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Palestine and the ICC January 5, 2015

Posted by rogerhollander in Israel, Gaza & Middle East.
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Roger’s note: One would have to be blind (and so many are!) not to see that the current government of Israel is in no way interested in a negotiated settlement with the Palestinians, that “talks” are no more than a stalling tactic used while smothering the Palestinians via warfare and settlements.  I have always found Robert Fisk, who has lived in and reported on the Middle East for decades, to be a reliable analyst.

A Gory Pandora’s Box
by ROBERT FISK

Throw an old dog a bone and sure enough, he’ll go chasing after it. So it is with “Palestine’s” request to join the International Criminal Court. An obvious attempt by Mahmoud Abbas to try Israel for war crimes in Gaza this year, we are told.

Or maybe a “two-edged sword” – yawns are permitted for such clichés – which could also put Hamas “in the dock”. Israel was outraged. The US was “strongly opposed” to such a dastardly request by the elderly potentate who thinks he rules a state which doesn’t even exist.

But hold on a moment. That isn’t the story, is it? Surely the real narrative is totally different. The BBC didn’t get this. Nor CNN. Nor even Al Jazeera. But surely the most significant event of all is that the descendants of the PLO – excoriated only a quarter of a century ago as the most dangerous “terrorist” organisation in the world, its mendacious leader Yasser Arafat branded “our Bin Laden” by Israel’s mendacious leader Ariel Sharon – actually wants TO ABIDE BY INTERNATIONAL LAW!

Heavens preserve us from such a thought, but these chappies – after all their past calls for Israel’s extinction, after all the suicide bombings and intifadas – are asking to join one of the most prestigious judicial bodies on earth. For years, the Palestinians have demanded justice. They went to the international court in The Hague to have Israel’s apartheid wall dismantled – they even won, and Israel didn’t give a hoot. Any sane Palestinian, you might think, would long ago have turned his or her back on such peaceful initiatives.

Yet still these wretched Palestinians persist, after this most humiliating of insults, in resorting to international law to resolve their conflict with Israel. Here they go again, dutifully seeking membership of the International Criminal Court. Will these Arabs never learn?

And of course, the Americans are threatening to punish such effrontery. Stop those millions of dollars in aid to the Palestinians. Stand by Israel’s refusal to accept any such approach to the International Criminal Court by “Palestine”. The EU – especially Britain and France – have gone along with this tosh. Israel has already decided to stop more than £80m in tax owed to the Palestinian authority.

The US State Department’s spokesman told us that his government is “deeply troubled” by the Palestinian application. It is “entirely counterproductive”, he informed the world. It does “nothing to further the aspirations of the Palestinian people for a sovereign state” – though one might have thought that membership of so august a judicial body would have done a lot to persuade the world that Palestinians were ready to shoulder all the burdens of statehood.

After all, the Palestinians would indeed have to abide by international law and – if the law applied retrospectively – they would have to carry the burden of opprobrium themselves for both Hamas crimes and past PLO murders. The United States, of course – and this fact oddly did not feature in the flurry of news reports on “Palestine’s” request to join – has itself refused to join the International Criminal Court. And with good reason; because, like the Israelis – although this is not quite how the whole fandango was explained to us – Washington is also worried that its soldiers and government officials will be arraigned for war crimes. Think waterboarding, Abu Ghraib, the report on CIA torture…

No wonder Jeffrey Rathke, the windbag who speaks for the State Department, says that the Palestinian request “badly damages the atmosphere” with Israel, “undermines trust” and “creates doubts about their (Palestinian) commitment to a negotiated peace”. And remember, Abbas only made his request after America had vetoed – and it has used its veto more than 40 times on Israel’s behalf to reject Palestine’s self-determination since 1975 – a UN Security Council resolution to end Israel’s occupation of Palestinian land by 2017.

But of course, what this whole kerfuffle is really about is quite simple. The world is tired of witnessing the suffering of Palestinians. Those with an ounce of human sympathy are sickened at being slandered as anti-Semitic or anti-Zionist (whatever that is) every time they express their outrage at Israel’s cruelty towards the Palestinians.

