This House regrets that Ariel Sharon was not tried for war crimes by an international court

Ariel Sharon, who was prime minister of Israel from 2001 to 2006, died on the 11th of January 2014, after eight years in a persistent vegetative state due to a massive stroke. Sharon, who held positions in Israeli governance since 1981, was a highly important figure – but also a highly controversial one. To his supporters, he has been described as the “architect of Israel[1]”, and a man who aimed to create a peaceful and sustainable Israel[2]. To his opponents, he was a butcher and a war criminal.

Initially a member of the pre-independence paramilitary group Haganah, which formed the core of the nascent IDF when it was formed in 1948, he rose to the rank of major-general, taking part in the 1948 conflict (referred to as the War of Independence by Israelis and the al-Nakba – the catastrophe – by the Palestinians and others) which lead to the independence and recognition of the State of Israel, the Suez crisis, the Six-Day War in 1967 in which Israel captured the Sinai Peninsula, Gaza Strip, West Bank and Golan Heights, and the 1973 conflict known variously as the Yom Kippur War or the October War. This included leadership of Unit 101, created in 1953 under orders by then prime minister David Ben-Gurion to carry out reprisal operations[3]. In October 1953, Israeli troops under Sharon’s control attacked Qibya, a village in the West Bank, in which 69 people, mostly women and children, were killed. This was an act of retaliation following attacks from the West Bank in which Israelis were targeted: Sharon wrote in his diary that he was ordered to make the attack “an example for everyone”[4]. These actions were condemned by the UN Security Council[5].

Entering electoral politics in 1973 as a member of the Israeli legislature, the Knesset, for Likud, he became the security adviser of PM Yitzhak Rabin, he had a spell between 1981 and 1983 as Minister of Defence, during which Israel invaded Lebanon in 1982, parts of which were occupied until 1985.

During the conflict, Kataeb, a Lebanese Christian militia, lead a massacre of civilians (between 762 and 3,500) in the Sabra area of Beirut, the Lebanese capital, and the nearby Shalita refugee camp while the IDF prevented those in the areas from leaving. In addition to a UN commission (and a general assembly vote deeming it an act of genocide[6]), an Israeli inquiry, the Kahan commission, deemed Sharon responsible. He resigned as minister of defence, but remained in government, becoming foreign minister in 1999. He was elected as Prime Minister in 2001, during his term creating a new party, Kadima. While Prime Minister, he lead a unilateral withdrawal of Israeli settlers from the Gaza Strip.

[1] Israel Opinion, ‘Ariel Sharon, the architect of Israel’, ynetnews.com, 12 January 2014, http://www.ynetnews.com/articles/0,7340,L-4475698,00.html

[2] BBC News, ‘Israeli, Arab papers miles apart on Sharon’s legacy’, 12 January 2014, http://www.bbc.co.uk/news/world-middle-east-25703399

[3] BBC News, ‘Ariel Sharon’s mark on history’, 11 January 2014, http://www.bbc.co.uk/news/world-middle-east-25593189

[4] Hasan, Mehdi, ‘Five Numbers That Suggest Ariel Sharon Was a War Criminal’, Huffington Post, 12 January 2014, http://www.huffingtonpost.co.uk/mehdi-hasan/ariel-sharon-war-crimes_b_4584178.html

[5] United Nations Security Council Resolution 101

[6] United Nations General Assembly resolution, Resolution 37/123

 

Title 
Impunity
Point 

In addition to events mentioned in the introduction, Sharon was accused of, along with troops under his command, execution-style killings of 49 Egyptian civilians taken prisoner by the IDF in the Saini peninsula in 1956[1] - wilful killing of civilians being a war crime as per the Fourth Geneva Convention.

The purpose of international criminal law is that individuals are brought to trial to ensure that individuals are held accountable for war crimes and crimes against humanity: if a person isn’t prosecuted, either by a domestic or international court, the credibility of the limits civilized nations place on war is eroded.

