The recent conviction of Israel's former president on charges of rape once again demonstrates the independence, impartiality and vigor of the Israeli legal system. It is also relevant to whether the International Criminal Court is legally empowered to bring charges against Israel for its efforts to stop rocket attacks on its civilians during Operation Cast Lead in 2008-2009.
These attacks, which killed, injured and traumatized many Israelis, were directed by Hamas from the Gaza Strip, which it took over by violent and illegal actions. Before attacking Hamas military targets in December of 2008, Israel tried everything to stop the targeting of its civilians, including appeals to international organizations. The ICC did not, at that time, open an investigation against Hamas for the obvious war crimes of attacking Israeli civilians and using Palestinian civilians as human shields. It was only after Israel exercised its inherent and entirely lawful right of self-defense against rocket attacks that the ICC considered opening an investigation.
There are several reasons why the ICC has no lawful or moral authority to investigate Israeli actions in Gaza. The first is that the complaining party is the Palestinian Authority, which is not a state. The second is that the Palestinian Authority lacks "clean hands" in calling for an investigation of Israel. As the WikiLeak disclosures prove, it was the Palestinian Authority that urged Israel to take out Hamas and destroy its infrastructure. Third, Israel's actions were consistent with international law, and a recent admission by a high ranking Hamas official corroborates Israel's claim that most of those killed by Israeli fire during the Gaza War were combatants. Many of the civilians, who were killed despite extraordinary Israeli efforts to avoid "collateral" deaths, were "human shields" unlawfully used by Hamas fighters who fired from civilian areas.
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.
Contrast the Israeli legal system with the Russian "legal" system which recently convicted Mikhail Khadorovsky and sentenced him to a long prison term despite the lack of evidence. It was enough that he was a powerful political opponent of Vladimir Putin. Or compare it to the legal system of the United States, where the Obama administration is doing everything in its power to keep the courts from deciding cases involving allegations of torture, targeted killing and other unlawful or questionable actions in the war against terrorism. The Israeli courts regularly decide such cases -- sometimes in the midst of ongoing military operations -- often requiring the government and military to change what they are doing. No other judiciary in the world can boast as good a record of enforcing the rule of law against its own military and political leaders.
Moreover, the percentage of civilian to combatant deaths has been far lower for Israel than for Russia in Chechnya or for the United States in Iraq, Afghanistan and Pakistan. Yet no investigations have been opened up against either of these countries, or the many other countries whose records are far worse.
It would be a scandal -- for international law, for human rights and for the ICC -- if Israel's self defense actions against Hamas were to become the subject of an ICC investigation. Let that institution focus its attention on the dozens of nations whose judiciaries are truly "unwilling" or "unable" to investigate their own actions, and whose actions truly violate international law. The worst must come first, and Israel is not only not among the worst, it is clearly among the best. Were the ICC to open an investigation against Israel, that decision would be based not on the rule of law, but rather on the pressures of politics.
Alan Dershowitz's latest novel is The Trials of Zion.
Another cleverly constructed post by Fireslayer, which would be fine if it didn't rely on a number of false, self-serving and conclusory assertions.
E.g.:
"His proffer that half of the victims of Cast Lead were combatants is specious on its face."
Except it was recently confirmed by Hamas.
"1) it was Israel that broke the 6 month cease fire with Hamas by not honoring their agreement to cease the illegal blockade"
One doesn't break a ceasefire by failing to lift a blockade, but one does break a ceasefire by firing rockets and tunneling under an Israeli position in Israel to place a bomb thereunder or conduct a raid like the one in which Gilad Shalit was abducted.
"2) Hamas harshly dealt with independent operative who fired the odd homemade missile and executed...."
This claim is remarkable for what it fails to say more than for what it says. While Hamas occasionally acts against people firing rockets when they prefer them not to be fired, they use the very same people to fire rockets and thereafter deny responsibility.
"3) intolerable and illegal blockade which in fact killed several people"
The blockade is not illegal ("intolerable" is simply colorful rhetoric) and, as Wikileaks cables show, was always intended not to create a humanitarian catastrophe. Notably, the charge that it "in fact killed several people" is vague and unsupported by example.
Amazing, Mr. Jones. The Wikileaks you refer to actually showed quite the opposite of what you purport. Israel bloody well intended to create a humanitarian crisis. In all truth, the blockade killed many due to deprivation of medical care, medicine, basic sewage treatment deficiencies and other factors in combination with malnutrition.
Israel specifically agreed to lift the blockade. But for reasons of political expediency in placating the rabid right or out of pure meanness, they double crossed Hamas.
I doubt Hamas used the lads they executed for firing missiles to fire more of these ignorant rockets.
One wonders if he has been hired as a consultant for the appeal of the lamentable former Israeli leader. Fact is that an intra-mural rape conviction is apples to the oranges of international law.
His proffer that half of the victims of Cast Lead were combatants is specious on its face. His chronology of events is sorely lacking in the facts that 1) it was Israel that broke the 6 month cease fire with Hamas by not honoring their agreement to cease the illegal blockade and 2) Hamas harshly dealt with independent operative who fired the odd homemade missile and executed at least 2 such perps and 3 it was only after 6 months of this 3) intolerable and illegal blockade which in fact killed several people.
