Israel on Trial
Israeli soldiers and politicians may face war crime charges abroad over military actions against terrorists in Gaza
MARCH 12, 2009 14:20
Cover story in Issue 25, March 30, 2009 of The Jerusalem Report. To subscribe to The Jerusalem Report click here.
"I'm not a war criminal! I'm not a Nazi!" Seated in a Jerusalem cafÃ©, 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."
Despite these efforts, the list of cases is growing. In mid-February, a Spanish judge, Fernando Andre, instituted a judicial inquiry against several Israeli political and military figures on suspicion of war crimes and crimes against humanity, in relation to the 2002 assassination of Hamas leader, Salah Shehade, with a one-ton bomb that killed 14 people in addition to Shehade. Although not directly connected to Operation Cast Lead, Israeli officials acknowledge that the timing of the Spanish decision is clearly related to the current anti-Israel atmosphere prevailing in Europe.
In late December, French pro-Palestinian organizations filed a lawsuit against the Israeli president and foreign and defense ministers. In February, Turkish prosecutors, in response to a petition filed by a member of a pro-Palestinian NGO, announced that they were investigating whether Israeli leaders should be prosecuted for crimes against humanity.
In mid-February, members of the Jordanian parliament turned to the ICC, accusing Israel of war crimes. In early March, the Palestinian Authority also asked the ICC to accept its complaint against Israel's alleged war crimes. In the past, the ICC has been unwilling to hear complaints against Israel, because Israel, like the United States, has never accepted the ICC's jurisdiction. Recently the Court has announced that it will reconsider this stance, even though the PA is not a sovereign state.
Moshe Cohen, spokesman for the Justice Ministry, under whose auspices the inter-ministerial committee convenes, tells The Report only that "the State of Israel is working diligently to prevent such cases in Spain and in other countries, through both legal and diplomatic means."
"It just isn't fair," Yotam says impotently, close to tears. "Do these people know what it was like? Hamas was hiding out in residential areas. If they're shooting at you from a house, how are you supposed to know how many civilians are inside? As a commander, I tried very hard not only to do the legal thing, but to do the moral thing, too. Hamas didn't care - they violated every human and legal principle I can think of. It just isn't fair.
But lawfare, critics claim, isn't about fairness or equal application. The Spanish system that is being used to judge Israel will probably never be used to investigate the killing of more than 10,000 Spanish citizens during the Franco dictatorship. Nor, Steinberg notes, will those acts by Hamas that are clearly violations of international law, including deliberate targeting of civilians in the Negev and the maltreatment of prisoner of war Gilad Shalit, be investigated by an international or national criminal court.
Irit Kohn, former director of the Israel Ministry of Justice's International Department, wrote in an article published in March by the Jerusalem Center for Public Affairs, a conservative think tank, "Most countries are likely to find skeletons buried not so deep in the closet of their own past that qualify as crimes subject to universal jurisdiction. Are countries with such tainted pasts really fit to serve as representatives of the international community in adjudicating crimes of which they themselves may be found guilty?"
"Justice," says Reisner, "is not what some of the activists are looking for. The people who wanted to make the case in Spain 'went shopping' - first they had to select a country that has both universal jurisdiction and an independent investigative judicial system. And then they had to find the 'right' investigative judge - one whose position was already established."
But Daniel Machover, an Israeli-born attorney living in England, writes in an e-mail to The Report, "Only the underused principle of universal jurisdiction can deliver justice to victims and potentially save future victims. If countries such as the United Kingdom fail to do their duty, then countries that violate international standards will continue to do so with impunity. Where can alleged victims of Israeli war crimes receive justice if their route to justice is blocked off in Israel and at the ICC?"
Regarding arguments that universal jurisdiction is not used against Palestinians, Machover writes, "Universal jurisdiction is there to fill a gap where domestic jurisdiction is lacking. Israel as the occupier has means available to bring suspects to justice; it mostly chooses to kill them instead, without any legal process."
According to Steinberg and others, large international NGOs, such as Amnesty and Human Rights Watch, have been instrumental in the implementation of universal jurisdiction. But because many NGOs support specific political policies, their activism has contributed to a confounding of politics and justice. "They created the perfect storm," Steinberg says, "made up of pseudo-legal rhetoric hitched to political purposes."
