How to prosecute Israel—A Commentary by Karim Yehia Youssef ’07
How to prosecute Israel—possible routes for holding Israel to account for war crimes committed in 1967 and 1956
By Karim Yehia Youssef
A few days ago, Israeli television aired a documentary about war crimes committed in Sinai by the Israeli army in 1967. The allegations relate to the execution of 250 unarmed Egyptian POWs by an Israeli unit at the end of the Six Days War, after the fighting had stopped. Israeli crimes in 1967 also include war crimes committed against US military personnel of the USS Liberty on 8 June 1967.
Contrary to what some high-ranking Egyptian officials said last week, this is not the first time evidence of war crimes committed in Sinai by the Israeli army is in the Israeli media. Details of war crimes that took place in Sinai in 1956 and 1967 have been leaking from Israeli sources for the last 20 years. They range from statements of summary facts, to quasi-public confessions by ex-army generals describing in detail the atrocities and pointing to the location of graves. To cite but one example, in September 1995, retired Israeli General Arieh Biro admitted that he had executed 49 Egyptian POWs with submachine gun fire in the 1956 Sinai campaign. In 1995 also, two mass graves were unearthed in Sinai causing public outrage in Egypt and trouble in Israel.
While the Egyptian government is asking for explanations and trials of the persons responsible for war crimes, the Egyptian street has every reason to know its legal rights. Evidence is not the issue. It is abundant and on Egyptian soil. Tracing public confessions or quasi-confessions by army generals in Israeli sources would easily lead to significant evidence admissible before a judicial body. There is also little doubt about the legal characterisation of the facts as being war crimes under the Geneva Conventions. The problem lies at a procedural level, or with the question of jurisdiction. Which national court or international tribunal can be seized for effective remedy?
Basic principles of criminal law give criminal jurisdiction to the court of the place of the crime. A court may exercise extraterritorial jurisdiction if either the victim or the person who committed the crime are a national of the given legal forum. Accordingly, Egyptian or Israeli courts have direct jurisdiction to try war crimes in Sinai. In 1995, Israel's Attorney General Michael Ben-Yair said there was no basis for prosecuting soldiers for offences in 1956 and 1967 because of a 20-year statute of limitations on homicide charges. Israel's only war crimes law, he noted, related to crimes of genocide or crimes committed by Nazis during World War II. While the shootings of prisoners of war were "unlawful and intolerable acts", they were not the kind of crimes covered by the law on genocide. Obviously, proceedings in Egypt would only be legally meaningful upon extradition of the persons suspected or having confessed to committing these crimes -- a very unlikely event. The Israeli government did no more than promise to investigate the matter whenever the Egyptian government showed signs of displeasure. That this conduct is in conformity with state obligations under international law not to shield persons suspected of war crimes, and to either prosecute or extradite, is dubious.
In turn, the International Criminal Court (ICC) is not an option. Although the Rome Statute that establishes the court gives jurisdiction to try war crimes, and although the killing of Egyptian prisoners clearly falls under the definition of war crimes according to international criminal law, a double obstacle blocks the possibility of bringing this case before the court. First, Israel has not signed the statute of the ICC. On the other hand, the ICC has jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute. National "universal jurisdiction" laws may be the only viable option remaining.
Under universal jurisdiction law, a given state's courts would exercise jurisdiction over persons who have committed serious crimes (war crimes, crimes against humanity and genocide), regardless of whether the state has a link to the crime or not. A 1993 Belgian universal jurisdiction law allowed survivors and relatives of victims of the Sabra and Shatila massacre of 1982 to bring proceedings against Ariel Sharon and would have very well served as the basis for the prosecution of war crimes in Sinai. Sadly, that law was amended in 2003, its scope seriously diminished. The Egyptian case might arguably still be brought under the current law, which gives Belgian courts jurisdiction to try war crimes if Belgium is required by international treaty to exercise universal jurisdiction. The Geneva Conventions require member states to exercise jurisdiction over war crimes that constitute "grave breaches" of the conventions. The deliberate mass killing of POWs would fall under that umbrella. Although explicit universal jurisdiction legislation is otherwise virtually absent, a June 2006 report of Human Rights Watch entitled Universal Jurisdiction in Europe: The State of the Art concluded that the principle of universal jurisdiction is alive and well in Europe. War crimes committed in Sinai in 1956 and 1967 may have a chance to be prosecuted in countries like Norway, the United Kingdom, and foremost Spain, where a law passed in 1985 confers broad universal jurisdiction upon Spanish courts.
In all cases, the exercise of universal jurisdiction remains within the discretion of national prosecutors and subject to political calculations. States would typically be nervous about the possibility of jeopardising foreign relations with states they have economic or political ties with. On balance, political calculations should include the risk of harming political relations with states whose citizens have been victims of unpunished war crimes.
Minimal justice requires the payment of proper financial compensation to the families of soldiers illegally killed, or to the Egyptian government. Egypt could sue the Israeli government before the International Court of Justice (ICJ) for compensation for crimes committed in violation of international humanitarian law in 1956 and 1967. However, Israel has not accepted the compulsory jurisdiction of the ICJ, and therefore the case could only be brought to the ICJ with the consent of the Israeli government. A request to the court for a non-binding advisory opinion on the violations of the laws of war that Israeli committed in Sinai may still be made by the General Assembly of the United Nations. A similar request led the ICJ to rule on the legal consequences of the construction of the "apartheid wall" in the occupied territories.
The Egyptian government is invited to establish a fact-finding commission to gather physical evidence on war crimes committed in 1956 and 1967. An investigation should also include any possible deviations from the laws of war by Egyptian soldiers. It is unlikely, however, to find war crimes imputable to Egyptian soldiers in view of the almost instantaneous defeat the Egyptian army endured in both wars. The Arab Lawyers Association and the Egyptian Lawyers Syndicate are both urged to institute legal proceedings before Spanish and other European courts that could accept to hear the case, but also before Egyptian courts. The value of an indictment in absentia should not be underestimated, in terms of mobilising domestic and foreign public opinion.
* The writer is an assistant lecturer at the Faculty of Law at Cairo University and JSD candidate at Yale Law School.