30 aug 2013
By Professor Francis A. Boyle
Countercurrents.org
The Kuala Lumpur War Crimes Commission Against Amos Yaron
CHARGE
The Associate Prosecutor of the Kuala Lumpur War Crimes Commission pursuant to
Article 7 of the Charter of the Kuala Lumpur War Crimes Commission charges:
Amos Yaron Individually, for
WAR CRIMES, CRIMES AGAINST HUMANITY, AND GENOCIDE as follows:
The defendant Amos Yaron perpetrated War Crimes, Crimes Against Humanity, and Genocide in his capacity as the Commanding Israeli General in military control of the Sabra and Shatila refugee camps in Israeli occupied Lebanon in September of 1982 when he knowingly facilitated and permitted the large-scale Massacre of the Residents of those two camps in violation of the Hague Regulations on Land Warfare of 1907; the Fourth Geneva Convention of 1949; the 1948 Genocide Convention; the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950); customary international law, jus cogens, the Laws of War, and International Humanitarian Law; and their related provisions set forth in articles 9, 10, and 11 of the Charter of the Kuala Lumpur War Crimes Commission.
Particulars of the Charge:
1. Commencing on June 6, 1982, the Israeli Defense Forces (I.D.F.) of the State of Israel commenced a large-scale invasion of the State of Lebanon, and by June 14 had taken over the suburbs of Beirut and joined with Lebanese Phalangist forces controlling East Beirut. The I.D.F. lay siege to West Beirut, and through massive aerial bombardment attempted to dislodge the forces of Syria and the Palestine Liberation Organization present in West Beirut.
2. The Israeli siege and bombardment of West Beirut continued throughout the summer of 1982, causing grievous devastation to the civilian population, but did not succeed in its goal of defeating or dislodging the Syrian and P.L.O. forces.
3. With the negotiating assistance of the United States through Ambassador Philip C. Habib, on August 19, 1982, an agreement was reached between Lebanon, the United States, France, Italy, Israel, and the P.L.O. for the evacuation of the P.L.O. and Syrian forces under the auspices and protection of a multi-national force. The agreement further provided that the Israeli Defense Forces would not attempt to enter or occupy West Beirut following the evacuation of the P.L.O. and Syrian forces.
4. Pursuant to that agreement the multinational American, French, and Italian force oversaw the evacuation of the P.L.O. and Syrian forces until completed on September 1, 1982. The multinational force left Lebanon from September 10-12, 1982, after the completion of the evacuation.
5. On or about September 14, 1982, following receipt of word of the assassination of Lebanese President Bashir Jemayel, a Phalangist, in East Beirut, Israeli Prime Minister Begin, Prime Minister of Defense Sharon, and Chief of Staff Eitan, decided that the Israeli Defense Forces would immediately enter and occupy West Beirut. It was further agreed that the Lebanese Phalangist forces would immediately enter and occupy West Beirut. It was further agreed that the Lebanese Phalangist forces, following the I.D.F.’s occupation of West Beirut, would be sent into the Sabra and Shatila Palestinian refugee camps.
6. Pursuant to the decision, on September 15, 1982, the I.D.F. entered West Beirut under the command of Brigadier General Amos Yaron, the defendant in this case. The I.D.F. established a forward command post on the roof of a five-story building southwest of the Shatila camp, and defendant Brigadier General Yaron commanded I.D.F. forces from that post. The area surrounding the camps was thereafter under the command and control of the I.D.F., and all forces in the area, including the Phalangists, were deemed to be operating under the authority of the I.D.F. and acting according to its instructions.
7. Simultaneous with the entry of the I.D.F. into West Beirut, senior Israeli officials including Chief of Staff Eitan, Minister of Defense Sharon, and Major General Drori directed the Phalangist commanders to have their forces enter the Sabra and Shatila camps with their entry coordinated with the defendant Brigadier General Yaron at the forward command post. The control by the I.D.F. of the area surrounding the camps and the decision to send the Phalangist forces into the camps was confirmed at a meeting in the earlier morning hours of September 16, 1982 among Chief of Staff Eitan, the Israeli Director of Military Intelligence, Brigadier General Saguy, and the chief aide to Defense Minister Sharon, at which Eitan announced:
the whole city is in our hands, complete quiet prevails now, the camps are closed and surrounded, the Phalangists are to go in at 11:00-12:00. Yesterday we spoke to them…The situation now is that the entire city is in our hands, the camps are all closed.
8. Prior to September 16, 1982, the defendant Yaron, as well as other Israeli officials had reason to know that the Phalangists were likely to attempt to perpetrate massacres and other atrocities against the civilian population of the Sabra and Shatila camps.
9. At 11:00 a.m. on September 16, 1986, Major General Drori and the defendant Brigadier General Yaron met with Phalangist commanders to coordinate their entry into the camps. The defendant Yaron set up lookout posts on the roof of the forward command posts to monitor the entry of the Phalangist forces into the camps. The Phalangist unit that entered the camps was an intelligence unit headed by one Eli Hobeika, who did not himself enter the camps but remained on the roof of the Israeli forward command post throughout the night of September 16.
10. At approximately 6:00 p.m. on Thursday, September 16, 1982, the Phalangists entered the camps, initially entering the Shatila camp from the west and southwest as directed by the I.D.F. At the request of the Phalangist liaison officer on the roof of the I.D.F. forward command post, I.D.F. personnel under the command of the defendant Yaron provided mortar, and subsequent aircraft, illumination for the Phalangists in the camps throughout the night.
11. At approximately 7:00 p.m. on September 16, Israeli Lieutenant Elul overheard, while he was on the roof of the command post, a transmission over the Phalangists’ communication set to Eli Hobeika. He heard a Phalangist officer from the forces in the camp tell Hobeika that “there were 50 women and children, and what should he do.” Hobeika replied, “This is the last time you’re going to ask me a question like that, you know exactly what to do,” this remark being followed by “raucous laughter” among the Phalangists on the roof. The defendant Brigadier General Yaron, who was also present on the roof, asked Lieutenant Elul what he had overheard and Lieutenant Elul reported to him the above information.
12. At approximately 8:00 p.m. another report of indiscriminate killing by the Phalangists was made in the presence of the defendant Yaron. The Phalangists liaison officer known as “G” told various people in the command post dining room, including the defendant Yaron and I.D.F. officers, that about 300 people had been killed in the camps, including civilians. Shortly thereafter “G” reduced the number of casualties he reported from 300 to 120. No action was taken by the defendant Yaron, or any other I.D.F. official to ascertain the circumstances giving rise to the report that the Phalangists had killed either 300 or 120 persons in the camps within hours after their entry.
13. At approximately 8:40 p.m., the defendant Yaron convened a meeting of I.D.F. officers at the forward command post for an update briefing on the Phalangists’ entry into the camps. At this meeting, an Israeli intelligence officer relayed a report he had received at 8:00 p.m. that evening from the Phalangist liaison officer. The Phalangist liaison officer had heard via radio from a Phalangist inside the camps that he was holding forty-five people and had asked the liaison officer what to do. The Phalangist officer replied, “Do the will of God” or words to that effect. The intelligence officer went on to express his concern regarding the Phalangists’ actions toward civilians in the camps, including women, and children, and older people, but the defendant Yaron cut him off and the matter of the Phalangists’ actions against civilians in the camps was not mentioned again.
14. During the night of Thursday, September 16, and in the early morning hours of Friday, September 17, the reports about killing of civilians by the Phalangists in the camps began to circulate among the I.D.F. officers under the defendant Yaron’s command at the forward command post. Yet the I.D.F. forces at the forward command post, following a request from the Phalangist liaison officer for more illumination of the camps, provided more illumination for the actions of the Phalangists then taking palce.
15. The following morning, Friday, September 17, 1982, the defendant Yaron was contacted by his superior officer Major General Drori for a report about various matters relating to the military actions in West Beirut. The defendant Yaron did not inform Major General Drori of any of the reports he had received regarding the Phalangists’ killing of civilians in the camps.
16. Following defendant Yaron’s rebuff of his report of killing of civilians in the camps at the aforementioned briefing at the forward command post on Thursday evening, September 16, the same intelligence officer between 10:00 p.m. and 11:00 p.m. contacted his own superior officer and reported the Phalangist officer’s statement that 300 terrorists and civilians had been killed and that he had subsequently reduced the number to 120. By 5:30 a.m. on Friday, September 17 the report had been conveyed to the Israeli Director of Military Intelligence in Israel.
17. At 8:00 a.m. on Friday, September 17, the Director of Military Intelligence ordered that it be ascertained what was happening in the Sabra and Shatila camps. No confirmation was obtained, and as a result, the report of killing of civilians was treated as unreliable.
18. The I.D.F. soldiers under the command of the defendant Yaron, in the morning of Friday, September 17, detected more killings and abuses of civilians in the camps. For example Lieutenant Grabowsky, stationed 200 meters from the camp on an earth embankment, saw that the Phalangist soldiers had killed a group of five women and children and later saw another killing of a civilian by a Phalangist. He was deterred from making a report to his superiors by the other soldiers, who told him that the battalion commander had already been told civilians were being killed and he had only replied, “We know, it’s not to our liking, and don’t interfere.”
19. Yet, at 9:00 a.m. on Friday September 17, the defendant Yaron met with the Phalangists at the forward command post to discuss sending an additional force of Phalangists into the camps.
20. At 11:00 a.m. on Friday, September 17, Israeli journalist Ze’ev Schiff met in Tel Aviv with Minister Zapori and conveyed to the Minister a report of “slaughter” in the camps that he had received from an unidentified source in the General Staff of the I.D.F. Minister Zipori in Schiff’s presence called Foreign Minister Yizhtak Shamir to discuss Schiff’s report. Minister Zipori told Minister Shamir of the reports he had received regarding killing by the Phalangists in the camps, and asked Shamir to check the report with the United States and Israeli officials with whom Shamir was to meet at 12:30.
21. At 12:30 p.m. on Friday, September 17, Foreign Minister Shamir met in his office in Tel Aviv with United States Ambassador Morris Draper, other United States representatives, Minister of Defense Sharon, the Director of Military Intelligence Saguy, and others. No one in the meeting made any mention of the Phalangists in the camps. The meeting ended at 3:00 p.m.; Foreign Minister Shamir went home and took no further action on the report.
22. At 11:00 a.m. on Friday, September 17, the defendant Yaron and Major General Drori again met and discussed the actions of the Phalangists in the camps. Although the accounts of Yaron and Drori differ as to the content of the meeting, either Yaron or Drori contacted the Phalangist commanders and conveyed an order that the Phalangists were to stop where they were in the camps and to advance no further. At this same meeting, Drori telephoned Chief of Staff Eitan, told him that the Phalangists had perhaps “gone too far,” and that he had ordered the operation halted. No action, however, was taken by the defendant Yaron on Friday, September 17, to monitor the actions of the Phalangists in the camps or to secure compliance with the order that they advance no further.
23. The same Lieutenant Grabowsky, who had witnessed the Phalangists’ treatment of civilians from the earth embankment outside the camps, was continuing his own inquiry that afternoon. One of his soldiers at this request asked one of the Phalangist soldiers in Arabic why they were killing civilians. He was told “the pregnant women will give birth to terrorists and the children will grow up to be terrorists.” Throughout the afternoon the I.D.F. soldiers under the defendant Yaron’s command saw the Phalangists’ treatment of men, women, and children and heard complaints and stories of the killing. One soldier said he heard a report made to the battalion commander of the Phalangists “running wild.” Lieutenant Grabowsky left area at 4:00 p.m. and later that afternoon related what he had seen to his commander and other officers. They referred him to his brigade commander to whom he conveyed again at 8:00 p.m. what he had seen earlier in the day.
24. At 3:30 p.m. on Friday, September 17, the defendant Yaron, Chief of Staff Eitan, and Major General Drori met and travelled together to a meeting with the Phalangist commanders at Phalangist headquarters. Major General Drori told Chief of Staff Eitan what he knew of the Phalangists’ actions and that he had ordered them to refrain from advancing further in the camps. Eitan did not see fit to ask any questions about the Phalangists’ actions or the order halting them.
25. At 4:00 p.m. the defendant Yaron, Eitan, and Drori met with the Phalangist staff at Phalangist headquarters. In this meeting, despite Drori’s earlier order halting the Phalangists and report on their actions, Chief of Staff Eitan
“expressed his positive impression received from the statement by the Phalangist forces at their behavior in the field” and concluded they “continue action, mopping up the empty camps south of Fakhani until tomorrow [Saturday] at 5:00 a.m., at which time they must stop their action due to American pressure.”
At this meeting neither defendant Yaron, Chief of Staff Eitan, or Major General Drori asked the Phalangists any questions or debriefed them about what happened in the camps.
26. At this same meeting, the Phalangists requested the I.D.F. to provide them with a tractor for use in the camps “to demolish illegal structures.” Defendant Yaron has acknowledged in testimony under oath that at the end of the meeting it was “clear” that “the Phalangists could still enter the camps, bring in tractors and do what they wanted ….”, and in fact the Phalangists continued to operate unchecked in the camps throughout the night of September 17 and the early morning hours of September 18. I.D.F. forces under the defendant Yaron’s command supplied the Phalangists with a tractor from which I.D.F. markings had been removed. During the night and the following morning the Phalangists used tractors and bulldozers to pile up and bury in mass graves the bodies of hundreds of men, women, and children they had killed in the camps.
27. The Phalangists did not leave the camps at 5:00 a.m., Saturday, September 18, 1982, as ordered. At 6:30 a.m. the defendant Yaron gave the Phalangist commander an order that the Phalangists must vacate the camps “without further delay.”
28. Defendant Yaron took no steps to enforce his order, however. Between 6:30 a.m. and 7:00 a.m. a group of Phalangist soldiers entered the Gaza Hospital in Sabra and took a group of doctors, nurses, and foreign national workers out of the hospital under armed guard. They were interrogated by the Phalangists and then were taken to the I.D.F. forward command post from which they were later released. It was not until approximately 8:00 a.m. that the last of the Phalangists had left the camps.
29. A burial of the dead was done by the Red Cross which counted 328 bodies, including Palestinians, Lebanese, Iranians, Syrians, Pakistanis, and Algerians. Some family survivors buried their family members. Truckloads of bodies were removed by the Phalangists. Other bodies are believed to be under the ruins or in mass graves dug by the Phalangists. The I.D.F. itself estimates that 700 to 800 persons were killed by the Phalangists in the camps. In his definitive account of the massacre Sabra & Shatila: Inquiry Into a Massacre (1984), the Israeli investigative journalist Amnon Kapeliouk of Le Mondé Diplomatique arrived at a sum total of about 3000 killed victims.
30. The Kahan Commission, established by the Government of Israel to investigate the responsibility of Israeli officials for the Sabra and Shatila massacres, found that the defendant Brigadier General Yaron, in performing his duties as the commander of the I.D.F. forces occupying the area of the camps, (1) did not properly evaluate and did not check reports that reached him concerning the acts of killing and other irregular actions of the Phalangists in the camps, (2) did not pass on that information to the General Operations Command to the Chief of Staff immediately after it had been received on September 16, 1982, and (3) did not take appropriate steps to stop the Phalangists’ actions and to protect the population in the camps immediately upon receiving the reports. The Commission found he had committed a “grave error” in “breach of the duties incumbent upon him by virtue of his position,” and recommended that he not serve in the capacity of a field commander in the Israeli Defense Forces for three years.
