From Al Jazeera (one of the few principled, competent broadcasters left in our media-nobbled world):
Daniel Friedman, the Israeli justice minister, has been appointed to lead a defence team should war crimes charges be brought following the 22-day war on Gaza.
Mark Regev, a spokesman for the Israeli prime minister, confirmed to Al Jazeera on Friday that Friedman would lead an inter-ministerial team to co-ordinate a legal defence for civilians and the military.
Israel has been criticised by many human rights organisations for using excessive force, including flame-generating chemical munitions, in densely populated areas during its aerial, naval and ground assault on the coastal strip, which began on December 27.
The Israeli army has already banned the publication of the identity of military leaders who fought Hamas in Gaza.
Ali Kashan, the Palestinian justice minister, met Luis Moreno-Ocampo, the International Criminal Court (ICC) prosecutor, in The Hague on Thursday to discuss “allegations of crimes”, a special adviser to the prosecutor said.
Gaza medics put the death toll in Gaza at 1,330 with at least 5,450 wounded following Israel’s attacks. About 65 per cent of the dead were civilians, including 400 children and 100 women.
Eight Israeli human rights groups have called on the Israeli government to investigate allegations of war crimes given the scale of the casualties, describing the number of dead women and children as “terrifying”.
Richard Falk, a UN human rights expert, said on Thursday that there was evidence that Israel violated humanitarian law by conducting the offensive “against an essentially defenseless population”.
Prosecuting the Israeli war criminals may not be easy – Al Jazeera’s Anita Rice reports on the difficulties of Gaza victims of Israeli aggression gaining justice.
Gaza is not formally recognised as a state by the UN and “the US, and perhaps other [security council] member states, would veto any resolution that would ask for the ICC to investigate Israel,” says Ellis.
“The ICC option is effectively closed.”
The second route would be for the UN General Assembly to request an advisory opinion from the International Court of Justice (ICJ), also based in The Hague, on the legality of specific actions taken by states.
However, the ICJ has no enforcement powers, as was witnessed by its inability to act following its ruling that Israel’s construction of a separation barrier breached aspects of international law.
The ICJ requested Israel rectify elements of the construction, which Tel Aviv ignored – something any state can choose to do, Ellis notes.
The third option involves states trying their own citizens or soldiers for war crimes – a requirement under the Geneva Conventions.
“That’s unlikely to happen on both sides, but that is still a responsibility of the state, body, or entity that’s responsible for, or has authority over, the individuals who have committed these crimes,” says Ellis.
Finally, Ellis points to a legal concept referred to as “universal jurisdiction”, where any state can choose to launch legal proceedings against any person, anywhere in the world, who is suspected of committing crimes such as genocide, torture, and other grave breaches of international law.
But states have already proven themselves reluctant to take responsibility for holding individuals to account for crimes committed in other countries and Ellis believes it is “highly unlikely that a third party is going to step up and bring actions against Israeli or Palestinian individuals”.
Despite this, lawyers across the globe, and particularly in the Arab world, are seeking ways to take legal action in relation to events they believe constitute war crimes.
Dr Abdullah Al-Ashal, a professor of international law at the American University in Cairo and a former Egyptian foreign minister, belongs to both the Arab Bar Association and the Arab Federation of Lawyers (AFL).
He believes that Israel has breached all four Geneva Conventions that cover conduct during armed conflict with relation to civilians, prisoners of war, sick and injured combatants, weapons used and how troops engaged in fighting.
Al-Ashal claims that Jordan, the Comoros Islands and Djibouti – all signatories to the Rome Statute – have committed themselves to bringing war crimes cases against Israel to the ICC if needs be, following the recent Kuwait-hosted Arab summit on Gaza.
In addition, members of the AFL are set to meet in Tunis on Thursday, January 29, to “discuss how to progress the prosecution of Israel for war crimes”, and Al-Ashal said that Arab lawyers are “seriously pursuing” all options to put Israelis on trial.
Meanwhile, both sides say they acted in self-defence and within the confines of international law.
Mark Regev, the spokesman for the Israeli prime minister, insists Israel takes “extremely seriously any allegation of either improper or illegal behaviour by servicemen in combat” and carries out its own investigations.
On Israel’s refusal to sign up to the Rome Statute, he cites Israeli concern over “the politisation of the international human rights mechanisms in the international judicial system”, a reference to resolutions that Israel regards as hostile and were passed by UN bodies without the backing of western states.
Going back to Ellis’ “accountability gap”, the IBA chief puts the blame squarely on nation states – including the US – for failing to accept the legitimacy of the ICC.
“The ICC is probably the most important body with regard to individual responsibility for these crimes … it is the responsibility of all civilised nations to agree that if these types of crimes have been committed, they should be brought to justice.
“Ultimately, that’s where we want to be and we are a long way from that today,” he says.
[Richard Falk said there was] compelling evidence that Israel’s actions in Gaza violated international humanitarian law required an independent investigation into whether they amounted to war crimes.
