1. Time, Feb. 21, 1983, at 29. 2. The Commission of Inquiry into the Events at the Refugee Camps in Beirut, 1983: Final Report (Authorized Translation) in Jerusalem Post, Feb. 9, 1983 (supplement) at 2. The Report may also be found in Int'1. Leg. Mat. at 473 (May 1983). All references in this article are to the Feb. 9, 1983 Jerusalem Post (hereinafter "Kahan Report"). 3. Id. 4. Id.

5. Jerusalem Post Int'1., Feb. 13-19, 1983 at 1, cols. 1-2. 6. Smolla, Suing the Press: Libel, The Media, and Power 81 (1986) (hereinafter "Smolla"), offers a more detailed analysis of Sharon vs Time, Inc. from the perspective of United States libel law. See also New Yorker, June 16, 1986, at 42-83. 7. Time, Feb. 21, 1983, at 29. 8. N.Y. Times, Nov. 30, 1984, at Bl, col 4. 9. Id.

10. N.Y. Times, Jan. 20, 1985, at 20, col. 6. The jury also had to act as linguistic experts. Sharon had testified before the Commission that he had discussed revenge "etslenu". The Hebrew word "etslenu" may mean "among us" or "by us". A Hebrew language expert testified as to the possible meanings because Sharon said he meant to use the word in the sense of "among us" - that is, among the Israelis and not "by us" - that is, by Israelis with Phalangists. N.Y. Times, Jan. 3, 1985, at B3, col. 6. The primary reported decision in the Sharon case is the opinion denying Time's motion for summary judgment. Sharon us Time, Inc., 599 F.Supp. 538 (S.D.N.Y. 1984). 11. Sharon vs Time, Inc., 599 F.Supp. 538 (S.D.N.Y. 1984).

12. Smolla, Law of Defamation 123 (1986). 13. See, New York Times vs Sullivan, 376 U.S. 283 (1964). This case established a national standard that libel law in the U.S. is limited by the First Amendment of the Constitution provisions for a free press. Here, the New York Times was sued for libel by Sullivan, a Montgomery, Alabama police commissioner. He alleged that an advertisement run by "The Commit- tee to Defend Martin Luther King and the Struggle for Freedom in the South", which spoke of the struggles of the civil rights movement in the South, had libelled him. The federal district court in Montgomery, a courtroom where sea- ting was segregated and the judge spoke of "white man's justice," awarded Sullivan $500,000 in damages. Four years later the Supreme Court struck down the award, holding that before a media defendant can be found liable for defa- mation for a false defamatory statement the First Amendment, which protects freedom of speech and the press, requires that it be proven that the false state- ment was published with knowledge of its falsity or a reckless disregard of its falsity. In other words, only if the media defendant knew the article was false, or was aware that it might be false and disregarded that risk, could the media defendant be found liable for defamation.

14. Smolla, at 84. 15. New Yorker, June 23, 1986, at 73. 16. Id. at 85. 17. Smolla, at 85. 18. N.Y. Times, Nov. 30, 1984, at Bl, col. 4. 19. Id. at col. 5. 20. Smolla, at 86. 21. Id. at 86-87.

22. Id. at 86. 23. Id. 24. Id. 25. Id. at 86-87 (emphasis added). 26. N.Y. Times, Dec. 4, 1984, at B2, col. 5. 27. Id. 28. Id. 29. N.Y. Times, Dec. 14, 1984, at B9, col. 1. In 1979 Halevy erroneously reported that Prime Minister Begin was in such ill health that he had been told by his doctors not to work more than three hours a day. Time's internal investigation concluded that Halevy was either "inexcusably shoddy in his reporting", had "intentionally misled" Time, or was "the victim of an incredibly well orches- trated disinformation plot." Id. 30. N.Y. Times, Dec. 20, 1984, at B4 col. 3.

31. Id. 32. Id. 33. N.Y. Times, Jan. 1, 1985, at A31, col. 6; N.Y. Times, Jan. 8, 1985, at Al, col. 4 and B4, cols. 5-6; and New Yorker, June 23, 1986, at 77.

34. N.Y. Times, Jan. 8, 1985, at B4, cols. 5-6. 35. N.Y. Times, Jan. 11, 1985, at B4, col. 1. A letter from Time's Israeli lawyers expressing reservations about the documents which had not been examined was read to the jury after the public and reporters were excluded from the courtroom pursuant to the negotiated settlement with Israel. Judge Sofaer stressed that he was seeking Israel's permission to release the letter. N.Y. Times, Jan. 11, 1985, at B4, cols. 1-2. The January 21 issue of Time released dur- ing the jury's deliberations, stated that it now issues a correction: Appendix B does not contain further details about Sharon's visits to the Jemayel family. Time regrets that error. Time stands by the substance of the paragraph in question ... Time did not say, and has never said that Sharon intended the Phalangists commit a massacre, or encouraged such a massacre. The Israeli government continues to deny Time the right to inspect other specific testimony relevant to this case that is known to exist as part of the record of the commission of inquiry. Reprinted in N.Y. Times, Jan. 15, 1985, at B2, cols. 5-6.

