Luc Walleyn Interview: Conversations with History; Institute of International Studies, UC Berkeley

Humanitarian Law: Conversation with Luc Walleyn, Human Rights Lawyer; April 16, 2003, by Harry Kreisler

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Universal Jurisdiction

Thus far, you've suggested that the international community can have a positive impact on domestic law and change within the system as cases are argued in the national courts. Now, the whole question of universal jurisdiction is a different twist on this problem. So first, explain to us what concept of universal jurisdiction. I guess it was enunciated in documents called the Princeton Principles. Talk a little about what is involved here.

The basis of universal jurisdiction is that you have criminal law in each country. You have laws saying that murder is forbidden, for instance. But you have, also, a higher level. You have some principles shared by the whole world community -- for instance, the fact that genocide is absolutely unacceptable. Even if it is organized by law and even if it's not punished by the country's concerns, it cannot be accepted by humanity as a whole. In fact, these principles were elaborated already in the jurisprudence of the Nuremberg Tribunal and the Tokyo Tribunal after the Second World War, saying that even if something is not mentioned in international law, these core principles of humanity should be respected. The consequence of that is that if the local courts cannot handle those kinds of cases, cannot prosecute those kind of crimes, there is a global responsibility of the international community to do so, to prosecute such crimes and to bring perpetrators to their own courts. Of course, the ideal situation is to have a global international court that can handle all those cases.

Such as the International Criminal Court.

Such as the International Criminal Court, even if the ICC has some limits. For instance, there is no jurisdiction for the past, but it's a very important step in the struggle for international accountability.

Now, what then happens? It would seem then that head of state X commits a crime in a country. Ideally, the crimes would be brought to the international tribunal. If that's not possible, then the charges against him would be brought in his own country.

Yes.

But I guess in universal jurisdiction is the notion that he can be tried in another country. He [might] be a head of state, [or just] a military functionary, a civil servant, or just a private citizen. This is, in fact, what the Spanish jurist tried to achieve in the Pinochet case by bringing charges against him for crimes he committed in Chile (many years after the fact), but while he was traveling in Britain -- that's the idea.

That's the idea. The Pinochet case was a very important landmark for universal jurisdiction. It shows that it is not just symbolic or virtual justice, but can be really practiced because of the international cooperation between states. In Europe, we will have now the European warrant of arrest. It means that if a Belgian judge issues a warrant of arrest, it's automatically respected by the whole European Union. So, indeed, it's not a question that Belgium decided, for instance, that we want to judge everybody, it's a global responsibility for the international community.

How do you respond to people who make the argument that such judicial interventions can negatively affect the politics within the country where the act was committed and the dynamic by which reconciliation is achieved? For example, in the case of South Africa, which was able to transition relatively peacefully from apartheid, there was a Truth and Reconciliation Commission. Hearings were set up where people, the community, appeared willing to accept the idea that not everybody would be brought before a court of justice if, in fact, they would openly admit their crimes of the past and so on. Is there a problem with efforts to, say, try a former apartheid official in another country that would interfere with that balance that was established in South Africa?

In fact, the practice of universal jurisdiction is raising a lot of problems, also because it is a new field of law. Countries are making mistakes and are learning from those mistakes, and international case law is deadlocked. I'm certainly not saying that that's not an anarchic situation. It's an imperfect situation. The example you are giving from South Africa is, indeed, a problem that has to be taken into account. Countries should respect an internal process of reconciliation if this is a real process of reconciliation -- not like in Chile, where general amnesty is forced by the former dictator. But if there is some form of accountability, and if the victim's rights are taken into account, even if it's not perfectly done, it should be respected, indeed.

What are the guarantees that this kind of calculation is the ideal, or what are the guarantees that they will always be followed in particular jurisdictions? Let's take the American domestic situation, where we developed the notion of a special prosecutor, which was very useful at a particular time in our history, at the time of Watergate, but twenty years later became something else and was used to go after a sitting president for apparently ideological reasons as opposed to a legitimate mandate. What are the mechanisms, if you're applying universal jurisdiction, for example, in Belgium, to ensure that the charges that are being brought will be responsible ones in light of the calculus you're describing?

The judiciary will develop some principles and some guidelines, but countries should think upon it and maybe negotiate some international conventions on that. Certainly, under European jurisdictions, it will become possible. There is already a European decision to appoint, in each country, a focal point for war crimes and crimes against humanity. It's mainly one officer of the prosecution, for instance, who is responsible for the contacts with other European countries.

The next step could be to negotiate some conventions like we have now in the field of asylum. The principle of asylum, organized by the Geneva Convention, is not implemented the same way in each country, but there are rules at the European level to say that in such conditions, this country will be responsible to handle it. And the next step, which is under construction, is [to establish] basic rules for the procedure.

So what is happening now in the various universal jurisdiction cases is not the final output.