Killing more than 2,000 Palestinians last summer, hundreds of them children, was a mass slaughter. We’ve watched this grotesquerie so many times now – in Gaza, for the most part – that even our statistics have become spattered with blood.

Who now recalls the fatalities of the 2008-9 Gaza war? One thousand four hundred and seventeen Palestinians dead, 313 of them children, more than 5,500 wounded. That was the conflict upon which President-elect Obama had no comment to make.

And who knows what other gory Pandora’s box ICC membership would open? That bomber pilot who in 2002 killed 15 civilians, 11 of them children, in a Gaza apartment block to assassinate a Hamas official, for example? Wouldn’t that constitute a war crime? Don’t these outrages “damage the atmosphere” and “undermine trust”. Were these bloodbaths not “entirely counterproductive”? And the Jewish colonisation of the occupied West Bank?

Sure, bang up those behind Hamas and Islamic Jihad suicide attacks for war crimes. Get the Palestinian Authority thugs who torture and murder their own prisoners. But that’s not what Israel and the US are worried about. They are concerned that, after months of arguing and rowing and delving through thousands of documents, jurists may decide that Israel – horror of horror – may have to answer for itself before international justice, something which no routine US veto could prevent.

Now just imagine if Israel and America wanted the Palestinians to sign the Rome document. Conjure the thought – for a split-second only – that Israel and America insisted that the Palestinians must abide by an international treaty and become members of the International Criminal Court to qualify for statehood. Abbas’s refusal to do so would be further proof of his “terrorist” intentions. Yet when Abbas does sign the Rome document, when the Palestinians want to abide by an international treaty, they must be punished – surely a “first” in modern history.

I can only think of two phrases that fit the bill for this scandal of the West’s politicians. Confound their politics. Frustrate their knavish tricks.

The impasse in the Middle East in a nutshell

Apropos of which… Avi Shlaim, among the finest of Israeli historians, has just brought out a new edition of his great work The Iron Wall: Israel and the Arab World. “The prospect of a real change in American foreign policy looks slim to non-existent,” he writes. “Nor is there at present any evidence to suggest that Israel’s leaders are remotely interested in a genuine two-state solution… They seem oblivious to the damage that the occupation is doing to their society and to the reputation of their country abroad.” That’s it in a nutshell, isn’t it?

Robert Fisk writes for the Independent, where this column originally appeared. 

 

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Lawrence Walsh and America’s law-free zone February 17, 2009

Posted by rogerhollander in Criminal Justice, Dick Cheney, George W. Bush.
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Glenn Greenwald

(updated below)

David Rivkin and Lee Casey are right-wing lawyers and former Reagan DOJ officials who, over the last eight years, have been extremely prolific in jointly defending Bush/Cheney theories of executive power. Today, they have one of their standard Op-Eds, this time in The Washington Post, demanding that there be no investigations or prosecutions of Bush officials.  Most of the arguments they advance are the standard platitudes now composing Beltway conventional wisdom on this matter.  But there is one aspect of their advocacy that is somewhat remarkable and worth noting.

Rivkin and Casey have long been vigorous opponents of the legitimacy of international tribunals to adjudicate crimes committed by American officials.  In February, 2007, they wrote an Op-Ed in the Post bitterly criticizing Italian officials for indicting 25 CIA agents who had literally kidnapped a Muslim cleric from Italy and “rendered” him from Milan to Egypt.  In that Op-Ed, the Bush-defending duo argued that Italy had no right to prosecute these agents (h/t reader tc):

An Italian court announced this month that it is moving forward with the indictment and trial of 25 CIA agents charged with kidnapping a radical Muslim cleric. These proceedings may well violate international law, but the case serves as a wake-up call to the United States . . . .

[T]he United States must still vigorously resist the prosecution of its indicted agents. . . . [I]t is up to American, not Italian, authorities to determine whether any offense was committed in the capture and rendition of Nasr.