31. No further action was taken by the Israeli Defense Forces or any other branch of the State of Israel regarding the defendant Yaron. In August of 1986, Israel appointed Yaron to serve as their military attaché to the United States, which accorded Yaron full diplomatic privileges and immunity from a lawsuit brought by the undersigned Associate Prosecutor on behalf of several survivors of the 1982 Massacre at the Sabra and Shatila refugee camps. In December of 1999, Israel appointed General Yaron to serve as Head of its Defense Ministry. Over the years, two attempts have been made to hold General Yaron accountable for these international crimes in the courts of the United States and Belgium, respectively. The undersigned Associate Prosecutor also served as an adviser and counsel to the Belgian lawyers suing defendant Yaron and others for the massacre at Sabra and Shatila. Both lawsuits failed because of interference by the governments of the United States and Belgium, respectively. In the professional opinion of the undersigned Associate Prosecutor who has been pursuing General Yaron since 1986, there is no realistic alternative court available anywhere in the world for the purpose of holding defendant Yaron fully responsible and make him accountable for the international crimes he perpetrated against the residents of Sabra and Shatila but the Kuala Lumpur War Crimes Tribunal.
32. The State of Israel, through its military arm the Israeli Defense Forces (I.D.F.), was the occupying power of West Beirut, including particularly the area containing the Sabra and Shatila camps, on the dates of September 16 through 18, 1982, in that the I.D.F., under the command of the defendant Yaron, was actually in control and was exercising authority over this area.
33. The Phalangists acted as the agents of the I.D.F. in entering and acting in the Sabra and Shatila Camps from September 16-18, 1982, in that the Phalangists entered the camps at the instigation of Israeli officials. Without the acquiescence and assistance of the I.D.F., the Phalangists’ entry into the Israeli surrounded camps would have been impossible. The defendant Yaron, as commander of the I.D.F. forces in West Beirut, had control of and could exercise command of the actions of Phalangists in the camps from September 16-18, 1982.
34. Civilian residents of the Sabra and Shatila Camps, were “protected persons” within the terms of the Fourth Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War, and whose persons and property were protected by the Hague Convention of 1907 Respecting the Laws and Customs of War on Land.
35. The State of Israel, as occupying Power of West Beirut, and the defendant Yaron, were responsible under the Fourth Geneva Convention for the protection of the civilian population therein. Article 27 of the Fourth Geneva Convention stipulates that the civilian population must be protected, especially against all acts of violence or threats thereof. Article 32 prohibits causing “physical suffering or extermination of protected persons,” and article 33 prohibits reprisals against protected persons. Article 29 provides that the party charged with protecting the civilian population is responsible for the treatment caused to them by its “agents” without regard to any individual agent’s responsibility.
36. Thus, the State of Israel was responsible for the actions of the Phalangists taken against the residents of Sabra and Shatila.
37. The defendant Yaron was further individually culpable for the actions of the Phalangists taken against the residents of Sabra and Shatila, under the Nuremberg Charter (1945), Judgment (1946), and Principles (1950) which are recognized by both the United States and Israel and the entire world as authoritative expressions of the customary law of nations. The Nuremberg Charter is an international agreement that establishes the customary law of nations with respect to personal responsibility for the commission of war crimes and crimes against humanity.
38. Nuremberg Charter article 6(b) defines the term “war crime” to include “murder, ill-treatment…of civilian population of or in occupied territory,…plunder of public or private property, wanton destruction of cities, town or villages, or devastation not justified by military necessity.” Article 6(c) of the Nuremberg Charter defines the term “crime against humanity” to include “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population.” Article 6 also provides that leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit crimes against peace, crimes against humanity, and war crimes are responsible for all acts performed by any persons in execution of such plan. Article 7 of the Nuremberg Charter denies the applicability of the ‘act of state” defense by making it clear that the official position of those who have committed such heinous crimes “shall not be considered as freeing them from responsibility or mitigating punishment.” Finally, article 8 provides that the fact an individual acted pursuant to an order of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if justice so requires.
39. The United States Supreme Court has affirmed and applied these principles, in the case of Application of Yamashita, 327 U.S. 1 (1946), in holding that an official or commander who has actual knowledge or should have knowledge through reports received by him or other means that troops or other persons subject to his control are about to commit or have committed war crimes, and fails to take the necessary and reasonable steps to ensure compliance with the Law of War, is responsible for such crimes. Accord, U.S. Army Field Manual 27-10, “The Law of Land Warfare,” par. 501 (1956). At all relevant times, this Yamashita test was at the time and still is today the current standard for defendant’s Command Responsibility under international criminal law for all the international crimes perpetrated against the residents of Sabra and Shatila.
40. The defendant Brigadier General Yaron, as the commander of the I.D.F. forces into whose control had fallen the Sabra and Shatila camps, as well as the State of Israel as Occupying Power, were thus criminally responsible for murders and devastation visited upon the civilian population by the Phalangist forces, in that defendant Yaron received reports of the killings of women and children on Thursday evening, September 16, 1982, yet did not check the reports, did not pass the reports on to his superiors, continued to provide logistical and material assistance to the Phalangists for their operations within the camps, and did not take appropriate steps to stop the Phalangists and protect the civilians.
41. On 16 December 1982, the United Nations General Assembly in Resolution 37/123 determined that “the large-scale massacre of Palestinian civilians in the Sabra and Shatila refugee camps… was an act of genocide” as follows:
The General Assembly,
Recalling its resolution 95 (I) of 11 December 1946,
Recalling also its resolution 96 (I) of 11 December 1946, in which it, inter alia, affirmed that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable,
Referring to the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly on 9 December 1948,
Recalling the relevant provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949,
Appalled at the large-scale massacre of Palestinian civilians in the Sabra and Shatila refugee camps situated at Beirut,
Recognizing the universal outrage and condemnation of that massacre,
Recalling its resolution ES-7/9 of 24 September 1982,
1. Condemns in the strongest terms the large-scale massacre of Palestinian civilians in the Sabra and Shatila refugee camps;
2. Resolves that the massacre was an act of genocide.
42. As a result of the defendant Yaron’s grave breaches of duty, war crimes, crimes against humanity, grave breaches of the Fourth Geneva Convention, and genocide the residents of Sabra and Shatila suffered large-scale death and damages by reason of the wrongful deaths of them, and their relatives, and further suffered severe emotional distress and suffering and loss of property.
43. The defendant Yaron is not entitled to any immunity from accountability by virtue of a claim of diplomatic immunity or otherwise. Article 146 of Fourth Geneva Convention of 1949 is an express waiver of diplomatic immunity with respect to those alleged to have committed grave breaches as defined by Article 147. Moreover, under the Nuremberg Principles and the principle of customary international law known as jus cogens which has been incorporated into the Vienna Convention on the Law of Treaties, governments cannot agree to immunize a war criminal from accountability for his acts.
44. The defendant Yaron is not entitled to any immunity from accountability arising out of any otherwise arguably applicable statute of limitations, in that customary international law provides that there shall be no statute of limitations with respect to war crimes, crimes against humanity, and genocide because of the particularly grievous nature of such violations.
45. On November 21, 2012 the Kuala Lumpur War Crimes Commission heard live witness testimony from a survivor of the 1982 massacre at Sabra and Shatila, Ms. Chahira Abouardini. Her direct examination was conducted by the Chief Prosecutor on the basis of her Statutory Declaration Number 8. A complete transcript of her testimony can be found from pages 127 to 158 of the Commission’s Notes of Proceeding (November 2012). A succinct summary of her testimony is as follows:
46. She testified, “On 14 September 1982, the Lebanese President Bachir Gemayel was assassinated. After that incident, there were a lot of aircraft flying around Beirut. My husband told me that the situation may get worse, and to prepare the children so that we could leave. On 16 September we went to my father’s brick house on Sabra Street. There were other family members as well – my father, my sister (17 years old), my brother (24 years old) and his pregnant wife and 2 children, and my cousin and his wife and 2 children.”
47. Chahira who broke down while giving testimony said, “In the evening beginning from about 5pm, flares were thrown to light up the area. This went on throughout the night. The camp was full of light throughout the night. We did not know what was happening outside. We heard shooting and screaming outside. At about dusk, my sister ran out into the street to see what was happening. She was shot dead by armed militia. When my sister was shot, she shouted for my father. My father came out of the house to see what had happened to my sister. He was also shot and killed. Their bodies were left on the street. Later I found out that those who shot my sister and father were Lebanese Phalangist militia.”
48. In the early hours of the morning, about 16-17 armed soldiers entered her home and shot her husband, brother and cousin dead in front of her and children. She related that militia entered homes and shot at everyone including children and animals.
49. She said, “Along the way to the stadium, I saw my cousin’s daughter who was pregnant lying dead. The murderers had opened her body and taken out her baby and put the baby on her. The child was dead as well. She was lying on the street.”
50. “Along the streets there were a lot of dead bodies. Hundreds of bodies were strewn all over. We climbed a hill to the stadium. At the nearest houses I could see bodies of children. Between the houses, which had been half destroyed, there were bodies of men, and also women and children and animals.”
51. She testified, “In 36 hours, up to 3500 to 5,000 people from Shatila and Sabra had been massacred, There are also people unaccounted for who had disappeared. The Phalangist militia worked together with the Israelis. They were known to be puppets for Israeli forces. Israelis used them to go into our houses, because these soldiers knew the place, and could speak Lebanese. The Israelis were afraid to go in themselves.”
52. She concluded, “What I want is justice to be done and that those who killed my family members and all the people at Shatila and Sabra to be punished for their crimes.”
53. The Chief Prosecutor then called Anne Sunde, a 66-year-old Norwegian who is residing in Belgium. She was working as a volunteer social worker for the Palestinian Red Crescent Society in Beirut in the Sabra and Shatila camps. Her testimony can be found on pages 167 to 193 of the Commission’s Notes of Proceedings (November 2012). A succinct summary of her testimony is as follows:
54. She related, “On 4 June 1982, I visited my friend in Fakhani. While we are chatting in the building, which housed the Palestine Liberation Organisation (PLO) offices, we heard loud noises of planes flying over. We rushed to the shelter in the basement of the building. Then we heard bombing nearby our building. It was loud. The building shook and I was expecting to die under it. It was my first experience of direct violence. One becomes aware of what life is. The bombing seemed eternity.”
55. She said, “After a few days the PRCS set up a hospital in La Houd School, Hamra. Since nobody among the volunteers wanted to do cleaning (janitor), I volunteered. I did this together with Kurdish refugees.”
56. She said, “Finally I decided to go back to Belgium on 15 September 1982 via Damascus. However, since it was the morning after Bachir Gemayel’s (the then President-elect) death, there were no taxis to take me to Damascus. Great nervousness was felt in town. I returned to the PRCS headquarter in Hamra where most of the foreigners were located.”
57. She then proceeded to relate her harrowing experiences of the killings at the Sabra and Shatila Camps. She further related that when she went to the Shatila Camp she saw many dead bodies of adults and children, both male and female, in strange positions. I also saw dead animals. The bodies were already decomposing and bloated in the summer heat. The smell, she said, was unbearable and there were flies all over.
58. She added, “It was a horrible scene and they were digging mass graves to bury the dead.”
59. In their Executive Summary, Findings and Recommendations of the Kuala Lumpur War Crimes Commission Hearing on Palestine (PWTC: 20-21 November 2012) the Commission officially determined in relevant part as follows on pages 13-15:
60. 6th witness – Ms. Chahira Abouardini
The witness, 54 years old, was born in B’albuq, Lebanon. Her parents were born in Palestine, and they moved to Lebanon in 1948 when Israel under the United Nations took their hand in Palestine. Thereafter her parents lived in refugee camps. The witness has lived and grown up these 54 years in the refugee camps (Shatila). She has three children.
61. On May 5, 1982, the Israeli army attacked the refugee camp. The attack lasted 3 months. The witness (together with his parents) managed to escape to Beirut, returning to the camp only after the attack was over.
62. The witness said that on the evening of September 16, 1982, her parents’ home was attacked by the Israeli army. Her 17 year old sister and 65 year old father were both shot as they went out of the house. They both died.
63. At 6 am the next morning, 16 to 17 Israeli soldiers carrying weapons entered the house. They asked the men to go outside the room. The soldiers searched them and seized everything from them – valuables, any watches or anything. And then they ordered them to face the wall. When the men had done that, the soldiers opened fire – killing the witness’s husband, brother and cousin. They all died.
64. After the men were killed, the soldiers herded the women outside. They were deciding who would shoot the women, but finally decided not to do it because there were children with them. The women were then taken (marched at gun-point) to a nearby sports complex. On the way to the place, the witness saw her cousin who was killed.
65. This was what she said in her testimony “Before they went to the sport complex, as they were walking down the street, I saw my cousin who at the time was 20 years old and she was 9 months pregnant. I found her on the side of the road, with her stomach open and the baby was placed over her chest – was taken out of her womb and placed over her body. Of course the child was dead too. My cousin was dead and nude…”
66. “All along the way there were dead bodies everywhere,” the Witness said. “Hundreds of dead bodies …. adults, children, all ages.”
67. Asked by the Prosecutor whether the Israeli soldiers “entering homes (were) killing people all the time,” the witness replied “Yes. We were actually at the first point where they started to kill and they expand it all the way to Sabra…”
68. Asked by the Prosecutor on the number of people killed, the witness said that during that one and half day massacre in Sabra Shatila, between 3,500 to 5,000 people were killed. The exact number is not known, because some bodies were never found.
69. The witness also said that Italian forces had previously signed an agreement to protect the civilians and they were stationed at the camp. However, one day before this massacre started, they all left. Some weeks later, after the massacre was over, the Italians returned.
70. Asked by the Commission Chairman, Musa, whether these Italians were UN peace keepers, whether they were wearing blue berets, the witness said that she could not remember.
71. The witness said that the killing was carried out by the Phalangist militia, who were recruited by the Israelis. “There were known to be the puppets for Israeli forces. Israelis used them to go into our houses, because these soldiers knew the place, and could speak Lebanese.”
72. Asked by Commissioner Denis Halliday whether these Phalangists were Christian militia, the witness said she recognized some of their names as Christian names, but she cannot confirm that all are Christians.
73. The witness said that apart from Ariel Sharon, the “person who was commanding the forces at that time, that attacked Sabra Shatila, was … General Amos Yaron.”
….
74. 8th witness – Ms. Anne K. Sunde
The witness, who holds a Norwegian passport, is a resident of Belgium (since 1968). She was voluntary social worker with the Palestinian Red Crescent Society in Beirut when the Shatila Sabra massacre occurred.
75. In her testimony, the witness showed the Commission the geography and terrain of the Shatila Sabra area where the massacre occurred and where the Israeli soldiers were stationed.
The witness said that in the Shatila camp, “I saw dead bodies of adults, children, male, female in all kinds of positions. Dead.”