It's at the beginning.

It's the beginning of a process to define a body of international law that would have meaning.

Indeed. Indeed. It's a field of international law which is still in its infancy. It will grow up and it will develop, and it would be a mistake to see only the problems now and to say, "We have to stop this because it's provoking problems." We should try to solve the problems.

Let's talk about two cases that you've been involved with in this regard. You were involved, I believe, in a case involving Belgian troops in Yugoslavia?

In Somalia.

In Somalia. What are the issues that came up, and what was the purpose of bringing the case in Belgium? Tell us a little about the case.

Belgium participated in the peacekeeping operations in Somalia, and it was discovered by the press that there were some abuses by our soldiers, some racist behavior in front of the population. A lot of stories came out in the press. So the Center for Racial Equality (it's a public center in Belgium) decided to force the investigation, and to have these people prosecuted. I was appointed in that case. And, indeed, we could achieve that. There was an investigation and, finally, some people were convicted for racist behavior. I think it's a good example how things can go.

Of course, it's not necessary that such a thing is judged by an international court or by another country, if the country can handle it itself. The first forum to handle this is, indeed, the country where the perpetrators are, or the country where the offenses occurred. But in this case it would have been difficult to imagine that the judiciary of Somalia could handle it.

Now, in a case like that -- and it may be too recent to comment on a conclusion -- but does that affect the rules by which the military defines its operation, so that what is involved in this verdict is not just bringing to justice the perpetrators but, in fact, the political impact of how your soldiers are trained to behave in situations like that?

Of course. If you are punishing murderers, for instance, the primary purpose is to avoid that people are killed. So the function of criminal law is to avoid crimes. It's the same, of course, for international crimes. The problem is that the culture of impunity is encouraging crimes. If people know that there is a risk of prosecution, we can hope, at least, that they will take it into account and it will reduce the scope of those kinds of crimes.

Now, another important case that you're involved in is the suit in Belgian courts that has been brought against Ariel Sharon, who is now the sitting prime minister of Israel, for actions he is alleged to have taken some twenty years ago in Lebanon. Tell us a little about the facts of that case. How did it come before your law firm? Who were the people bringing the complaint, and what was the complaint?

It came through a Lebanese colleague, Mr. Chibli Mallat.

A Belgian lawyer?

No, a Lebanese lawyer, and who was in contact with the people from the camps, who were looking for a possibility of an international investigation for those crimes in Sabra and Chatila in '82.

These were Palestinian camps in Lebanon ...

In '82, there was a war launched by Israel against Lebanon. Israel occupied Beirut and there was an agreement with the PLO that had armed forces in Beirut withdraw. The agreement was brokered and organized by the American special representative, Philip Habib, and the agreement was that after the withdrawal of the Palestinian fighters, Israeli forces would also withdraw. But, in fact, Ariel Sharon decided to occupy the whole city, also the areas formerly under control of the Palestinians and leftist Lebanese groups.

And this was in his capacity as defense minister of Israel.

He was defense minister. And as defense minister, he was also in charge of the war operations in Lebanon. He was personally responsible, undoubtedly.

As commander.

Commander, also, of his troops. He was not just sitting in his office in Tel Aviv.

The killings were not perpetrated by the Israeli army, although, maybe there were some. But, mainly, it was done by Christian Phalangist groups, who were aligned with Israel and with the Israeli army, and who worked together with them.

So just to explain a little more, we had a civil war going on within Lebanon, and one of the factions, one of the groups involved in that civil war, was aligned with Israel. They were the ones who went into the Palestinian camps.

They were practically auxiliary troops of Israel. They were trained in Israel, they were armed by Israel, paid by Israel. And when their chief, who was elected as president, was killed (not by Palestinians finally -- they discovered later that the Syrians were behind this) Ariel Sharon ordered them, convinced them to go into these Palestinian camps and to clean the camps of so-called terrorists that stayed behind. In fact, there were not armed forces behind, they were just civilians, mainly women and children, and older men. And during three days, there was a random killing of hundreds and maybe thousands of people under the supervision, practically, of the Israeli army, who were surrounding the camps, giving lighting during the three nights when the killing was going on. They could very well see what happened, but they didn't interfere, and they didn't ask people to stop the killings.

Now, within the Israeli legal system, was there a military tribunal to examine the circumstances of this?

No, that's exactly the problem. There was never a judicial investigation or judicial procedure to handle that. The leaders of the Phalange were not arrested by the Israelis; they were still allies after that event. There was only the pressure of the Israeli population itself, because there were a lot of demonstrations -- 400,000 people were demonstrating -- and an Israeli was even killed in such a demonstration.

So, finally, the government set up an investigation commission. But this commission didn't have any authority to prosecute people, only to give recommendations to the government. But still, the commission concluded that some people, and in particular Ariel Sharon, had a personal responsibility for what happened.