Unfortunately, the effort to prosecute these American agents is only one instance of a growing problem. Efforts to use domestic and international legal systems to intimidate U.S. officials are proliferating, especially in Europe. Cases are pending in Germany against other CIA agents and former defense secretary Donald Rumsfeld — all because of controversial aspects of the war on terrorism. These follow Belgium’s misguided effort to pursue “universal jurisdiction” claims for alleged violations of international law, which also resulted in complaints against American officials including Vice President Cheney and former secretary of state Colin Powell. That law was amended, but the overall problem is unlikely to go away.  The initiation of judicial proceedings against individual Americans is too attractive a means of striking at the United States — and one often not subject to control by the relevant foreign government.

Accordingly, Congress should make it a crime to initiate or maintain a prosecution against American officials if the proceeding itself otherwise violates accepted international legal norms.

So it’s up to the U.S. — not any foreign tribunals — to prosecute war crimes and other felonies committed by American officials (for reasons that, at least in part and under certain circumstances (not prevailing in the Italian case), I find persuasive).  In fact, they argue, international prosecutions are so illegitimate that such proceedings themselves should be declared crimes.  Indeed, like most of their political comrades, Rivkin and Casey have consistently argued that U.S. jurisdiction over alleged violations of international law and U.S. treaties by U.S. citizens — including our leaders — is exclusive. 

They made the same argument when opposing U.S. ratification of the enabling statute of the International Criminal Court (.pdf), arguing that “[t]he question is whether [international] law can, or should, be enforced outside national legal systems that have generally functioned well.”  Their answer, of course, is that, when it comes to Americans, international law obligations cannot and shouldn’t be enforced anywhere but America:

There are many problems with the Rome Treaty.  The most immediate one, for Americans, is the danger of its being used as a political instrument against us.  But the most profound flaw is a philosophical one:  The concept of “international” justice underpinning the ICC project is more apparent than real. . . .

The prosecution of political leaders is inherently political, and there are at least two sides to every political conflict. . . . From America’s perspective, the greatest practical danger of joining the ICC regime would be that the court, driven by those who may resent American global preeminence, could seek to restrain the use of U.S. military power through prosecutions of U.S. leaders.

They then went on to call for the Bush administration to vocally and decisively reject the legitimacy of the ICC  so that the whole edifice would collapse.  This is because American leaders should not be subjected to prosecution in foreign countries for their crimes — only in America.

Yet what do these two argue today?  That domestic investigations and prosecutions — by American tribunals and American courts — are also inappropriate, illegitimate and destructive.  Though they acknowledge that “the Justice Department is capable of considering whether any criminal charges are appropriate,” they nonetheless insist that this must not be done:

For his part, President Obama has reacted coolly to calls to investigate Bush officials. Obama is right to be skeptical; this is a profoundly bad idea — for policy and, depending on how such a commission were organized and operated, for legal and constitutional reasons. . . .

Attempting to prosecute political opponents at home or facilitating their prosecution abroad, however much one disagrees with their policy choices while in office, is like pouring acid into our democratic machinery. As the history of the late, unlamented independent counsel statute taught, once a Pandora’s box is opened, its contents can wreak havoc equally across the political and party spectrum. . . .

Obama and the Democratic Congress are entitled to revise and reject any or all of the Bush administration’s policies. But no one is entitled to hound political opponents with criminal prosecution, whether directly or through the device of a commission, and those who support such efforts now may someday regret the precedent it sets.

So no international tribunals or foreign countries have any power to investigate or prosecute American officials for war crimes (even when those war crimes are against citizens of those countries and/or committed within their borders).  And, American political officials must also not be prosecuted inside the U.S., by American courts.  “Nobody is entitled” to do that either, because “attempting to prosecute political opponents at home or facilitating their prosecution abroad is like pouring acid into our democratic machinery.”

The implication of their argument — which is now the conventional Beltway view — is too obvious to require much elaboration.  If our political leaders can’t be held accountable for their war crimes and other serious felonies in foreign countries or international tribunals, and must never be held accountable in the U.S. either (because to do so is to “pour acid into our democratic machinery”), then it means that American political officials (in contrast to most other leaders) are completely and explicitly exempt from, placed above, the rule of law.  That conclusion is compelled from their premises. 

