Soldiers who fought in Gaza worry about traveling overseas

Initial statements by the UNHRC indicated it would make accusations of war crimes against Israeli soldiers, commanders and possibly against civilian-leaders.

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October 13, 2014 03:22
3 minute read.
IDF PARATROOPERS return after an intensive week of training.

IDF PARATROOPERS return after an intensive week of training.. (photo credit: IDF SPOKESMAN’S UNIT)

 
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Now that the summer war in Gaza is over, some soldiers who fought in Operation Protective Edge have a new worry – whether or not they will be able to travel freely outside the country – as Palestinians and supporters may seek to arrest them for alleged war crimes.

The problem, referred to as “lawfare” or universal jurisdiction, involves foreign countries or other international judicial bodies deciding to pursue Israelis for alleged war crimes even though the disputed events occurred in Gaza and not their own countries.

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In some ways, the discussion may be premature, since the UN Human Rights Council’s Schabas Report, referring to Gaza Commission of Inquiry chairman William Schabas’s review of alleged war crimes, is not due out until March 2015. Furthermore, the Palestinians are pursuing a variety of strategies at the UN before any possible push against Israelis at the International Criminal Court.

On the other hand, initial statements by the UNHRC indicated that it likely would accuse or imply accusations of war crimes against Israeli soldiers, commanders and possibly against civilian-leaders who made war-related decisions.

Numerous initial human rights reports also already have alleged a high possibility of war crimes, creating an atmosphere in which Israelis with connections to the Gaza war have concerns about traveling overseas that only are likely to grow.

A number of local lawyers recently discussed the dilemma of traveling overseas for those IDF soldiers with The Jerusalem Post.

According to attorney Yisgav Nakdimon a lot can be learned from the past decade, especially from law-related actions against Israelis overseas following the 2008-9 Gaza war.



Although, he could not reveal which IDF commanders or soldiers consulted him, Nakdimon said his firm was involved in reviewing the laws of specific countries where those Israelis wanted to travel so as to advise whether or not to visit those locations and under what precautions.

By and large, he said, Israelis continued to travel despite the threat of arrest for alleged war crimes abroad, but that some might have been concerned.

Furthermore, even if the Palestinians file war crimes complaints against them at the ICC, Nakdimon believes Israelis should be able to avoid problems at the ICC.

Nakdimon noted that Israel’s current investigations, led by Maj.-Gen. Noam Tibbon and Maj.-Gen. and IDF legal division head Danny Efroni, as well as a separate investigation by State Comptroller Joseph Shapira, should block any ICC involvement since the ICC can only enter the picture if a state fails to self-investigate.

Another well-known lawyer, Gidon Fisher, provided a history of international efforts to try persons from other countries for war crimes, concluding that the movement has been heavily discriminatory against Israel.

Essentially, Fisher argued that it made no sense for the ICC or any other foreign court to prosecute citizens of a democratic country with an operating prosecution that respects the rule of law.

He said that unless soldiers of other countries such as Canada, Germany and other Western countries faced war crimes internationally for involvement in Kosovo, Bosnia, Syria, and Afghanistan, Israel should not face such situations either.

Trevor Asserson of Asserson Law Offices, Israel’s largest UK law firm, said that despite all the doom-and-gloom, some situations, specifically in Britain, already have improved.

Asserson noted that, prior to 2011, a law had been in place that allowed low-level Westminster magistrate’s courts to issue arrest warrants against Israelis for alleged war crimes at the request of private parties (such as Palestinian supporters) without government involvement.

Before a 2011 change to the law, the judges could issue the arrest warrants based on a very low standard of proof since those being arrested were not yet being convicted and so were not afforded the higher standard of proof necessary for a conviction.

Asserson added that arrest warrants that were in play during pre- 2011 visits by Israeli leaders would never have been sought by the government since the British prosecution does not seek warrants unless it believes it has at least a reasonable possibility of conviction.

But a change in the law following high-level campaigns internally in Britain and by Israel diplomatically, led to the change in the law so that no arrest warrants against foreigners, such as Israelis, can be sought without government approval.

Asserson said it was unlikely the British prosecution would approve arrest warrants against Israelis as long as diplomatic relations were at normal – as they currently are – which already has paved the way for Israeli officials to visit Britain without incident.

Asserson expects that even the recent Gaza war will not alter the current improved situation in Britain.

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