36. N.Y. Times, Jan, 15, 1985, at B2, cols. 4-6. The jury instructions are reprinted in Libel in Trial: The Westmoreland and Sharon Cases, BNA Special Report, Appendix 4 (BNA 1985). 37. N.Y. Times, Jan. 25, 1985, at Al, cols. 2-3 and B4, cols. 1-6. By answering no the jury also gave a negative answer to three supplementary questions that asked if Time "knowingly fabricated" information, "materially exaggerated" it or "disregarded substantial evidence of the probable falsity of the paragraph." N.Y. Times, Jan. 25, 1985, at Al, cols. 2-3. 38. New York Times Co. vs Sullivan. 376 U.S. 254 (1964). 39. N.Y. Times, Jan. 25, 1985, at Al, cols. 2-3. 40. Smolla, at 92.

41. N.Y. Times, Jan. 25, 1985, at B4, cols. 1-4. 42. Smolla, at 92. 43. Id. at 94. "Time seeks to litigate the entire history of the Lebanese civil war, the Israeli invasion of Lebanon, and the relationship of Israel and the Phalangists. These contents are far removed from the legitimate issues. They would be important if Time had merely stated in the article at issue that it thought that the Commission was involved in finding Minister Sharon not 'directly' respon- sible an opinion for which Time in any event would have been immune from suit. But the jury may find that Time said something very different by report- ing that the Commission knew and withheld from the public details which could reasonably suggest that Minister Sharon condoned or encouraged the massacre as a measure of revenge". 44. 23 Laws of the State of Israel ("LSI"), at 32 (1968) as amended in 26 LSI, at 31 (1972). 45. Article 1.

46. Article 18(a). 47. Kahan Report at 1. 48. Id. 49. Id. 5₀. Id. See also Kapeliouk, Sabra and Shatilla: Inquiry Into a Massacre 81 (1984) (hereinafter "Sabra and Shatilla"). Kapeliouk expressed his belief that Arab witnesses (which would necessarily include many of the survivors) did not come forward to testify from a fear of retribution or an unwillingness to lend credence to the Commission's inquiry.

51. Kahan Report at 3. 52. Id. 53. Id. For a critical appraisal of the Commission's limitations and functions see Schwarzenberger, Beirut 1982 -An Interdisciplinary Test Case, 38 The Year Book of World Affairs 295, at 301-303, 305 and passim (1984) (hereinafter "Schwar- zenberger"). 54. Kahan Report, at 3.

55. Id. at 4. 56. Id. 57. Id. 58. Id. 59. Id. 60. Id. 61. Id. 62. Id. 63. Id. 64. Id. Text in Journal of Palestine Studies, Nos. 44-45 (Summer/Fall 1982), at 347.

65. Kahan Report, at 5. 66. Id. 67. Id. 68. Id. 69. Id. 70. Id. 71. Id.

72. Id. 73. Id. 74. Id. at 6. 75. Id. at 5. 76. Id. at 14. 77. Id. at 5. 78. Id. 79. Id. (emphasis added).

80. Id. 81. Id. 82. Id. at 56. 83. Id. The Report at this point in its analysis, in a marked departure from its gen- erally unemotional tone, states that there were "armed terrorist forces" in the camps whose extent they could not establish but whose arms were being used against IDF. As noted in the Report, these hidden arms and terrorists never materialized. Kahan Report at 67. The Commission concludes that this ter- rorist force had not been evacuated for two reasons: renewal of underground terrorist activity at a later period, and to protect the civilian population which had remained in the camps because given the hostility prevailing between the various sects and organizations, a population without armed protection was in danger of massacre. 84. Id. at 7. 85. Id. 86. Id.

87. Id. After the massacres, Eitan told reporters: "We do not give the Phalangists orders and we are not responsible for them. The Phalangists are Lebanese and Lebanon is theirs and they act as they see fit." N.Y. Times, Sept. 20, 1983, at 6, col. 3. 88. Kahan Report, at 7. 89. Id. 90. Id. 91. Id. at 8. 92. Id. 93. Id. at 9. 94. Id.

