Paving New Paths to Accountability

Claims to ostensible moral and civil superiority and the now decades long U.S. and Israeli capacity to remain beyond the reach of international law has left the human rights community's looking for legal alternatives.
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On February 24th, Al Haq, a human rights organization based in the West Bank, filed suit against the United Kingdom for breaching its duty as a High Contracting party to the Geneva Convention. The suit alleges that the UK failed to prevent "persistent violations of fundamental principles of international law" during Israel's offensive against Gaza as well as other violations committed before the commencement of "Operation Cast Lead."

At first glance, Al Haq's suit against a third party for violations allegedly committed by another country may seem dubious. Yet, this approach emerges as a necessary strategy given the multifarious roadblocks that impede Israeli accountability. Lacking state structures and frameworks, including a functioning judiciary, Palestinians have no option but to seek judicial recourse in Israeli and international courts. In 2002, the Knesset rescinded what little recourse existed in Israeli courts when it passed the Civil Torts (State Liability) Law. This law retroactively broadened Israel's state immunity from any damages in Israeli-occupied territory; it effectively left Palestinians injured by Israeli laws and military actions in the West Bank, Gaza Strip, and East Jerusalem with no judicial recourse other than third party jurisdictions.

While a UN International Criminal Tribunal, similar to those established in Yugoslavia and Rwanda, would appear to be the most appropriate third party venue, such an option is a near impossibility in the case of Palestine/Israel. An international tribunal requires a UN Security Council resolution, which places ultimate power squarely in the hands of the United States. The U.S.'s consistent policy over the past four decades -- vetoing 42 resolutions critical of Israel -- is unlikely to shift in the near future, notwithstanding the leadership of Obama and his envoy to the UN, Susan Rice.

International human rights lawyers, well aware of this straitjacket in international law, are now preparing suits against members of the Israeli Army. Spanish attorneys garnered their first victory in late January when Spanish Judge Fernando Andreu decided to investigate a 2002 bombing in a densely populated residential suburb of Gaza city that killed a Hamas leader, fourteen civilians (including nine children), and injured seventy-seven others. Human rights organizations such as Amnesty International, Human Rights Watch, the United Nations Relief Works Agency, and the International Red Cross Society have also called for investigations into alleged Israeli war crimes. In addition, 30,000 other members of the international community have made the same call in a petition to the UN General Assembly.

Growing international calls for accountability reflect mounting impatience with the limitations of international legal structures. These calls amount to a rejection of the Israeli and U.S. standing policy of defining themselves as leaders of democracy while defying international law at every turn. By way of example, Israeli officials insist that all tribunals would be biased and claim that internal military investigations are the only viable option for legal redress. Last week an Israeli Army spokesman decried all suits brought against soldiers and officers involved in "Operation Cast Lead" as tantamount to "legal terrorism." This attempt to use familiar discursive tools -- terror/barbarism -- in order to continue the current modus operandi of Israeli impunity is base, but effective nevertheless.

This combination of claims to ostensible moral and civil superiority and the now decades long U.S. and Israeli capacity to remain beyond the reach of international law has left the human rights community's looking for legal alternatives.

The last Israeli military investigation to result in serious reprimand of Israeli soldiers and officers was the 1983 Kahan Commission which found that then Defense Minister, Ariel Sharon, failed to prevent the Sabra and Shatilla massacres of hundreds of Palestinians. Since then Israel has stymied or prevented investigations into its military operations, including "Operation Grapes of Wrath" (Southern Lebanon,1996) and "Operation Defensive Shield" (the West Bank, and specifically Jenin, 2002). The Israeli Army's recent orders, compelling foreign and Israeli journalists to delete army personnel's names and faces from stories, photographs, and documents of the Gaza offensive, indicates that today, an Israeli military investigation will be, perhaps more than ever, primarily aimed at protecting its soldiers not redressing Palestinian claims.

Colonel Liron Liebman recently said as much: "Commanders during the fighting shouldn't be losing sleep because of the investigations...It's impossible not to make mistakes in such a crowded environment, under pressure. There's a large gap between mistakes and the 'war crimes' people like to accuse us of." Unfortunately for the Colonel, but more catastrophically unfortunate for the Palestinians in Gaza, claims against the Israeli army's deliberate targeting of civilians are evidenced by brain scans demonstrating that children were shot at close proximity.

The community of nations must not accept military investigations in lieu of an international one. Doing so undermines the universal jurisdiction principle that some crimes are of such magnitude that they warrant their universal prosecution and repression, More importantly, failure to establish an international resolution to the violations committed during "Operation Cast Lead" and a continued enabling of Israeli policy's rejection of the possibility of an international solution will further attenuate any glimmer of resolution to the Arab-Israeli conflict.

Israel's intransigent refusal to partake in international peace building efforts, as opposed to unilateral ones, has incited its own citizens to action. Israeli activists have compiled the names of nine battalion commanders of the Golani and Paratroop brigades as well as the armored corps that they consider guilty of war crimes. By filing suit against the United Kingdom, Al Haq is building on these various efforts and expanding a movement that demands the enforcement of the international rule of law by making all states interested parties. Indeed all states should at this stage be interested in safeguarding the rule of law, particularly given the increasing human cost of the U.S. inaugurated "shock and awe" policy of bludgeoning civilian communities with the most sophisticated of military arsenal. The failure of state interest amounts to the international community's active participation in the suspension of Palestinian political and human rights in Gaza. Such a suspension has drastic consequences for humans the world over and it can only bode ill for the very possibility of a viable mode of international law.

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