[1] Miller, Marjorie, ‘Israel to Probe Deaths of Egyptian POWs in '56 : Sinai: At Cairo's request, defense officials will investigate general's claim that scores were shot.’, Los Angeles Times, 16 August 1995, http://articles.latimes.com/1995-08-16/news/mn-35764_1_defense-officials

Counterpoint 

It is up to sovereign states to deal with their own criminality, not that of international courts. Israel decided Sharon had nothing to answer for. There have been commissions into some of his actions; the Khan Commission of Inquiry looked into the massacre at Sabra and Shatilla and concluded that “blunders constitute the non-fulfillment of a duty with which the Defense Minister was charged.” Sharon was only indirectly responsible.[1]

When he became a head of state, head of state immunity applied to him – a necessary thing to keep the wheels of international diplomacy turning. This has been accepted by the International Court of Justice in the arrest warrant case[2].

[1] The Kahan Commission of Inquiry, ‘Report into the Events at the Refugee Camps in Beirut’, Jewish Virtual Library, 8 February 1983,  http://www.jewishvirtuallibrary.org/jsource/History/kahan.html

[2] Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) 14 February 2002 http://www.refworld.org/type,CASELAW,ICJ,,3c6cd39b4,0.html

Title 
Would prevent further atrocities
Point 

An international mechanism where Sharon would have been able to be tried would be likely to have been one which would have been able to hear cases dealing with the – serious – allegations of crimes against humanity and war crimes by various other groups such as the al-Qassam brigades (the paramilitary group attached to Hamas).

This would have been able to prevent further atrocities by acting as a deterrent through punitive methods as well as showing that the law applies to Western nations and their allies too.

Counterpoint 

In other cases, such as in Yugoslavia, the deterrent effects of international courts have been dubious.

Prosecutions, far from being on both sides, may lead to allegations of bias against one side or another by the international court, which could lead to it being seen as merely another battlefield.

Title 
Historical record
Point 

Prosecutions by international criminal courts have a positive side-effect of creating a historical record of events. This creates an impartial record of events which takes in to account the evidence provided by all parties.

By removing scope for denialism, a peace can be constructed on the foundations of an impartial truth. Many of the actions of Israel have been controversial, The Guardian says it is the issue that is most controversial and comes under most scrutiny,[1] such an impartial historical record would be particularly useful for a full understanding of atrocities committed by all sides.

[1] Editorial, ‘Fairness: Israel – Palestine’, guardian.co.uk, accessed 16/1/2014, http://www.theguardian.com/values/socialaudit/story/0,,1931205,00.html

Counterpoint 

Is an aid for historians really worth all the upheaval and problems a trial would cause?

Denialism can still continue even though there are established facts, such as denial of the Japanese role in Second World War forced prostitution[1].

[1] See Honda, Masakazu and Takada, Makoto, “LDP Pressure led to cuts in NHK show”, The Asahi Shimbun, 12 January 2005, http://www.asahi.com/english/politics/TKY200501120160.html

Title 
Necessary for an impartial peace.
Point 

By prosecuting perpetrators, justice creates a deterrent. The deterrent effect, as accepted in criminal law generally, is likely to make the peace more long standing and stable in the future – it will make those minded to perform atrocities think again. If those who committed atrocities ‘get away with it’ they will be much more likely to plunge the country back into violence. If Sharon was prosecuted for his crimes in the 50s, would he have gone on to have the same political career? He would likely not have had the chance to allow the Sabra and Shatia massacre or Operation Defensive Shield.[1]

The career of Laurent Nkunda is a good example of this; he fought in the Tutsi group that took control of Rwanda in 1994 ending the genocide and then was a rebel commander in both Congolese civil wars in which he was accused of atrocities before launching his own rebellion, only now after 14 years as an army commander is he under arrest[2]. Clearly Nkunda being locked up at some stage would have been better than regularly negotiating with him to try and create peace.

[1] Hasan, Mehdi, ‘Five Numbers That Suggest Ariel Sharon Was a War Criminal’, Huffington Post, 12 January 2014, http://www.huffingtonpost.co.uk/mehdi-hasan/ariel-sharon-war-crimes_b_4584178.html

[2] BBC News, “Profile: General Laurent Nkunda”, 23 January 2009, http://news.bbc.co.uk/1/hi/world/africa/3786883.stm

Counterpoint 

This fails for two reasons. Firstly, prosecutions are not always a deterrent to future crimes. Secondly that justice is not necessary in all cases to prevent recidivism – justice has not been needed in many cases, such as in Haiti after the 2004 coup, Haiti’s subsequent problems being caused by natural disasters.

