Monday, March 02, 2009

Israel may face war crimes trials over Gaza.

The International Criminal Court is to decide whether or not the Palestinian Authority is "enough like a state" for it to bring a case for war crimes against Israel for her recent assault on Gaza, which saw an amount of civilian deaths which many felt were bordering on deliberate, and certainly fell woefully short of the "due care and attention" a state was supposed to take to avoid such deaths.

As part of the process the court's head of jurisdictions, part of the office of the prosecutor, is examining every international agreement signed by the PA to decide whether it behaves - and is regarded by others - as operating like a state.

Following talks with the Arab League's head, Amr Moussa, and senior PA officials, moves have accelerated inside the court to deliver a ruling on whether it may be able to insist on jurisdiction over alleged war crimes perpetrated in Gaza, with a decision from the prosecutor's office expected within "months, not years".

Israel behaves the way in which she does because she is confident that there is no price to pay. After all, she is fighting an enemy without an army, navy or air force; which is why she fears no real military retaliation. Indeed, this is why she is so affronted by the futile rocket fire from Palestine militants. Her military superiority is so great that it's almost as if she is saying, "How dare they?"

Were the Israelis to find themselves in the dock at The Hague they might very well think again before ever repeating some of the actions they recently took in Gaza.

But I wouldn't limit the prosecutions to Israeli military commanders, as this article appears to suggest, I would put Olmert in the dock. Those military commanders were only able to do what they did because permission was given from above, so it is only fitting that the people at the top of the chain of command are called upon to answer for what they have done.

The issue arises because although the ICC potentially has "global jurisdiction" to investigate crimes which fall into its remit no matter where they were committed, Israel - despite having signed the Rome statute that founded the court and having expressed "deep sympathy" with the court's goals - is not a party.

The ICC, which has 108 member states, has not so far recognised Palestine as a sovereign state or as a member.

The latest moves in The Hague come amid mounting international pressure on Israel and a growing recognition in Israeli government circles that it may eventually have to defend itself against war crimes allegations. The Guardian has also learned that a confidential inquiry by the International Committee of the Red Cross into the actions of Israel and Hamas during the recent conflict in Gaza is expected to accuse Israel of using "excessive force" - prohibited under the fourth Geneva convention.

The Red Cross has been collecting information for two parallel inquiries, one into the conduct of Israel and a second into Hamas, both of which will be presented in private to the parties involved.

In the case of Israel, the Red Cross is expected to highlight three areas of concern: the Israeli Defence Forces' "use and choice of weapons in a complex and densely populated environment"; the issue of "proportionality"; and concerns over the IDF's lack of distinction between combatants and non-combatants during Operation Cast Lead. Hamas is likely to be challenged over its use of civilian facilities as cover for its fighters; its summary executions and kneecappings of Palestinians during the campaign; and its indiscriminate firing of rockets into civilian areas.

There is no guarantee that Israel will ever have to answer for what she has done, but I am under no doubt that, were Israel to face an international court, she would - in future - think twice before she ever again embarked on the kind of wanton destruction which she recently carried out in Gaza.

Indeed, Israel did what she did because she was confident that there would never be a price to pay.
The court's deliberations follow more than 220 complaints about Israel's actions in Gaza. "It does not matter necessarily whether the Palestinian National Authority is in charge of its own borders," said a source at the court. "Right now the court is looking at everything from agreements it has signed on education to the constitution of its legal system."
None of us can predict what the ICC will eventually decide, but it would be in everyone's interests for all parties to be made to realise that they may one day have to answer for what actions they take in front of an international criminal court.

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