So the issue has never publicly been resolved or a final determination made within Israel by a judicial committee.

There was a political sanction in Israel, and Ariel Sharon had to resign as defense minister. There were some sanctions, also, against generals, etc., that moved from one function to another. But there was no judicial solution, and the rights of the victims were not taken into account. There was never any compensation for the victims, for instance.

So what is the case that you have brought, and where did you bring it?

We were contracted by twenty-eight people, survivors or family members of people killed. Some of them were injured in this event. They wanted us to use the Belgian law and universal jurisdiction to start an investigation. That was what we have done. We started that investigation, and we are still continuing it. Although, as you know, there are a lot of legal complications and there is very huge pressure from Israel. They even withdrew their ambassador after the Supreme Court of Belgium confirmed that our claim was completely legal.

The complications here come from the fact that Sharon is now the sitting prime minister of Israel. But the people who brought the case through you in the Belgian courts, are they citizens of Belgium or are they Lebanese?

They are Lebanese or they are Palestinian, stateless people most of them, and, indeed, they came only to Belgium to lodge the complaint.

And Belgian law allows for this, or did allow for it, or it still allows for it?

Note: Since the time of this interview, the new Belgian law of August 5, 2003, has reduced seriously the scope of universal jurisdiction in Belgium.

It still allows. The new law, as it was adopted some weeks ago, provides that in the future, if there is no link of Belgium aims on the side of the victims or on the side of the perpetrator, if there is no link at all, the public prosecutor must confirm the complaint and must decide on the investigation, before a prosecution is [possible]. Before, a victim could on his own initiative force an investigation without any approval of any authority.

Now in a case like this, it sounds like there are really two aims. One is to get restitution or justice for the individuals who are involved and who represent a class of people. But on the other hand, to achieve something in international law. Is the purpose here the notion that if charges can be brought against Pinochet, or against Sharon, or Milosevic, it is a warning that the international community will no longer tolerate these kinds of actions, even if the national jurisdiction won't move on them?

From the perspective of the victims, of course, it's to have recognition of what happened and [accountability] of those who are responsible, and to have compensation and redress. But from an international perspective, indeed, the fact that this is possible is pressure not to repeat such things. In the situation of Israel, it's not just a theory, because there is still the risk of a new war with Lebanon. The fact that Mr. Ariel Sharon was involved in that case in the Lebanon war and that he is now a prime minister means also, from the perspective of our clients, that there is a risk that such things could happen again in the future.

One could make the argument that if a proceeding like this happens, in the future attorneys who are less responsible could bring charges against a former military official who is now a prime minister in some hypothetical country, and the validity of bringing the charges in this hypothetical might be a more open question, let us say. But you suggested earlier, and also in this change of law in Belgium, that there would be mechanisms in states to evaluate whether a particular claim should be brought, in the context of both international justice and the broader interest of that particular state. Is that correct?

That's more or less what's happening now in Belgium, because we are a kind of laboratory the last [few] years. The fact that we have a global law on universal jurisdiction, but also a law based on the Continental system where victims have very large possibilities to start an investigation, meant a lot of complaints were lodged in Belgium against a lot of people from Castro, Rafsanjani, Arafat, etc. A lot of these cases were frivolous. The plaintiffs were not even bringing elements of evidence, but just were looking for some media effect. So the new law that was accepted now aims to limit those kinds of actions.

So, first of all, it will become more difficult if there is not a special link with Belgium; there will be more responsibility for the prosecutor. And the last guarantee which, personally, I regret, is that the governments will be able to stop an investigation under some conditions. But these conditions are very large. It's sufficient that the country concerned provides punishment for war crimes or crimes against humanity, and grants a fair trial for the parties' concerns. But once both these conditions are adopted, it can be possible to stop the case, even if there is no guarantee at all that there will really be a prosecution in the country.

So, in short, politics can interfere with the ethical possibilities in the process?

Indeed. Belgium, of course, is a small country, and it depends economically on others. There were very important pressures from Israel, and even from the United States, because recently it also lodged a complaint against the practice. I will not say that it is frivolous, because it's not up to me to judge it. But it was lodged at a very non-opportune moment, just on the eve of the new Iraq war. A complaint had been lodged against the father, Bush, Sr., because of the bombing of a shelter in Baghdad during the first Gulf War. The reaction of the United States was very heavy -- not spectacular, but Belgium was informed that NATO headquarters could be removed from Belgium if the government didn't find a solution for that.

You're suggesting that one of the things in the future that has to be worked out if this process continues is a fine-tuning that allows a separation of frivolous cases that also may be political dynamite from a valid case that actually may also be political dynamite.

In my opinion, this kind of fine-tuning should be done by judges or even by the prosecutor, but not by the government.

Next page: Conclusions

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