Rabbani on Prosecuting War Criminals

February 4, 2009

In News The Israel-Palestine Conflict

By Thalif Deen

UNITED NATIONS, Feb 4 (IPS) – When Ban Ki-moon visited Gaza after the destructive bombing of a U.N. compound last month, the usually reticent secretary-general lashed out at the Israelis, accusing them of using “excessive force” and describing the assault as “an outrageous and totally unacceptable attack against the United Nations”.

The harsh comments came as a surprise because a day earlier he had told reporters in Jerusalem that Israel “is a responsible member of the United Nations”- despite the continued violations of humanitarian law by the Israelis and the killings of over 1,300 Palestinians, mostly civilians, in the 22-day conflict.

But the overwhelming devastation of the U.N. compound – considered a safe haven for refugees fleeing the conflict – probably left a lasting negative impression on the secretary-general.

At a press conference in Geneva last week, he continued to pummel the Israelis when he told reporters he was “very much frustrated and upset and angered by what I had seen (in Gaza).”

Whilst still awaiting the results of an investigation promised by Israeli Prime Minister Ehud Olmert, Ban is expected to establish his own independent international team to probe the bombing of the U.N. compound. The announcement is expected shortly.

Mouin Rabbani, contributing editor at the Washington-based Middle East Report, told IPS, “Ban Ki-moon is to be commended for the extremely powerful statement he made when visiting Gaza.”

Rabbani said he gave a forthright description of what he had witnessed, spoke of the need for investigations and accountability, and even used the magic words “Palestinian self-determination”.

“All told it was the most powerful statement by a leader of his stature in decades,” said Rabbani, a highly respected analyst on Middle East politics.

He said Ban set the bar very high – “and now the challenge is to see if the United Nations and its member states will have the political will to jump over it.”

“I don’t think so,” Rabbani declared, striking a pessimistic note about the effectiveness of the world body to punish Israel, which has been accused of war crimes in the Gaza conflict.

Despite demands by several human rights organisations, Israel may well escape international scrutiny of its military excesses in Gaza, primarily for political reasons.

David Tolbert, a senior Jennings Randolph Fellow at the U.S. Institute of Peace (USIP) in Washington, told IPS that since Israel is not a member of the International Criminal Court (ICC), the Hague-based tribunal does not have jurisdiction over Israel.

The ICC’s jurisdiction is limited to individuals who are citizens of member states of the ICC or individuals who commit crimes in the territory of a member state.

“Neither of these instances apply in this situation,” said Tolbert, a former U.N. assistant secretary-general and an ex-deputy prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY).

He pointed out that the Security Council could also refer a situation to the ICC, as it did in Darfur, Sudan, but this is clearly not going to happen in this case.

“No other international tribunal has jurisdiction over the territory where the alleged crimes were committed. So, no international tribunal has jurisdiction,” he added.

However, he said, “It should be noted that some states have laws which provide for universal jurisdiction over crimes against humanity, but this is a completely separate question and analysis.”

Rabbani said he does not expect to see Israeli leaders brought before an international tribunal “during my lifetime, particularly if I hold my breath in anticipation.”

“While the laws are quite unambiguous, and leave no conclusion but that virtually every Israeli political and military leader since the 1940s should have ended his or her life in a prison cell or before a firing squad, the law is only half the story.”

The other half, he pointed out, is politics. And the system is rigged against the powerless and defenceless, particularly if their tormentors are either Israeli or American, he added.

“If you look at the ICC, it might be more appropriate to rename it the International Tribunal for African Warlords and Dictators Who Have Fallen From Favour,” Rabbani said dryly.

So far, virtually all those either accused or brought before the various war crimes tribunal are Africans, primarily from Liberia, Sudan, Democratic Republic of Congo, Uganda and Central Africa Republic.

They include former President of Liberia Charles Taylor, Sudan’s President Omar al-Bashir, Congo ex-rebel leader Bosco Ntaganda, Sudanese government minister Ahmad Muhammad Harun and Congo rebel leader Thomas Lubanga.

Rabbani said even the chances of those responsible for the destruction of Iraq ending up in The Hague is zero.

“Gaza? Ditto. One could argue that there is an outside chance of the General Assembly establishing a special tribunal to investigate and prosecute Israeli war crimes, but I don’t see such an initiative growing legs,” he added.

Regarding U.N. action concerning the conflict in Gaza, Tolbert said, “only the Security Council has the power to act meaningfully in this instance (under Chapter VII of the U.N. Charter) as it is a matter of peace and security.”

Thus, it could have taken a variety of actions to re-establish peace and stability as provided for in the Charter.

However, any proposed action would have to be passed by the Council without veto by one of the five permanent members of the Council, and this did not happen in this case, he added.

Rabbani said that given the power balance within the United Nations, namely the transfer of power within the organisation to the Security Council, and the hegemony enjoyed within that body by the U.S. and its allies, the United Nations was not in a position to undertake any action of significance to implement its mandate and responsibility of ensuring international peace and security.

He said an additional complication is that the U.N. is a member of the Quartet (along with the United States, Russia and the European Union), “whose brief seems to be little more than to act as a substitute for the U.N., obstruct sensible policies that might lead to a meaningful peace process, and keep (former British Prime Minister) Tony Blair on the world stage”.

“It is perhaps the ultimate insult to the U.N. that it has been pressed into service as a Quartet member, since so much of what this body has done and advocated directly contradicts the U.N. Charter,” he added.