Counters Machover, "I don't see why cases decided on their legal merits should cause any such problems. Judges in different countriesâ€¦ have found prima facie cases of war crimes against Israeli suspects." Therefore, he says, assessment of the validity of the cases should be based on the merits of the judicial decisions, irrespective of who brought them.
Universal jurisdiction is based on a noble foundation. In the past, Sfard explains, it was generally accepted that "war is hell." And despite various attempts to contain the atrocities, dating back to the first versions of the Geneva Conventions, enacted as early as the 1920s, it took the Nazi genocide and the Holocaust to change the way people think about war. Nazi leaders were brought to trial at Nuremberg, in what was the first example in the modern legal world of an international criminal tribunal.
In 1946, the Nuremberg tribunal's principles were unanimously adopted by the U.N. General Assembly, making them crimes in all member states. Prosecution of Nazi war criminals was predicated on these principles. And Israel, Reisner notes, encouraged implemented universal jurisdiction when it tried Adolph Eichmann and, later, John Demjanjuk, accused of being "Ivan the Terrible" from Treblinka.
After Nuremberg, human rights activists hoped to see the establishment of a permanent international court. But with the rise of East-West tensions and the Cold War, each side feared that such a court could be manipulated for political ends. By the 1990s, the world had changed. Activists were convinced that sanctions against and ostracism, together with post-colonial ideologies that assigned moral values to states' behaviors, had brought down the apartheid regime in South Africa. The end of the Cold War led to the belief that an international consensus could be reached. And while genocide and war crimes hadn't been stopped, they were being televised, so activists could mobilize public opinion.
Sipping more water, Yotam regains his composure and continues. "The army taught us all about the laws of warfare, and the meaning of the basic terms, such as proportionality, distinction and immunity. But it's all so theoretical, and when you're out there, in the field, it's a judgment call."
I don't sleep at night. I think about the Palestinians that we might have killed. Does the Hamas guy who booby-trapped their houses and planted explosives under them - does he sleep at night? I bet he does. And those Brits and Spaniards who think they are so morally high and mighty - do they sleep at night? I bet they do.
He acknowledges that his unit did use white phosphorus during the war. "But that's not illegal. At least it isn't illegal in some situations. We used it only for illumination, I swear. But when you're the commander out there in the field, does anyone think that you can really consider all the legal and moral implications?" he challenges.
Indeed, says Haggai Elad, director of the Association for Civil Rights in Israel, that is exactly what is expected of commanders in the field. Referring to the case of Kafr Kassem, in 1956, when soldiers fired on and killed innocent civilians for violating a curfew that they could not possibly have known about, Elad says, "The Israeli justice system declared that even in wartime, there are orders over which the 'black flag of illegality' flies and every normal person should know these are illegal and is obligated, therefore, to disobey them.
"Israel has always demanded that its soldiers use their own professional judgment and act morally. The IDF has an ethical code, with high moral and legal standards, which it teaches to its officers and soldiers," he says.
In 2005, the IDF published its combat doctrine on "Warfare Against Irregular Forces" with a chapter devoted to legal aspects of such hostilities, along with the preparation for and ethics of such fighting. Ever since 2006, the army has made courses in human rights and legal warfare mandatory in the training of all ground forces.
And, aware that the fighting in Gaza may lead to the international legal challenges that Israel is in fact facing, the army prepared carefully. Israel's attorney general was a partner in the planning of the war and attorneys from the IDF were attached throughout the war to all officers, from the chief of staff down to division commanders.
But all of this, says Reisner, cannot absolve a commander from his responsibility. "In a trial, legal advice that a defendant received would not be accepted as a line of defense. The head of the International Law Department in the Military Advocate General Corps provided excellent legal advice - but it is only advice. The commander in the field must be responsible for his actions and the actions of his soldiers."
Universal jurisdiction and the ICC are supposed to be applied only when a country does not or cannot act to investigate those who allegedly committed war crimes.
