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Sunday, January 09, 2011

The advantage of a hyper-active judiciary

I've been critical of Israel's judiciary on many occasions for taking cases regardless of the parties' lack of standing and the cases' lack of justiciability - particularly the court's penchant for deciding political questions. But it was hard not to feel some pride last week at the judicial system for convicting former President Moshe Katzav of rape, sexual assault and sexual harassment. Alan Dershowitz uses that conviction to go a step further, and to use the judiciary's independence to demolish the argument that claims of 'war crimes' against the IDF need to be heard anywhere outside of Israel.
But the most important reason why any investigation of Israel would be "inadmissible" under the law is that the statute that governs the ICC specifically provides that a case against a nation is "inadmissible" if that country has a judicial system that is "independently and impartially" willing and able to apply the rule of law to its own citizens.

Here is what the statute says:

"the Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution"

In order to determine whether this criteria has been met:

"the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings."

Even Israel's enemies concede that the Israeli judiciary is a model of independence and impartiality. A poll of West Bank Palestinians demonstrated that the institution they would most like to see their own "government" emulate is the Israeli judiciary, which is open to all, including West Bank Palestinians, and which routinely rules against the Israeli government and military.

If any more proof were needed of the ability and willingness of the Israeli courts to do impartial justice, the recent trial and conviction of Israel's former president for the serious crime of rape, surely provides it. Whether that decision was right or wrong on the merits –the evidence of rape was deemed questionable even by the prosecutor—the fact that a former president was tried and convicted is virtually unprecedented among democracies. Nor is this the only case in which high ranking officials have been brought down by the Israeli legal system.

The late Prime Minister Yitzchak Rabin was forced out of office by legal proceeding. Former Prime Minister Ehud Olmert is currently under investigation. Former Prime Minister Ariel Sharon was being investigated at the time of his coma. And others have been investigated, tried and convicted, as well. What other nation can boast a stronger record of judicial independence?

Moreover, several soldiers involved in alleged crimes during the Gaza War have been prosecuted and convicted, and other investigations are underway.
Read the whole thing.

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