95. Id. 96. Id. 97. Id. 98. Id. 99. Id. 100. Id. 101. Id. 102. Id. 103. Id. at 10. 104. Id.

105. Id. 106. Id. 107. Id. 108. Id. 109. Id. 110. Id. 111. Id. 112. Id. 113. Id. 114. Id. 115. Id. at 15.

116. Id. at 14. 117. Id. at 10. 118. Id. 119. Id. 120. Id. 121. Id. 122. Id. at 11. 123. Id.

124. Id. at 10. 125. Id. at 11. For a critical evaluation of the issue of direct and indirect responsibil- ity, see Green, War Crimes, Extradition and Command Responsibility, 14 Isr. Y.B.H.R. 17, at 39 and passim (1984) (hereinafter "Green"). 126. Kahan Report, at 11. 127. Id. at 13. 128. Id. at 12. 129. Id. One article noted that the plan for the Phalangists to enter the camps "fits the objectives of [Sharon] who was reported early in the war to have hoped that the Phalangists, known for their ruthlessness, would go into West Beirut against the PLO, thereby sparing the Israeli army heavy casualties." N.Y. Times, Sept. 20, 1982, at 8, cols. 4-5. 130. Jansen, Battle of Beirut: Why Israel Invaded Lebanon at 107-109 ( 1985) suggests that the massacres, if not their precise extent, may have been planned to

promote an exodus of Palestinians from Lebanon (hereinafter "Jansen"). See also N.Y. Times, Sept. 29, 1982, at 10, cols. 4-5. Other sources have suggested that the underlying purpose of the invasion from its inception was to destroy the PLO in order to facilitate the annexation of the occupied territories. See, e.g., Boyle, International Law and Organization as an Approach to Conflict Resolu- tion in the Middle East 7 (1983) (hereinafter "Boyle"). 131. Kahan Report at 12. That finding so crucial to the Report's approach and so soundly rejected by most authorities, is a regrettable weakness in the Report that to a large extent undermines its fundamental premises and validity. 132. Id, at 12. 133. Id. at 16 (emphasis added). During the Sharon trial, an Israeli Army Reserve major, Nahum Menachem, testified that only four days before the massacres he warned Sharon that there was likely to be a slaughter among the factions in Lebanon, but Sharon had said there was nothing to worry about. Menachem had previously given the same testimony to the Kahan Commission.

134. Id, at 13. 135. Id. at 13-20. At the conclusion of its determination, the Report made only "re- commendations" of certain measures to be taken against the eight faulted indi- viduals. 136. Id. at 15. 137. Id.

138. Id. 139. Id. 140. Id. at 22. 141. 1 LM.T. at 10-16.

142. G.A. Res. 95 (1) U.N. Doc. A/64/Add, 1 (1946). 143. Eichmann vs Attorney General of the Government of Israel [1961] 36 Int'l. L.R. 227 (1962). 144. There are rights of individual and collective self-defence in the event of an "armed attack'_' as prescribed by article 51; chapter 7 "enforcement action" by the appropriate regional organizations acting with the authorization of the Sec- urity Council as required by article 53; the peacekeeping operations under the jurisdiction of the Security Council pursuant to chapter 6 or under the jurisdic- tion of the General Assembly pursuant to the Uniting for Peace Resolution, G.A. Res. 377, 5 U.N. GAOR, Supp. (No. 20) at 10, U.N. Doc. A/1775 (1950), or by a regional organization under the supervision of the Security Council pur- suant to chapter 8 and articles 24 and 25. Boyle, at 4.

145. Mallison & Mallison, Armed Conflict in Lebanon, 1982: Humanitarian Law in a Real World Setting, at 21-22 (1983) (hereinafter "Mallison & Mallison"). The authors demonstrated the failure of Israel to meet the legal requirement of exhausting peaceful procedures. The authors further argue at Id. 22-29 the fai- lure of Israel to fulfil the legal requirements of necessity and proportionality in the "armed conflict" situation. 146. Id. at 22-29. 147. Id. at 23. 148. Jansen, at 25. 149. Kahan Report, at 12; see also N.Y. Times Sept. 26, 1982, at 6. The New York Times reported that during the second week of the war Sharon was considering sending the Phalangists into Shatilla, Sabra, and Fakhani in West Beirut. N.Y. Times, Oct. 20, 1982, at 6, col. 5. Sharon testified before the Commission that there had been a "longstanding Cabinet decision taken early in the war" to involve the Phalangists in the fighting to diminish IDF casualties. 150. The Times (London), Sept. 29, 1982, at 8, cols. 2-5. 151. See, Kahan Report, at 6-7.

152. Application of Yamashita, 327 U.S. 1 (1946). Yamashita was tried by a special military commission for massacres of civilian population in the Philippines - the gist of the charge being his failure as army commander to control his com- mand and thereby allowing them to commit the alleged atrocities; see also U.S. Army Field Manual 27-10, The Law of Land Warfare, paragraph 501, at 178-79 (1956). 153. Kahan Report at 15. 154. Mallison & Mallison, at 73. 155. The Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277 (hereinafter "Genocide Convention"), was adopted unanim- ously by the General Assembly on Dec. 9 1948. 3 U.N. GAOR, Part I, Annex, p. 494, Doc. A/760 (1948). 156. See, The Crime of Genocide (Prevention and Punishment) Law, 1950 at 4 LSI, at 101 (1950); See also Schwarzenberger, at 317-318.

