London - The Jerusalem Post recently quoted Michael Oren, Israel'sambassador to the US, as lamenting the "tactical" problem of Israelbeing unable to defend itself without facing prosecution. He addedthat "no one in Israel buys" that the Israeli military targetedcivilians during Operation Cast Lead last winter.
"It goes not just against all of our principles, but the personalknowledge of people who participated in the operation," he said,adding that he was speaking from personal experience.
Meanwhile, back in the real world, human rights campaigners andlawyers working in the West Bank and Gaza Strip have been collectingevidence of serious human rights violations by Israel's military formany years. Some of those violations appear to amount to gravebreaches (i.e. war crimes) contrary to the Fourth Geneva Convention1949, which protects civilians living under military occupation.After many years of placing the evidence of such war crimes before theIsraeli legal system and attempting to seek justice locally,Palestinian victims have lost any faith in the Israeli legal system.
The massive scale of the destruction and loss of life achieved by theIsraeli armed forces during Operation Cast Lead makes the shortcomingsof the Israeli courts all the more noteworthy.
The UN Fact Finding Mission on the Gaza conflict, headed up by JusticeRichard Goldstone, made a core recommendation for the Security Councilto pass a "Chapter 7 resolution" (i.e. fully binding on Israel)requiring Israel and the Hamas authorities to mount credible criminalinvestigations. Without this recommendation being taken up, there islittle chance the Israeli Government will step out of the fantasyworld inhabited by Michael Oren and virtually all Israeli leaders.
Personal attacks on Justice Richard Goldstone and his colleagues are adistraction from a proper analysis of the report's contents and fromthe clear need to build upon and act on the report's recommendations.
The most worrying aspect of the Goldstone Report is not the strongevidence of war crimes in virtually all of the 36 specific incidentsthat it examined in detail (which resulted in the death of more than220 persons, at least 47 of whom were children and 19 of whom wereadult women). No, the most shocking finding is that all went to plan:"...[T]he incident and patterns of events that are considered in thisreport have resulted from deliberate planning and policy decisionsthroughout the chain of command, down to the standard operatingprocedures and instructions given to the troops on the ground."
The Commission found that what happened is in line with the so-called"Dahiya doctrine," developed following the end of the Lebanon conflictin 2006 and named after a quarter of Beirut fired on with hugelydisproportionate force. Foreign Minister Tzipi Livni asserted inJanuary 2009, "We have proven to Hamas that we have changed theequation. Israel is not a country upon which you fire missiles and itdoes not respond. It is a country that when you fire on its citizensit responds by going wild - and this is a good thing."
In September 2005, it was the evidence of the involvement of DoronAlmog in the destruction of just 59 homes in the south of the GazaStrip, in Rafah, in January 2002 that persuaded a District Judge inLondon to grant an arrest warrant against him. When he arrived atHeathrow airport, had Almog been brave enough to leave the El Alaircraft that brought him to the UK he would have faced a detailedcriminal investigation and possible charges for war crimes.
The devastation wrought recently by the Israeli military far surpassesthe destruction that was alleged to constitute a war crime in the caseof Almog. It is therefore highly likely that similarly strongevidence tying named Israeli suspects to the destruction of so manycivilian homes, buildings, and civilian deaths will result in thegrant of arrest warrants, should such suspects ever come to the UnitedKingdom. Likewise, such suspects face the possibility of arrest andprosecution if they travel to many other countries across Europe andelsewhere, including South Africa. Indeed, the Goldstone report backsthe use of universal jurisdiction in clear terms as "a potentiallyefficient tool" for enforcing international criminal law, "preventingimpunity and promoting international accountability."
Consequently, those of us who have collected such evidence and act forvictims of alleged war crimes will continue to make case filesavailable to the prosecuting authorities of any country where asuspect may travel. Prosecution is simply a matter of time.
Fundamentally, what is required is for the victims on both sides tosee a judicial process that they can have confidence in unfold asquickly as possible. It is in the absence of such judicial processesthat the victims on both sides of the divide will decide that the onlyrecourse they have is to support yet more naked aggression andcriminality.
Daniel Machover, partner at London law firm Hickman & Rose,specializes in assisting victims of alleged international crimes gainaccess to justice.