Before- The Kuala Lumpur War Crimes Tribunal
Distinguishable Judges of the Kuala Lumpur War Crimes Tribunal. May it please the Tribunal:
The Palestinians have been the victims of genocide as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. I say that because of my practical experience: On 8 April 1993 and 13 September 1993 I single-handedly won two World Court Orders on the basis of the 1948 Genocide Convention that were overwhelmingly in favor of the Republic of Bosnia and Herzegovina against Yugoslavia to cease and desist from committing all acts of genocide against the Bosnians in violation of the 1948 Genocide Convention. This was the first time ever that any Government had won two such Orders in one case since the World Court was founded in 1921. On 5August 1993 I also won a so-called Article 74(4) World Court Order for Bosnia against Yugoslavia for genocide. According to I.C.J. Statute Article 74(4), when the full World Court is not in session in The Hague, the President of the Court exercises the full powers of the Court and can issue an Order to the parties in a lawsuit that is legally binding upon them.
Article II of the Genocide Convention defines the international crime of genocide in relevant part as follows:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group such as:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
As documented by Israeli historian Ilan Pappe in his seminal book The Ethnic Cleansing of Palestine (2006), Israel’s genocidal policy against the Palestinians has been unremitting, extending from before the very foundation of the State of Israel in 1948, and is ongoing and even now intensifying against the 1.75 million Palestinians living in Gaza as this Tribunal convenes here today. As Pappe’s analysis established, Zionism’s “final solution” to Israel’s much-touted and racist “demographic threat” allegedly posed by the very existence of the Palestinians has always been genocide, whether slow-motion or in blood-thirsty spurts of violence. Indeed, the very essence of Zionism requires ethnic cleansing and acts of genocide against the Palestinians. For example, concerning the 2008-2009 Israeli slaughter of Palestinians in Gaza – so-called Operation Cast-lead -- U.N. General Assembly President Miguel d’Escoto Brockmann, the former Foreign Minister of Nicaragua during the Reagan administration’s contra-terror war of aggression against that country which was condemned by the World Court, condemned it as “genocide.”
Certainly, Israel and its predecessors-in-law—the Zionist agencies, forces, and terrorist gangs—have committed genocide against the Palestinian people that actually started on or about 1948 and has continued apace until today in violation of Genocide Convention Articles II(a), (b), and (c). For over the past six and one-half decades, the Israeli government and its predecessors-in-law—the Zionist agencies, forces, and terrorist gangs—have ruthlessly implemented a systematic and comprehensive military, political, religious, economic, and cultural campaign with the intent to destroy in substantial part the national, ethnical, racial, and different religious group (Jews versus Muslims and Christians) constituting the Palestinian people. This Zionist/Israeli campaign has consisted of killing members of the Palestinian people in violation of Genocide Convention Article II(a). This Zionist/Israeli campaign has also caused serious bodily and mental harm to the Palestinian people in violation of Genocide Convention Article II(b). This Zionist/Israeli campaign has also deliberately inflicted on the Palestinian people conditions of life calculated to bring about their physical destruction in substantial part in violation of Article II (c) of the Genocide Convention.
Nevertheless, apologists for Israel have argued that since these mass atrocities are not tantamount to the Nazi Holocaust against the Jews, therefore they do not qualify as “genocide.” Previously, I had encountered and refuted this completely disingenuous, deceptive and bogus argument against labeling genocide for what it truly is, when I was the Lawyer for the Republic of Bosnia and Herzegovina arguing their genocide case against Yugoslavia before the International Court of Justice. There the genocidal Yugoslavia was represented by Shabtai Rosenne from Israel as their Lawyer against me. Rosenne proceeded to argue to the World Court that since he was an Israeli Jew, what Yugoslavia had done to the Bosnians was not the equivalent of the Nazi Holocaust against the Jews and therefore did not qualify as “genocide” within the meaning of the 1948 Genocide Convention.
I rebutted Rosenne by arguing to the World Court that you did not need an equivalent to the Nazi Holocaust against the Jews in order to find that wholesale atrocities against a civilian population constitute “genocide” in violation of the 1948 Genocide Convention. Indeed the entire purpose of the 1948 Genocide Convention was to prevent another Nazi Holocaust against the Jews. That is why Article I of the Genocide Convention clearly provided: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” (Emphasis supplied.) You did not need six million dead human beings in order to constitute “genocide.”
Furthermore, in support of my successful 1993 genocide argument to the World Court for Bosnia, I submitted that Article II of the 1948 Genocide Convention expressly provided: “In the present Convention, genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethical, racial or religious group, as such…” (Emphasis supplied.) In other words, that to be guilty of genocide a government did not have to intend to destroy the “whole” group as the Nazis intended to do with the Jews. Rather, a government can be guilty of genocide even if it intends to destroy a mere “part” of the group. Certainly Yugoslavia did indeed intend to exterminate all Bosnian Muslims if they could have gotten away with it, as manifested by their subsequent mass extermination of at least 7,000 Bosnian Muslim men and boys at Srebrenica in July of 1995. I would later become the Attorney-of-Record for the Mothers of Srebrenica and Podrinja at the International Criminal Tribunal for the Former Yugoslavia (I.C.T.Y.). In that capacity, I convinced the I.C.T.Y. Prosecutor Carla Del Ponte to indict Yugoslav President Slobodan Milosevic for every crime in the I.C.T.Y. Statute for the atrocities he inflicted upon the Bosnians, including two counts of genocide -- one count of genocide for Bosnia in general, and the second count of genocide for Srebrenica in particular. Milosevic died while on trial in The Hague after the I.C.T.Y denied his Motion to Dismiss these charges after the close of the Prosecution’s case.
