Cover story in Issue 25, March 30, 2009 of The Jerusalem Report. To subscribe to The Jerusalem Report click here.

Serbians demonstrate against Israel
Photo: AP , JRep

"I'm not a war criminal! I'm not a Nazi!" Seated in a Jerusalem café, Yotam's tense voice and tight movements contrast sharply with the suave, cool surroundings. He looks around and over his shoulder frequently, admitting that he's afraid that someone might overhear him or recognize him. Throughout the interview, he takes long sips of water from a tall, iced glass in an effort to maintain his composure.

He insists that he not be identified in any way. Yotam is not his real name. During Operation Cast Lead, Yotam, served as a battalion commander of a combat unit. He had intended to leave for England in the late spring for post-doctoral studies at a well-regarded British university. But now he's scared. During the war, his face was shown on European TV and he says that he has heard "from people I know on the far left in Israel who are cooperating with left-wing, anti-Zionist activists in England" that he could wind up being the target of an investigation against him on suspicion that he committed war crimes in Gaza.

"What do they want from me?" Yotam demands, his voice filled with rage and fear. "I did the best I could - I wanted to save my men. I didn't want to kill innocent people. Sure, we had maps, and guided missiles and all sorts of high-tech equipment. But civilians got killed. Civilians get killed in wars. Does that make me a war criminal? Am I Eichmann? Am I a mass murderer like Milosevic? Like Idi Amin?"

According to Israeli legal experts, Yotam and hundreds of Israeli officers and other officials may have good reason to be fearful that they could, indeed, be investigated, arrested and charged with alleged war crimes or crimes against humanity for their conduct in Operation Cast Lead in December-January.

Under orders of the military censor, all officers from battalion commanders down to second lieutenant who fought or were involved in the planning of the Gaza war must hide their faces when in uniform or when appearing in a public forum. (The assumption is that brigade commanders and above are well-recognized anyway.) Defense Minister Ehud Barak publicly promised that the state would back all officers and soldiers who might be accused abroad of war crimes.

And the government has established an inter-ministerial committee that is, says an official, "working very much under the radar" to try to "ward off these legal proceedings through diplomatic means."

"When the warfare is over, lawfare begins," warns Gerald Steinberg of the Political Studies Department at Bar Ilan University and Executive Director of NGO Monitor, which monitors anti-Israel activities of non-governmental organizations (NGOs). "Lawfare," he explains, "is the strategy of using or misusing the law as a substitute for traditional military and political means. It turns international politics into legal proceedings and brings political struggles into judges' chambers."

Lawfare draws upon the concept of universal jurisdiction, which refers to the powers of a state to try and punish any individual for war crimes, crimes against humanity, or genocide even if those crimes were not committed against the country or its citizens or its soil. The idea behind this, explains Col. (res.) Daniel Reisner, former head of the International Law Department in the Military Advocate General Corps and now an attorney in private practice, is that some atrocities are so horrendous that their perpetrators should not be allowed to find any safe haven, anywhere in the world.

Terms such as "war crimes" refer to crimes defined in international law, such as the Geneva Conventions. The terms are wide and relate to a variety of crimes and offenses, some more serious than others. Yet while lawfare is couched in highly legal terms, signs held at demonstrations reveal that most of the demonstrators don't really understand the legal intricacies of these terms. Nor do they care.

Europeans, explains Tel Aviv Attorney Michael Sfard, an expert in international human rights law, "are simply sick of seeing civilians suffer in wars and tired of seeing people killed. And they certainly don't accept Israel's explanation that it is fighting against terror."

Even before the war in Gaza, anti-Israel organizations had taken up lawfare with a vengeance. In 2004, a warrant was issued in Great Britain against Major General Doron Almog, who was accused of war crimes in Gaza between 2001 and 2003, when he headed Southern Command. When visiting England in 2005 to speak at a fund-raising event, Almog narrowly evaded arrest when he was tipped off that the warrant against him had been issued and so refused to disembark from his plane. The warrant is still pending.

In 2007, Israeli Public Security Minister Avi Dichter decided not to attend a conference in London out of concern that he might face arrest for his involvement in a targeted assassination. Dichter was also sued by plaintiffs in the United States, but courts dismissed the case.

Now, human rights and pro-Palestinian and anti-Israeli organizations are feverishly trying to convince the International Criminal Court (ICC), the United Nations Human Rights Commission and states that have universal jurisdiction legislation to investigate Israeli officials and soldiers for their purported "war crimes" during Operation Cast Lead.

According to Steinberg, these activities are part of the "Durban strategy," first implemented at the World Conference Against Racism, in Durban, South Africa in September 2001. "The 'Durban Strategy' equates Israel with apartheid South Africa, viewing Israel as a pariah state so Israelis, like other 'war criminals' and pariahs, will not be able to travel throughout the world or be part of global society,"

Minister of Welfare Yitzhak Herzog, responsible for much of Israel's international advocacy, assures The Report that "the government is continuing to fight on the legal front. Left-wing, anti-Israel and anti-Semitic groups are using the tools that the international community set up in order to deal with crimes against humanity and with global terrorism in order to delegitimize Israel."