Even if Sharon were to be brought to trial before an international tribunal, the Israeli state apparatus would be able to carry on with a new leader, rendering the exercise futile in trying to stop the conflict. A prosecution would not have brought peace it would simply entrench the Israeli position.

Title 
Prosecutions are an impediment to peace negotiations
Point 

A prosecution against a prominent military or political figure could jeopardize faith in the international community, which would be harmful to peace negotiations. Prosecuting one side would effectively allocate blame, damaging Israel’s position. Sharon may have been the only man who could have led the Gaza pullout,[1] he would not have had the chance or would not have been able to if he was prosecuted.

This is not a new concern – there were issues following ICTY indictments and the Dayton negotiation, with some parties being unable to attend[2]. Similarly, the Lord’s Resistance Army offered to surrender but refused due to ICC arrest warrants[3].

[1] Vick, Karl, ‘Ariel Sharon: Israel’s Soldier and Strongman, 1928-2014’, Time, 11 January 2014, http://world.time.com/2014/01/11/ariel-sharon-israels-soldier-and-strongman-1928-2014/

[2] Goldstone, Richard, “Peace versus Justice”, Nevada Law Journal, 2006, http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1367&context=nlj&sei-redir=1 at p421-p322

[3] Otim, Michael, and Wierda, Marieke, ‘Justice at Juba: International Obligations and Local Demands in Northern Uganda’, in Waddell and Clark eds., Courting Conflict? Justice, Peace and the ICC in Africa, pp.21-28 http://www.issafrica.org/anicj/uploads/Waddell_Clark_Courting_Conflict.pdf

Counterpoint 

If both parties are sincere negotiators – which is doubtful at best – the prospect of prosecutions may focus the mind on preventing further atrocities, de-escalating the situation entirely. 

Title 
Was unlikely ever to happen anyway
Point 

At any rate, a prosecution was unlikely. In addition to the general support for Israel amongst the permanent members of the UN Security Council such as the United States – the US would have been likely to use its veto power to stop any International Criminal Tribunal for Israel-Palestine. Also, many of these actions were before the renaissance of international criminal law in the early 1990s following the creation of the ICTY and ICTR by UN Security Council resolutions.

Counterpoint 

Just because something is difficult does not mean it should not be attempted.

Israel itself was no stranger to war crimes trials between Nuremberg and the ICTY: Adolf Eichmann, the logistical architect of the Holocaust, was tried and put to death by an Israeli court in 1962.

Sharon has been accused of things after the creation of the ICTY came in to force, such as deaths as a result of Israeli operations in Jenin in 2002[1].

[1] Human Rights Watch, ‘Jenin’, 2 May 2002, http://www.hrw.org/node/79081/section/3

Title 
If Sharon is tried then many others would have to be as well
Point 

While many of the actions of Sharon were unacceptable, he is not the only person who committed horrible acts: not just only in the Israeli-Palestinian conflicts, but across the world.

If he were to be prosecuted, many others would be. Hamas figures would have to be indicted for their actions, too – for example Mohammed Deif, who masterminded the 1996 Jaffa Road bus bombings which killed 33 civilians as with many other commanders of groups – Hamas, Islamic Jihad, even Fatah - that have engaged in targeting civilians could be put on trial.

Counterpoint 

Good: impunity is a bad thing. Those who break those norms of international law , and commit war crimes, crimes against humanity and the crime of aggression should be prosecuted - on all sides. Actions by Hamas and other organizations that are reprehensible are matters that should be brought before impartial courts, too.

While there is no international international definition of terrorism, there are a number of acts which are prohibited by particular treaties – they can be prosecuted too.

Title 
Took a key role in negotiations
Point 

Sharon was not a genocidal maniac. He led the withdrawal of settlers from Gaza, as part of the unilateral disengagement plan.

