By Dr. Elias Akleh
While the so-called international legal bodies such as ICC, UN and Security Council lack the guts to face up to the Zionist global terrorism, the Kuala Lumpur War Crimes Tribunal (KLWCT) has demonstrated unequivocal courage for prosecuting the terrorist state of Israel and its military generals for their crimes. After listening to eyewitness testimonies and examining the voluminous documented evidence the Tribunal found the state of Israel guilty of genocide, and the Israeli retired army general Amos Yaron guilty of crimes against humanity and of genocide.
Israel was accused of systematic crimes of genocide since its inception against Palestinians, and the Israeli military general Amos Yaron was accused of crimes against humanity for the 1982 massacre of Sabra and Shatila Palestinian refugee camps in Lebanon.
The charge against general Yaron was 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 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 Judgement (1946), and the Nuremberg Principles (1950), customary international law, jus cogens, the Laws of War, and International Humanitarian Law.”
The charges against the state if Israel were as follows:
“From 1948 and continuing to date the state of Israel (hereafter ‘the defendant’) carried out against the Palestinian people a series of acts namely killing, causing serious bodily harm and deliberately inflicting conditions of life calculated to bring about physical destruction. The conduct of the defendant was carried out with the intention of destroying in whole or in part the Palestinian people. These acts were carried out as part of a manifest pattern of similar conduct against the Palestinian people. These acts were carried out by the defendant through the instrumentality of its representatives and agents including those listed in Appendices 1 and 2. Such conduct constitutes the Crime of Genocide under international law including the Convention on the Prevention and Punishment of Genocide 1948 (‘the Genocide Convention’) in particular Article II and punishable under Article III of the said Convention. It also constitutes crime of genocide as stipulated in Article 10 of the Charter of the Kuala Lumpur Foundation to Criminalize War. Such conduct by the defendant as an occupying power also violates customary international law as embodied in the Hague Convention of 1907 Respecting the Laws and Customs of War on Land, and the Fourth Geneva Convention of 1949. Such conduct also constitutes War Crimes and Crimes against Humanity under international law.”
The trial, open to the public, was held from last November 20th to 25th, 2013 at the premises of the Kuala Lumpur Foundation to Criminalize War. The charges with all their particulars were duly served on the defendants, and were read in open court by the registrar as the proceedings commenced. Neither defendant was present in these proceedings, but both were represented by the Amicus Curiae-Defense appointed team.
The judges of the Tribunal were headed by retired Malaysian Federal Court Judge Tan Sri Dato Lamin bin Haji Modh Yunus Lamin, who also served as an ad litem (appointed as minor’s guardian) judge at the International Criminal Tribunal for the former Republic of Yugoslavia. The other judges in the Tribunal included notable names such as Tunku Sofiah Jewa, practicing lawyer and author of numerous publications on International Law, Professor Salleh Buang, former Federal Counsel in the Attorney-General Chambers and prominent author, Professor Emeritus Datuk Dr Shad Saleem Faruqi, prominent academic and professor of law, Dato’ Saari Yusof, former Appeal Court Judge, Mr. John Philpot, a senior litigation lawyer from Canada, and Tunku Intan Mainura from the Faculty of Law, UiTM and a specialist in international law. The prosecution for the trial was led by Professor Gurdial S. Nijar, prominent law professor and author of several law publications, and Tan Sri Dato’ Sri Abdul Aziz Bin Abdul Rahman, senior barrister and assisted by a team of lawyers.
The Amicus Curiae-defense team filed two preliminary objections to the Tribunal proceedings. The team contended that there are defects in the charges against General Yaron because this Tribunal has no jurisdiction to implead Yaron. The team contended that the trend in modern international criminal tribunals is either to have jurisdiction for acts that have been committed after these tribunals have been constituted, such as the International Criminal Court (ICC), or alternatively its jurisdiction is for a limited duration of time such as the International Criminal Tribunal for Rwanda (ICTR) or the Extraordinary Chambers in the Courts of Cambodia (ECCC).