Conclusion
Wherefore, it is respectfully submitted that the Kuala Lumpur War Crimes Tribunal must convict the defendant Amos Yaron for War Crimes, Crimes Against Humanity, and Genocide in violation of the Hague Regulations on Land Warfare of 1907; the Fourth Geneva Convention of 1949; the 1948 Genocide Convention; the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950); customary international law, jus cogens, the Laws of War, and International Humanitarian Law; and their related provisions set forth in articles 9, 10, and 11 of the Charter of the Kuala Lumpur War Crimes Commission.
Professor Francis A. Boyle
Associate Prosecutor
Kuala Lumpur War Crimes Legal Team
(Established by the Charter of the Kuala Lumpur War Crimes Commission)
Professor Francis A. Boyle is an international law expert and served as Legal Advisor to the Palestine Liberation Organization and Yasser Arafat on the 1988 Palestinian Declaration of Independence, as well as to the Palestinian Delegation to the Middle East Peace Negotiations from 1991 to 1993, where he drafted the Palestinian counter-offer to the now defunct Oslo Agreement. His books include “ Palestine, Palestinians and International Law” (2003), and “ The Palestinian Right of Return under International Law” (2010).
Countercurrents.org
The Kuala Lumpur War Crimes Commission Against Amos Yaron
CHARGE
The Associate Prosecutor of the Kuala Lumpur War Crimes Commission pursuant to
Article 7 of the Charter of the Kuala Lumpur War Crimes Commission charges:
Amos Yaron Individually, for
WAR CRIMES, CRIMES AGAINST HUMANITY, AND GENOCIDE as follows:
The defendant Amos Yaron perpetrated War Crimes, Crimes Against Humanity, and Genocide in his capacity as the Commanding Israeli General in military control of the Sabra and Shatila refugee camps in Israeli occupied Lebanon in September of 1982 when he knowingly facilitated and permitted the large-scale Massacre of the Residents of those two camps in violation of the Hague Regulations on Land Warfare of 1907; the Fourth Geneva Convention of 1949; the 1948 Genocide Convention; the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950); customary international law, jus cogens, the Laws of War, and International Humanitarian Law; and their related provisions set forth in articles 9, 10, and 11 of the Charter of the Kuala Lumpur War Crimes Commission.
Particulars of the Charge:
1. Commencing on June 6, 1982, the Israeli Defense Forces (I.D.F.) of the State of Israel commenced a large-scale invasion of the State of Lebanon, and by June 14 had taken over the suburbs of Beirut and joined with Lebanese Phalangist forces controlling East Beirut. The I.D.F. lay siege to West Beirut, and through massive aerial bombardment attempted to dislodge the forces of Syria and the Palestine Liberation Organization present in West Beirut.
2. The Israeli siege and bombardment of West Beirut continued throughout the summer of 1982, causing grievous devastation to the civilian population, but did not succeed in its goal of defeating or dislodging the Syrian and P.L.O. forces.
3. With the negotiating assistance of the United States through Ambassador Philip C. Habib, on August 19, 1982, an agreement was reached between Lebanon, the United States, France, Italy, Israel, and the P.L.O. for the evacuation of the P.L.O. and Syrian forces under the auspices and protection of a multi-national force. The agreement further provided that the Israeli Defense Forces would not attempt to enter or occupy West Beirut following the evacuation of the P.L.O. and Syrian forces.
4. Pursuant to that agreement the multinational American, French, and Italian force oversaw the evacuation of the P.L.O. and Syrian forces until completed on September 1, 1982. The multinational force left Lebanon from September 10-12, 1982, after the completion of the evacuation.
5. On or about September 14, 1982, following receipt of word of the assassination of Lebanese President Bashir Jemayel, a Phalangist, in East Beirut, Israeli Prime Minister Begin, Prime Minister of Defense Sharon, and Chief of Staff Eitan, decided that the Israeli Defense Forces would immediately enter and occupy West Beirut. It was further agreed that the Lebanese Phalangist forces would immediately enter and occupy West Beirut. It was further agreed that the Lebanese Phalangist forces, following the I.D.F.’s occupation of West Beirut, would be sent into the Sabra and Shatila Palestinian refugee camps.
6. Pursuant to the decision, on September 15, 1982, the I.D.F. entered West Beirut under the command of Brigadier General Amos Yaron, the defendant in this case. The I.D.F. established a forward command post on the roof of a five-story building southwest of the Shatila camp, and defendant Brigadier General Yaron commanded I.D.F. forces from that post. The area surrounding the camps was thereafter under the command and control of the I.D.F., and all forces in the area, including the Phalangists, were deemed to be operating under the authority of the I.D.F. and acting according to its instructions.
7. Simultaneous with the entry of the I.D.F. into West Beirut, senior Israeli officials including Chief of Staff Eitan, Minister of Defense Sharon, and Major General Drori directed the Phalangist commanders to have their forces enter the Sabra and Shatila camps with their entry coordinated with the defendant Brigadier General Yaron at the forward command post. The control by the I.D.F. of the area surrounding the camps and the decision to send the Phalangist forces into the camps was confirmed at a meeting in the earlier morning hours of September 16, 1982 among Chief of Staff Eitan, the Israeli Director of Military Intelligence, Brigadier General Saguy, and the chief aide to Defense Minister Sharon, at which Eitan announced:
the whole city is in our hands, complete quiet prevails now, the camps are closed and surrounded, the Phalangists are to go in at 11:00-12:00. Yesterday we spoke to them…The situation now is that the entire city is in our hands, the camps are all closed.
8. Prior to September 16, 1982, the defendant Yaron, as well as other Israeli officials had reason to know that the Phalangists were likely to attempt to perpetrate massacres and other atrocities against the civilian population of the Sabra and Shatila camps.
9. At 11:00 a.m. on September 16, 1986, Major General Drori and the defendant Brigadier General Yaron met with Phalangist commanders to coordinate their entry into the camps. The defendant Yaron set up lookout posts on the roof of the forward command posts to monitor the entry of the Phalangist forces into the camps. The Phalangist unit that entered the camps was an intelligence unit headed by one Eli Hobeika, who did not himself enter the camps but remained on the roof of the Israeli forward command post throughout the night of September 16.
10. At approximately 6:00 p.m. on Thursday, September 16, 1982, the Phalangists entered the camps, initially entering the Shatila camp from the west and southwest as directed by the I.D.F. At the request of the Phalangist liaison officer on the roof of the I.D.F. forward command post, I.D.F. personnel under the command of the defendant Yaron provided mortar, and subsequent aircraft, illumination for the Phalangists in the camps throughout the night.
11. At approximately 7:00 p.m. on September 16, Israeli Lieutenant Elul overheard, while he was on the roof of the command post, a transmission over the Phalangists’ communication set to Eli Hobeika. He heard a Phalangist officer from the forces in the camp tell Hobeika that “there were 50 women and children, and what should he do.” Hobeika replied, “This is the last time you’re going to ask me a question like that, you know exactly what to do,” this remark being followed by “raucous laughter” among the Phalangists on the roof. The defendant Brigadier General Yaron, who was also present on the roof, asked Lieutenant Elul what he had overheard and Lieutenant Elul reported to him the above information.
12. At approximately 8:00 p.m. another report of indiscriminate killing by the Phalangists was made in the presence of the defendant Yaron. The Phalangists liaison officer known as “G” told various people in the command post dining room, including the defendant Yaron and I.D.F. officers, that about 300 people had been killed in the camps, including civilians. Shortly thereafter “G” reduced the number of casualties he reported from 300 to 120. No action was taken by the defendant Yaron, or any other I.D.F. official to ascertain the circumstances giving rise to the report that the Phalangists had killed either 300 or 120 persons in the camps within hours after their entry.
13. At approximately 8:40 p.m., the defendant Yaron convened a meeting of I.D.F. officers at the forward command post for an update briefing on the Phalangists’ entry into the camps. At this meeting, an Israeli intelligence officer relayed a report he had received at 8:00 p.m. that evening from the Phalangist liaison officer. The Phalangist liaison officer had heard via radio from a Phalangist inside the camps that he was holding forty-five people and had asked the liaison officer what to do. The Phalangist officer replied, “Do the will of God” or words to that effect. The intelligence officer went on to express his concern regarding the Phalangists’ actions toward civilians in the camps, including women, and children, and older people, but the defendant Yaron cut him off and the matter of the Phalangists’ actions against civilians in the camps was not mentioned again.
14. During the night of Thursday, September 16, and in the early morning hours of Friday, September 17, the reports about killing of civilians by the Phalangists in the camps began to circulate among the I.D.F. officers under the defendant Yaron’s command at the forward command post. Yet the I.D.F. forces at the forward command post, following a request from the Phalangist liaison officer for more illumination of the camps, provided more illumination for the actions of the Phalangists then taking palce.
15. The following morning, Friday, September 17, 1982, the defendant Yaron was contacted by his superior officer Major General Drori for a report about various matters relating to the military actions in West Beirut. The defendant Yaron did not inform Major General Drori of any of the reports he had received regarding the Phalangists’ killing of civilians in the camps.
16. Following defendant Yaron’s rebuff of his report of killing of civilians in the camps at the aforementioned briefing at the forward command post on Thursday evening, September 16, the same intelligence officer between 10:00 p.m. and 11:00 p.m. contacted his own superior officer and reported the Phalangist officer’s statement that 300 terrorists and civilians had been killed and that he had subsequently reduced the number to 120. By 5:30 a.m. on Friday, September 17 the report had been conveyed to the Israeli Director of Military Intelligence in Israel.
17. At 8:00 a.m. on Friday, September 17, the Director of Military Intelligence ordered that it be ascertained what was happening in the Sabra and Shatila camps. No confirmation was obtained, and as a result, the report of killing of civilians was treated as unreliable.
18. The I.D.F. soldiers under the command of the defendant Yaron, in the morning of Friday, September 17, detected more killings and abuses of civilians in the camps. For example Lieutenant Grabowsky, stationed 200 meters from the camp on an earth embankment, saw that the Phalangist soldiers had killed a group of five women and children and later saw another killing of a civilian by a Phalangist. He was deterred from making a report to his superiors by the other soldiers, who told him that the battalion commander had already been told civilians were being killed and he had only replied, “We know, it’s not to our liking, and don’t interfere.”
19. Yet, at 9:00 a.m. on Friday September 17, the defendant Yaron met with the Phalangists at the forward command post to discuss sending an additional force of Phalangists into the camps.
20. At 11:00 a.m. on Friday, September 17, Israeli journalist Ze’ev Schiff met in Tel Aviv with Minister Zapori and conveyed to the Minister a report of “slaughter” in the camps that he had received from an unidentified source in the General Staff of the I.D.F. Minister Zipori in Schiff’s presence called Foreign Minister Yizhtak Shamir to discuss Schiff’s report. Minister Zipori told Minister Shamir of the reports he had received regarding killing by the Phalangists in the camps, and asked Shamir to check the report with the United States and Israeli officials with whom Shamir was to meet at 12:30.
21. At 12:30 p.m. on Friday, September 17, Foreign Minister Shamir met in his office in Tel Aviv with United States Ambassador Morris Draper, other United States representatives, Minister of Defense Sharon, the Director of Military Intelligence Saguy, and others. No one in the meeting made any mention of the Phalangists in the camps. The meeting ended at 3:00 p.m.; Foreign Minister Shamir went home and took no further action on the report.
22. At 11:00 a.m. on Friday, September 17, the defendant Yaron and Major General Drori again met and discussed the actions of the Phalangists in the camps. Although the accounts of Yaron and Drori differ as to the content of the meeting, either Yaron or Drori contacted the Phalangist commanders and conveyed an order that the Phalangists were to stop where they were in the camps and to advance no further. At this same meeting, Drori telephoned Chief of Staff Eitan, told him that the Phalangists had perhaps “gone too far,” and that he had ordered the operation halted. No action, however, was taken by the defendant Yaron on Friday, September 17, to monitor the actions of the Phalangists in the camps or to secure compliance with the order that they advance no further.
23. The same Lieutenant Grabowsky, who had witnessed the Phalangists’ treatment of civilians from the earth embankment outside the camps, was continuing his own inquiry that afternoon. One of his soldiers at this request asked one of the Phalangist soldiers in Arabic why they were killing civilians. He was told “the pregnant women will give birth to terrorists and the children will grow up to be terrorists.” Throughout the afternoon the I.D.F. soldiers under the defendant Yaron’s command saw the Phalangists’ treatment of men, women, and children and heard complaints and stories of the killing. One soldier said he heard a report made to the battalion commander of the Phalangists “running wild.” Lieutenant Grabowsky left area at 4:00 p.m. and later that afternoon related what he had seen to his commander and other officers. They referred him to his brigade commander to whom he conveyed again at 8:00 p.m. what he had seen earlier in the day.
24. At 3:30 p.m. on Friday, September 17, the defendant Yaron, Chief of Staff Eitan, and Major General Drori met and travelled together to a meeting with the Phalangist commanders at Phalangist headquarters. Major General Drori told Chief of Staff Eitan what he knew of the Phalangists’ actions and that he had ordered them to refrain from advancing further in the camps. Eitan did not see fit to ask any questions about the Phalangists’ actions or the order halting them.
25. At 4:00 p.m. the defendant Yaron, Eitan, and Drori met with the Phalangist staff at Phalangist headquarters. In this meeting, despite Drori’s earlier order halting the Phalangists and report on their actions, Chief of Staff Eitan
“expressed his positive impression received from the statement by the Phalangist forces at their behavior in the field” and concluded they “continue action, mopping up the empty camps south of Fakhani until tomorrow [Saturday] at 5:00 a.m., at which time they must stop their action due to American pressure.”
At this meeting neither defendant Yaron, Chief of Staff Eitan, or Major General Drori asked the Phalangists any questions or debriefed them about what happened in the camps.
26. At this same meeting, the Phalangists requested the I.D.F. to provide them with a tractor for use in the camps “to demolish illegal structures.” Defendant Yaron has acknowledged in testimony under oath that at the end of the meeting it was “clear” that “the Phalangists could still enter the camps, bring in tractors and do what they wanted ….”, and in fact the Phalangists continued to operate unchecked in the camps throughout the night of September 17 and the early morning hours of September 18. I.D.F. forces under the defendant Yaron’s command supplied the Phalangists with a tractor from which I.D.F. markings had been removed. During the night and the following morning the Phalangists used tractors and bulldozers to pile up and bury in mass graves the bodies of hundreds of men, women, and children they had killed in the camps.
27. The Phalangists did not leave the camps at 5:00 a.m., Saturday, September 18, 1982, as ordered. At 6:30 a.m. the defendant Yaron gave the Phalangist commander an order that the Phalangists must vacate the camps “without further delay.”
28. Defendant Yaron took no steps to enforce his order, however. Between 6:30 a.m. and 7:00 a.m. a group of Phalangist soldiers entered the Gaza Hospital in Sabra and took a group of doctors, nurses, and foreign national workers out of the hospital under armed guard. They were interrogated by the Phalangists and then were taken to the I.D.F. forward command post from which they were later released. It was not until approximately 8:00 a.m. that the last of the Phalangists had left the camps.
