January 22, 2009
Israel and the white heat of justice
01.21.2009 | The Guardian
By John Palmer
A political solution for Gaza must not preclude the investigation of war crimes, including Israel’s use of white phosphorus
Amnesty International has now joined the United Nations and Human Rights Watch in accusing the Israeli government of breaking international law outlawing the use of white phosphorus shells in the middle of highly populated areas of Gaza. The UN secretary general, Ban Ki-Moon, has condemned Israeli attacks on UN humanitarian centres in Gaza as “outrageous” and has called for an independent, international inquiry.
Meanwhile a senior minister in the Israeli government has been quoted in the Israeli newspaper Haaretz as saying that when the full extent of the destruction brought on Gaza becomes known “I will not be taking my holidays in Amsterdam”. This possibly “humorous” observation referred to the possibility that leaders of the Israeli government may yet be arraigned before the International Criminal Court in The Hague – or a similar tribunal – to answer charges of war crimes.
Indeed some 300 human rights organisations have already prepared an initial 37-page dossier to be presented to the court. At the same time, in a move which could be equally damaging to the international standing of the Israeli government, a number of United Nations humanitarian agencies have insisted that there must be an independent, internationally approved, legal inquiry into the prima facie evidence of crimes committed. It is clear now that Israeli shelling and missile attacks – including those on UN facilities used as shelters for civilians during the war – have taken many hundreds of innocent civilian lives.
There is one obvious problem with taking steps to ensure that those responsible for the horrific massacres of civilians in Gaza are held accountable for their actions: Israel is not a member state of the ICC. The initial reaction of the ICC has been that it is therefore not open to the court to examine these charges. According to some senior French jurists, however, it should still be possible for the ICC to pursue named individuals for alleged crimes committed in Gaza.
There is also a precedent for the ICC to be asked by the United Nations to conduct such a trial – namely the current hearings into crimes against humanity allegedly committed by forces under the control of the government of Sudan in Darfur. It may be possible for the UN to establish a specific war crimes tribunal to hear the charges arising out of the actions of the Israeli forces in Gaza. After all, something very similar happened after the atrocities committed during the wars in the former Yugoslavia and the Rwanda genocide.
The Israeli government has denied that it was responsible for any war crimes committed during the course of its three-week campaign in Gaza. Interestingly, however, the Israeli prime minister, Ehud Olmert has expressed “remorse” for what happened to the civilian population of Gaza. One obvious question is: what does he feel guilty about? Some Israelis may also argue that Hamas has also committed crimes worthy of international condemnation. But, of course, it open to them to present such a legal dossier to the ICC authorities in the Netherlands.
Obviously, a UN mandate for a legal inquiry into alleged Israeli war crimes would only come about if the Obama administration decides not to use its veto in the UN Security Council. But by allowing a legal investigation to proceed, the US would send the clearest possible signal that it intends to exercise far greater even-handedness between Israel and the Palestinians than it has ever done in the past. Moreover, the incoming administration is under growing pressure to sanction an inquiry into possible criminal action by the Bush administration in its use of torture.
No doubt, the British government, among others, will say that the priority of the international community must be to underpin the current ceasefire with a permanent peace agreement which provides for a two-state solution. But there is no reason why the push for a permanent agreement should exclude the rule of law from operating without inhibition. After all, this was the case in the former Yugoslavia.
According to Israeli opinion polls, the present coalition government is heading for defeat in the general election in three weeks’ time. The responsibility for negotiating a permanent peace settlement is likely to fall to an even more right-wing government, led by Binyamin Netanyahu.
That said, an inspiring feature of the feature of the worldwide demonstrations against Israel’s Gaza offensive has been the prominent role played by Jews and Jewish organisations in the protests. Organisations like Jews for Justice for Palestinians, along with a small but heroic opposition to the massacres in Israel itself. Israeli human rights activists have also now launched a website to identify alleged Israeli war criminals and assist their transfer to the jurisdiction of the ICC.