Book Review: The Case of Ariel Sharon and the Fate of Universal Jurisdiction Richard Falk The Case of Ariel Sharon and the Fate of and criticism of his controversial past. Despite Universal Jurisdiction his tarnished reputation, Sharon managed, John Borneman, (Editor) with the help of Washington, to have his Princeton, NJ: Princeton Institute for Palestinian counterpart, Yasser Arafat, utterly International and Regional Studies of humbled and discredited as a legitimate Princeton University, 2004 political leader on the basis of alleged links to 181 pages. terrorism. This was achieved despite the fact that the allegations of wrongdoing leveled at Arafat were far flimsier than those that had Since his massive stroke in January 2006, been ignored with respect to himself. At most, former Israeli Prime Minister Ariel Sharon has during his years as PLO leader, Arafat was no longer been a living reality. Yet his life and accused of speaking inconsistently on the role career persist as a high profile reminder that of violent resistance before different audiences. 101 raw power often trumps truth and justice when Even if accurate, this accusation must be it comes to political reckoning. Nothing has balanced against Arafat’s well-documented illustrated the pro-Israeli media spin in the efforts, often undertaken at great personal and United States more clearly than the ability of political risk, to seek accommodation with Sharon while holding high office to avoid being Israel within a diplomatic framework adverse tarnished as a civilian political leader by his to Palestinian interests. By contrast, during extensive military record of brutality and abuse, Sharon’s tenure as Israeli Prime Minister, the which includes well-documented terrorist raising of doubts over the legitimacy or attacks against Palestinian civilians.1 Of course, suitability of Sharon’s formal representation the foremost blemish on Sharon’s reputation of the state of Israel has been deemed by the stems from his connection with the notorious mainstream media in the US as anti-Israeli, massacres carried out by the Lebanese Christian if not anti-Semitic. Phalange in the refugee camps of Sabra and The international legitimization of Sharon Shatila in the immediate aftermath of the 1982 as the Israeli head of state was, of course, forged Israeli invasion and occupation of Lebanon.2 by bipartisan American efforts. There was a Whilst it is perhaps not so surprising that deferential media and an unconditional Sharon was internally rehabilitated in Israel as governmental acceptance by Washington of part of the Likud surge at the beginning of the the outcome of free and fair Israeli elections 21st century, it is, however, rather startling that in what was incessantly proclaimed as the only Sharon should have received such a clean bill democratic government in the region. of health from the international community Nevertheless, the total rehabilitation of Sharon following his election as Prime Minister in early remains surprising, especially given the wider 2001. international climate of opinion relating to However, Sharon went even further than criminal accountability for crimes against effectively exempting himself from scrutiny humanity and other forms of official Book Review: The Case of Ariel Sharon and the Fate of Universal Jurisdiction wrongdoing. The 1990s came to a close with tribunals for the former Yugoslavia and for a dramatic renewal of international efforts Rwanda (ICTR), established by the authority (which had lapsed since the Nuremberg of the United Nations Security Council in the Judgment in the aftermath of World War II) first half of the 1990s, and whose work to hold government officials, including military continues to this day. As mentioned, the ICC commanders, individually responsible for now regularizes and normalizes this approach, crimes of states, and in particular crimes against although, given the vigor of American humanity, torture, and genocidal policies. In governmental opposition, it is uncertain 1998, with great drama, the former Chilean whether or not this new tribunal will be able dictator, Augusto Pinochet, was indicted in to function as was intended, namely, by Spain and detained for extradition proceedings providing the international community with in Britain.3 In the following year, 1999, the a regular mechanism with which to indict, former President of Yugoslavia Slobodan prosecute, and punish individuals found guilty Milosevic was indicted by the Ad Hoc of international crimes. Reluctantly and after International Criminal Tribunal for the much hassling, the US government agreed to Former Yugoslavia (ICTY) for his alleged an arrangement by which those alleged to be 102 criminal involvement in ethnic cleansing and responsible for the killings in Darfur might be crimes against humanity in Bosnia, and later prosecuted for crimes against humanity before in Kosovo. These developments reached a the ICC. climax with the successful establishment by a The second strand was associated with global movement of governments and civil