29. A burial of the dead was done by the Red Cross which counted 328 bodies, including Palestinians, Lebanese, Iranians, Syrians, Pakistanis, and Algerians. Some family survivors buried their family members. Truckloads of bodies were removed by the Phalangists. Other bodies are believed to be under the ruins or in mass graves dug by the Phalangists. The I.D.F. itself estimates that 700 to 800 persons were killed by the Phalangists in the camps. In his definitive account of the massacre Sabra & Shatila: Inquiry Into a Massacre (1984), the Israeli investigative journalist Amnon Kapeliouk of Le Mondé Diplomatique arrived at a sum total of about 3000 killed victims.
30. The Kahan Commission, established by the Government of Israel to investigate the responsibility of Israeli officials for the Sabra and Shatila massacres, found that the defendant Brigadier General Yaron, in performing his duties as the commander of the I.D.F. forces occupying the area of the camps, (1) did not properly evaluate and did not check reports that reached him concerning the acts of killing and other irregular actions of the Phalangists in the camps, (2) did not pass on that information to the General Operations Command to the Chief of Staff immediately after it had been received on September 16, 1982, and (3) did not take appropriate steps to stop the Phalangists’ actions and to protect the population in the camps immediately upon receiving the reports. The Commission found he had committed a “grave error” in “breach of the duties incumbent upon him by virtue of his position,” and recommended that he not serve in the capacity of a field commander in the Israeli Defense Forces for three years.
31. No further action was taken by the Israeli Defense Forces or any other branch of the State of Israel regarding the defendant Yaron. In August of 1986, Israel appointed Yaron to serve as their military attaché to the United States, which accorded Yaron full diplomatic privileges and immunity from a lawsuit brought by the undersigned Associate Prosecutor on behalf of several survivors of the 1982 Massacre at the Sabra and Shatila refugee camps. In December of 1999, Israel appointed General Yaron to serve as Head of its Defense Ministry. Over the years, two attempts have been made to hold General Yaron accountable for these international crimes in the courts of the United States and Belgium, respectively. The undersigned Associate Prosecutor also served as an adviser and counsel to the Belgian lawyers suing defendant Yaron and others for the massacre at Sabra and Shatila. Both lawsuits failed because of interference by the governments of the United States and Belgium, respectively. In the professional opinion of the undersigned Associate Prosecutor who has been pursuing General Yaron since 1986, there is no realistic alternative court available anywhere in the world for the purpose of holding defendant Yaron fully responsible and make him accountable for the international crimes he perpetrated against the residents of Sabra and Shatila but the Kuala Lumpur War Crimes Tribunal.
32. The State of Israel, through its military arm the Israeli Defense Forces (I.D.F.), was the occupying power of West Beirut, including particularly the area containing the Sabra and Shatila camps, on the dates of September 16 through 18, 1982, in that the I.D.F., under the command of the defendant Yaron, was actually in control and was exercising authority over this area.
33. The Phalangists acted as the agents of the I.D.F. in entering and acting in the Sabra and Shatila Camps from September 16-18, 1982, in that the Phalangists entered the camps at the instigation of Israeli officials. Without the acquiescence and assistance of the I.D.F., the Phalangists’ entry into the Israeli surrounded camps would have been impossible. The defendant Yaron, as commander of the I.D.F. forces in West Beirut, had control of and could exercise command of the actions of Phalangists in the camps from September 16-18, 1982.
34. Civilian residents of the Sabra and Shatila Camps, were “protected persons” within the terms of the Fourth Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War, and whose persons and property were protected by the Hague Convention of 1907 Respecting the Laws and Customs of War on Land.
35. The State of Israel, as occupying Power of West Beirut, and the defendant Yaron, were responsible under the Fourth Geneva Convention for the protection of the civilian population therein. Article 27 of the Fourth Geneva Convention stipulates that the civilian population must be protected, especially against all acts of violence or threats thereof. Article 32 prohibits causing “physical suffering or extermination of protected persons,” and article 33 prohibits reprisals against protected persons. Article 29 provides that the party charged with protecting the civilian population is responsible for the treatment caused to them by its “agents” without regard to any individual agent’s responsibility.
36. Thus, the State of Israel was responsible for the actions of the Phalangists taken against the residents of Sabra and Shatila.
37. The defendant Yaron was further individually culpable for the actions of the Phalangists taken against the residents of Sabra and Shatila, under the Nuremberg Charter (1945), Judgment (1946), and Principles (1950) which are recognized by both the United States and Israel and the entire world as authoritative expressions of the customary law of nations. The Nuremberg Charter is an international agreement that establishes the customary law of nations with respect to personal responsibility for the commission of war crimes and crimes against humanity.
38. Nuremberg Charter article 6(b) defines the term “war crime” to include “murder, ill-treatment…of civilian population of or in occupied territory,…plunder of public or private property, wanton destruction of cities, town or villages, or devastation not justified by military necessity.” Article 6(c) of the Nuremberg Charter defines the term “crime against humanity” to include “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population.” Article 6 also provides that leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit crimes against peace, crimes against humanity, and war crimes are responsible for all acts performed by any persons in execution of such plan. Article 7 of the Nuremberg Charter denies the applicability of the ‘act of state” defense by making it clear that the official position of those who have committed such heinous crimes “shall not be considered as freeing them from responsibility or mitigating punishment.” Finally, article 8 provides that the fact an individual acted pursuant to an order of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if justice so requires.
39. The United States Supreme Court has affirmed and applied these principles, in the case of Application of Yamashita, 327 U.S. 1 (1946), in holding that an official or commander who has actual knowledge or should have knowledge through reports received by him or other means that troops or other persons subject to his control are about to commit or have committed war crimes, and fails to take the necessary and reasonable steps to ensure compliance with the Law of War, is responsible for such crimes. Accord, U.S. Army Field Manual 27-10, “The Law of Land Warfare,” par. 501 (1956). At all relevant times, this Yamashita test was at the time and still is today the current standard for defendant’s Command Responsibility under international criminal law for all the international crimes perpetrated against the residents of Sabra and Shatila.
40. The defendant Brigadier General Yaron, as the commander of the I.D.F. forces into whose control had fallen the Sabra and Shatila camps, as well as the State of Israel as Occupying Power, were thus criminally responsible for murders and devastation visited upon the civilian population by the Phalangist forces, in that defendant Yaron received reports of the killings of women and children on Thursday evening, September 16, 1982, yet did not check the reports, did not pass the reports on to his superiors, continued to provide logistical and material assistance to the Phalangists for their operations within the camps, and did not take appropriate steps to stop the Phalangists and protect the civilians.
41. On 16 December 1982, the United Nations General Assembly in Resolution 37/123 determined that “the large-scale massacre of Palestinian civilians in the Sabra and Shatila refugee camps… was an act of genocide” as follows:
The General Assembly,
Recalling its resolution 95 (I) of 11 December 1946,
Recalling also its resolution 96 (I) of 11 December 1946, in which it, inter alia, affirmed that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable,
Referring to the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly on 9 December 1948,
Recalling the relevant provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949,
Appalled at the large-scale massacre of Palestinian civilians in the Sabra and Shatila refugee camps situated at Beirut,
Recognizing the universal outrage and condemnation of that massacre,
Recalling its resolution ES-7/9 of 24 September 1982,
1. Condemns in the strongest terms the large-scale massacre of Palestinian civilians in the Sabra and Shatila refugee camps;
2. Resolves that the massacre was an act of genocide.
42. As a result of the defendant Yaron’s grave breaches of duty, war crimes, crimes against humanity, grave breaches of the Fourth Geneva Convention, and genocide the residents of Sabra and Shatila suffered large-scale death and damages by reason of the wrongful deaths of them, and their relatives, and further suffered severe emotional distress and suffering and loss of property.
43. The defendant Yaron is not entitled to any immunity from accountability by virtue of a claim of diplomatic immunity or otherwise. Article 146 of Fourth Geneva Convention of 1949 is an express waiver of diplomatic immunity with respect to those alleged to have committed grave breaches as defined by Article 147. Moreover, under the Nuremberg Principles and the principle of customary international law known as jus cogens which has been incorporated into the Vienna Convention on the Law of Treaties, governments cannot agree to immunize a war criminal from accountability for his acts.
44. The defendant Yaron is not entitled to any immunity from accountability arising out of any otherwise arguably applicable statute of limitations, in that customary international law provides that there shall be no statute of limitations with respect to war crimes, crimes against humanity, and genocide because of the particularly grievous nature of such violations.
45. On November 21, 2012 the Kuala Lumpur War Crimes Commission heard live witness testimony from a survivor of the 1982 massacre at Sabra and Shatila, Ms. Chahira Abouardini. Her direct examination was conducted by the Chief Prosecutor on the basis of her Statutory Declaration Number 8. A complete transcript of her testimony can be found from pages 127 to 158 of the Commission’s Notes of Proceeding (November 2012). A succinct summary of her testimony is as follows:
46. She testified, “On 14 September 1982, the Lebanese President Bachir Gemayel was assassinated. After that incident, there were a lot of aircraft flying around Beirut. My husband told me that the situation may get worse, and to prepare the children so that we could leave. On 16 September we went to my father’s brick house on Sabra Street. There were other family members as well – my father, my sister (17 years old), my brother (24 years old) and his pregnant wife and 2 children, and my cousin and his wife and 2 children.”
47. Chahira who broke down while giving testimony said, “In the evening beginning from about 5pm, flares were thrown to light up the area. This went on throughout the night. The camp was full of light throughout the night. We did not know what was happening outside. We heard shooting and screaming outside. At about dusk, my sister ran out into the street to see what was happening. She was shot dead by armed militia. When my sister was shot, she shouted for my father. My father came out of the house to see what had happened to my sister. He was also shot and killed. Their bodies were left on the street. Later I found out that those who shot my sister and father were Lebanese Phalangist militia.”
48. In the early hours of the morning, about 16-17 armed soldiers entered her home and shot her husband, brother and cousin dead in front of her and children. She related that militia entered homes and shot at everyone including children and animals.
49. She said, “Along the way to the stadium, I saw my cousin’s daughter who was pregnant lying dead. The murderers had opened her body and taken out her baby and put the baby on her. The child was dead as well. She was lying on the street.”
50. “Along the streets there were a lot of dead bodies. Hundreds of bodies were strewn all over. We climbed a hill to the stadium. At the nearest houses I could see bodies of children. Between the houses, which had been half destroyed, there were bodies of men, and also women and children and animals.”
51. She testified, “In 36 hours, up to 3500 to 5,000 people from Shatila and Sabra had been massacred, There are also people unaccounted for who had disappeared. The Phalangist militia worked together with the Israelis. They were known to be puppets for Israeli forces. Israelis used them to go into our houses, because these soldiers knew the place, and could speak Lebanese. The Israelis were afraid to go in themselves.”
52. She concluded, “What I want is justice to be done and that those who killed my family members and all the people at Shatila and Sabra to be punished for their crimes.”
53. The Chief Prosecutor then called Anne Sunde, a 66-year-old Norwegian who is residing in Belgium. She was working as a volunteer social worker for the Palestinian Red Crescent Society in Beirut in the Sabra and Shatila camps. Her testimony can be found on pages 167 to 193 of the Commission’s Notes of Proceedings (November 2012). A succinct summary of her testimony is as follows:
54. She related, “On 4 June 1982, I visited my friend in Fakhani. While we are chatting in the building, which housed the Palestine Liberation Organisation (PLO) offices, we heard loud noises of planes flying over. We rushed to the shelter in the basement of the building. Then we heard bombing nearby our building. It was loud. The building shook and I was expecting to die under it. It was my first experience of direct violence. One becomes aware of what life is. The bombing seemed eternity.”
55. She said, “After a few days the PRCS set up a hospital in La Houd School, Hamra. Since nobody among the volunteers wanted to do cleaning (janitor), I volunteered. I did this together with Kurdish refugees.”
56. She said, “Finally I decided to go back to Belgium on 15 September 1982 via Damascus. However, since it was the morning after Bachir Gemayel’s (the then President-elect) death, there were no taxis to take me to Damascus. Great nervousness was felt in town. I returned to the PRCS headquarter in Hamra where most of the foreigners were located.”
57. She then proceeded to relate her harrowing experiences of the killings at the Sabra and Shatila Camps. She further related that when she went to the Shatila Camp she saw many dead bodies of adults and children, both male and female, in strange positions. I also saw dead animals. The bodies were already decomposing and bloated in the summer heat. The smell, she said, was unbearable and there were flies all over.
58. She added, “It was a horrible scene and they were digging mass graves to bury the dead.”
59. In their Executive Summary, Findings and Recommendations of the Kuala Lumpur War Crimes Commission Hearing on Palestine (PWTC: 20-21 November 2012) the Commission officially determined in relevant part as follows on pages 13-15:
60. 6th witness – Ms. Chahira Abouardini
The witness, 54 years old, was born in B’albuq, Lebanon. Her parents were born in Palestine, and they moved to Lebanon in 1948 when Israel under the United Nations took their hand in Palestine. Thereafter her parents lived in refugee camps. The witness has lived and grown up these 54 years in the refugee camps (Shatila). She has three children.
61. On May 5, 1982, the Israeli army attacked the refugee camp. The attack lasted 3 months. The witness (together with his parents) managed to escape to Beirut, returning to the camp only after the attack was over.
62. The witness said that on the evening of September 16, 1982, her parents’ home was attacked by the Israeli army. Her 17 year old sister and 65 year old father were both shot as they went out of the house. They both died.
63. At 6 am the next morning, 16 to 17 Israeli soldiers carrying weapons entered the house. They asked the men to go outside the room. The soldiers searched them and seized everything from them – valuables, any watches or anything. And then they ordered them to face the wall. When the men had done that, the soldiers opened fire – killing the witness’s husband, brother and cousin. They all died.
64. After the men were killed, the soldiers herded the women outside. They were deciding who would shoot the women, but finally decided not to do it because there were children with them. The women were then taken (marched at gun-point) to a nearby sports complex. On the way to the place, the witness saw her cousin who was killed.
65. This was what she said in her testimony “Before they went to the sport complex, as they were walking down the street, I saw my cousin who at the time was 20 years old and she was 9 months pregnant. I found her on the side of the road, with her stomach open and the baby was placed over her chest – was taken out of her womb and placed over her body. Of course the child was dead too. My cousin was dead and nude…”
66. “All along the way there were dead bodies everywhere,” the Witness said. “Hundreds of dead bodies …. adults, children, all ages.”
67. Asked by the Prosecutor whether the Israeli soldiers “entering homes (were) killing people all the time,” the witness replied “Yes. We were actually at the first point where they started to kill and they expand it all the way to Sabra…”
68. Asked by the Prosecutor on the number of people killed, the witness said that during that one and half day massacre in Sabra Shatila, between 3,500 to 5,000 people were killed. The exact number is not known, because some bodies were never found.
69. The witness also said that Italian forces had previously signed an agreement to protect the civilians and they were stationed at the camp. However, one day before this massacre started, they all left. Some weeks later, after the massacre was over, the Italians returned.
70. Asked by the Commission Chairman, Musa, whether these Italians were UN peace keepers, whether they were wearing blue berets, the witness said that she could not remember.