As for the state of Israel, the Amicus Curiae-Defense team submitted that there is no authority conferred by the Charter on this Tribunal to hear any action against the government of any country. The team argued that international law does not allow the state of Israel to be impleaded as an accused, because Israel is a nation state recognized by the UN and thus enjoys immunity for the crimes of genocide and war crimes.
The defense team had also submitted two applications to quash the charges against the two defendants claiming them to be defective for duplicity, defective for uncertainty and an abuse of process.
The prosecution team counter-argued that in regard to the objection concerning defendant Yaron, the jurisdiction issue must be established by reference to the founding Charter or statute that sets up the Tribunal. The Charter of the Kuala Lumpur Foundation to Criminalize War states that the jurisdiction of the Tribunal shall be governed by the provisions of this Charter: Part 1, Article1 stating that there is no temporal limit. In particular, Article 7 sets no time limit. In this sense the Charter is identical to the ‘open ended’ temporal jurisdiction of the Military Tribunal at Nuremberg or the International Military Tribunal for the Far East. The prosecution team also submitted that the Tribunal had convicted Bush and Blair of war crimes committed in 2003, which also predates its setting up: KL War Crimes Commission vs George W. Bush and Anthony L. Blair, KLWCT Reports 2011, p. 1. The verdict by the KLWCT against Bush, Cheney, and Rumsfeld et al went back to torture committed from 2001.
With regard to the second preliminary objection, the prosecution team submitted, among others, that these two charges; crimes of genocide and crimes against humanity, are international criminal war crimes being adjudicated by an international tribunal. States have no immunity for such crimes before such tribunals.
As for the two applications to quash the charges the prosecution team submitted that this Tribunal is governed by its own rules, which are silent on the rule against duplicity in drafting charges. This rule against duplicity, as it exists in national legal systems, does not, and cannot, apply in the same way in proceedings before international criminal courts. More importantly, the Tribunal should take into account the heinous nature of these crimes and the scale they were alleged to be perpetrated.
After serious considerations the Tribunal unanimously ruled that the preliminary objections and the two applications have little merit and were accordingly dismissed. The trial proceeded.
The Tribunal heard the testimonies of 11 victims of Israeli terror and eye witnesses from Shatila refugee camp, from Gaza Strip, from the Occupied West Bank, and expert witnesses as well as a renowned historian. Chahira Abouardini, a resident of Shatila refugee camp testified to the cold-blooded murder of her family members and the massacre of whole families by the Lebanese Phalangist militia; puppets of the Israeli forces, under the order and protection of the Israeli forces commandeered by General Amos Yaron. There were also expert accounts on the Sabra and Shatila massacre by prominent surgeon and author Dr. Ang Swee Chai, who treated the wounded, and expert witness Bayan al Hout, whose book “Sabra and Shatila Semptember 1982” covers the history of the massacre. Al Hout described the massacre as one of the worse in the 20th century. Dr. Ang gave detailed accounts of the attacks carried by Israeli air force against unarmed civilians. Declassified reports released by the British National Archives put the death toll of the massacre as 3,500. She also testified that on September 15th the Israeli army surrounded and then invaded the Akka Hospital murdering patients, nurses and doctors in cold blood.
From Gaza there were the testimonies of eyewitnesses and victims of the Israeli Operation Cast Lead; teenagers Mahmoud Al-Sammouni and Salah Al-Sammouni, who related Israeli soldiers’ intentional targeting of Palestinian civilians without regard to age or sex, and the total destruction of property. Paola Manduca, a retired Professor at University of Genoa, Italy, and an expert Geneticist testified on the devastating impact of Israeli weapons used against Gaza on reproductive health especially on the children. Her two researches on the effect of Israeli weapons on reproductive health had shown that 66% of Gaza parents with a birth defect child had been exposed to bombing or to white phosphorus shelling during Cast Lead Operation.
