Sabra and Shatila, 30 Years Later:Israeli Impunity from International Law

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ALAIN GRESHG worked as the editor of the monthly, left-wing French newspaper Le Monde Diplomatique from 1995 and until 2005, and in 2008 held the post of Assistant Director at the same paper. He currently heads the Association of French Journalists, which specializes in Morocco and the Middle East, and is a member of the Board of Directors of the Arab World Institute in Paris. He authored and co-authored numerous books on the Palestinian cause, the PLO, and the Middle East. His books and articles have been translated from French into English, Farsi, German, Arabic, Dutch, Japanese, Italian, Spanish, and Portuguese.

In the Introduction to his book devoted to the Sabra and Shatila massacre, Israeli-French journalist Amnon Kapeliouk, who became famous after his publication of a report on the massacre, printed the contents of a communique issued by Israeli General Amir Drori, who is culpable for the crimes during the massacre. The communique, printed in Kapeliouk’s book 20 years after it was first published, read: “The Phalange forces entered the refugee camp alongside another 150 people. According to estimates, there were 2,000 terrorists within the camp. I was not worried, at the time, of the possibility of a massacre being committed, but I did worry that we may have to take them relieve them [the Phalangists] due to the asymmetry of forces on the field ... the Summary of the Kahan Report demonstrates that no Israeli, civilian or military, was aware of the massacre as it was happening, nor did any Israeli take part in it. Nobody knew about it while it was going on.”

After discrediting General Drori’s claims, Kapeliouk went on to detail the lack of concern shown among Israelis for the commemoration of the massacre, in addition to the Israelis’ work to conceal evidence of other massacres that they have since committed during the July 2006 war on Lebanon and the assault on Gaza during 2008 and 2009. In the West, we recall the report published by the Israeli investigative committee convened to look into the massacre (the Kahan Commission), which did manage to place responsibility [for the massacre] on certain individuals, leading even to the resignation of General Ariel Sharon, the Israeli Minister of Defense who had the main responsibility for the Lebanese debacle. However, we forget that the same Commission was responsible for withholding certain facts and absolving the Israeli government as a whole of some of its responsibilities. The irony is that, as far as Western public opinion is concerned, nothing remains of Sabra and Shatila, except the protests by hundreds of thousands of Israelis, and the fact that the Kahan Commission did its work, thereby proving that Israel is a “democratic country”. It is an oft-repeated argument, one used to minimize Israeli liability. Is a state absolved of responsibility for a massacre merely because it is democratic? Does it make any difference whether a bomb falling on a refugee camp is dropped by a democracy? France, which had “pacified” Algeria, was a democratic country, yet its crimes in Algeria were no less horrendous.

Thirty years after Sabra and Shatila, the criminals responsible have so far escaped punishment. Efforts to mobilize the world’s civic society, and bring Sharon before a Belgian or other European court through universal jurisdiction, have so far not succeeded. Why this ability to flee from punishment? To understand this, one must return to the attempts to define the fundamentals of universal humanitarian law.

Following the Second World War, the Geneva Conventions for the Protection of Civilians during War time were adopted during August of 1949, with two supplementary protocols being signed in June 1977. The international community accepted the restrictions, which apply to all parties to a conflict, regardless of the legitimacy or otherwise of their causes. Consequently, Article 48 of the first supplementary protocol states a fundamental principle very clearly: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

It is true that the above aims were not, in many cases, realized, particularly as they relate to wars of liberation in the Third World, but the end of the Cold War - especially the establishment of the International Criminal Court in 2002, despite the refusal of the major powers, such as the United States, Russia, and China to sign the treaty establishing the court - provided the opportunity to hope for change.

At a time when discussion of human rights and the need to combat war crimes and crimes against humanity and genocide is gaining in intensity, it seems that any probable trials of war criminals will be limited to the heads of a few African states. Neither Bush, responsible for the destruction of Iraq in 2003, nor the Israeli leaders responsible for the July 2006 war and the assault on Gaza in December 2008 were truly worried. Possibly even more important is that the events of September 11, 2001, and the declaration of “war on terror,” have driven a number of governments to openly express, to varying extents, their refusal of the same principles of universal justice that seemed to have been acquired and would have been applied to both the strong and the weak.

John Podhoretz, a theoretician of the American neoconservative movement, posed this question in an article in the New York Post on July 25, 2006 during the Israeli war on Lebanon: “What if liberal democracies have now evolved to a point where they can no longer wage war effectively because they have achieved a level of humanitarian concern for others that dwarfs any real cold-eyed pursuit of their own national interests?” Podhoretz continues by asking, “What if the tactical mistake we made in Iraq was that we didn’t kill enough Sunnis in the early going to intimidate them and make them so afraid of us they would go along with anything? Wasn’t the survival of Sunni men between the ages of 15 and 35 the reason there was an insurgency and the basic cause of the sectarian violence now?” Building on this, he further asks, “What if Israel has every capability of achieving its aim, but cannot unleash itself against a foe more dangerous [meaning Hezbullah], more unscrupulous, more unprincipled, and more barbaric than even the monstrous leaders of the Intifada it managed to quell after years of suicide attacks?” Bringing to a close his line of enquiry, Podhoretz wonders:

Is this the horrifying paradox of 21st century warfare? If Israel and the United States cannot be defeated militarily in any conventional sense, have our foes discovered a new way to win? Are they seeking victory through demoralization alone - by daring us to match them in barbarity and knowing we will fail? ... Can it be that the moral greatness of our civilization - its astonishing focus on the value of the individual above all - is endangering the future of our civilization as well?