71. The witness said that the killing was carried out by the Phalangist militia, who were recruited by the Israelis. “There were known to be the puppets for Israeli forces. Israelis used them to go into our houses, because these soldiers knew the place, and could speak Lebanese.”
72. Asked by Commissioner Denis Halliday whether these Phalangists were Christian militia, the witness said she recognized some of their names as Christian names, but she cannot confirm that all are Christians.
73. The witness said that apart from Ariel Sharon, the “person who was commanding the forces at that time, that attacked Sabra Shatila, was … General Amos Yaron.”
….
74. 8th witness – Ms. Anne K. Sunde
The witness, who holds a Norwegian passport, is a resident of Belgium (since 1968). She was voluntary social worker with the Palestinian Red Crescent Society in Beirut when the Shatila Sabra massacre occurred.
75. In her testimony, the witness showed the Commission the geography and terrain of the Shatila Sabra area where the massacre occurred and where the Israeli soldiers were stationed.
The witness said that in the Shatila camp, “I saw dead bodies of adults, children, male, female in all kinds of positions. Dead.”
Conclusion
Wherefore, it is respectfully submitted that the Kuala Lumpur War Crimes Tribunal must convict the defendant Amos Yaron for War Crimes, Crimes Against Humanity, and Genocide in violation of the Hague Regulations on Land Warfare of 1907; the Fourth Geneva Convention of 1949; the 1948 Genocide Convention; the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950); customary international law, jus cogens, the Laws of War, and International Humanitarian Law; and their related provisions set forth in articles 9, 10, and 11 of the Charter of the Kuala Lumpur War Crimes Commission.
Professor Francis A. Boyle
Associate Prosecutor
Kuala Lumpur War Crimes Legal Team
(Established by the Charter of the Kuala Lumpur War Crimes Commission)
Professor Francis A. Boyle is an international law expert and served as Legal Advisor to the Palestine Liberation Organization and Yasser Arafat on the 1988 Palestinian Declaration of Independence, as well as to the Palestinian Delegation to the Middle East Peace Negotiations from 1991 to 1993, where he drafted the Palestinian counter-offer to the now defunct Oslo Agreement. His books include “ Palestine, Palestinians and International Law” (2003), and “ The Palestinian Right of Return under International Law” (2010).
24 aug 2013
Anyone with the chutzpah to accuse Israel of genocide is going to bring on a preemptive strike. That is as guaranteed as cream cheese on a bagel. The word “genocide” is loaded, since many and probably most Jews believe themselves to have a monopoly on the term. Most often cited in reference to the Holocaust, the G word elicits an intense emotional reaction. “War crimes” is an acceptable term in international parlance, for even Israel’s most vociferous citizens grudgingly admit to instances of unrestrained violence against Palestinians.
“Genocide”, however, is in a class by itself, being the thermonuclear bomb of moral outrage. How dare supporters of Palestinian rights charge the Mideast ’s “only democratic society” with systematic annihilation prompted by racial intolerance, economic greed, cultural chauvinism and religious bigotry?
Suspicion Mars Proceedings
The organizers of the Kuala Lumpur War Crimes Tribunal have brought on just such woe onto themselves by summoning a panel of international judges to rule on whether Israeli is guilty of genocide ever since its national birth in 1948.
The judicial proceedings got no further than the preliminary pretrial stage before it collapsed under acrimonious accusations ranging from prosecutors allegedly “poisoning minds” of Palestinian witnesses to outrage over a judge acting as ”an agent of the Mossad.”
The trigger for the heated denunciations between the prosecution team and the judicial panel was the prosecutors’ request for Judge Eric David, a law professor with the Free University of Brussels, to recuse himself (to voluntararily withdraw from the panel of judges).
The prosecutors had raised the issue of his earlier legal opinion to the effect that the People’s Mujaheedin (PMOI), an Iranian exile paramilitary which until recently was on the U.S. government’s list of terrorist groupsshould not be categorized as a terrorist entity.
According to media reports, the PMOI was involved in assassinating nuclear scientists and bombing factories in Iran. The group, largely based in Iraq , was militarily trained by the Israel secret service Mossad during the U.S.-led invasion of Iraq and subsequent occupation.
Co-Prosecutor Francis Boyle, a New York-based law professor, stated that the favorable opinion on that terrorist group implies that Judge David is politically aligned with the foreign policy of Israel , the defendant in the current tribunal on Palestinian rights. To this question of conflict of interest, Jurist David refused to give an answer, nor did the presiding judge demand him to respond.
Lead Prosecutor Gurdial Singh argued that the complainants, Palestinians who personally suffered war crimes by Israeli forces, had grounds for suspicion about Judge David’s impartiality given his past approval of Mossad-linked forces.
Gurdjial pointed out:
“This tribunal being a court of conscience, there must be not even a single blot on integrity.”
After tension-packed deliberations behind closed doors, the panel ruled in favor of Judge David without examining his controversial opinion and unanimously affirmed that he should serve on the tribunal. That ruling provoked Prosecutor Boyle to call for a mistrial, and the panel responded by accusing him of contempt of court. The proceedings soon descended into chaos and many more back-rooms parleys, before both sides agreed to an indefinite adjournment, possibly of several months, before the start of trial. In total, the preliminary session lasted less than two days, August 21-22, before it whimpered to a halt.
Procedure Matters
After many reporting assignments, along with a long stint at jury duty, in San Francisco criminal trials and New York City gun court, my immediate observation was that the panel of judges in Malaysia overemphasized courtroom decorum while inexplicably failing to follow basic judicial proceedings.
The stress on style rather than the substance of law revealed a “cultural” difference in courtroom custom between the hard-ball rhetoric bandied in American trials versus the polite and deferential manners in wig-adorned chambers under the British tradition. As sadly shown in Kuala Lumpur , however, decorum can often serve as a cloak for institutional inertia and possibly hidden agendas.
Issues of etiquette aside, the most grievous mistake was the panel’s opting for unanimous agreement as a group. Trials with more than one judge, these including tribunals and high courts, are organized for the exact opposite, that is to allow a divided opinion between the majority ruling and a minority dissent. At the Tokyo War Crimes Tribunal, whatever its merits and flaws, the guilty verdict of the majority of judges was famously opposed by the minority opinion of the Indian jurist Radhabinod Pal. In hindsight, that lone dissenting voice rings in our consciences to this day with its warning against victor’s “justice” and lynch “law”.
For a body of judges to act in unison in favor of one of their own profession is a gross violation of the principle of independence for each judge in a court of conscience. The disturbing thought that came to my mind was that insistence on acting as a group is completely out of place in a tribunal. Whether there was verbal manipulation in the judges’ chamber is privy only to those inside, leaving those of us on the outside with nothing but doubt.
Code of Silence
Prosecutors have a right to protest a violation of judicial procedures as the basis for mistrial, as was done by the co-prosecutor. Normally, when a capital crime is at issue, a mistrial can lead to a change of venue and a new judge and jury. If a court cannot possibly render a verdict on the basis of fairness, then another fairer arena must be found.
There were other serious problems: for example, the failure of the presiding judge to order the prosecutors to rephrase aggressive accusations as questions, and his neglect to demand that judge Eric David explain his past opinion to the satisfaction of all in the courtroom.
Judge David, one of the drafters of Bertrand Russell Tribunal on Israeli war crimes against Palestinians, did not give a single word of explanation, much less a convincing argument, for his legal opinion and tacit support of a Mossad-trained terrorist group that was a combatant in the Iraq War and responsible for violent acts against Iranian civilians that are illegal under international law.
His silence smacks not only of delivering selective justice but also of harboring a hidden agenda. Instead of ethical clarity, he chose to the muddy waters. If genuinely in support of the tribunal, he would have recused himself as the source of doubt, even if his intentions were misunderstood.
From the inception of this tribunal on Palestinian rights more than a year ago, the prosecution strategy has been to seek a genocide verdict against Israel , while the defense tactic is, logically, to water-down the ruling to less onerous guilt of war crimes falling far short of genocidal state policy.
Unfortunately, the reluctance of the unified panel to accept transparency and open debate in the proceedings reinforced the perception of judicial bias among the aggrieved complainants from Palestine . That some and possibly many of the jurists were either hesitant or predisposed to reject a verdict of genocide would be understandable in an Israeli courtroom. That such has happened in a predominantly Muslim country is simply astounding.
Perversion of Justice
Unfortunately, and to their eternal shame, many pro-Israeli legal professionals are not up to ethical par, as was shown in a major investigation at The Hague during the mid-1990s. I served as one of a handful of reporters on the case involving a weapons-loaded El Al cargo jet that crashed into an apartment building in Biljmeer district of Amsterdam, killing residents in an intense fire and harming emergency crews with toxic releases. The legal case was criminally undermined by massive amounts of Israeli bribery of witnesses (guised as unofficial out-of-court settlements), interference by the Israeli security team at Schipol Airport and the eventual silencing of the Dutch team that investigated the air traffic maneuvers of the plane.
That Israeli-subverted case never got to trial in The Hague , and I cannot but now fear that the same fate could await the Kuala Lumpur War Crimes Tribunal.
There are undoubtedly external factors aligned against the tribunal, other than the Israeli opposition to an undesirable verdict on Palestinian rights. Google, which cooperates with Israeli interests, posted warning signs on the website of the Kuala Lumpur foundation in its earlier tribunal hearings against the U.S. government for the illegal war on Iraq .
Closer to home, U.S. and allied intelligence agencies have actively promoted protests, similar to their Arab Spring sponsorship, to weaken the Malaysia government. Under the White House strategic pivot to Asia policy and the Pentagon’s Air-Sea Battle Concept, Malaysia is perceived as a potential foe of American geopolitical intervention. Is the pressure on from Tel Aviv and Washington to crack the Kuala Lumpur tribunal?
In Bad Faith
Laymen tend to perceive judges as men and women of ethical principle, non-partiality and free of preconceived biases. Sadly, the vast majority are not. One must remember that for every drone strike against a family home in a remote outland, a judge in a big city signs a writ of execution with not a whit of credible evidence. Constitutional guarantees have been reduced to a scrap of paper, and along with them so goes judicial standards.
For these very reasons, the tribunal in Kuala Lumpur must proceed and in accordance with the highest standard of international law. It is not a predetermined show trial nor a mock court, for this tribunal offers the legal strategy, the arguments and the precedent for the Palestinian Authority to press its long-overdue case in the International Court of Justice.
The Palestinian people have suffered prolonged and inexcusable violations of every human right under a state policy of eviction, banishment, imprisonment, torture and murder, repeatedly in an indiscriminate and cruel manner. If those who speak of the Rule of Law, for those who preside over our courts of law, cannot act, much less decide, against these inhumane practices and policies against a long-standing community, then there exists no law in Israel or at The Hague worthy of our respect and obedience.
The case of the Palestinian people versus the State of Israel is, in fact, a test of conscience for each and every one of us and proof of whether our global civilization is anything more than a facade for brute barbarism.
The Jewish people pride themselves at a moral lamp to humanity in darkness, but with only a few brave and notable exceptions in the cause of Palestinian rights, the dominant reaction of supporters of Israel has been toward obstruction of justice and outright injustice. The outcome can only be tragic for both peoples.
According to the Law Giver
The Hebrew term “Shoah” or calamity, which is also used to describe the Nazi policy against Jews, is the exclusive intellectual property of the Jewish people. “Genocide”, in contrast, is universal, applying to any nationality that faces systematic elimination.
To give credit where it is due, a Polish Jew coined the hybrid word “genocide”, which combines “genus”, Latin for family or breed, with “cide”, which translates as killing. A prosecutor in prewar Poland , before it was divided by German and Soviet forces, devised this word to describe the ultimate crime while drafting his book “Axis Rule in Occupied Europe” (published in 1944 by the Carnagie Foundation for International Peace). After immigrating to the United States , Lemkin joined the faculty of Rutgers Law School and drafted a genocide treaty adopted by the newly formed United Nations in 1948.
The Convention on the Prevention and Punishment of the Crime of Genocide, to summarize, forbids the killing, maiming and deliberate inflicting on a targeted group those conditions of life calculated to bring about its physical destruction in whole or in part.
This lawgiver made very clear that the genocide is applicable to any group threatened with “a coordinated plan” for the destruction of “essential foundations of the life of national groups, with the aim of annihilating the groups themselves” with objectives including disintegration of political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even their lives.”
Genocide does not necessarily mean the killing of every single member of a group since total extermination is often not feasible even with brutal efficiency.
Lemkin cited many genocide cases from our troubled world history, including “Christians of various denominations, Moslems and Jews, Armenians and Slavs, Greeks and Russians, dark-skinned Hereros in Africa and white-skinned Poles perished by millions from this crime.” The law must protect not just individuals but also groups of people, and by all accounts, the Palestinians are a group suffering most and probably all of the abuses cited.
Now 65 years after Lemkin formulated the rules of conduct, it becomes painfully apparent that yesterday’s victims can too easily become today’s perpetrators. What has anyone learned from their own suffering?
Yoichi Shimatsu is a Hong Kong-based journalist, is former editor with The Japan Times group in Tokyo and Pacific News Service in San Francisco .
“Genocide”, however, is in a class by itself, being the thermonuclear bomb of moral outrage. How dare supporters of Palestinian rights charge the Mideast ’s “only democratic society” with systematic annihilation prompted by racial intolerance, economic greed, cultural chauvinism and religious bigotry?
Suspicion Mars Proceedings
The organizers of the Kuala Lumpur War Crimes Tribunal have brought on just such woe onto themselves by summoning a panel of international judges to rule on whether Israeli is guilty of genocide ever since its national birth in 1948.
The judicial proceedings got no further than the preliminary pretrial stage before it collapsed under acrimonious accusations ranging from prosecutors allegedly “poisoning minds” of Palestinian witnesses to outrage over a judge acting as ”an agent of the Mossad.”
The trigger for the heated denunciations between the prosecution team and the judicial panel was the prosecutors’ request for Judge Eric David, a law professor with the Free University of Brussels, to recuse himself (to voluntararily withdraw from the panel of judges).
The prosecutors had raised the issue of his earlier legal opinion to the effect that the People’s Mujaheedin (PMOI), an Iranian exile paramilitary which until recently was on the U.S. government’s list of terrorist groupsshould not be categorized as a terrorist entity.
According to media reports, the PMOI was involved in assassinating nuclear scientists and bombing factories in Iran. The group, largely based in Iraq , was militarily trained by the Israel secret service Mossad during the U.S.-led invasion of Iraq and subsequent occupation.
Co-Prosecutor Francis Boyle, a New York-based law professor, stated that the favorable opinion on that terrorist group implies that Judge David is politically aligned with the foreign policy of Israel , the defendant in the current tribunal on Palestinian rights. To this question of conflict of interest, Jurist David refused to give an answer, nor did the presiding judge demand him to respond.
Lead Prosecutor Gurdial Singh argued that the complainants, Palestinians who personally suffered war crimes by Israeli forces, had grounds for suspicion about Judge David’s impartiality given his past approval of Mossad-linked forces.
Gurdjial pointed out:
“This tribunal being a court of conscience, there must be not even a single blot on integrity.”