initiatives of national courts, and has been society groups of a permanent International linked to what is termed by lawyers as Criminal Court (ICC), which came into being ‘universal jurisdiction.’4 ‘Universal jurisdiction’ in 2002 in the face of vehement opposition is an old concept in international law, most from the United States. In other words, a commonly used to explain the illegal status of consensus was emerging at the dawn of the 21st piracy. It allowed any court in any country to century, in relation to the international capture pirates anywhere, seize their criminal accountability of leaders, around the possessions, and prosecute them for their idea that there existed a higher law than that crimes. These crimes were likely to have decreed by a sovereign state, even during occurred on the high seas against foreign wartime. Further, there were signs that this law interests; that is, without a link to a particular was finally now beginning to be implemented, court. A national court was regarded as an and not just by victors in relation to the agent of world order, serving the common defeated. Indeed, it seemed that individuals interest in the suppression of piracy, and its – former leaders – would be at risk of being proceedings were not considered an prosecuted in the manner of Augusto Pinochet encroachment upon the sovereign rights of any if this trend were to continue. state. Universal jurisdiction is controversial as There were three strands to this it allows national courts to indict and prosecute accountability movement. The first, following individuals who acted outside of the territory the lead of Nuremberg, emphasized formal of the court to reach foreign acts and actors, initiatives of the international community, including those who might have been thought including the ad hoc international criminal to be acting within the rule of the law. The Book Review: The Case of Ariel Sharon and the Fate of Universal Jurisdiction Israeli prosecution of Adolph Eichmann back continuously since its foundation in Rome in 1961 for his role in overseeing the 1976 by the Lelio Basso Foundation. To date, transportation system that carried Jews to the at least fifteen citizens’ tribunals have been set death camps during the Nazi period was a up in countries around the world to assess the landmark case in national efforts to extend legality of the Iraq War and the criminal criminal accountability to foreign acts accountability of the civilian and military committed on foreign territory. The Spanish leaders who planned and oversaw the war and indictment of Pinochet was a more recent subsequent occupation. This process breakthrough with respect to this kind of culminated in the session of the World dramatic extraterritorial role for a domestic or Tribunal on Iraq held in Istanbul in June 2005, national court, especially as the prominence which received worldwide attention. of the defendant and his former status as a head of state gave the case global salience.5 The Case of Ariel Sharon illustrates an effort Subsequent extradition requests for Pinochet of the second strand variety to impose criminal made by several other indicting national courts accountability on an individual accused of in Europe were a further indication of a complicity in the 1982 massacres at the Sabra definite trend toward expanding this approach and Shatila Palestinian refugee camps. The case 103 to the enforcement of international criminal was initiated in Brussels by survivors of the law. massacres, taking advantage of a 1993 Belgian The third strand is associated with civil law that allowed such criminal actions to society initiatives lacking in governmental proceed on the basis of universal jurisdiction; imprimaturs or the backing of the United that is, in the absence of any link between the Nations. These ‘tribunals’ have been country where the court is situated and the established in various places and under a range locus of the crime and its victims. In this of auspices in order to gather evidence relating instance, Palestinians of varying nationality to an individual or situation that is declared resident in Lebanon in 1982 were using the to shock the moral and legal conscience, and Belgian legal system to charge Israeli yet where political realities block formal legal individuals with crimes committed on action. This form of juridical inquiry was Lebanese territory more than ten years before initiated in 1967 by the fabled British the Belgian law was adopted. Israel was philosopher, Bertrand Russell, in relation to formally and officially outraged by the idea that the alleged criminality of the Vietnam War. the behavior of their elected leader (at the time) Prominent figures of moral authority, would be legally challenged in a foreign court including Jean-Paul Sartre and Simone de of law, disrupted diplomatic relations and Beauvoir, formed the jury of the Russell threatened Belgium with adverse economic Tribunal, which delivered a decision consequences if it persisted with the legal condemning the American role in Vietnam proceedings.