At least to me, it’s just endlessly perplexing how anyone — let alone our political class in unison — could actually endorse such absolute lawlessness for political leaders.  Didn’t our opinion-making elites learn in the eighth grade that the alternative to a “nation of laws” was a “nation of men” — i.e., the definition of tyranny?  Those are the only two choices.  It’s just so basic.

Apparently, though, this is all fine with our political establishment, since none of this is new.  Here’s what Iran-contra prosecutor (and life-long Republican official) Lawrence Walsh said in 1992 after George H.W. Bush pardoned Casper Weinberger days before his trial was set to begin:

President Bush’s pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence.

Weinberger, who faced four felony charges, deserved to be tried by a jury of citizens. Although it is the President’s prerogative to grant pardons, it is every American’s right that the criminal justice system be administered fairly, regardless of a person’s rank and connections.

The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. . . . Weinberger’s early and deliberate decision to conceal and withhold extensive contemporaneous notes of the Iran-contra matter radically altered the official investigations and possibly forestalled timely impeachment proceedings against President Reagan and other officials. Weinberger’s notes contain evidence of a conspiracy among the highest-ranking Reagan Administration officials to lie to Congress and the American public. . . .

In light of President Bush’s own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations.

Does anyone deny that we are exactly the country that Walsh described:  one where “powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence”? And what rational person could think that’s a desirable state of affairs that ought not only be preserved — but fortified still further– as we move now to immunize Bush 43 officials for their far more serious and disgraceful crimes? As the Rivkin/Casey oeuvre demonstrates, we’ve created a zone of lawlessness around our highest political leaders and either refuse to acknowledge that we’ve done that or, worse, have decided that we don’t really mind.

 

UPDATE:  In a world in which the Rivkin/Casey mentality dominates (i.e., the world in which we actually live), imagine that you’re the American President, sitting in the Oval Office, tempted to issue a secret order that you know directs that laws be broken.  What possible pragmatic motive would you have to refrain from doing that?  Wouldn’t any rational person in that situation think to themselves:  

There’s nothing that would stop me from doing this because, fortunately, we live in a country where the President actually has the right to break the law and to do so without consequences.  In fact, amazingly enough, the citizenry — or at least the opinion-making elite — has somehow become convinced that it’s a good thing — vital even — for the President to have this lawbreaking right and to be shielded from consequences when he commits crimes.  I don’t know how that they got convinced of that, but that’s actually how they think.  As strange as it is, I know that if I decide to commit this crime, political and media figures from across the political spectrum will join together to insist that there must be no consequences for what I have done.

Ironically, while there is consensus horror in America’s political class over the idea that our political leaders might be charged and tried in the U.S. (let alone a foreign country) for their torture and other war crimes, we — Americans — have adopted a statute that expressly arrogates unto ourselves the power to do exactly that to leaders of other countries, and the Bush administration — even as they presided over their own torture regime — actually invoked that law to pursue such prosecutions.  After a torture prosecution of a Liberian official last December, Bush’s Attorney General, Michael Mukasey, actually spoke these words — what very well might be the most audaciously hypocritical quote of all of 2008:

Law without conscience is no guarantee of freedom; that even the seemingly most advanced of nations can be led down the path of evil; and that we must confront horror with action and vigilance, not lethargy and cowardice. . . .

His conviction – the first in history under our criminal anti-torture statute – provides a measure of justice to those who were victimized by his reprehensible acts, and it sends a powerful message to human rights violators around the world that, when we can, we will hold them accountable for their crimes.

No torturer is safe from American judicial accountability — as long as the torturer is not an American political official.

— Glenn Greenwald

Iranian Nobel Peace Laureate Shirin Ebadi on Threats to Iranian Rights, from Within and Abroad February 4, 2009

Posted by rogerhollander in Israel, Gaza & Middle East.
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www.democracynow.org, February 4, 2009

Guest: Shirin Ebadi, Nobel Peace laureate and Iranian human rights lawyer.

shirin-ebadi

AMY GOODMAN: Iran says they’ve successfully launched their first domestically made satellite, raising renewed concerns about Iran’s ambitions among American, European and Israeli officials. Iran says the satellite is meant for research and communications.