Victims and eyewitnesses from different cities of the Occupied West Bank gave testimonies of Israeli terror including midnight raids on civilians’ homes, targeted assassination, destruction of homes, child imprisonment and torture, use of tear gas and illegal weapons, random detentions, destruction of agricultural fields, theft of land, building the apartheid wall, and humiliation at check points among many other inhumane practices that affect Palestinian health and education especially that of children.
The Israeli historian and social activist, Ilan Pappe, had also given his expert testimony on the Israeli ethnic cleansing of Palestinians. Pappe is one of Israel’s revisionist historians, who have been rewriting the history of Israel’s creation since 1948 and the forceful expulsion of over 700,000 Palestinians from their homeland. He wrote that this expulsion constituted a pre-meditated ethnic cleansing in accordance with Plan Dalet drawn up in 1947 by Jewish military leaders. Plan Dalet was a Master Plan with a blueprint for the systematic expulsion of Palestinians from their country. Pappe explained that to evict Palestinians from their villages the Jewish militants used to execute the elder villagers, and at times execute all male members of the village to intimidate the rest. Out of the 800 Palestinian villages 530 were evicted and completely erased by the Israeli army.
At the end of the trial the Tribunal found General Yaron guilty of crimes against humanity, of genocide, and of war crimes since he consciously refused to protect Palestinian population of Sabra and Shatila camps, and had used the Phalangist Militia to destroy the inhabitants of the camps.
The Tribunal had found that for the last 67 years, since 1948 to date, Israel has adopted a repeated pattern of inhumane aggressive measures against the Palestinian people, including expulsion, murder, brutal attacks, theft of land, and imposing unbearable conditions of life on an entire population that amount to genocide.
The Tribunal ordered that reparations be paid to the victims commensurate with the harm, injury, pain and suffering inflicted upon them by Israel. Since this Tribunal is a tribunal of conscience and has no real power of enforcement, the tribunal will submit its award of reparations to the War Crimes Commission to facilitate the determination and collection of reparations. The Tribunal hopes that the victims could find a state or an international judicial entity able and willing to exercise jurisdiction and enforce the verdict of this Tribunal.
The Tribunal President Lamin further stated that
“As a tribunal of conscience, the Tribunal is fully aware that its verdict is merely declaratory in nature. The Tribunal has no power of enforcement. What we can do under Article 34 of Chapter VIII of Part 2 of the Charter is to recommend to the Kuala Lampur War Crimes Commission to submit this finding of conviction by the Tribunal, together with a record of these proceedings, to the Chief Prosecutor of the International Criminal Court, as well as to the United Nations and to the Security Council.”
The Tribunal had further recommended that the names of the two convicted parties; state of Israel and General Yaron, be entered in the Commission’s Register of War Criminals and publicized worldwide. The Tribunal conviction is also recommended to be given the widest international publicity since these genocidal crimes are considered universal crimes for which there is a responsibility upon all international nations to institute prosecutions.
The Tribunal had also stated that it deplores the failure of international institutions to punish the state of Israel for its international crimes and for its lack of respect to international laws and to the institutions of the United Nations. The Tribunal urged the Commission to use all means to publicize its judgment to the Parliament and Legislative Assemblies of the international major powers such as the members of the G8, and to urge these countries to intervene to put an end to the colonialist and racist policies of the state of Israel and its supporters.
Legal organizations and private individuals, who are interested in specific details of this Tribunal, can watch a live feed of the hearing at www.criminalisewar.org, or can obtain the full text of the KLWCT judgments here.
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Dr. Elias Akleh is an Arab writer from a Palestinian descent born in the town of Beit Jala. His family was first evicted from Haifa after the “Nakba” of 1948, then from Beit Jala after the “Nakseh” of 1967. He lives now in the US, and publishes his articles on the web in both English and Arabic.
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