Israelis React to UN Indictment of Israel

This article first appeared on The Media Line website.
Published Wednesday, September 16, 2009.
It was written by Benjamin Joffe-Walt and features quotes by Dr. Avi Bell. http://www.themedialine.org/news/news_detail.asp?NewsID=26508

Israel is struggling to come to grips with the potential legal consequences of a UN report calling for the country's military leaders to be dragged before the International Criminal Court and face international prosecution for war crimes.

The 575 page report on Richard Goldstone's investigation into the Gaza war, released by the UN Human Rights Council on Tuesday, called on Israel to launch "genuine, impartial and independent" investigations into possible war crimes. Should Israel fail to do so, Goldstone recommended that Israel face the International Criminal Court and that individual countries use "universal jurisdiction" to prosecute perpetrators of war crimes.

Such a call could have extraordinary consequences both for Israeli military commanders and the country's image as a whole.

"If European states allow unfettered universal jurisdiction, then it will be very difficult for Israelis of any kind to travel," Dr Avi Bell, a professor in international law and the laws of war at Bar Ilan University told The Media Line. "If universal jurisdiction is open all over Europe, it's going to be a very bad outcome for Israel, as plaintiffs can bring universal jurisdiction suits against Israelis to any sympathetic judge they like."

Dr Bell said that the report's potential consequences should be understood from two perspectives.

"On a technical level this will have no impact," he said. "The commission made all sorts of recommendations which it had no authority to make and there is nothing in the UN security council's charter or the International Criminal Court's charter that indicates an obligation to listen to this commission."

"On a political level though, it's potentially disastrous," he warned. "This report is designed to create fuel and ammunition for the UN's diplomatic campaign against Israel
and for a global legal campaign against Israel, including lawsuits by individual states."

Dr Bell stressed, however, that European states had been caught off guard by such suits in the past and were unlikely to allow them to continue.

"European states are getting increasingly embarrassed by these kinds of suits, not because of suits against Israelis but because of suits against Americans," he said. "Both Spain and Belgium decided it would be a good idea to limit the jurisdiction of their courts after people used them to go after senior American figures. So as long as the door is open it will lead European states into various embarrassing situations with their allies. That's why I think this wave will pass."

"The International Criminal Court is more difficult to predict," he added. "It's really up to the judgement of the prosecutor and it's a political decision more than a legal one. He's under a lot of pressure to throw the Arabs a bone after indicting Sudanese President Bashir. This could make for an ideal bone."

On Wednesday, Israeli officials and the national media focused on the possibility of charges being brought against senior Israeli officials involved in the war.

"The goal is to avoid a slippery slope which would lead Israel to the International Criminal Court in The Hague," the Israeli daily Ha'aretz quoted a senior official as saying.

Israeli Prime Minister Binyamin Netanyahu was said to have met with his advisers late into the night discussing how to respond to the report, and a number of Israeli international law experts said they had been up all night examining the report.

"The report is seriously flawed in a number of ways," Dr Bell said. "This commission was appointed as a fact finding mission, but it made itself into some kind of court. It did this without following any legal procedures which would include proper examination by both sides, and the report is full of legal conclusions based on evidence unavailable to the public and without legal redress for the accused. So I consider it simply outrageous to have this kangaroo court reaching legal conclusions that they have no right to reach."

"Furthermore, their legal conclusions are wrong," he claimed. "For example, throughout the report where evidence was missing in determining whether or not Hamas committed a crime they assumed a crime had not been committed, but where evidence was missing in determining whether or not Israel committed a crime they said they couldn't find exculpatory evidence for Israel. In other words they assumed that Hamas was innocent but required that Israel prove its innocence."

Dr. Eyal Gross, professor of international law at Tel Aviv University and a visiting fellow at Harvard University, was less convinced the report would have significant international legal implications.

"It's hard to say, so far cases brought by individuals against Israelis in countries that have laws which incorporate the Geneva convention and universal jurisdiction haven't been very successful, but you might see a growth in those kinds of attempts to bring Israelis to trial," he told The Media Line.

"But International criminal law is more complex," he stressed. "The prosecutor at the International Criminal Court will have to determine whether or not they have jurisdiction."

"The International Criminal Court only has jurisdiction if the citizens they want to put on trial are from countries that are party to the International Criminal Court, if the crime took place in a country which is party to the International Criminal Court or if the Security Council refers the case to them," he explained. "But Israel is not a party to the ICC, and there is no legal country Palestine, and the US has veto power in the Security Council. So it's highly doubtful that will ever happen."

While Palestinians and their supporters welcomed the report as a long overdue indictment of Israeli actions during the Gaza war, Israel refused to cooperate with the Goldstone inquiry from the onset, claiming the commission was inherently biased.

Many Israeli, Palestinian and international organizations have been highly critical of Israel in their reports on the Gaza war. What is unique about the Goldstone report is his strong call for the application of international law and accountability in response to the commission's various findings, from "numerous instances of deliberate attacks on civilians" to prohibiting access to medical assistance and an overall military campaign "designed to punish, humiliate and terrorise a civilian population".

The report also found that Palestinian militants supported by the Hamas government in Gaza had committed war crimes, in particular by firing rockets at Israeli civilian targets, but most analysts agreed the report would lead to few, if any, consequences for Hamas.