 

The launch happened amidst ten-day celebrations marking the thirtieth anniversary of the Iranian revolution that deposed the pro-American Shah from power and redefined Iran as an Islamic Republic.

 

We’ll have more on the missile launch and American policy toward Iran in our next segment, but right now we’re going to turn to the Nobel Peace Prize-winning Iranian human rights advocate Shirin Ebadi. She is on a short visit to the United States, speaking out against both American and Israeli military threats to Iran, as well as the growing domestic repression of activists within Iran.

 

In recent weeks, Ebadi, herself, has been the target of right-wing attacks in her country. Last December, security forces raided and shut down an organization she helped found, the Center for the Defense of Human Rights, and confiscated documents about her clients, who include some of Iran’s most important political figures of the last thirty years. Since then, her former secretary was arrested, and right-wing crowds have gathered outside her home, accusing her of supporting the United States and Israel.

 

I spoke with Shirin Ebadi yesterday about how she’s dealing with the climate of repression in her country, her visit to the US, and why she continues to fight for human rights in Iran. I began by asking her to describe what happened to her office in December.

    SHIRIN EBADI: [translated] Yes, it was the sixtieth anniversary of the Universal Declaration of Human Rights, and we were going to celebrate that. An hour-and-a-half prior to the celebration, the police came to the Center and informed us that “According to and pursuant to an oral order of the prosecutor, we have to close down the Center and seal it.”

    AMY GOODMAN: And so, then what happened? I understand your secretary was also arrested.

    SHIRIN EBADI: [translated] Yes. And a few days later, they raided my private law office, and on the basis of an excuse of nonpayment of taxes, they took the computers and several of my files away, although this was illegal and they had no right to do that. A few days even later past that, they raided—they came to my house, and they vandalized my house with spray paint and demonstrated against me. They took down my sign, the sign of my law office, and although I had called the police, the police came, but they only watched the demonstrators do the vandalism and the breaking of my sign.

    And unfortunately, a few days even later, a young secretary, a female secretary, at the Center for the Defense of Human Rights was arrested. They went to her house at 6:00 a.m. and arrested her. And she has not been able to meet with any of her attorneys. We have appointed an attorney for her, but the attorney has not been able to meet with her or to talk to her, and she has not been able to meet with any members of her family. She is in solitary confinement at the present time.

    AMY GOODMAN: The significance of the government taking the documents from your law offices? You represent some of the leading political dissidents. Do they now have access to your clients’ information?

    SHIRIN EBADI: [translated] Yes, they do have access to important information now. As you know, they have—there is attorney-client privilege, and they should not have taken any of the files. What they did was illegal. I brought a criminal complaint against them for what they have done in taking the files, and to no avail up to now.

    AMY GOODMAN: Shirin Ebadi, you had protesters outside your offices during the Israeli attack on Gaza saying you supported the United States and you supported Israel. Here in this country, there were Iranian Jews who were saying that you weren’t supporting Israel enough. Can you tell us your position on what’s happening right now in Israel and Gaza?

    SHIRIN EBADI: [translated] I first have to inform you that the Center for the Defense of Human Rights, that I am the director of, had issued a declaration supporting the people of Gaza prior to the demonstrations in front of my house. However, when you ask me about the differences between Israel and Palestine, I think that they have to negotiate, and they have to accept a two-state solution. The two of them should be able—the two states should be able to live in peace when both countries accept the two-state solution.

    AMY GOODMAN: I wanted to ask you about the statement of the Israeli prime minister frontrunner, Benjamin Netanyahu. He said at the World Economic Forum in Davos that preventing Iran from obtaining nuclear weapons ranks far above the global economy among the challenges facing leaders in the twenty-first century. I wanted to get your response.

    SHIRIN EBADI: [translated] I don’t think that the Middle East needs nuclear weapons. I also don’t think that Pakistan, India or Israel need nuclear weapons. I think that they all should take measures in abolishing their nuclear weapons.

    AMY GOODMAN: What message do you bring to the United States, as you’ve come here for two days—for several days to speak.

