Gaza is a tough case for international law. After the legal wrangling is over and blame is assigned, where will the lawyers and petitioners go to seek justice? Who will try these cases and where?
More than 1,300 Palestinians died in the 22 day fighting on the strip that also claimed 13 Israeli lives, most of them soldiers. Both Israeli Defense Forces and Hamas fighters are being accused of war crimes.
Israel is not a member of the International Criminal Court (ICC), though a reference by the Security Council can bring a non-state party under the court's jurisdiction. The United States can be expected to veto any referral against Israel. The US will also veto the setting up of courts similar to the criminal tribunals created by the Council to prosecute crimes committed in Rwanda and Yugoslavia.
The Palestinian Authority (PA) has moved to unilaterally accept ICC jurisdiction to investigate war crimes in Gaza. The glitch is that Palestine is not a sovereign state nor does the PA control the strip. So, the ICC prosecutor Luis Moreno-Ocampo has to decide whether the PA is 'enough like a state' to recognize the court. There is controversy that this decision will make implicit determinations on statehood, a matter essentially political.
The Guardian reports that the ICC is also considering a bringing war crime allegations basis of the dual nationality of either victims or alleged perpetrators whose second passport is with a country party to the court. This is bound to invite a storm of objections from non-signatories as a surreptitious grab of jurisdiction.
Abstractions aside, the ICC route is unwieldy because Israel can simply refuse to cooperate. It can also block prosecutions by invoking the ICC tenet of "complementarity," which recognizes national courts as having the first call for instituting legal proceedings. The Israeli courts have a mixed record of delivering judgments -- for and against -- Palestinians.
It has also been suggested that an International Criminal Tribunal for Israel (ICTI) can be established by the General Assembly as a "subsidiary organ" under article 22 of the UN Charter. The likelihood, however, of such a body is remote. In 2006, there was a similar call for an ICTI when Israel attacked Lebanon and more than a 1000 people died.
The GA is not made up of Islamic states and Palestinian sympathizers. Even as geo-political realities tilt the balance of power, Europe and the US dominate. These governments will not sanction Israel and nor will they agree to an ICTI. Yugoslavia became expendable, Israel is not. Palestine is not Rwanda.
Even if the votes stack up enough to create an ICTI, the credibility of such a body will remain under cloud. When the GA voted that the Sabra-Shatila massacre in 1982 was "genocide", the western democracies abstained. The legitimacy of that label is still questioned. If an ICTI is established, Israel could well walk out of the UN.
A lesser-known remedy is "universal jurisdiction." This tool allows any national court to launch investigations into war crimes, crimes against humanity, genocide and torture committed in another country. Chilean dictator Augusto Pinochet fell to universal jurisdiction. Universal jurisdiction hinges on the political and judicial fortitude of the state. It avoids some of the diplomatic ploys of the big powers that beleaguer the international mechanisms. Today, half a dozen cases based on universal jurisdiction are being heard in national courts. Turkish prosecutors are preparing a case against top Israeli leaders of crimes against humanity and genocide on the strip. Meanwhile, Iran has asked Interpol to arrest 15 individuals who were involved in the conflict. Once the investigative team sent by the Arab League wraps up its investigations, one or more of its 22 members are expected to set up trials in domestic courts.
Last month, a Spanish judge ordered an investigation into the killing, by Israeli forces, of Hamas operative Salah Shehadeh in 2002. The one-ton bomb that was dropped on his house killed 14 others, including nine children. It is unlikely, however, that Israel will extradite its citizens -- seven involved in this case -- to Spain. Universal jurisdiction does not allow trials in absentia. Although, the Tehran Times reports that Iran will conduct a "symbolic trial" for some Israeli officials charged with war crimes. But, the issuing of arrest warrants, guards against blatant impunity. In 2005, Israeli General Doron Along, got wind of a surprise arrest warrant after landing in London and took the next flight out. Military officials involved in Gaza have been advised not to travel to Europe.
Universal jurisdiction is also crippled by foreign policy considerations. The Spanish government is deliberating, under pressure from Israel, to change its law. This is a blow to universal jurisdiction. Already, in 2003, the US coerced the Belgian parliament into modifying its universal jurisdiction law.
The Belgian courts had received complaints against President George Bush for war crimes in Iraq and Prime Minister Ariel Sharon for his role in the Sabra-Shatila massacre (Sharon was defense minister at the time.) The Bush administration threatened to move NATO headquarters out of Belgium if leaders risked arrest in the country.
The politics is inescapable. It remains to be seen whether President Barack Obama will deliver big change on human rights and international law. Shuttering Guantanamo Bay is an admirable start. Will he join the ICC?
Even Obama can't disrupt the US-Israel dynamics by candidly supporting international trials against its best ally. But, the new administration can avoid obstructing justice. A nod from Washington and public pressure at home will embolden more states to let their courts exercise universal jurisdiction.