After tension-packed deliberations behind closed doors, the panel ruled in favor of Judge David without examining his controversial opinion and unanimously affirmed that he should serve on the tribunal. That ruling provoked Prosecutor Boyle to call for a mistrial, and the panel responded by accusing him of contempt of court. The proceedings soon descended into chaos and many more back-rooms parleys, before both sides agreed to an indefinite adjournment, possibly of several months, before the start of trial. In total, the preliminary session lasted less than two days, August 21-22, before it whimpered to a halt.
Procedure Matters
After many reporting assignments, along with a long stint at jury duty, in San Francisco criminal trials and New York City gun court, my immediate observation was that the panel of judges in Malaysia overemphasized courtroom decorum while inexplicably failing to follow basic judicial proceedings.
The stress on style rather than the substance of law revealed a “cultural” difference in courtroom custom between the hard-ball rhetoric bandied in American trials versus the polite and deferential manners in wig-adorned chambers under the British tradition. As sadly shown in Kuala Lumpur , however, decorum can often serve as a cloak for institutional inertia and possibly hidden agendas.
Issues of etiquette aside, the most grievous mistake was the panel’s opting for unanimous agreement as a group. Trials with more than one judge, these including tribunals and high courts, are organized for the exact opposite, that is to allow a divided opinion between the majority ruling and a minority dissent. At the Tokyo War Crimes Tribunal, whatever its merits and flaws, the guilty verdict of the majority of judges was famously opposed by the minority opinion of the Indian jurist Radhabinod Pal. In hindsight, that lone dissenting voice rings in our consciences to this day with its warning against victor’s “justice” and lynch “law”.
For a body of judges to act in unison in favor of one of their own profession is a gross violation of the principle of independence for each judge in a court of conscience. The disturbing thought that came to my mind was that insistence on acting as a group is completely out of place in a tribunal. Whether there was verbal manipulation in the judges’ chamber is privy only to those inside, leaving those of us on the outside with nothing but doubt.
Code of Silence
Prosecutors have a right to protest a violation of judicial procedures as the basis for mistrial, as was done by the co-prosecutor. Normally, when a capital crime is at issue, a mistrial can lead to a change of venue and a new judge and jury. If a court cannot possibly render a verdict on the basis of fairness, then another fairer arena must be found.
There were other serious problems: for example, the failure of the presiding judge to order the prosecutors to rephrase aggressive accusations as questions, and his neglect to demand that judge Eric David explain his past opinion to the satisfaction of all in the courtroom.
Judge David, one of the drafters of Bertrand Russell Tribunal on Israeli war crimes against Palestinians, did not give a single word of explanation, much less a convincing argument, for his legal opinion and tacit support of a Mossad-trained terrorist group that was a combatant in the Iraq War and responsible for violent acts against Iranian civilians that are illegal under international law.
His silence smacks not only of delivering selective justice but also of harboring a hidden agenda. Instead of ethical clarity, he chose to the muddy waters. If genuinely in support of the tribunal, he would have recused himself as the source of doubt, even if his intentions were misunderstood.
From the inception of this tribunal on Palestinian rights more than a year ago, the prosecution strategy has been to seek a genocide verdict against Israel , while the defense tactic is, logically, to water-down the ruling to less onerous guilt of war crimes falling far short of genocidal state policy.
Unfortunately, the reluctance of the unified panel to accept transparency and open debate in the proceedings reinforced the perception of judicial bias among the aggrieved complainants from Palestine . That some and possibly many of the jurists were either hesitant or predisposed to reject a verdict of genocide would be understandable in an Israeli courtroom. That such has happened in a predominantly Muslim country is simply astounding.
Perversion of Justice
Unfortunately, and to their eternal shame, many pro-Israeli legal professionals are not up to ethical par, as was shown in a major investigation at The Hague during the mid-1990s. I served as one of a handful of reporters on the case involving a weapons-loaded El Al cargo jet that crashed into an apartment building in Biljmeer district of Amsterdam, killing residents in an intense fire and harming emergency crews with toxic releases. The legal case was criminally undermined by massive amounts of Israeli bribery of witnesses (guised as unofficial out-of-court settlements), interference by the Israeli security team at Schipol Airport and the eventual silencing of the Dutch team that investigated the air traffic maneuvers of the plane.
That Israeli-subverted case never got to trial in The Hague , and I cannot but now fear that the same fate could await the Kuala Lumpur War Crimes Tribunal.
There are undoubtedly external factors aligned against the tribunal, other than the Israeli opposition to an undesirable verdict on Palestinian rights. Google, which cooperates with Israeli interests, posted warning signs on the website of the Kuala Lumpur foundation in its earlier tribunal hearings against the U.S. government for the illegal war on Iraq .
Closer to home, U.S. and allied intelligence agencies have actively promoted protests, similar to their Arab Spring sponsorship, to weaken the Malaysia government. Under the White House strategic pivot to Asia policy and the Pentagon’s Air-Sea Battle Concept, Malaysia is perceived as a potential foe of American geopolitical intervention. Is the pressure on from Tel Aviv and Washington to crack the Kuala Lumpur tribunal?
In Bad Faith
Laymen tend to perceive judges as men and women of ethical principle, non-partiality and free of preconceived biases. Sadly, the vast majority are not. One must remember that for every drone strike against a family home in a remote outland, a judge in a big city signs a writ of execution with not a whit of credible evidence. Constitutional guarantees have been reduced to a scrap of paper, and along with them so goes judicial standards.
For these very reasons, the tribunal in Kuala Lumpur must proceed and in accordance with the highest standard of international law. It is not a predetermined show trial nor a mock court, for this tribunal offers the legal strategy, the arguments and the precedent for the Palestinian Authority to press its long-overdue case in the International Court of Justice.
The Palestinian people have suffered prolonged and inexcusable violations of every human right under a state policy of eviction, banishment, imprisonment, torture and murder, repeatedly in an indiscriminate and cruel manner. If those who speak of the Rule of Law, for those who preside over our courts of law, cannot act, much less decide, against these inhumane practices and policies against a long-standing community, then there exists no law in Israel or at The Hague worthy of our respect and obedience.
The case of the Palestinian people versus the State of Israel is, in fact, a test of conscience for each and every one of us and proof of whether our global civilization is anything more than a facade for brute barbarism.
The Jewish people pride themselves at a moral lamp to humanity in darkness, but with only a few brave and notable exceptions in the cause of Palestinian rights, the dominant reaction of supporters of Israel has been toward obstruction of justice and outright injustice. The outcome can only be tragic for both peoples.
According to the Law Giver
The Hebrew term “Shoah” or calamity, which is also used to describe the Nazi policy against Jews, is the exclusive intellectual property of the Jewish people. “Genocide”, in contrast, is universal, applying to any nationality that faces systematic elimination.
To give credit where it is due, a Polish Jew coined the hybrid word “genocide”, which combines “genus”, Latin for family or breed, with “cide”, which translates as killing. A prosecutor in prewar Poland , before it was divided by German and Soviet forces, devised this word to describe the ultimate crime while drafting his book “Axis Rule in Occupied Europe” (published in 1944 by the Carnagie Foundation for International Peace). After immigrating to the United States , Lemkin joined the faculty of Rutgers Law School and drafted a genocide treaty adopted by the newly formed United Nations in 1948.
The Convention on the Prevention and Punishment of the Crime of Genocide, to summarize, forbids the killing, maiming and deliberate inflicting on a targeted group those conditions of life calculated to bring about its physical destruction in whole or in part.
This lawgiver made very clear that the genocide is applicable to any group threatened with “a coordinated plan” for the destruction of “essential foundations of the life of national groups, with the aim of annihilating the groups themselves” with objectives including disintegration of political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even their lives.”
Genocide does not necessarily mean the killing of every single member of a group since total extermination is often not feasible even with brutal efficiency.
Lemkin cited many genocide cases from our troubled world history, including “Christians of various denominations, Moslems and Jews, Armenians and Slavs, Greeks and Russians, dark-skinned Hereros in Africa and white-skinned Poles perished by millions from this crime.” The law must protect not just individuals but also groups of people, and by all accounts, the Palestinians are a group suffering most and probably all of the abuses cited.
Now 65 years after Lemkin formulated the rules of conduct, it becomes painfully apparent that yesterday’s victims can too easily become today’s perpetrators. What has anyone learned from their own suffering?
Yoichi Shimatsu is a Hong Kong-based journalist, is former editor with The Japan Times group in Tokyo and Pacific News Service in San Francisco .
aug 2013
22 aug 2013
The second day of the Kuala Lumpur War Crimes Tribunal Hearing took an intriguing turn when witnesses requested through Chief Prosecutor Gurdial S Nijar to make a statement before the Tribunal.
The Tribunal granted the request and Dr Walid Elkhatib, a qualified medical doctor from the West Bank, represented the witnesses and read out the statement in Arabic, which was translated into English for the Tribunal’s and everyone’s benefit via a translator as follows:
Statement from the witnesses, “The Jews have lived in peace and security with full rights in Arabic and Islamic civilizations for hundreds of years.
Zionism, which was created by a group of Jews with archaic and reactionary ideologies, wished for the creation of a Jewish state of Israel on the expense of another nation, signalling the start of the Palestinian’s struggle.
We are Palestinians here witnessing this injustice, and we are also victims of this historic injustice. We came here without decision or a condemnation.
We saw yesterday the inappropriate and condescending tone the panel addressed the prosecution, who is a group of well-known and respected lawyers. So we fear that we might suffer the same treatment, or even worse.
I’d like to remind your excellencies that we are not only witnesses but victims with the evidence of torture, insults and violations of our human rights in all fields, not to mention the massacres that we’ve faced.
Thus, we have no right to expose ourselves or our people to more insults and we do not wish for the court to carry on against us.
For all these reasons we have no choice but to express our dissatisfaction to continue with this panel under these negatives circumstances.”
With the witnesses having made their views and feelings public, the Chief Prosecutor requested that the proceedings be postponed sine die (to a date to be fixed).
Amicus curiae, Larissa Jane Cadd Detmoid, after a short adjournment, argued that the panel was being ‘bullied’ into adjourning the hearing and that the witnesses statement was an attempt to go behind the decision that the panel had made on the first day of the hearing.
She proceeded to point out that it was only after the tribunal had dismissed the prosecution’s application to recuse Judge David, that the Prosecution stated that the witnesses had concerns about appearing before the panel. She questioned why this was not conveyed to the panel prior to the application to recuse the judge.
In a highly charged courtroom, the Chief Prosecutor proceeded to reply to the amicus curiae, that the hearing was not as implied, a game. He stressed that the prosecution had accepted the Tribunal’s ruling on the recusal application.
He pointed out that the statement made by the witnesses was a consequence of the ruling made by the panel on the recusal application.
He highlighted the fact that the witnesses were victims who have come to give evidence at an international tribunal of conscience in respect of the alleged genocide by Israel against the Palestinian people since 1948 and that the amicus [acting on behalf of the State ohad failed to appreciate this aspect.
He reiterated that the witnesses had expressed their lack of confidence in testifying before this panel of judges.
He further added that the witnesses’ statement is a plea by witnesses, who are victims of genocide seeking justice at great risk to themselves. And that, they are certainly in no position to bully anyone, as suggested, least of all the eminent panel of judges.
The judges adjourned the hearing till the afternoon to make their decision. The decision, which was delivered by Judge Prof Salleh Buang, touched on the recusal application and the subsequent sequence of events wherein the Tribunal expressed their “disappointment and regret on the serious breach of conduct of the prosecution team.’
The tribunal put on record their sorrow and regret that all the preparatory work for the hearing had come to naught and that the witnesses had given up an opportunity to testify.
The court adjourned the hearing sine die.
For further information, please contact
Dato’ Dr Yaacob Merican
Secretary General of the KLWCC Secretariat
Tel: +6012-227 8680
The Tribunal Members
Tan Sri Dato Lamin bin Haji Mohd Yunus,
Mr Alfred Lambremont Webre
Tunku Sofiah Jewa
Prof Salleh Buang
Prof Emeritus Datuk Dr Shad Saleem Faruqi
Michael Hourigan
Prof Eric David
The Prosecution
Prof Gurdial S Nijar
Prof Francis Boyle
Mr Avtaran Singh
Ms Gan Pei Fern
Amicus Curiae (appointed Defence team)
Mr Jason Kay Kit Leon
Ms Larissa Jane Cadd Detmoid
Dr Abbas Hardani
Ms Galoh Nursafinas Samsudin
About Kuala Lumpur War Crimes Commission (KLWCC)
The KLFCW established the Kuala Lumpur War Crimes Commission (The Commission), to investigate cases of war crimes that have been neglected by established institutions such as the International Criminal Court. The Commission seeks to influence world opinion on the illegality of wars and occupation undertaken by major Western powers.
The aim of The Commission is thereby to hold perpetrators of war crimes accountable for their actions especially when relevant international judicial organs fail to do so.
Members of the Commission
Tun Dr. Mahathir Mohamad
Dr. Zulaiha Ismail
Musa Ismail
Prof. Michel Chossudovsky,
Denis Halliday,
Dr. Hans von Sponeck
About the Kuala Lumpur Foundation to Criminalise War (KLFCW)
Malaysia’s fourth Prime Minister Tun Dr Mahathir Mohamad founded the Kuala Lumpur Foundation to Criminalise War (KLFCW), a non-governmental organisation established under the laws of Malaysia on 12 March 2007.
The main objectives of the Foundation, as stated in its Statutes are, inter alia:
1. To undertake all necessary measures and initiatives to criminalise war and energise peace;
2. To provide relief, assistance and support to individuals and communities who are suffering from the effects of war and armed conflict wherever occurring and without discrimination on the grounds of nationality, racial origin, religion, belief, age, gender or other forms of impermissible differentiations;
3. To promote the education of individuals and communities suffering from the effects of war or armed conflict;
4. To foster schemes for the relief of human suffering occasioned by war or armed conflict;
5. To provide for mechanisms or procedures in attainment of the above purposes.
“WHY is it that the murder of one man is considered a criminal act whereas the killing of hundreds of thousands of innocent people committed in wars, is not considered so? -Tun Dr Mahathir Mohamad
The Tribunal granted the request and Dr Walid Elkhatib, a qualified medical doctor from the West Bank, represented the witnesses and read out the statement in Arabic, which was translated into English for the Tribunal’s and everyone’s benefit via a translator as follows:
Statement from the witnesses, “The Jews have lived in peace and security with full rights in Arabic and Islamic civilizations for hundreds of years.
Zionism, which was created by a group of Jews with archaic and reactionary ideologies, wished for the creation of a Jewish state of Israel on the expense of another nation, signalling the start of the Palestinian’s struggle.
We are Palestinians here witnessing this injustice, and we are also victims of this historic injustice. We came here without decision or a condemnation.
We saw yesterday the inappropriate and condescending tone the panel addressed the prosecution, who is a group of well-known and respected lawyers. So we fear that we might suffer the same treatment, or even worse.
I’d like to remind your excellencies that we are not only witnesses but victims with the evidence of torture, insults and violations of our human rights in all fields, not to mention the massacres that we’ve faced.