If he continued in office, perhaps further negotiations would have continued with further successes rather than the stalled talks and false hope of more recent events.[1] Leaks of State department Cables show that Sharon had stressed to US senators that he would face down “a left that has no power, and a right which was totally opposed to his initiative” in order to negotiate a peace and was willing to hand over some Arab neighbourhoods in Jerusalem and he said “A final settlement might take a few years, but it can be achieved.”[2]

[1] Vick, Karl, ‘Ariel Sharon: Israel’s Soldier and Strongman, 1928-2014’, Time, 11 January 2014, http://world.time.com/2014/01/11/ariel-sharon-israels-soldier-and-strongman-1928-2014/

[2] Ravid, Barak, ‘Sharon was planning diplomatic moves beyond Gaza, leaked documents reveal’, Haaretz, 13 January 2014, http://www.haaretz.com/news/diplomacy-defense/.premium-1.568192

Counterpoint 

The occupation of the West Bank still continued, including the construction of settlements.

The general role of individuals in the peace negotiations is beside the point: individuals who commit atrocities should be responsible for them.

Bibliography 

BBC News, ‘Israeli, Arab papers miles apart on Sharon’s legacy’, 12 January 2014, http://www.bbc.co.uk/news/world-middle-east-25703399

BBC News, ‘Ariel Sharon’s mark on history’, 11 January 2014, http://www.bbc.co.uk/news/world-middle-east-25593189

BBC News, “Profile: General Laurent Nkunda”, 23 January 2009, http://news.bbc.co.uk/1/hi/world/africa/3786883.stm

Editorial, ‘Fairness: Israel – Palestine’, guardian.co.uk, accessed 16/1/2014, http://www.theguardian.com/values/socialaudit/story/0,,1931205,00.html

Goldstone, Richard, “Peace versus Justice”, Nevada Law Journal, 2006, http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1367&context=nlj&sei-redir=1 at p421-p322

Hasan, Mehdi, ‘Five Numbers That Suggest Ariel Sharon Was a War Criminal’, Huffington Post, 12 January 2014, http://www.huffingtonpost.co.uk/mehdi-hasan/ariel-sharon-war-crimes_b_4584178.html

Honda, Masakazu and Takada, Makoto, “LDP Pressure led to cuts in NHK show”, The Asahi Shimbun, 12 January 2005, http://www.asahi.com/english/politics/TKY200501120160.html

Human Rights Watch, ‘Jenin’, 2 May 2002, http://www.hrw.org/node/79081/section/3

International Court of Justice, Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) 14 February 2002 http://www.refworld.org/type,CASELAW,ICJ,,3c6cd39b4,0.html

Israel Opinion, ‘Ariel Sharon, the architect of Israel’, ynetnews.com, 12 January 2014, http://www.ynetnews.com/articles/0,7340,L-4475698,00.html

Miller, Marjorie, ‘Israel to Probe Deaths of Egyptian POWs in '56 : Sinai: At Cairo's request, defense officials will investigate general's claim that scores were shot.’, Los Angeles Times, 16 August 1995, http://articles.latimes.com/1995-08-16/news/mn-35764_1_defense-officials

Otim, Michael, and Wierda, Marieke, ‘Justice at Juba: International Obligations and Local Demands in Northern Uganda’, in Waddell and Clark eds., Courting Conflict? Justice, Peace and the ICC in Africa, pp.21-28 http://www.issafrica.org/anicj/uploads/Waddell_Clark_Courting_Conflict.pdf

Ravid, Barak, ‘Sharon was planning diplomatic moves beyond Gaza, leaked documents reveal’, Haaretz, 13 January 2014, http://www.haaretz.com/news/diplomacy-defense/.premium-1.568192

The Kahan Commission of Inquiry, ‘Report into the Events at the Refugee Camps in Beirut’, Jewish Virtual Library, 8 February 1983,  http://www.jewishvirtuallibrary.org/jsource/History/kahan.html

United Nations Security Council Resolution 101

United Nations General Assembly resolution, Resolution 37/123

Vick, Karl, ‘Ariel Sharon: Israel’s Soldier and Strongman, 1928-2014’, Time, 11 January 2014, http://world.time.com/2014/01/11/ariel-sharon-israels-soldier-and-strongman-1928-2014/

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