    SHIRIN EBADI: [translated] I first want to congratulate the people of the United States for having elected a president who believes in human rights and on his first day of office ordered the closing down of the Guantanamo prison.

    In the second instance, I want to say that America is a superpower, and the political behavior of America can be a role model for the rest of the world. What I want to suggest is that the United States join the ICC and, in this way, not let the dictators sleep a good night.

    AMY GOODMAN: What exactly do you feel that Barack Obama should do right now? He has talked about direct dialogue with Iran. At what levels do you think the dialogue has to happen?

    SHIRIN EBADI: [translated] I think that the dialogue should take place at three levels: at the level of the presidents of both countries, at the level of the parliaments of both countries, and at the level of the civil society of both countries. And I think that the negotiations should bear in mind the interests of the people of both countries, not only the interests of a few companies. In the past, in 1953, the presidents of both countries, or the heads of both countries, spoke, but there the dialogue resulted in a few big oil companies coming to Iran.

    AMY GOODMAN: Shirin Ebadi, there are going to be presidential elections in a few months in Iran. The man considered a reformist, Khatami, may run. Ahmadinejad said he could run. Have you considered running for president of Iran?

    SHIRIN EBADI: [translated] I have never had the intention to joining a power. I have to remain among the people and be the representative of people. That’s why I reiterate that I’m not going to join power.

    AMY GOODMAN: Your offices have been raided. Your home has been raided. Your secretary has been arrested. You have the leading women’s rights campaigner in Iran—you can pronounce her name for me—who is now going to jail. Why are you returning to Iran? Do you feel safe there?

    SHIRIN EBADI: [translated] I don’t have enough safety in Iran, nor does any other person who works on human rights have enough safety in Iran. But I am going back to Iran. I have to do my work in Iran. And I will remain in Iran. That’s why I’m going back to Iran.

    AMY GOODMAN: This is the thirtieth anniversary of the Iranian revolution. You were a judge, before the revolution, under the Shah; you are no longer. Talk about the state of your country and of women’s rights, in particular.

    SHIRIN EBADI: [translated] Over 65 percent of the university students in Iran are female. Women exist in all levels of government. They work in all levels of government. And they are present in the society. However, unfortunately, after the revolution, discriminatory laws have been passed against women. And I want to give you a few examples of these discriminatory laws. The life of a woman is worth half of that of a man; and therefore, if there is an automobile accident and a man and a woman are involved and their injuries are the same, the compensation paid to the woman is half of that paid to the man. Men can marry four wives. They can divorce their wives without an excuse. [Testimony] of two women in court equals [testimony] of one man. So these are the discriminatory laws I’m talking about.

    AMY GOODMAN: What do you think would change—bring change in Iran? And do you hold out any hope for these elections? Are you supporting anyone? Where do you think the real change will happen?

    SHIRIN EBADI: [translated] I believe in freedom of elections. Unfortunately, in Iran, the competency of the candidates has to be approved by the Guardian Council. In other words, they have to be qualified by the Guardian Council. This law is against the constitution of the country of Iran. And I [do] think that until and unless this law is outlawed, that we could have free elections in Iran. This is a principle that I believe in.

    AMY GOODMAN: What gives you any hope? What gives you courage when you return to Iran, especially when you look at, for example, the crackdown now, just over the last few months?

    SHIRIN EBADI: [translated] I am going back to Iran. What gives me courage is the duty that I have towards my country. And also, I believe in God, and that helps me.

    AMY GOODMAN: If the United States were to attack Iran, and when you look at the repression that you and others have suffered, would that help the democratic movement in Iran?

    SHIRIN EBADI: [translated] A military attack on Iran or even a threat of a military attack on Iran will deteriorate the situation of human rights and women’s rights, because it gives an excuse to the government to repress them more and more often.

    AMY GOODMAN: Any other thing you would like to add, Shirin Ebadi?

    SHIRIN EBADI: [translated] Although the office for the Center for the Defense of Human Rights has been closed down, but we are continuing our work. And this way, we want to tell the government of Iran and the people of Iran that we are going to fight the human rights abuses and the illegality that goes on in this regard in Iran.