Thus, we have no right to expose ourselves or our people to more insults and we do not wish for the court to carry on against us.
For all these reasons we have no choice but to express our dissatisfaction to continue with this panel under these negatives circumstances.”
With the witnesses having made their views and feelings public, the Chief Prosecutor requested that the proceedings be postponed sine die (to a date to be fixed).
Amicus curiae, Larissa Jane Cadd Detmoid, after a short adjournment, argued that the panel was being ‘bullied’ into adjourning the hearing and that the witnesses statement was an attempt to go behind the decision that the panel had made on the first day of the hearing.
She proceeded to point out that it was only after the tribunal had dismissed the prosecution’s application to recuse Judge David, that the Prosecution stated that the witnesses had concerns about appearing before the panel. She questioned why this was not conveyed to the panel prior to the application to recuse the judge.
In a highly charged courtroom, the Chief Prosecutor proceeded to reply to the amicus curiae, that the hearing was not as implied, a game. He stressed that the prosecution had accepted the Tribunal’s ruling on the recusal application.
He pointed out that the statement made by the witnesses was a consequence of the ruling made by the panel on the recusal application.
He highlighted the fact that the witnesses were victims who have come to give evidence at an international tribunal of conscience in respect of the alleged genocide by Israel against the Palestinian people since 1948 and that the amicus [acting on behalf of the State ohad failed to appreciate this aspect.
He reiterated that the witnesses had expressed their lack of confidence in testifying before this panel of judges.
He further added that the witnesses’ statement is a plea by witnesses, who are victims of genocide seeking justice at great risk to themselves. And that, they are certainly in no position to bully anyone, as suggested, least of all the eminent panel of judges.
The judges adjourned the hearing till the afternoon to make their decision. The decision, which was delivered by Judge Prof Salleh Buang, touched on the recusal application and the subsequent sequence of events wherein the Tribunal expressed their “disappointment and regret on the serious breach of conduct of the prosecution team.’
The tribunal put on record their sorrow and regret that all the preparatory work for the hearing had come to naught and that the witnesses had given up an opportunity to testify.
The court adjourned the hearing sine die.
For further information, please contact
Dato’ Dr Yaacob Merican
Secretary General of the KLWCC Secretariat
Tel: +6012-227 8680
The Tribunal Members
Tan Sri Dato Lamin bin Haji Mohd Yunus,
Mr Alfred Lambremont Webre
Tunku Sofiah Jewa
Prof Salleh Buang
Prof Emeritus Datuk Dr Shad Saleem Faruqi
Michael Hourigan
Prof Eric David
The Prosecution
Prof Gurdial S Nijar
Prof Francis Boyle
Mr Avtaran Singh
Ms Gan Pei Fern
Amicus Curiae (appointed Defence team)
Mr Jason Kay Kit Leon
Ms Larissa Jane Cadd Detmoid
Dr Abbas Hardani
Ms Galoh Nursafinas Samsudin
About Kuala Lumpur War Crimes Commission (KLWCC)
The KLFCW established the Kuala Lumpur War Crimes Commission (The Commission), to investigate cases of war crimes that have been neglected by established institutions such as the International Criminal Court. The Commission seeks to influence world opinion on the illegality of wars and occupation undertaken by major Western powers.
The aim of The Commission is thereby to hold perpetrators of war crimes accountable for their actions especially when relevant international judicial organs fail to do so.
Members of the Commission
Tun Dr. Mahathir Mohamad
Dr. Zulaiha Ismail
Musa Ismail
Prof. Michel Chossudovsky,
Denis Halliday,
Dr. Hans von Sponeck
About the Kuala Lumpur Foundation to Criminalise War (KLFCW)
Malaysia’s fourth Prime Minister Tun Dr Mahathir Mohamad founded the Kuala Lumpur Foundation to Criminalise War (KLFCW), a non-governmental organisation established under the laws of Malaysia on 12 March 2007.
The main objectives of the Foundation, as stated in its Statutes are, inter alia:
1. To undertake all necessary measures and initiatives to criminalise war and energise peace;
2. To provide relief, assistance and support to individuals and communities who are suffering from the effects of war and armed conflict wherever occurring and without discrimination on the grounds of nationality, racial origin, religion, belief, age, gender or other forms of impermissible differentiations;
3. To promote the education of individuals and communities suffering from the effects of war or armed conflict;
4. To foster schemes for the relief of human suffering occasioned by war or armed conflict;
5. To provide for mechanisms or procedures in attainment of the above purposes.
“WHY is it that the murder of one man is considered a criminal act whereas the killing of hundreds of thousands of innocent people committed in wars, is not considered so? -Tun Dr Mahathir Mohamad
21 aug 2013
Tribunal Dismisses Prosecution’s Application to Recuse Judge Eric David.
The Kuala Lumpur War Crimes Tribunal, which commenced today to hear war crimes and genocide charges against the State of Israel and Amos Yaron, a retired Israeli army general hit a snag. To begin with, the Prosecution made an application that, to preserve the sanctity of the tribunal, Judge Eric David be recused for his alleged possible connection with the Mossad, the intelligence agency of Israel.
There have been allegations including from US officials that the Peoples Mujahedin Organisation of Iran (PMOI) is supported by Mossad. The PMOI is listed as a terrorist organisation that has carried out terrorist activities against Iran. According to the prosecution, Judge Eric David had written a legal opinion that the PMOI be removed from the list of terrorist organisations.
Amicus curiae Jason Kay appointed under Article 15 of the Charter, raised the point that the allegations were not supported by clear evidence. And that perceived bias does not amount to actual bias. The Prosecution further argued that there must not even be any perceived bias on the part of any judge of the tribunal in deciding a case.
The Tribunal adjourned the hearing to deliberate further and later returned dismissing the prosecution’s application to recuse Judge Eric David, as they felt there was no threat of real bias. However, the prosecution disagreed and the hearing was adjourned once again.
When the hearing resumed, the President of the Tribunal, Tan Sri Dato Lamin bin Haji Mohd Yunus Lamin, expressed the panel’s disquiet of the breakdown of the forum stressing that once an objection had been overruled, it should be accepted and respected. He instructed the registrar to expunge all the allegations levelled against Judge Eric David from the records.
In their response, the prosecution accepted the panel’s decision but conveyed the serious concerns of the witnesses who had come all the way from Palestine to have their day in court. The witnesses, through the Chief Prosecutor Prof Gurdial S Nijar made known their three points of concerns to the panel of judges.
One, the fact, that, they have come to the Tribunal seeking justice after literally years of being unheard. They have come for justice and are prepared for any decision but in the present situation, they are not comfortable to appear before a judge that may be biased. They want the process of obtaining justice untainted in any way. Otherwise, in their view, it would be worthless. Secondly, they fear for their personal security in having come all the way to Kuala Lumpur to testify and thirdly, it is a matter of principle to them and if they lack confidence in the panel of judges, they would essentially be insecure and thus unable to tend evidence. As such, the Prosecution recommended that the hearing be adjourned Sine Die (indefinitely).
In that highly charged moment, and despite the prosecution’s acceptance of the President of the Tribunal’s decision of expunction of records and overruled objection, Judge Alfred Lambremont Webre chose to revisit the issue and rebuked the prosecution for falsely maligning a respected member of the tribunal, who he maintained is a highly respected member who had appeared in several Russell Tribunal proceedings previously. He expressed his annoyance and displeasure quite explicitly.
At that point, the President of the Tribunal, Tan Sri Dato Lamin bin Haji Mohd Yunus Lamin called for an adjournment and for the matter to be rightly taken into chambers. After further deliberation and a request that the prosecution consult the witnesses again, the judges called the legal teams into chambers and after a lengthy discussion, announced that the tribunal would resume the followed day.
Essentially, this is the first time war crime charges are being heard against the State of Israel and the retired general in compliance with the due legal process. In November last year, the Kuala Lumpur War Crimes Commission (KLWCC) heard the testimonies of nine complainants from Palestine (Gaza and West Bank) and the Sabra – Shatila refugee camps in Lebanon. The Commission proceeded to investigate these complaints, which resulted in the institution of formal charges on war crimes against the accused.
The trial, which is being held before the Kuala Lumpur War Crimes Tribunal constitutes of eminent persons with legal qualifications.
The judges of the Tribunal is headed by retired Malaysian Federal Court judge Tan Sri Dato Lamin bin Haji Mohd Yunus Lamin, who also served as an ad litem judge at the International Criminal Tribunal for the former Republic of Yugoslavia. The other judges in the Tribunal include notable names such as Mr Alfred Lambremont Webre, a Yale graduate, who authored several books on politics, Tunku Sofiah Jewa, practising lawyer and author of numerous publications on International Law, Prof Salleh Buang, former Federal Counsel in the Attorney-General Chambers and prominent author, Prof Emeritus Datuk Dr Shad Saleem Faruqi, prominent academic and professor of law, Michael Hourigan, an internationally renowned human rights lawyer and Prof Eric David, an International Humanitarian Law expert who was counsel at the International Court of Justice and the International Criminal Tribunal for Rwanda.
The trial is open to the public and will be held from August 21-24, 2013 at the premises of the Kuala Lumpur Foundation to Criminalise War (KLFCW) at 88, Jalan Perdana, Kuala Lumpur.
The Kuala Lumpur War Crimes Tribunal, which commenced today to hear war crimes and genocide charges against the State of Israel and Amos Yaron, a retired Israeli army general hit a snag. To begin with, the Prosecution made an application that, to preserve the sanctity of the tribunal, Judge Eric David be recused for his alleged possible connection with the Mossad, the intelligence agency of Israel.
There have been allegations including from US officials that the Peoples Mujahedin Organisation of Iran (PMOI) is supported by Mossad. The PMOI is listed as a terrorist organisation that has carried out terrorist activities against Iran. According to the prosecution, Judge Eric David had written a legal opinion that the PMOI be removed from the list of terrorist organisations.
Amicus curiae Jason Kay appointed under Article 15 of the Charter, raised the point that the allegations were not supported by clear evidence. And that perceived bias does not amount to actual bias. The Prosecution further argued that there must not even be any perceived bias on the part of any judge of the tribunal in deciding a case.
The Tribunal adjourned the hearing to deliberate further and later returned dismissing the prosecution’s application to recuse Judge Eric David, as they felt there was no threat of real bias. However, the prosecution disagreed and the hearing was adjourned once again.
When the hearing resumed, the President of the Tribunal, Tan Sri Dato Lamin bin Haji Mohd Yunus Lamin, expressed the panel’s disquiet of the breakdown of the forum stressing that once an objection had been overruled, it should be accepted and respected. He instructed the registrar to expunge all the allegations levelled against Judge Eric David from the records.
In their response, the prosecution accepted the panel’s decision but conveyed the serious concerns of the witnesses who had come all the way from Palestine to have their day in court. The witnesses, through the Chief Prosecutor Prof Gurdial S Nijar made known their three points of concerns to the panel of judges.
One, the fact, that, they have come to the Tribunal seeking justice after literally years of being unheard. They have come for justice and are prepared for any decision but in the present situation, they are not comfortable to appear before a judge that may be biased. They want the process of obtaining justice untainted in any way. Otherwise, in their view, it would be worthless. Secondly, they fear for their personal security in having come all the way to Kuala Lumpur to testify and thirdly, it is a matter of principle to them and if they lack confidence in the panel of judges, they would essentially be insecure and thus unable to tend evidence. As such, the Prosecution recommended that the hearing be adjourned Sine Die (indefinitely).
In that highly charged moment, and despite the prosecution’s acceptance of the President of the Tribunal’s decision of expunction of records and overruled objection, Judge Alfred Lambremont Webre chose to revisit the issue and rebuked the prosecution for falsely maligning a respected member of the tribunal, who he maintained is a highly respected member who had appeared in several Russell Tribunal proceedings previously. He expressed his annoyance and displeasure quite explicitly.
At that point, the President of the Tribunal, Tan Sri Dato Lamin bin Haji Mohd Yunus Lamin called for an adjournment and for the matter to be rightly taken into chambers. After further deliberation and a request that the prosecution consult the witnesses again, the judges called the legal teams into chambers and after a lengthy discussion, announced that the tribunal would resume the followed day.
Essentially, this is the first time war crime charges are being heard against the State of Israel and the retired general in compliance with the due legal process. In November last year, the Kuala Lumpur War Crimes Commission (KLWCC) heard the testimonies of nine complainants from Palestine (Gaza and West Bank) and the Sabra – Shatila refugee camps in Lebanon. The Commission proceeded to investigate these complaints, which resulted in the institution of formal charges on war crimes against the accused.
The trial, which is being held before the Kuala Lumpur War Crimes Tribunal constitutes of eminent persons with legal qualifications.
The judges of the Tribunal is headed by retired Malaysian Federal Court judge Tan Sri Dato Lamin bin Haji Mohd Yunus Lamin, who also served as an ad litem judge at the International Criminal Tribunal for the former Republic of Yugoslavia. The other judges in the Tribunal include notable names such as Mr Alfred Lambremont Webre, a Yale graduate, who authored several books on politics, Tunku Sofiah Jewa, practising lawyer and author of numerous publications on International Law, Prof Salleh Buang, former Federal Counsel in the Attorney-General Chambers and prominent author, Prof Emeritus Datuk Dr Shad Saleem Faruqi, prominent academic and professor of law, Michael Hourigan, an internationally renowned human rights lawyer and Prof Eric David, an International Humanitarian Law expert who was counsel at the International Court of Justice and the International Criminal Tribunal for Rwanda.
The trial is open to the public and will be held from August 21-24, 2013 at the premises of the Kuala Lumpur Foundation to Criminalise War (KLFCW) at 88, Jalan Perdana, Kuala Lumpur.
20 aug 2013
Tribunal Hearing against Israel and General Amos Yaron
“WHY is it that the murder of one man is considered a criminal act whereas the killing of hundreds of thousands of innocent people committed in wars, is not considered so? -Tun Dr Mahathir Mohamad, former Prime Minister of Malaysia
KUALA LUMPUR, 19 August 2013 – The Kuala Lumpur War Crimes Tribunal (KLWCT) will be hearing war crimes and genocide charges against Amos Yaron, a retired Israeli army general and the State of Israel from 21 to 24 August in Kuala Lumpur.
This is the first time that war crimes charges will be heard against the retired general and the State of Israel in compliance with due legal process. The Kuala Lumpur War Crimes Commission (KLWCC), having received complaints from victims from Palestine (Gaza and West Bank) and the Sabra – Shatila refugee camps in Lebanon, in 2012, investigated these complaints resulting in the institution of formal charges on war crimes against the accused.
The suffering of the Palestinian people have been well documented over the decades without any legal recourse being open to these people. Legal obstacles are placed in their path denying them the right to be heard. The international community too has failed to recognise their fundamental human right to be heard. The KLWCC founded in 2008 was established to fill this void and act as a peoples’ initiative to provide an avenue for such victims to file their complaints and let them have their day in a court of law.
Witnesses are scheduled to testify against the accused during the course of the tribunal hearing. Eyewitnesses of the Sabra – Shatila massacre will be testifying at the hearing and one of them include prominent surgeon and author Dr Ang Swee Chai. Other witnesses at the hearing will also include those from Gaza during the Operation Cast Lead 1 that resulted in the loss of numerous civilian lives and destruction of property where even children were victims.
