentation at CPAP's 20 April 2001
symposium titled "The Israel/Palestine Predicament: How to End an
Occupation," may be used without permission but with proper attribution to
the author and to the Center for Policy Analysis on Palestine. This
Information Brief does not necessarily reflect the views of the Center for
Policy Analysis or The Jerusalem Fund.
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