Israel Matzav

Hamas to try Israelis for 'war crimes'?

This may be about as insane as things can possibly get.

You will recall that when I discussed the Spanish attempt to prosecute Israel for 'war crimes' arising out of the Shehadeh targeted assassination in 2002, I mentioned that neither Israel nor the United States had become parties to the Rome Protocol creating the International Criminal Court. Please recall the bases for the Court's jurisdiction:

The Court can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the Court by the United Nations Security Council. The Court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.

The 'Palestinians' would like to see Israel prosecuted for a 'war crime,' the unlawful use of 'white phosphorus' during Operation Cast Lead. White phosphorus may legally be used to create a smoke screen for troops in unpopulated areas - and please don't fall for the myth that there are no unpopulated areas in Gaza, because I can show you pictures of them. In fact, during Operation Cast Lead, the Red Cross, which is far from being a pro-Israel organization, said that Israel had not used white phosphorus in an unlawful manner.

HRW's "evidence" was based entirely on innuendo and unverifiable "eyewitness" reports. One report states that "[o]n January 9, Human Rights Watch researchers on a ridge overlooking Gaza from the northwest observed multiple air-bursts of artillery-fired WP that appeared to be over the Gaza City/Jabalya area. In addition, Human Rights Watch has analyzed photographs taken by the media on the Israel-Gaza border." HRW does not name its researchers; it does not provide a detailed location of its observation, nor does it identify the photos it "analyzed" making independent verification of this "evidence" impossible.

INDEED, TWO days later, the International Committee of the Red Cross, which certainly cannot be accused of a pro-Israeli bias, issued a statement that backed the IDF statements. "Using phosphorus to illuminate a target or create smoke is legitimate under international law," it said, adding that there was no evidence that Israel was "using phosphorus in a questionable way, such as burning down buildings or consciously putting civilians at risk." (Flares assist search and rescue forces in saving the lives of wounded soldiers and preventing Hamas from snatching the bodies of dead soldiers. To claim that such operations are illegitimate is, in and of itself, immoral.)

The picture at the top of this post purports to be a white phosphorus bomb used in Gaza. It should be clear to all of you that it cannot be determined whether the explosion took place over a populated area. For that matter, I'm not expert enough to determine whether this is a photoshop, but it may well be. The 'Palestinians' are claiming that Israel did use white phosphorus in populated areas - where Hamas terrorists hide among civilians.

You will note that the International Criminal Court should have no jurisdiction over Israeli soldiers. Israel is not a signatory to the treaty and 'Palestine' is not a state. But the Times of London is reporting that the International Criminal Court is looking to put Israeli officers on trial anyway - in front of 'Palestinian' judges.

When Palestinian groups petitioned the ICC this month, its prosecutor said that it was unable to take the case because it had no jurisdiction over Israel, a nonsignatory to the court. Now, however, Luis Moreno-Ocampo, the ICC prosecutor, has told The Times that he is examining the case for Palestinian jurisdiction over alleged crimes committed in Gaza.

Palestinian groups have submitted arguments asserting that the Palestinian Authority is the de facto state in the territory where the crimes were allegedly committed.

“It is the territorial state that has to make a reference to the court. They are making an argument that the Palestinian Authority is, in reality, that state,” Mr Moreno-Ocampo told The Times at the World Economic Forum in Davos.

Part of the Palestinian argument rests on the Israeli insistence that it has no responsibility for Gaza under international law since it withdrew from the territory in 2006. “They are quoting jurisprudence,” Mr Moreno-Ocampo said. “It’s very complicated. It’s a different kind of analysis I am doing. It may take a long time but I will make a decision according to law.”

Mr Moreno-Ocampo said that his examination of the case did not necessarily reflect a belief that war crimes had been committed in Gaza. Determining jurisdiction was a first step, he said, and only after it had been decided could he launch an investigation.

But which 'Palestinian Authority'? While the 'international community' may recognize Fatah as the lawfully constituted power in Gaza, that is clearly not the case de facto. Would Moreno-Ocampo suggest that Hamas try IDF officers? Or is he suggesting instead that they be brought before a court whose jurisdiction Israel has never recognized as a means of avoiding a 'trial' in a Hamas Kangaroo Court with a foregone conclusion?

Moreover, given the world's insistence that Israel is somehow responsible for what goes on in Gaza despite the IDF's withdrawal and Israel's expulsion of all its citizens from Gaza, it is absurd for the 'international community' to suddenly adopt Israel's position when it can be used as a club against Israel and suddenly claim that an independent 'Palestinian' entity exists in Gaza.

States that are party to the treaty can refer cases of crimes committed by their citizens or on their territory. Cases involving the citizens or territory of a country that has not signed up to the court can be referred by the United Nations Security Council – as in the case of Darfur. Ivory Coast set a precedent as the first nonstate party to accept the ICC’s jurisdiction over alleged war crimes on its territory. It signed the Rome treaty but never ratified it. In 2005 it lodged a declaration with the court accepting the ICC’s jurisdiction over crimes committed there since September 2002.

Palestinian lawyers argue that the Palestinian Authority should be allowed to refer the cases in Gaza on this same ad hoc basis – despite its lack of internationally recognised statehood.

Yes, but the Ivory Coast is a state. 'Palestine' is not and never has been.

There's also another agenda here.

The case has wide-reaching ramifications for the Palestinian case for statehood. If the court rejects the case, it will highlight the legal black hole that Palestinians find themselves in while they remain stateless. However, it also underlines some of Israel’s worst fears about a Palestinian state on its borders. A Palestinian state that ratified the Rome treaty would then be able to refer alleged Israeli war crimes to the court without the current legal wrangling. The case could also lead to snowballing international recognition of a Palestinian state by countries eager to see Israel prosecuted.

All of which is another reason why Israel should never allow the creation of a 'Palestinian' state reichlet on its borders.

Picture this scenario: Israel turns Judea and Samaria over to the 'Palestinian' terrorists as most of the parties in the current election want to do. The terror state of 'Palestine' signs the Rome Protocol and joins the International Criminal Court. A 'Palestinian' terrorist operating in 'Palestinian' territory takes a strella missile and shoots down a commercial aircraft taking off from Ben Gurion Airport, killing hundreds of people (no, this is not at all far-fetched and the only thing that prevents it today is Israeli security control and the anti-missile devices underneath El Al jets). Israeli troops go into what is now sovereign 'Palestinian' territory to put an end to the missile fire - and find themselves charged with war crimes. Yes, it's entirely possible if this scenario is accepted.

The Times goes on to outline the steps that Israel is taking to create the argument that it is dealing with the 'war crimes' itself and therefore there is no reason for the International Criminal Court to exercise jurisdiction. You can read those yourselves. Obviously, that's nothing but a stalling tactic. If Israel tries its own officers for these 'crimes' and does not convict them, it will be back to Square One, with the 'international community' looking to place the IDF on trial for 'war crimes,' possibly in front of Hamas judges.

For you Americans, imagine US Army and Marine officers being placed on trial in front of the Taliban for 'war crimes' committed in Afghanistan. If they can do it to Little Satan, they can do it to Big Satan too. Of course, if President Hopenchange decides to ratify the Rome Protocol as part of his effort to be a 'citizen of the world,' you'll have a whole different set of problems: Your officers will be accountable to the International Criminal Court itself.

posted by Carl in Jerusalem @ 3:12 PM