So let us also reconsider the 700 or so deaths of government employees that he chooses to regard as combatants. Many were employed by the democratically, of the regretfully elected government that included mere civil servants, police, emergency personnel etc.
The number of combatants only included 4 missile operatives, though doubtlessly many more who came out to fire missiles and mortars were also killed- a dozen or four perhaps. It is not such a neat package as he would allege, in the best traditions of criminal defense ad gravem and ad nauseum.
Some fine day it is my earnest hope and prayer that the learned professor emeritus will come over to the side of peace and carry brief for the innocent Palestinians and help bring justice and equal rights to them and for the sanity, peace and security of Israels, Palestinians and the world.
....somehow constituted the use of human shields. Remember, Gaza is the most densely populated area on the planet. The civilians, boxed into their vulnerable ghetto, had no place else to run and no place else to fight and defend.
But if they had lifted the blockade and begun sincere negotiations with Hamas for final status (and Hamas offered acceptance of Israel in return for returning to the internationally recognized 67 borders (and the Arabs offered this as well in return for recognition and normalized relations) NONE OF THIS WOULD HAVE HAD TO HAPPEN.
--Alan Dershowitz, The Best Defense
--Alan M. Dershowitz, Letters to a Young Lawyer
Commendable indeed, lest we forget this is an internal affair, and refrains from taking aim at the pesky internal fifth column Other.....
No thanks, but an Israeli court is the last place to be if you an agrieved citizen or not citizen that is not Jewish
Jerusalem in it's entirety belongs to Israel.
And yes, it is admirable that Israel is able to try their own and convict them.
And finally, Israel is a democracy is capable and does try and convict their own.
As for my spelling, yawn.
There is, however, http://giyus.org/. They say: 'GIYUS.ORG spends a lot of effort tracking down online articles and surveys that members should see and act upon. After installing the Megaphone application, you will receive alerts on these articles so that you can voice your opinion on them. You can help even more! Report relevant articles and surveys to GIYUS.ORG and help Israel win the public opinion front.'
There's only one group organising spammers: the Hasbara crowd.
Israeli military tribunal sentences Palestinian nonviolence leader to two years in prison; guilty of being present in his own home.
After spending 11 months in detention with no trial or charges, non-violent anti-Wall organizer Adeeb Abu Rahma faced an Israeli military tribunal which sentenced him to two additional years in prison for organizing peaceful, lawful protests in the village of Bil'in.
Adeeb Abu Rahma is a taxi-driver and he has 11 children, and he is well known for his generosity and constant presence at village of Bil’in’s weekly demonstrations against Israel’s wall and for his commitment to popular nonviolent resistance.
According to the 'Stop the Wall' campaign, “The sentence is part of an Israeli strategy to repress and criminalize popular nonviolent struggle against the Occupation and the Wall.”
* All Palestinian prisoners have experienced at least one form of torture. According the Israeli Human Rights organisation B’tselem, statistics show that more that 85% of Palestinian detainees are subjected to torture.
On 6th September 1999, the Israeli High Court of Justice ruled to ban the use of torture during interrogation. A seemingly considerable victory for human rights defenders proved later through practice not to be applicable to Palestinian “security prisoners”. Indeed, the ruling failed to explicitly forbid the use of torture but rather allowed that interrogation methods such as “moderate physical pressure” – widely deemed as torture – may be used in the “necessity of defence” and in situations where a detainee is considered a ‘ticking bomb’. In some instances, detainees have died while in custody as a result of torture. Confessions extracted through such practices are admissible in court and / or military tribunal.
2) Are the Palestinian women and children in Israeli prisons being exposed to treatment prohibited by international conventions and the UN Convention against Torture?
the panel stated that: “In many countries torture is used, mostly by the police, in order to obtain information or a confession. In Israel, however, torture is also very widespread in prisons, where it can only have the purpose of humiliating and undermining the prisoner’s personality. This is successful to a great extent and it affects not only the tortured individual, but the whole family. The child whose parents have been tortured very often experiences that the parents have lost their parenting skills, because tortured people lose their ability to act with empathy after the torture. The parents suffer whether they are tortured themselves or they observe the results of torture on their children. As 40 per cent of the Palestinian men have been imprisoned – and most of them tortured – it affects the whole population.
International law? The Geneva conventions? UN Security council resolutions?
Impartiality?
Impartial between Arabs and Jews you mean? If that is the case why are Jews tried in court while arabs are tried by military tribunals?
Why are Jewish minors not tried as adults but Arab minors are?
Why is arab property liable to confiscation but not jewish property?
Convicting a rapist doesnt excuse 50 years of human rights violations nor does it ameliorate the terrible collective punishment Israel visits on gaza and the west bank. Nor does it soften the effect of Pogroms against Arabs in Hebron and settler violence in the west bank which the state not only turns a blind eye to, but often supports.
Once again the lawyer doth protest too much.
2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5Database 'IHL - Treaties & Comments', View 'ART';
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
"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"
And then he continues to quote the statute pertaining the "unable" part of this without ever mentioning, or quoting, those pertaining to the "unwilling" part, which I went ahead and quoted above.