ICC starts analysis of Gaza war crimes allegations February 4, 2009

Posted by rogerhollander in Israel, Gaza & Middle East, War.
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The prosecutor at the International Criminal Court (ICC) has begun a “preliminary analysis” of alleged Israeli crimes in Gaza.

ICC courtroom.jpgWith a delicate truce in Gaza, the extent of Israel’s 22-day offensive in Hamas-controlled Gaza last month is becoming increasingly clear. Human rights investigators say they have evidence of war crimes by all parties to the conflict.

The ICC is exploring its power to prosecute Israelis for alleged war crimes. In the past month the court’s chief prosecutor, Luis Moreno Ocampo, has received over 210 appeals from Palestinians and NGOs to investigate the Israeli-Palestinian conflict.

Jurisdiction
When Palestinian human rights groups petitioned the ICC to investigate war crimes reports earlier this month, Mr Ocampo said he was unable to take the case because his court had no jurisdiction over Israel. But now he says he is examining the case for Palestinian jurisdiction.

The ICC can try individuals only if the accused is a citizen of an ICC member state or the crime took place on the territory of such a state. The United Nations Security Council can also request the ICC to open an investigation, a scenario which is highly unlikely.

Mr Ocampo can also start an investigation into the Gaza conflict if a non member state accepts the court’s jurisdiction, which is the road the Palestinian National Authority (PNA) is now seeking to take. It has recognised the court’s jurisdiction over the alleged crimes on 22 January.

‘De Facto State’
The Palestinian Authority wants to be able to refer matters to the ICC, but its territories are not recognised as an independent state. Palestinian lawyers, however, argue that the PNA is the ‘de facto’ state in Gaza, citing Israel’s claim that it has no responsibility for Gaza under international law since it withdrew in 2006.

“They are quoting jurisprudence,” Mr Ocampo says. “It’s very complicated. It’s a different kind of analysis I am doing. It may take a long time but I will make a decision according to law.”

Determining jurisdiction is just a first step. Mr Ocampo can only launch an investigation into the reported crimes once it has been decided he has the power to do so.

Mr Ocampo’s office is currently conducting similar preliminary analysis of situations in a number of countries, including Chad, Kenya, Afghanistan, Georgia and Colombia.

War crimes
Amnesty International (AI) researchers say they have found evidence of war crimes by all parties to the conflict, which left hundreds of Palestinian civilians dead, devastated the territory’s infrastructure and created a humanitarian catastrophe.

AI says its delegates have found evidence of widespread use of white phosphorus against Palestinian civilians in densely populated residential areas in Gaza, while indiscriminate rocket attacks on the part of Hamas and other Palestinian armed groups killed several Israeli civilians.

 

 

Tags: Gaza, Hamas, ICC, Israel, Luis Moreno Ocampo, Palestinian Authority, war crimes

Will Israel’s Leaders Be Charged With War Crimes? January 26, 2009

Posted by rogerhollander in Criminal Justice, Israel, Gaza & Middle East, War.
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 Jonathan Cook, AlterNet. Posted January 26, 2009.

Israeli officials are frantically trying to forestall legal actions from abroad

Mounting fear in Israel that the country’s leaders face war crimes charges over their involvement in the recent Gaza offensive pushed officials into a frenzy of activity at the weekend to forestall legal actions abroad.

The urgency was underlined after rumors last week that Belgian authorities might arrest Tzipi Livni, Israel’s foreign minister, if she attended a summit of European counterparts in Brussels on Wednesday. In an indication of how seriously the matter is judged, Ms Livni’s advisers were on the verge of cancelling her trip when the story was revealed to be a hoax.

Nonetheless, officials are braced for real attempts to arrest senior political and military figures following a warning from the country’s chief law officer, Menachem Mazuz, that Israel will soon face “a wave of international lawsuits”.

In response, the government is setting up a special task force to work on legal defenses, has barred the media from naming or photographing army officers involved in the Gaza attack, and has placed restrictions on overseas visits. Today, ministers were expected to approve an aid package to help soldiers fight warrants abroad for their arrest.