But Israeli law, Reisner notes, does allow for such procedures, even during active warfare, and the courts have intervened to specifically instruct the military about what it can and cannot do, in terms of Israeli and international criminal law and the laws of warfare. During Operation Defensive Shield in 2002, local human rights organizations submitted some 20 petitions to the High Court of Justice, contending that the IDF had engaged in gross humanitarian and human rights violations. But the court rejected most of those petitions. In some cases, the court did caution the military, but in most cases it accepted the state's and the IDF's defense that they had done all that they could to minimize human rights violations.
Elad says that the problem is not only with the courts but also with Israel's unwillingness to investigate the possibility that war crimes were committed. "We are demanding an independent and effective investigation. Not an investigation in which the IDF or the government investigates itselfâ€¦ With such a large number of civilian casualities and given the widespread damage and destruction - we must investigate. Otherwise, how can we live with ourselves as a society?"
Sfard claims that Israel is "a pro at not investigating. I can't say that war crimes were committed in Gaza. But I can say that on the face of it, the events demand an investigation. Israel is not investigating and is not allowing an international investigation - which also violates international law."
Part of the problem, Sfard says, is that "Israelis think that war crimes are only on the level of the crimes committed by Eichmann or Demjanjuk. But saying 'war crimes' doesn't say how severe the alleged crimes are.
"There are clear differences, for example, between destruction of natural resources, wanton destruction of property, wanton killing, deliberate starvation of a civilian population. But as long as Israel equates war crimes only with the Nazis, it will not be able to prosecute properly. Of course, I do not believe that the Israeli army is harboring another Eichmann. But I have no doubt that there were violations of international law in Gaza. These must be investigated by impartial, independent and professional committees, and anyone suspected of such crimes should be brought to trial."
By not investigating and prosecuting, Sfard notes, Israel is leaving itself open to universal jurisdiction abroad. Machover, for example, readily says that he is pursuing additional cases in Britain, but refuses to provide any details.
Sfard acknowledges investigations abroad are particularly difficult for him. "There is something inside me that prevents me from chasing after Israeli officers and soldiers abroad. It's not a political or even a moral issue. It's not rational. It's something that has been embedded in us, as Israelis and as Jews."
He continues, thoughtfully, "I am an Israeli. But I am also a citizen of the world. My loyalties are to Israel, but also to international law. If Israel does not investigate the events in Gaza, then I, and many others, will conclude that we have no choice but to seek recourse abroad."
In contrast, Uri Avneri, leader of the far-left Gush Shalom movement, says, "I do not object to trials abroad. The main thing is that war criminals, like pirates, should be brought to justice. It's not so important where they are caughtâ€¦" And Yoav Hess, an activist with Yesh Gvul, a far-left Israeli radical movement, states that the purpose in bringing cases to court is to create a situation where "every soldier who receives an order will think twiceâ€¦ if it can result in his being placed on trial on the charge of committing war crimes."
Steinberg contends that investigating the suspicion that Israelis committed war crimes provides support for anti-Israel activists.
"As an Israeli, I cannot allow myself to ignore the international implications of my own actions. When there is such a flood of complaints against Israel, so that everything Israel does is wrong, then it becomes hard to act. There is a moral choice here: I will not allow criticism of Israel's actions to be exploited by this movement of delegitimization.
Steinberg says he believes Israel's behavior in Gaza was in accordance with Israeli and international law. But he does have concerns regarding Israel's use of cluster bombs in the Second Lebanon War in 2006. Yet he would not call for the establishment of a commission of inquiry. "I have no reason to encourage my own government to do anything, when anything my government does will be used against us in the international arena. There are, of course, valid criticisms of Israel that I, as a citizen, should be voicing. But I will not voice them publicly when I know that this criticism will be used against my country."
Says Sfard, "I have no doubt that much, maybe even most, of this legal activity has a political agenda. And Israel isn't being treated fairly in some cases. But to censor ourselves because people abuse the law would be the worst thing we could do. It would be a victory for those who abuse the law. It is my duty, as a human being and as a patriotic Israeli, to tell the truth as I see it."
Elad agrees. "There are all sorts of manipulations of the laws of universal jurisdiction, and many of them are, indeed, against Israel. In response, we must do our work as professionally and ethically as we can. We cannot allow ourselves to use those manipulations as an excuse not to do what we must do, and we must never allow those manipulations to silence our moral voices.
