Sharon cannot be tried in Belgium, says court

By Andrew Osborn, The Guardian, Friday 15 February 2002

A controversial Belgian court case against the Israeli prime minister, Ariel Sharon, appeared to be over before it had begun last night after the international court of justice ruled that past and present government leaders cannot be tried for war crimes by a foreign state.

Mr Sharon has been accused of being responsible for the massacre of hundreds of Palestinians in Lebanon in 1982 when he was Israel's minister of defence. Survivors of the atrocities have started legal proceedings against him in Belgium, where foreign nationals can, exceptionally, be tried for war crimes committed abroad.

Mr Sharon ordered the Israeli army into Lebanon, and it is alleged that he allowed Lebanese Christian Phalangists to run amok in the Sabra and Shatila Palestinian refugee camps, slaughtering hundreds in cold blood.

But in a landmark judgment, the court in the Hague said yesterday that former and current government ministers and leaders are protected from prosecution by a foreign state because of their diplomatic immunity and can only be held to account in their own country.

The judgment is clear, said Jan Devadder, a legal adviser to the Belgian government. The court has clearly ruled government leaders and heads of state enjoy total immunity from prosecution. The Sharon case, in my opinion, is closed.

The Israeli government said the judgment vindicated its opposition to the Sharon case.

A Belgian judge was due to rule whether the case should go to trial on March 6, but that decision seems to have been overtaken by yesterday's events.

The judgment is expected to end, once and for all, Belgium's controversial reign as a global war crimes prosecutor for past and present government leaders, a role which has embarrassed the government and strained relations with Israel and other countries.

Under a 1993 law, Belgium gave itself the right to try war crimes committed by anyone anywhere at any time and has since been flooded with legal complaints against a string of high-profile leaders.

Cases against the Palestinian leader, Yasser Arafat, the Cuban president, Fidel Castro, and the Iraqi president, Saddam Hussein, are all pending.

But legal experts predicted last night that these cases will now be dropped and Belgium's self-styled role as an international war crimes prosecutor will be brought to an end because the world court has effectively ruled that diplomatic immunity takes pre cedence over everything else.

The court said a former or serving government official could not be tried in a foreign court because throughout the duration of his or her office [the minister], when abroad, enjoys full immunity from criminal jurisdiction. That principle held good, the court added, regardless of whether the accused was abroad on official business or in a private capacity.

Human rights activists called the ruling a dark day for global justice and argued that those guilty of war crimes would never be put on trial in their own countries.

Government ministers who commit crimes against humanity are not likely to be prosecuted at home, and this ruling means they will enjoy impunity abroad as well, said Reed Brody of New York-based Human Rights Watch.

Privately, the Belgian government is likely to be relieved. The foreign minister, Louis Michel, conceded last night that his country's war crimes legislation contained some inconvenient aspects that would have to be corrected.

The judgment does not have any bearing on the trial of the likes of Slobodan Milosevic, as he is being tried by an international body, the United Nations, and not by an individual foreign government.