157. Reservations to the Convention on Genocide, (1951) LC.J. Reps. 23. 158. Lafave & Scott, Criminal Law 175-77 (1972). 159. Genocide Convention, Art. II. 160. See the persuasive arguments on this issue advanced by Mallison & Mallison at 74. 161. This section does not address the broader issue of whether the invasion itself and other acts pursuant to the invasion were acts of genocide. 162. See generally Sohn & Buergenthal, International Protection of Human Rights, 913-992 (1973) (sources noting the high standard of proof for intent under the Convention).

163. Kahan Report, at 12. 164. Id. at 15; see also Green at 41-42, 45. 165. See, e.g. Model Penal Code 202(2) (ALI 1985). 166. N.Y. Times, Sept. 20, 1982, at 6, col. 4; Wash Post, Sept. 21, 1982, at A14, col. 6. 167. N.Y. Times, Sept. 23, 1982, at 8, col. 4. 168. N.Y. Times, Sept. 20, 1982, at 6, col. 5; N.Y. Times, Sept. 23, 1982, at 8, col. 6; N.Y. Times, Sept. 26, 1982, at 11, col. 2. Similarly, extensive bombing of the Palestinian camps and their bulldozing (see Mallison & Mallison at 61-64; Jan- sen at 15-39) may be circumstantial evidence of an intent to drive the Palesti- nians, not merely Palestinian "terrorists,'' out of Lebanon. The Report states only that West Beirut was "occasionally shelled and bombed" by Israeli forces. Kahan Report, at 4. 169. Israel in Lebanon Report of the International Commission to Enquire into Reported Violations of International Law by Israel during its Invasion of Lebanon 196 (1983). The Commission was chaired by Sean MacBride, former Irish Foreign Minister, former United Nations Commissioner for Namibia and Nobel Peace Prize winner in 1974. Four of the Commission's six members concluded that Israel embarked on "deliberate destruction of the national and cultural rights and identity of the Palestinian people amounting to genocide." The other two took the view that "while Israeli policy and practices in Lebanon are a violation of international humanitarian law, they do not amount to the crime of genocide."

170. 36 U.S. Stat. 2277. 171. 75 U.N.T.S. 287. 172. See 1 I.M.T. 171 at 254 (1947). 173. See text in I Pal. Y.B. Int'I. L. 134 (1984). See, also, Id. at 164. 174. See Boyd, the Applicability of the Fourth Geneva Convention to the Occupied Ter- ritories, 1 Isr. Y.B.H.R. 258 (1971); Schwarzenberger, at 318 and note 89 thereof. 175. See Mallison & Mallison, at 54-66.

176. For Jewish terrorism in the Occupied Territories, see The Karp Report in I Pal. Y.B. Int'1. L. at 185-217.

177. N.Y. Times, Jan. 11, 1985, at B4, col. 2. 178. N.Y. Times, Dec. 14, 1984, at B9, cols. 2-5. 179. New Yorker, June 23, 1986, at 82. The one million dollars in legal expenses were defrayed by contributions from Sharon supporters in the United States and overseas, with a partner at the law firm employed by Sharon, and a former official of the Anti-Defamation League of B'nai Brith, raising more than $350,000 from private donors. N.Y. Times, Jan. 25, 1985, at B4, col. 6. 180. N.Y. Times, Jan. 13, 1984, at A3, col. 1. 181. N.Y. Times, Sept. 20, 1982, at 1, cols. 2, 4 & 5; N.Y. Times, Sept. 21, 1982, at 1, col. 3. 182. Id. 183. N.Y. Times, Sept. 23, 1982, at 8, col. 2; see also Salpeter, A Soldier's Record: Will Sharon Suruive? 20 The New Leader 6-7 (Nov. 1, 1982) Sharon has said that as long as he continued to have "some influence," he would continue to serve in the government. To quote Jonathan Randal, senior foreign correspondent of

the Washington Post: The main culprit, Ariel Sharon, neatly dodged the spirit if not the letter of the 108 page report enjoining him to resign. Resign he did as Defence Minister, only to stay on as minister without portfolio and to join two key parliamentary commissions, on defence and Lebanese affairs. Sharon made clear this was his, and Begin's, way of rejecting the commission's verdict of Israel's "indirect responsibility" for the slaughter. Randal, Going All the Way: Christian Warlords, Israeli Adventures, and the War in Lebanon, 289 (1983). 184. Smolla, at 82. 185. N.Y. Times, Dec. 5, 1984, at A31, cols. 1-2.