"What the international community thinks is not the most important thing," he continues. "What we think about ourselves as a society is important. I am an Israeli citizen, a member of an Israeli NGO and out of loyalty to my country, we are demanding a full, impartial, professional investigation."
To date, none of the cases based on the doctrine of universal jurisdiction have progressed beyond preliminary stages. "These organizations that bring these cases," accuses Steinberg, "don't really care if the case is overturned. They use vague legal terms to gain public support and media attention, and no matter what the legal result, they have achieved their goal - delegitimizing Israel."
In response to the war in Gaza, the British Embassy in Tel Aviv has stopped negotiations to lease a floor in Africa-Israel's Kirya Tower because of the company's role in West Bank settlement construction. British Secretary of State for International Development Douglas Alexander has publicly stated that he does not rule out various European initiatives to try Israeli politicians and army officers for alleged war crimes in Gaza: And on March 4, following an appeal from several international figures, including Israeli Nurit Peled, whose 13-year-old daughter was murdered in a suicide bomb attack in 1997 and Leila Shahid, General Delegate of Palestine to the European Union, Belgium and Luxembourg, and Ken Coates, Chairman of the Bertrand Russell Peace Foundation, announced that he would be convening a "Russell Tribunal" to investigate "the particular responsibility of the United States and of the European Union in the perpetuation of the injustice done to the Palestinian people, deprived of its fundamental rights." Although lacking any official status or means of enforcement, in Europe a Russell Tribunal, a public body originally organized by British philosopher Bertrand Russell and French philosopher Jean-Paul Sartre, is highly prestigious and influential.
Israelis could face proceedings in numerous countries. England, Belgium, Spain, Germany, Switzerland, Canada, New Zealand and the United States all have some form of universal jurisdiction legislation. And all members of the EU have agreements according to which a warrant issued in one country would require any other member country of the EU to extradite that person. The International Criminal Tribunal for Yugoslavia and its counterpart for Rwanda are ad hoc tribunals established by the U.N. Security Council, which is unlikely to establish a tribunal against Israel, since the United States would veto such a proposal.
According to Ron Prosor, Israel's ambassador to Great Britain, England is currently at the center of attempts to delegitimize the existence of the State of Israel. "What's left of the British Empire," Prosor tells The Report, "is its communications empire, which is being used by NGOs to create a nasty combination of delegitimization, demonization, and double standards."
But Britain, he warns, is the blueprint for the rest of the world. "Even in Britain, where public opinion is virulently anti-Israel, the government is not interested in instigating these legal procedures, which bypass diplomatic channels and override its diplomatic agenda. But as NGOs create public pressure, eventually governments everywhere will be compelled to respond."
In 2001, activists in Belgium, Reisner notes, had persuaded the Belgian legal system to investigate then-prime minster Ariel Sharon for war crimes he allegedly committed during Israel's 1982 War in Lebanon. "But then they went too far," he recalls, and Belgian activists began to pressure their legal system to also investigate then U.S. Defense Secretary Donald Rumsfeld for crimes he allegedly committed in Iraq. "The U.S. made it very clear there would be dire consequences for this. Rumors still circulate that the United States warned Belgium that if it did not change its legislation and limit its jurisdiction, the United States would remove the NATO headquarters from Brussels. Belgium did change its legislation, Rumsfeld was never investigated and, as a by-product, the charges against Sharon were dropped, too."
But Israel, Reisner notes dryly, "is not the United States. And Israel, unlike the United States, cannot continue to exist for long without international legitimacy."
Popular perception of Israel's role thus becomes more important than the ostensible "truth" regarding events on the battlefield and far more significant than any of the strategic gains of the war.
"Maybe I fought the wrong war," Yotam concludes, exhausted by his own monologue. "I didn't agree with everything we did in Gaza, but I did my job because I believe that Israel must defend itself. Maybe I should've struggled against my own government's policies. Maybe I have to fight against the rest of the world, that doesn't see us as human beings." â€¢
i>Cover story in Issue 25, March 30, 2009 of The Jerusalem Report. To subscribe to The Jerusalem Report click here.