WANTED: Israeli war crime ministers! + Israel’s culture of impunity

Israel’s culture of impunity

A Spanish court attempted to open a criminal investigation under international law into the killing of a Hamas leader in Gaza City. But the Spanish government backed off under US and Israeli pressure. Israel won’t investigate. Who can?
by Sharon Weill

An Israeli Air Force plane dropped a one-tonne bomb on the al-Daraj district of Gaza City, one of the most densely populated areas in the world, around midnight on 22 July 2002. It was meant to kill Salah Shehadeh, the former military leader of Hamas in the Gaza Strip, who was at home with his family. It succeeded; Shehadeh and 14 civilians, most of them children, were killed, 150 people were injured, many severely. Nearby houses were damaged or destroyed.

In Madrid on 29 January this year, Judge Fernando Andreu Merelles decided, on the basis of universal jurisdiction (1), to open a criminal investigation against seven Israeli political and military officials for allegedly committing a war crime (2). The court claimed that the facts pointed even to crimes against humanity, and so lawyers said they would do their utmost to demonstrate that the bombing was part of a policy of systematic attacks against a civilian population.

The Spanish proceedings had been initiated by six Palestinian victims since it was “impossible to bring the relevant prosecution before the Israeli judicial authorities”. In August 2008 the court asked Israel for information on judicial proceedings; this January it ruled that “the facts can and must be investigated by the Spanish jurisdiction… since no response whatsoever has been received to the request made by this Court… nor is there any evidence that any proceedings have been brought to investigate the facts” (3).

Just as this ruling was made, Israel sent a 400-page file claiming that proceedings were under way in Israel and that the Spanish court should desist. However, even if the Shehadeh affair has been reviewed by legal authorities in Israel including the High Court of Justice (HCJ), no decision has been taken as to whether to initiate criminal proceedings. In September 2002, the pacifist movement Yesh Gvul requested the military advocate general, and then the state advocate general, to open a criminal investigation against those who had planned and executed the operation. An internal investigation within the army found that the collateral damage was the result of an intelligence failure and had not been anticipated by the decision-makers. The attorney general adopted this version of the facts, ruling out a criminal investigation.
Implicit recognition

Yesh Gvul and five Israeli authors then filed a petition to the HCJ demanding that it review the authorities’ decision not to open a criminal investigation. The petition, on 30 September 2003, ended: “There is no intention to disguise the fact that appellants are guided by the desire that the investigation and indictment (if evidence is found) remain within the confines of the State of Israel. The High Court of Justice is the last stop of the law enforcement train before it crosses the borders of the State of Israel and we find ourselves giving the nations of the world the justification to conduct criminal proceedings… according to international law.”

A petition questioning the legality of the targeted killings policy had been pending before the same court since January 2002: the HCJ decided to suspend the Shehadeh petition. On 14 December 2006 it ruled that the policy could not be defined as legal or illegal, and should be determined on a case-by-case basis on the principle of proportionality. Judge Aharon Barak, then HCJ president, emphasised the difficulty of establishing the principle: “Take the usual case of a combatant, or of a terrorist sniper shooting at soldiers or civilians from his porch. Shooting at him is proportionate even if as a result, an innocent civilian neighbour or passer-by is harmed. That is not the case if the building is bombed from the air and scores of its residents and passers-by are harmed.”

By using facts similar to the elimination of Shehadeh, Barak was implicitly acknowledging that a war crime had been committed. After this decision, the HCJ recommended that the Shehadeh affair be examined by an independent body (rather than by the court). On 23 January 2008 the Israeli prime minister Ehud Olmert appointed a commission of inquiry with three members: two former generals and an ex-security services officer. The structure, nature and mandate of the commission were determined by the state – the very body whose actions were to be investigated. The commission was to function as a military inquiry: all the procedure, testimonies and final report remain confidential and inadmissible before a court of law, and the commission can only provide non-binding recommendations to the army. It has yet to complete its mandate.

The Spanish public prosecutor submitted a request, on 2 April, for the Spanish court to decline competence over the case since parallel proceedings had been taking place in Israel: but Israel would only have the priority if it were willing and able to prosecute. On 4 May the Spanish court rejected the prosecutor’s request to decline competence. The Spanish court found that the Israeli prosecution authorities’ endorsements of an internal military probe, and the fact that the commission of inquiry had been appointed by the prime minister, meant that the case was neither independent nor impartial.

