Universal jurisdiction

Universal jurisdiction: Reflections on the 'Case of Ariel Sharon'

By John Borneman

Special to The Daily Star

Monday, December 27, 2004

http://dailystar.com.lb/article.asp?edition_id=10&categ_id=5&article_id=11287#

Massacres imprint themselves on the minds of victims and perpetrators alike, but only the community of survivors tends to retain a memory of the event, and this for generations or even centuries after its occurrence. Most groups remember their own victimizations only, while choosing to ignore harm done to others. As time passes, therefore, the fate of victimizations - whether their significance extends beyond those involved in the initial events - depends on the effective deployment of collective memory beyond the memories of the survivors. There is, in fact, a growing international competition for the collective memory of massacres, each group demanding that its suffering be recognized by strangers.

The 1982 massacre at the Sabra and Shatila refugee camps in Beirut, most of whose victims were stateless Palestinians, was slowly entering the deep sleep that characterizes losers in this competition when, on June 18, 2001, a criminal complaint on behalf of 28 witnesses and survivors was brought before a court in Belgium. According to the doctrine of universal jurisdiction, any group's claim of suffering that falls under the rubric of particular heinous crimes - war crimes, crimes against humanity, or genocide - entitles it to a hearing, irrespective of where the plaintiff or defendant reside or where the crime was committed. On this basis, the Belgian court decided to hear the complaint, which included a charge against the current Israeli prime minister, Ariel Sharon, assuring that this massacre re-enter world public consciousness and simultaneously sealing its fate. For, while it is no longer novel to try a sitting head of seat, it is an impertinence to try the head of the state of Israel, the nation of Holocaust survivors, a state whose legitimacy is intimately linked to Jewish victimization.

It has long been something of a public secret - implicitly acknowledged but not in fact recognized - that there is a perverse link between "Palestinian" and "Jewish," such that any claims for recognition of present Palestinian suffering have been balanced against claims of past Jewish suffering. Hence the "Case of Ariel Sharon," as it became known colloquially, was by its very nature framed as a political event about prioritizing the competing victimizations of the Palestinian present and the Jewish past. After a long trial, the Belgian Supreme Court agreed with the plaintiffs and the prosecution that they had legal recourse in Belgium, and it confirmed the principle of universal jurisdiction, encoded in the Fourth Geneva Conventions, customary international law, and the 1984 Convention on Torture, which assumes that all signatories to the convention have not only the right, but also the duty, either to prosecute or to extradite individuals guilty of such crimes.

But on Aug. 5, 2003, a political solution was reached that nullified the Supreme Court's decision and substantially changed Belgium's victim-friendly national law, severely restricting the ability of foreigners to lodge complaints in Belgian courts regarding heinous crimes. In the short term, the pre-emptive strike by U.S. and Israeli authorities that coerced Belgium into changing its law demonstrates unambiguously the limits of justice and any form of supranational accountability at the beginning of the 21st century. For the longer term, however, the Sharon Case alerts us to some possibilities in the use of law to intervene in the competition over collective memory, and in the use of the doctrine of universal jurisdiction to redress group victimization.

Five conclusions might be drawn. First, there exists a clear but not rigid international economy of victimization and identification that prioritizes the suffering of some groups over others. To use law to enter into this economy assumes that one can subvert its hierarchies. Suffering itself presents merely an emotive possibility. But to achieve recognition of suffering, one must challenge the hierarchies that organize and justify it. These hierarchies work primarily in political rather than religious terms, meaning that the entire state system and its organization of people into nationals is central to this economy.

Second, only universal jurisdiction can do justice to the principle of human rights, for the very purpose of human rights claims is to grant standing to victims who have no access to jurisdiction in their own backyards. Stateless people are prototypes of this sort of victimhood, but there are many people who live in states that regularly abuse them - Middle Eastern states are exemplary in this respect today, despite a remarkable tradition of Arab jurisprudence. By delinking the issue of justice from territory, the doctrine of universal jurisdiction bypasses the international economy of victimization and promises redress to those whose suffering would ordinarily be forgotten. But the success of universal jurisdiction - literally, who is authorized to speak the law - and at obtaining standing are largely dependent on propitious circumstances: money to finance a case, victim-friendly laws and judges, the political significance of the victims, the accepted vulnerability and innocence of the perpetrators, the persistence of individual activists.

Third, humans everywhere are extremely ambivalent about inflicting and experiencing abuse and suffering - though not all humans equally, and not about the same abuse in every place. On this basis of this ambivalence, some groups or individuals reject the human rights for others that they claim for themselves. The major obstacle in preventing and remedying human rights violations, then, is not whether, but to what extent, people believe that they or others should be allowed to engage in or to be protected from these violations. It is therefore not a particular legal system or "legal culture" that prevents redress but an international political system that provides immunity from accountability for some and no protection from abuse for others.

Fourth, universal jurisdiction claims an authority that is entirely temporal, based on the minimalist idea of justice in shared world time, but many states prefer to trust their own citizens and their own territorial legal systems over the uncertain benefits of human rights. By considering a case that had nothing to do with its territory, the Belgian courts in the Sharon case permitted injustices elsewhere to enter into their jurisdiction, offering a legal remedy to problems - a massacre of refugees - that had been dealt with only militarily. The refusal to extend universal jurisdiction in this case marks the end, for the moment, of a brief period of legal and democratic possibilities focused around "1989," including those of Eastern Europe and Chile, which replaced the power of guns with other means of establishing accountability.

Fifth, and finally, the claims of universal jurisdiction challenge and disturb the normal routines of national justice systems with unpredictable results. Judicial activism on behalf of noncitizens often results in the unexpected marshaling of legal branches of one government against the abuses of national executives of another. This exacerbates conflicts between competing sovereigns in noncontiguous territories, but also opens up new kinds of cross-national alliances. The unpredictability of outcomes extends to who will initiate a case, which jurisdictions take them up, how decisions are enforced and received, and when crimes are investigated. The lack of a statute of limitations for human rights violations means that many complaints will be lodged decades after some (or even all) of the actual injured parties are dead. In other words, one might say neither the doctrine of universal jurisdiction nor the memory of the victims of Sabra and Shatila is dead; both are in remission.

John Borneman, professor of Anthropology at Princeton University, U.SA., and visiting senior Fulbright professor at Aleppo University, Syria, has recently published "The Case of Ariel Sharon and the Fate of Universal Jurisdiction" (Princeton Institute for International Relations, 2004, to purchase contact: pzimmer@princeton.edu). He has written on issues of domestic and national accountability in East Central Europe and is currently engaged in fieldwork in Lebanon and Syria. He wrote this commentary for The Daily Star and can be reached at johnborneman@yahoo.com