The concern about war crimes trials follows a series of pronouncements by Richard Falk, the United Nations’ special rapporteur on the occupied territories and a professor emeritus of international law at Princeton University in the United States.

He has accused Israel of gravely violating the laws of war during its three-week offensive, which killed more than 1,300 Gazans, most of them civilians, and wounded thousands more.

There is a well-grounded view that both the initial attacks on Gaza and the tactics being used by Israel are serious violations of the UN charter, the Geneva conventions, international law and international humanitarian law,” he said during the final stages of fighting.

Since they gained entry to the tiny enclave after a ceasefire declared a week ago, Amnesty International and Human Rights Watch have added their voice. The two human-rights organizations have censured Israel over its failure to distinguish between Palestinian civilians and combatants as well as its use of controversial weapons.

There is incontrovertible evidence, both groups say, that Israel fired white phosphorus shells over Gaza, despite its banned use in civilian areas, setting homes on fire and burning civilians caught under the shower of phosphorus.

Kenneth Roth, the director of Human Rights Watch, has also lambasted Israel for using high-explosive shells in built-up areas of Gaza, even though the artillery has a blast range of up to 300 meters.

Initial indications suggest that the army may have resorted also to an experimental weapon — dense inert metal explosive, or Dime — that severs limbs and ruptures the internal organs of anyone close to the blast.

The International Atomic Energy Agency, the UN’s nuclear watchdog, is investigating claims forwarded by Saudi Arabia that depleted uranium shells were used in Gaza.

In addition, human-rights groups have begun documenting instances of the Israeli army’s targeting of civilian buildings, including UN schools, and of soldiers taking Palestinian civilians as human shields.

A senior Israeli official told Yedioth Ahronoth newspaper: “As far as the international arena is concerned, Israel is entering what is probably its darkest era.”

In a further sign of concern, an unnamed government minister was quoted last week as saying: “When the scale of the damage in Gaza becomes clear, I will no longer take a vacation in Amsterdam, only at the international court in The Hague” — a reference to the International Criminal Court in the Netherlands that tries war crimes.

Over the past week about 300 human-rights organizations have jointly prepared a 37-page dossier of evidence to be presented to the court.

According to legal experts, it will be difficult to try Israel at the ICC because it is not a signatory to the Rome statute governing the court’s jurisdiction and function. However, an ad hoc tribunal similar to the ones set up to deal with war crimes in Rwanda and the former Yugoslavia may be an option. The ICC might also try to pursue individual Israeli commanders for war crimes.

A more pressing concern for Israel is that human-rights activists in Europe could use local “universal jurisdiction” legislation to initiate war crimes trials in their domestic courts against Israeli leaders.

Such actions have been launched before, most notably in 2005 when Doron Almog, the former Israeli commander in Gaza, avoided being arrested in the United Kingdom only after he was warned to remain seated in a plane after his arrival at Heathrow airport. Major Gen Almog had overseen the demolition of hundreds of homes in Gaza three years earlier.

In an attempt to make life more difficult for Israeli leaders, anonymous activists in Israel launched a website (www.wanted.org.il) — “outing” those it accused of war crimes, including Ehud Barak, the defence minister, Ehud Olmert, the prime minister, and Ms Livni. It also identified most of the senior military command.

Offering photographs and information about each official’s alleged offence, the site provides contact details for the ICC and tells visitors to alert the court when “the suspect is outside of Israel’s borders”.

To avert the danger of arrests for war crimes, IsraeI hurriedly initiated a series of moves to protect its leaders. A special task force, overseen by the prime minister’s office, will convene in the next few days to start building a defence for army commanders.

The Israeli media suggested experts on international law would seek to compile evidence that Hamas stockpiled weapons in civilian buildings, and that the army went to great efforts to warn residents to flee before bombing areas.

The military censor is excising from media reports all identifying information about senior officers involved in the Gaza operation, and officers who wish to travel abroad will be required first to seek the advice of military officials.

A version of this article originally appeared in The National (www.thenational.ae), published in Abu Dhabi.