“I believe that there is the prima facie case for reaching that conclusion,” he told a Geneva news conference.
Falk said Israel had made no effort to allow civilians to escape the fighting.
“To lock people into a war zone is something that evokes the worst kind of international memories of the Warsaw Ghetto, and sieges that occur unintentionally during a period of wartime,” Falk, who is Jewish, said, referring to the starvation and murder of Warsaw’s Jews by Nazi Germany in World War II.
“There could have been temporary provision at least made for children, disabled, sick civilians to leave, even if where they left to was southern Israel,” the U.S. professor said.
Falk said the entire Gaza population, which had been trapped in a war zone with no possibility to leave as refugees, may have been mentally scarred for life. If so, the definition of casualty could be extended to the entire civilian population.
John Ging, head of the UN Relief and Works Agency (UNRWA) in Gaza, called on Friday for the establishment of an independent international investigation into the alleged war crimes committed during Operation Cast Lead.
At a press conference held in Geneva, Ging said that a credible investigation of the death and destruction in Gaza was necessary especially in light of the growing anger of Gazans, the increasing number of extremists in the Strip and their lack of faith in the rule of law, Reuters reported.
It is urgent to establish accountability for death and the destruction of Palestinian infrastructure through a credible mechanism which would “channel this emotion to confidence in the rule of law,” Ging reportedly said.
Ging told reporters that the number of extremists in the Strip had grown as a result of the three-week operation against Hamas, and stressed that it was important to prove that justice could be delivered in a lawful way.
The extremists “are very confident in their rhetoric that there should be no expectation that justice will be delivered through the rule of law. Now we must prove that wrong,” he reportedly said.
According to the report, the UNRWA head noted that Israeli civilians had also suffered, and therefore, the investigation had to examine “legitimate allegations” on both sides.
Ging expressed his hopes that new US Middle East envoy George Mitchell will talk to ordinary people in Gaza as part of a “new track” in diplomacy.
“My first request to the US administration is talk to the ordinary people in Gaza. Come to Gaza and talk to the ordinary people — the mothers, fathers, leaders of civil society, the people who are not involved in politics,” said Ging.
Flashpoint live report from Gaza – Middle East Childrens’ Alliance director Barbara Lubin bears witness to the devastation in the Gaza Strip; Nora Barrows-Friedman reports from occupied Palestine and Israel. The broadcast also includes discussion with Professor Hatem Bazian about the illegitimacy of Abbas’s position as his term as President expired on the 9th January.
More opinion on procedure to bring Israeli war criminals to justice by Paul Rafferty:
The best recourse, however, is through the International Court of Justice, ICJ or “The World Court”, an integral part of the United Nations system. Since Israel is a Member-State of the U.N. and therefore bound to observe the Charter of the United Nations, any ICJ Decision is binding.
Any and all U.N. Member-States (plus some U.N. agencies) may apply to the World Court for a Hearing on Gaza and Israel. (4)
Of course, ICJ Decisions must be implemented by the Security Council of the U.N. and since the U.S., as one of the five Permanent members of the Security Council, holds Veto Power over any proposed Security Council Resolution, there is little chance that Israel will be forced to do anything, whatever happens.
Nevertheless, all World Court Decisions carry a Moral Authority and should Israel be found Guilty of War Crimes, this in itself MIGHT help change the situation.
It didn’t after the non-binding ICJ Advisory Opinion on the “Separation Wall”, but who knows what may happen, in future ? (5)
Israel may welcome an opportunity to explain its actions, in an open impartial Courtroom.
Regev loses it on Channel 4 – nicely skewered and roasted to a crisp by Jon Snow. Then watch the translation of the interview at “Inside the Mind of Mark Regev”.
Ban Ki Moon is treading delicately through the hasbara mines on the UN Security Council.
New York (UNN) Division among the Security Council members regrding Israeli-Palestinian conflict, Secretary-General Ban Ki-moon said he is seeking the body’s advice on how to investigate the latest hostilities in Gaza and southern Israel.
Briefing the Coordinating Bureau of the Non-Aligned Movement on his latest trip to the Middle East, including Gaza, Ban said he has not taken a decision regarding an inquiry into the conduct of the parties to the Gaza conflict before and during hostilities but he has asked the council to guide him.
“I have not taken a decision but have raised the issue with the Security Council and have asked its members to give serious consideration to the question, and to advise me of their views, Ban siid.
He reiterated his conviction that there should be a thorough investigation, full explanation and, where it is required, accountability.
He also told NAM he already asked Israel to investigate itself about the bombing of UNRWA schools and other UN facilities in Gaza, and once he gets the results “I will then decide on appropriate follow up action.” He added that an investigation into the damage to UNRWA facilities will be undertaken by the UN Secretariat, but the “precise format and the identity of the panel or members comprising the inquiry has not been determined as yet” although it is receiving consideration.