NAZARETH // The debate reverberating in the human rights
community one year after Israel’s assault on the Gaza Strip is not about whether
Israel committed war crimes during its attack last winter, but whether and how
its political and military leaders can ever be brought to book.
The problems were highlighted this month when an arrest warrant
was issued in Britain for Tzipi Livni, Israel’s foreign minister during the war,
after it was mistakenly believed she was visiting.
The British government responded with anger and promised to
change the law to ensure future restrictions on the use of “universal
jurisdiction” powers that grant British courts the right to try suspected
foreign war criminals.
Human rights experts mostly agree that Israel extensively
violated the rules of war during its three-week operation, known as Cast Lead.
The consensus was formed early on, as organisations such as Amnesty
International and Human Rights Watch carried out investigations. Their findings
were backed by testimonies from Israeli soldiers.
The organisations condemned Israel for using disproportionate
force, deliberately targeting civilians, blocking access to medical services,
using Palestinians as human shields, and employing controversial weapons,
including white phosphorus and high-explosive shells, in civilian areas. Hamas,
which rules Gaza, was also accused of war crimes, mostly for firing rockets into
Israel.
The final blow to Israel was the appointment of a distinguished
judge, Richard Goldstone, to head a United Nations fact-finding mission.
According to a current prosecutor at the International Criminal
Court in The Hague, who wished not to be named, the significance of the
Goldstone report, published in September, lies in its conclusion that Israel’s
leaders “planned and predetermined the grave violations [of international law]
and human rights abuses” long before the attack on Gaza.
Mr Goldstone pointed to a spate of reports in the Israeli media
that the army and cabinet held detailed discussions six months before the
operation about the objectives to be realised and the strategy to be used.
In particular, The Hague prosecutor added, Mr Goldstone had
highlighted the Israeli army’s premeditated implementation of the “Dahiya
doctrine”, developed three years earlier during its war in Lebanon. This
strategy justified laying waste to large swathes of Gaza’s infrastructure,
supposedly because it offered support to Hamas, despite inevitable civilian
casualties.
Almost 1,400 Gazans were killed during the operation, the vast
majority of them non-combatants, including more than 400 women and children. In
addition, more than 20,000 homes, as well as schools, mosques, food stores,
factories and businesses, were damaged or destroyed in the Gaza Strip.
The Goldstone report said it was “particularly worrying” that
Israel “viewed disproportionate destruction and creating maximum disruption in
the lives of many people [in Gaza] as a legitimate means to achieve not only
military but also political goals”.
Israel’s justification for the assault – that it was in self-defence
against Hamas rockets – has been rejected by many human rights experts.
A letter published last January in Britain’s Sunday Times
newspaper by 30 leading international jurists called the attack a “war of
aggression” – the “supreme international crime”, according to the principles
laid down in 1950 by the Nuremberg tribunal into Nazi crimes.
Victor Kattan, an international law expert at the School of
Oriental and African Studies in London, said Operation Cast Lead could be
defined as self-defence only if it had been sanctioned either by the UN Security
Council or by Article 51 of the UN Charter. Neither applied. The attack also
failed the tests of proportionality and necessity, he said.
There are still major questions among human rights experts about
whether Israelis can be brought to trial. The most probable avenues are through
an ad hoc tribunal of the International Criminal Court (ICC), or trials in one
of a number of mainly European countries such as Britain, where local courts
have universal jurisdiction.
However, Mr Kattan said both the ICC and most countries with
universal jurisdiction would be reluctant to pursue a trial against an ally of
the United States, or allow a precedent that might later be used against them.
He said one opening for war crimes trials might be of Israelis
with dual nationality, where they are also citizens of a state that had ratified
the 1998 Rome Treaty, which established the international court. “They could be
prosecuted by the ratifying state, and if that state failed to prosecute, then
the ICC could take up the case.”
In September, the ICC’s chief prosecutor, Luis Moreno-Ocampo,
told Newsweek, a US magazine, that he was considering investigating an Israeli
lawyer, David Benjamin, who is also a South African citizen, after he gave an
interview to the Bloomberg news agency admitting that his unit, the military
advocate corps, had authorised “the targets that could be struck, war material –
everything passed by us”. In particular, observers believe Mr Benajmin, a
reserve soldier, may be liable to prosecution over his unit’s approval of the
use of white phosphorus.
Israel’s political and defence establishments appear worried.
Benjamin Netanyahu, the prime minister, has led a campaign of vilification of Mr
Goldstone and refused to approve a public investigation into the army’s actions
in Gaza, as Mr Goldstone has demanded.
Israel has set up a task force to deal with possible defences in
war crimes trials, barred the local media from identifying senior officers, and
approved aid packages for soldiers to fight arrest warrants.
The Israeli government has also sought to block funding,
particularly from the European Union, for Israeli human rights groups that have
been trying to bring war crimes to light.
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