Expert witness Paola Manduca, a retired Professor at University of Genoa, Italy who is an expert Geneticist will testify on the impact of weapons on reproductive health arising from the attacks in Gaza, especially to children. There will also be witnesses from the West Bank to testify on alleged Israeli state violence and atrocities against the Palestinian people.
The first charge against Amos Yaron for War Crimes, Crimes Against Humanity, and Genocide is as follows:
The defendant Amos Yaron perpetrated War Crimes, Crimes Against Humanity, and Genocide in his capacity as the Commanding Israeli General in military control of the Sabra and Shatila refugee camps in Israeli occupied Lebanon in September of 1982 when he knowingly facilitated and permitted the large-scale Massacre of the Residents of those two camps in violation of the Hague Regulations on Land Warfare of 1907; the Fourth Geneva Convention of 1949; the 1948 Genocide Convention; the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950); customary international law, ‘jus cogens’, the Laws of War, and International Humanitarian Law.
The other charge, which is against the State of Israel for the Crime of Genocide and War Crimes, is as follows:
From 1948 and continuing to date, the State of Israel (hereafter ‘the Defendant’) carried out against the Palestinian people a series of acts namely killing, causing serious bodily harm and deliberately inflicting conditions of life calculated to bring about physical destruction.
The conduct of the Defendant was carried out with the intention of destroying in whole or in part the Palestinian people. These acts were carried out as part of a manifest pattern of similar conduct against the Palestinian people. These acts were carried out by the Defendant through the instrumentality of its representatives and agents.
Such conduct constitutes the Crime of Genocide under international law including the Convention on the Prevention and Punishment of Genocide 1948 (‘the Genocide Convention’) in particular Article II and punishable under Article III of the said Convention. It also constitutes the crime of genocide as stipulated in Article 10 of the Charter of the Kuala Lumpur War Crimes Commission.
Such conduct by the Defendant as an occupying power also violates customary international law as embodied in the Hague Convention of 1907 Respecting the Laws and Customs of War on Land, and the Fourth Geneva Convention of 1949. Such conduct also constitutes War Crimes and Crimes against Humanity under international law.
The trial will be held before the Kuala Lumpur War Crimes Tribunal, which is constituted of eminent persons with legal qualifications.
The judges of the Tribunal will be headed by retired Malaysian Federal Court judge Tan Sri Dato Lamin bin Haji Mohd Yunus Lamin, who also served as an ad litem judge at the International Criminal Tribunal for the former Republic of Yugoslavia.
The other judges in the Tribunal include notable names such as Mr Alfred Lambremont Webre, a Yale graduate, who authored several books on politics, Tunku Sofiah Jewa, practising lawyer and author of numerous publications on International Law, Prof Salleh Buang, former Federal Counsel in the Attorney-General Chambers and prominent author, Prof Emeritus Datuk Dr Shad Saleem Faruqi, prominent academic and professor of law, Michael Hourigan, an internationally renowned human rights lawyer and Prof Eric David, an International Humanitarian Law expert who was counsel at the International Court of Justice and the International Criminal Tribunal for Rwanda.
The Tribunal will adjudicate and evaluate the evidence presented as in any court of law. The judges of the Tribunal must be satisfied that the charges are proven beyond reasonable doubt and deliver a reasoned judgement.
In the event the tribunal convicts any of the accused, the only sanction is that the name of the guilty will be entered in the Commission’s Register of War Criminals and publicised worldwide. The tribunal is a tribunal of conscience and a peoples’ initiative.
The prosecution for the trial will be lead by Prof Gurdial S Nijar, prominent law professor and author of several law publications and Prof Francis Boyle, leading American professor, practitioner and advocate of international law, and assisted by a team of lawyers.
The trial is open to the public and will be held on August 21-24, 2013 at the premises of the Kuala Lumpur Foundation to Criminalise War (KLFCW) at 88, Jalan Perdana, Kuala Lumpur.
For further information, please contact
Dato’ Dr Yaacob Merican
Secretary General of the KLWCC Secretariat
Tel: +6012-227 8680
Ms Malkeet Kaur
Media Representative of KLWCC
[email protected]
Tel: +6012-3737 886
About Kuala Lumpur War Crimes Commission (KLWCC)
The KLFCW established the Kuala Lumpur War Crimes Commission (The Commission), to investigate cases of war crimes that have been neglected by established institutions such as the International Criminal Court. The Commission seeks to influence world opinion on the illegality of wars and occupation undertaken by major Western powers.
The aim of The Commission is thereby to hold perpetrators of war crimes accountable for their actions especially when relevant international judicial organs fail to do so.
The Commission
The commission’s function is to:
i) receive complaints from any victim(s) of any conflict on:
(a) Crimes against peace
(b) Crimes against humanity
(c) Crimes of genocide
(d) War crimes
ii) investigate the same and prepare a report of its findings. To further call for more evidence or where The Commission is satisfied to recommend prosecution
The Legal Team
The legal team’s aim is to present the complaints of victim(s) of any conflict and to act on the recommendation of The Commission’s report and to frame charges and prosecute accused person(s).
The Tribunal
The Tribunal shall adjudicate on the charges filed against the accused person(s) The applicable standard of proof shall be beyond reasonable doubt.
About the Kuala Lumpur Foundation to Criminalise War (KLFCW)
Malaysia’s fourth Prime Minister Tun Dr Mahathir Mohamad founded the Kuala Lumpur Foundation to Criminalise War (KLFCW), a non-governmental organisation established under the laws of Malaysia on 12 March 2007.
The main objectives of the Foundation, as stated in its Statutes are, inter alia:
1. To undertake all necessary measures and initiatives to criminalise war and energise peace;
2. To provide relief, assistance and support to individuals and communities who are suffering from the effects of war and armed conflict wherever occurring and without discrimination on the grounds of nationality, racial origin, religion, belief, age, gender or other forms of impermissible differentiations;
3. To promote the education of individuals and communities suffering from the effects of war or armed conflict;
4. To foster schemes for the relief of human suffering occasioned by war or armed conflict;
5. To provide for mechanisms or procedures in attainment of the above purposes.
“WHY is it that the murder of one man is considered a criminal act whereas the killing of hundreds of thousands of innocent people committed in wars, is not considered so? -Tun Dr Mahathir Mohamad, former Prime Minister of Malaysia
KUALA LUMPUR, 19 August 2013 – The Kuala Lumpur War Crimes Tribunal (KLWCT) will be hearing war crimes and genocide charges against Amos Yaron, a retired Israeli army general and the State of Israel from 21 to 24 August in Kuala Lumpur.
This is the first time that war crimes charges will be heard against the retired general and the State of Israel in compliance with due legal process. The Kuala Lumpur War Crimes Commission (KLWCC), having received complaints from victims from Palestine (Gaza and West Bank) and the Sabra – Shatila refugee camps in Lebanon, in 2012, investigated these complaints resulting in the institution of formal charges on war crimes against the accused.
The suffering of the Palestinian people have been well documented over the decades without any legal recourse being open to these people. Legal obstacles are placed in their path denying them the right to be heard. The international community too has failed to recognise their fundamental human right to be heard. The KLWCC founded in 2008 was established to fill this void and act as a peoples’ initiative to provide an avenue for such victims to file their complaints and let them have their day in a court of law.
Witnesses are scheduled to testify against the accused during the course of the tribunal hearing. Eyewitnesses of the Sabra – Shatila massacre will be testifying at the hearing and one of them include prominent surgeon and author Dr Ang Swee Chai. Other witnesses at the hearing will also include those from Gaza during the Operation Cast Lead 1 that resulted in the loss of numerous civilian lives and destruction of property where even children were victims.
Expert witness Paola Manduca, a retired Professor at University of Genoa, Italy who is an expert Geneticist will testify on the impact of weapons on reproductive health arising from the attacks in Gaza, especially to children. There will also be witnesses from the West Bank to testify on alleged Israeli state violence and atrocities against the Palestinian people.
The first charge against Amos Yaron for War Crimes, Crimes Against Humanity, and Genocide is as follows:
The defendant Amos Yaron perpetrated War Crimes, Crimes Against Humanity, and Genocide in his capacity as the Commanding Israeli General in military control of the Sabra and Shatila refugee camps in Israeli occupied Lebanon in September of 1982 when he knowingly facilitated and permitted the large-scale Massacre of the Residents of those two camps in violation of the Hague Regulations on Land Warfare of 1907; the Fourth Geneva Convention of 1949; the 1948 Genocide Convention; the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950); customary international law, ‘jus cogens’, the Laws of War, and International Humanitarian Law.
The other charge, which is against the State of Israel for the Crime of Genocide and War Crimes, is as follows:
From 1948 and continuing to date, the State of Israel (hereafter ‘the Defendant’) carried out against the Palestinian people a series of acts namely killing, causing serious bodily harm and deliberately inflicting conditions of life calculated to bring about physical destruction.
The conduct of the Defendant was carried out with the intention of destroying in whole or in part the Palestinian people. These acts were carried out as part of a manifest pattern of similar conduct against the Palestinian people. These acts were carried out by the Defendant through the instrumentality of its representatives and agents.
Such conduct constitutes the Crime of Genocide under international law including the Convention on the Prevention and Punishment of Genocide 1948 (‘the Genocide Convention’) in particular Article II and punishable under Article III of the said Convention. It also constitutes the crime of genocide as stipulated in Article 10 of the Charter of the Kuala Lumpur War Crimes Commission.
Such conduct by the Defendant as an occupying power also violates customary international law as embodied in the Hague Convention of 1907 Respecting the Laws and Customs of War on Land, and the Fourth Geneva Convention of 1949. Such conduct also constitutes War Crimes and Crimes against Humanity under international law.
The trial will be held before the Kuala Lumpur War Crimes Tribunal, which is constituted of eminent persons with legal qualifications.
The judges of the Tribunal will be headed by retired Malaysian Federal Court judge Tan Sri Dato Lamin bin Haji Mohd Yunus Lamin, who also served as an ad litem judge at the International Criminal Tribunal for the former Republic of Yugoslavia.
The other judges in the Tribunal include notable names such as Mr Alfred Lambremont Webre, a Yale graduate, who authored several books on politics, Tunku Sofiah Jewa, practising lawyer and author of numerous publications on International Law, Prof Salleh Buang, former Federal Counsel in the Attorney-General Chambers and prominent author, Prof Emeritus Datuk Dr Shad Saleem Faruqi, prominent academic and professor of law, Michael Hourigan, an internationally renowned human rights lawyer and Prof Eric David, an International Humanitarian Law expert who was counsel at the International Court of Justice and the International Criminal Tribunal for Rwanda.
The Tribunal will adjudicate and evaluate the evidence presented as in any court of law. The judges of the Tribunal must be satisfied that the charges are proven beyond reasonable doubt and deliver a reasoned judgement.
In the event the tribunal convicts any of the accused, the only sanction is that the name of the guilty will be entered in the Commission’s Register of War Criminals and publicised worldwide. The tribunal is a tribunal of conscience and a peoples’ initiative.
The prosecution for the trial will be lead by Prof Gurdial S Nijar, prominent law professor and author of several law publications and Prof Francis Boyle, leading American professor, practitioner and advocate of international law, and assisted by a team of lawyers.
The trial is open to the public and will be held on August 21-24, 2013 at the premises of the Kuala Lumpur Foundation to Criminalise War (KLFCW) at 88, Jalan Perdana, Kuala Lumpur.
For further information, please contact
Dato’ Dr Yaacob Merican
Secretary General of the KLWCC Secretariat
Tel: +6012-227 8680
Ms Malkeet Kaur
Media Representative of KLWCC
[email protected]
Tel: +6012-3737 886
About Kuala Lumpur War Crimes Commission (KLWCC)
The KLFCW established the Kuala Lumpur War Crimes Commission (The Commission), to investigate cases of war crimes that have been neglected by established institutions such as the International Criminal Court. The Commission seeks to influence world opinion on the illegality of wars and occupation undertaken by major Western powers.
The aim of The Commission is thereby to hold perpetrators of war crimes accountable for their actions especially when relevant international judicial organs fail to do so.
The Commission
The commission’s function is to:
i) receive complaints from any victim(s) of any conflict on:
(a) Crimes against peace
(b) Crimes against humanity
(c) Crimes of genocide
(d) War crimes
ii) investigate the same and prepare a report of its findings. To further call for more evidence or where The Commission is satisfied to recommend prosecution
The Legal Team
The legal team’s aim is to present the complaints of victim(s) of any conflict and to act on the recommendation of The Commission’s report and to frame charges and prosecute accused person(s).
The Tribunal
The Tribunal shall adjudicate on the charges filed against the accused person(s) The applicable standard of proof shall be beyond reasonable doubt.
About the Kuala Lumpur Foundation to Criminalise War (KLFCW)
Malaysia’s fourth Prime Minister Tun Dr Mahathir Mohamad founded the Kuala Lumpur Foundation to Criminalise War (KLFCW), a non-governmental organisation established under the laws of Malaysia on 12 March 2007.
The main objectives of the Foundation, as stated in its Statutes are, inter alia:
1. To undertake all necessary measures and initiatives to criminalise war and energise peace;
2. To provide relief, assistance and support to individuals and communities who are suffering from the effects of war and armed conflict wherever occurring and without discrimination on the grounds of nationality, racial origin, religion, belief, age, gender or other forms of impermissible differentiations;
3. To promote the education of individuals and communities suffering from the effects of war or armed conflict;
4. To foster schemes for the relief of human suffering occasioned by war or armed conflict;
5. To provide for mechanisms or procedures in attainment of the above purposes.
18 mar 2013
Abstract:
Amos Yaron perpetrated War Crimes, Crimes Against Humanity, and Genocide in his capacity as the Commanding Israeli General in military control of the Sabra and Shatila refugee camps in Israeli occupied Lebanon in September of 1982 when he knowingly facilitated and permitted the large-scale Massacre of Residents of those two camps in violation of the Hague Regulations on Land Warfare of 1907; the Fourth Geneva Convention of 1949; the 1948 Genocide Convention; the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950); customary international law, jus cogens, the Laws of War, and International Humanitarian Law; and their related provisions set forth in articles 9, 10, and 11 of the Charter of the Kuala Lampur War Crimes Commission.
Number of Pages in PDF File: 22
Amos Yaron perpetrated War Crimes, Crimes Against Humanity, and Genocide in his capacity as the Commanding Israeli General in military control of the Sabra and Shatila refugee camps in Israeli occupied Lebanon in September of 1982 when he knowingly facilitated and permitted the large-scale Massacre of Residents of those two camps in violation of the Hague Regulations on Land Warfare of 1907; the Fourth Geneva Convention of 1949; the 1948 Genocide Convention; the Nuremberg Charter (1945), the Nuremberg Judgment (1946), and the Nuremberg Principles (1950); customary international law, jus cogens, the Laws of War, and International Humanitarian Law; and their related provisions set forth in articles 9, 10, and 11 of the Charter of the Kuala Lampur War Crimes Commission.
Number of Pages in PDF File: 22
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