This horrifying logic represents a backwards step in terms of the advances - at least in theory - that gained currency following World War II and are the very foundations of universal humanitarian law. It would be wrong to believe that the above logic is confined to a few isolated circles. Certainly, its main standard-bearers are first and foremost the US neoconservative movement.

In the same way, Harvard law scholar Alan Dershowitz, a fierce defender of all Israeli actions, states that “international law, and those who administer it, must understand that the old rules ... do not apply in the unprecedented war against a ruthless and fanatical foe,” and that “the laws of war and the rules of morality must adapt to these [new] realities.”

We have seen how, in France, a number of intellectuals have come to the defense of these theories. Claude Lanzmann, writing in Le Monde on August 4, 2006, repeated the same arguments of “philosopher” Bernard Henri-Levy, who entered Gaza during the winter of 2008 on the back of an Israeli tank to defend his favored army’s war crimes - that Israel would have disappeared from existence a long time ago were it not for its excessive reactions. The invitation by these officials and intellectuals to create another fundamental rift in humanity, between the “whites” and the rest, is a major step backwards, and a return to an openly colonialist mindset.

In 1898, German political theoretician Heinrich von Treischke expressed what would have been, to a number of his contemporaries, a banally obvious sentiment: “International law becomes no more than a set of empty phrases if we also want to apply the principles to the barbarian peoples. In order to punish a Negro tribe, one must burn their villages; we will accomplish nothing without making an example of them. If, in such cases, the German empire applied international law, this would not constitute humanity and justice, but rather shameful weakness.”

The dum dum bullet, which caused particularly grave injuries, was invented at the end of the 19th century, and, in 1897, the Hague Convention signed by the “civilized” countries had banned these munitions, limiting their use to big game hunting and colonial wars. Today, however, it is possible, then, to use devastating and random bombardment against the barbarians, basically Arabs and Muslims, as they understand no other language. These selectively applied views of international law represent what is surely an exceptional regressive step for thought and morality. They discredit the entire discourse of human rights the West claims to champion, and bolsters those worldviews we claim to fight.

It was under the banner of “the war on terror” that Israel launched the war on Lebanon and escaped international law. It was also under the pretext of the war on terror that the attack on Gaza was launched in December 2008. None of these actions have resulted in a trial or the presence of Israel’s leaders in front of a court, be it domestic or international. All of us remember what became of the Goldstone Report, drafted by the members of a United Nations delegation sent to establish facts, and which did not result in any judicial action. Israel, along with the United States, had launched a hostile campaign, singling out the Jewish South African judge in particular, leading Goldstone to disassociate himself from the Report he had written by himself. Even so, the reports produced by a number of international organizations, such as Amnesty International and Human Rights Watch, provide evidence of crimes by the Israeli military.

Still, Goldstone’s announcement [that he was not to be associated with the report] gave the government of Israel and the Israeli Right an opportunity to rejoice. The fascist Israeli Foreign Minister, Avigdor Leibermann, was the first to express his happiness. A report published in Le Monde in April 2009 under the title “The Gaza War: Israel Calls for the Annulment of the Goldstone Report following the Author’s Regret,” pointed out: “Israeli Prime Minister Benjamin Netanyahu has stated ‘the report should be consigned to the dustbin of history,’ after having asked Foreign Ministry lawyers and expert to study its findings.” Israeli Minister of Defense Ehud Barak added, while speaking on Israeli Army Radio, “It now behooves [Israel] to multiply its efforts to have the report annulled. I shall work to achieve this.” This, after having asked Judge Goldstone to “publish his present findings,” is more than merely making do with “a simple article in the press”.

What implications are there for Goldstone’s backtracking? The answer is obvious to Israeli legal scholar, and latterly Ambassador to the United Nations, Gabriela Shalev. In a statement to Israel Radio she said: “The one point of light regards future actions ... If we have to defend ourselves against terror organizations again, we will be able to say there is no way to deal with this terror other than the same way we did in Operation Cast Lead.”

This “license to kill” so called “terrorists” is exactly what had been demanded by Netanyahu, and for a long time. “Netanyahu hopes for the resurrection of a number of Western countries concerned with fighting terrorism would come together and put in place new rules which would allow them to defend themselves against terrorism.” Israeli impunity is, therefore, not possible without the complicity of the United States and the European countries. Western leaders refuse, at least in public, the idea of a clash of civilizations or a clash of religions, yet, to be convincing, it is important that these are not limited to words alone; the principles of international law are applicable to all, and not only to the weak. Those same leaders, who called for the arrest of Sudan’s president, and any other African king, are the very same people who protect Ariel Sharon and George Bush, both of whom are guilty of serious crimes. So long as double standards are used, and so long as we have an “us” and a “them,” the rift between East and West will remain in place.

If it is that we cannot forget the victims of Sabra and Shatila, then that is because we believe that all victims, whoever they may be, need to witness recognition of their sufferings, that they need for the perpetrators be brought to justice, and that impunity is ended: there are no “good victims” and “bad victims”. Let us borrow from the statements of the Melians, who said to the stronger Athenians that sought to enslave them, in a manner similar to how the Americans and Israelis seek to enslave Arabs today: “you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.”