But in 1993 it was not necessary for me to argue to the World Court that Yugoslavia intended to exterminate all the Bosnian Muslims. Rather, I argued to the World Court that at that point in time the best estimate was that Yugoslavia had exterminated about 250,000 Bosnians out of the population of about 4 million Bosnians, including therein about 2.5 million Bosnian Muslims. Therefore, I argued to the World Court that these dead victims constituted a “substantial part” of the group and that the appropriate interpretation of the words “or in part” set forth in Article II of the Genocide Convention should mean a “substantial part.”
The World Court emphatically agreed with me and rejected Rosenne’s specious, reprehensible, and deplorable arguments. So on 8 April 1993 the International Court of Justice issued an Order for three provisional measures of protection on behalf of the Republic of Bosnia and Herzegovina against Yugoslavia that were overwhelmingly in favor of Bosnia to cease and desist from committing all acts of genocide against all the Bosnians, both directly and indirectly by means of its Bosnian Serb surrogates. This World Court Order for the indication of provisional measures of protection was the international equivalent of a U.S. domestic Temporary Restraining Order and Injunction combined. The same was true for the Second World Court Order with three additional provisional measures of protection that I won for the Republic of Bosnia and Herzegovina against Yugoslavia on 13 September 1993. The same was true for the Article 74(4) Order I won for Bosnia against Yugoslavia from the World Court on 5 August 1993.
In its final Judgment on the merits in the Bosnia case that was issued on 26 February 2007, the World Court definitively agreed with me once and for all time that in order to constitute genocide, a state must only intend to destroy a “substantial part” of the group “as such”:
198. In terms of that question of law, the Court refers to three matters relevant to the determination of “part” of the “group” for the purposes of Article II. In the first place, the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole. That requirement of substantiality is supported by consistent rulings of the ICTY and the International Criminal Tribunal for Rwanda (ICTR) and by the Commentary of the ILC to its Articles in the draft Code of Crimes against the Peace and Security of mankind (e.g. Krstić, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004, paras. 8-11 and the cases of Kayishema, Byilishema, and Semanza there referred to; and Yearbook of the International Law Commission, 1996, Vol. II, Part Two, p. 45, para. 8 of the Commentary to Article 17).
In other words, in order to find Israel guilty of genocide against the Palestinians, it is not required to prove that Israel has the intention to exterminate all Palestinians. Rather, all that is necessary is to establish that Israel intends to destroy a “substantial part” of the Palestinians. Furthermore, in paragraphs 293 and 294 of its 26 February 2007 Bosnian Judgment, the World Court found that you did not even need 250,000 exterminated Bosnians in order to constitute genocide -- let alone six million exterminated Jews. Rather, even the seven thousand exterminated Bosnian Muslim men and boys at Srebrenica were enough to constitute genocide. According to the World Court, these victims constituted about one-fifth of the Srebrenica community.
Starting in 1948 Israel obliterated about 500 Palestinian villages from off the face of the earth, literally reducing them to rubble now scattered across the Palestinian countryside in order to prevent their ethnically cleansed inhabitants from ever again returning to their homes because they no longer exist. And the list of Israeli genocidal massacres of Palestinian communities is quite extensive. To name just a few of Israel’s most notorious acts of anti-Palestinian genocide: Deir Yassin, Tantura, Sabra and Shatilla, Jenin, Nablus, and repeatedly and continuously Gaza. As we meet here today, Israel is “deliberately inflicting on the [1.75 million Palestinians in Gaza] conditions of life calculated to bring about [their] physical destruction in whole or in part” in gross and flagrant violation of Genocide Convention Article II(c).
In order to prevent yet another and predictable wholesale slaughter and acts of genocide by Israel against the Palestinians in Gaza, the West Bank, Jerusalem, and elsewhere, we most respectfully request this Tribunal to condemn Israel guilty as charged for genocide as well as for war crimes and crimes against humanity. Article I of the Genocide Convention requires: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” The Genocide Convention has been incorporated into the Charter of Kuala Lumpur War Crimes Tribunal by means of Article 10.
Pursuant thereto, it is respectfully submitted that this Tribunal must “undertake to prevent and to punish” Israel for its genocide against the Palestinians by finding Israel guilty as charged. Should this Tribunal find Israel guilty as charged for genocide, it will then trigger the solemn obligation found in Article I of the Genocide Convention for every state in the world community to likewise “undertake to prevent and to punish” Israel for its ongoing genocide against the Palestinians. The Kuala Lumpur War Crimes Tribunal must issue this shot heard around the entire world on behalf of the Palestinians by finding Israel guilty of genocide against them.
This is exactly what the International Court of Justice did for Bosnia and the Bosnians in 1993 when it ruled against Yugoslavia on genocide. The World Court deliberately shook up the entire world and propelled humanity to act to save Bosnia and the Bosnians from annihilation and extermination by Yugoslavia. Bosnia and the Bosnians are still alive today thanks in significant part to that 1993 World Court ruling on genocide.
I am respectfully asking the Kuala Lumpur War Crimes Tribunal to do the same today for Palestine and the Palestinians. Shake up the entire world! Get humanity to act to save Palestine and the Palestinians from further annihilation and genocide by Israel! Make sure that Palestine and the Palestinians are still alive twenty years from now! Convict Israel for genocide!
Thank you. And may God be with you when you retire to deliberate upon your Judgment.
 See Al Jazeera News, Israel Accused of Genocide, Jan. 14, 2009.
The Kuala Lumpur War Crimes Commission Against Amos Yaron
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.”
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.
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