Politicised reactions in Israel show how states perceive the separation of powers doctrine in reaction to accountability for international crimes. The procedure in Spain was described in the media as a “cynical attempt by the Palestinian plaintiffs to exploit the Spanish judicial system to advance a political agenda against Israel”, using diplomatic channels. Ehud Barak, leader of the Labour Party, said: “I intend to appeal to the Spanish foreign minister, the Spanish minister of defence and, if need be, the Spanish prime minister, who is a colleague of mine in the Socialist International, to override the decision” (4).

Under political pressure from Israel, China and the US, the Spanish Congress agreed to amend the law on universal jurisdiction, limiting it to cases with Spanish victims, or suspects present on Spanish soil. On 30 June the Court of Appeal ordered the closure of the investigation.

This is not the first such case. In 2003 Belgium was bullied into changing its law and procedure, following Israeli and US pressure about complaints brought against the former Israeli prime minister Ariel Sharon and ex-US Secretary of Defence Donald Rumsfeld. (The US threatened Belgium with moving Nato headquarters out of Brussels.) Since then, victims have been unable to initiate any judicial investigation; that is now the prerogative solely of the prosecution, which normally reflects government policy. This is a major obstacle to accountability under international law.
Unwilling or unable

Israeli state practice demonstrates the existence of a culture of impunity. According to the Israeli non-governmental organisation Yesh Din, criminal prosecutions are conducted only in exceptional cases – soldiers who act wrongly on their own account – and military inquiries are used to avoid criminal investigation (5). In 2003 the human rights organisation B’tselem filed a petition that challenged the policy not to open criminal investigations in cases in which bystanding Palestinians were killed by the Israeli army. The petition is still pending.

Israel is well aware of the possibility of accountability abroad: it did not allow the publication of photos or names of soldiers in Operation Cast Lead (the Gaza war). Officers who travel abroad have first to get approval for their trip. Israel has even declared it will pay all legal expenses for trials abroad.

Yet awareness in Israel of the possibility of being held accountable abroad does not seem to influence the treatment of war crimes allegations, as was demonstrated by the Shehadeh case, or recent war crimes committed in Gaza. If Israel does not change its practice of impunity, this indicates its unwillingness, or inability, to prosecute war crimes allegations. If Israel is not able to prosecute its own war criminals and if the International Criminal Court has no jurisdiction, the only way to get justice is through the exercise of universal jurisdiction, an obligation for all states set in the 1949 Geneva Conventions.

Ref: Le Monde

VIDEO: Palestinians celebrate prisoners’ release – 2 Oct 09

Stop the massacre of Gaza – Twenty-six things to do to bring peace with justice:

(courtesy Destert peace)

“The Israeli air-strikes on the Gaza Strip represent severe and massive violations of international humanitarian law as defined in the Geneva Conventions, both in regard to the obligations of an Occupying Power and in the requirements of the laws of war.”
The UN Special Rapporteur on Human Rights in the Occupied Palestinian

(1) First get the facts and then disseminate them. Here are some basic background information:
http://tinyurl.com/8ppsec
http://tinyurl.com/6dok4l
http://tinyurl.com/7budqp

The true story behind this war:
http://tinyurl.com/9624zp
http://tinyurl.com/785dzt

If Gaza Falls:
http://tinyurl.com/a53ujd

Gaza massacres must spur us to action:
http://tinyurl.com/8dfxee

(2) Contact local media. Write letters to editors (usually 100-150 words) and longer op-eds (usually 600-800 words) for local newspapers. But also write to news departments in both print, audio, and visual media about their coverage. In the US http://tinyurl.com/2jxwf You can find media listings in your country using search engines like google.

(3) Contact elected and other political leaders in your country to urge them to apply pressure to end the attacks. In the US, Contact the State Department at 202.647.5291, the White House 202-456-1111 the Egyptian Embassy 202.895.5400, Email (embassy@egyptembassy.net) and the Obama Transition Team 202-540-3000 (then press 2 to speak with a staff member).

(4) Organize and join demonstrations in front of Israeli and Egyptian embassies or when not doable in front of your parliament, office of elected officials, and any other visible place (and do media work for it).

(5) Hold a teach-in, seminar, public dialogue, documentary film viewing etc. this is straightforward: you need to decide venue, nature, if any speakers, and do some publicity (the internet helps).

(6) Pass out fliers with facts and figures about Palestine and Gaza in your community (make sure also to mention its relevance to the audience: e.g, US taxpayers paying for the carnage, increase in world instability and economic uncertainty).

(7) Put a Palestinian flag at your window.

(8) Wear a Palestinian head scarf (Koufiya)

(9) Wear Black arm bands (this helps start conversations with people).

(10) Send direct aid to Gaza through the United Nations Relief and Works Agency (UNRWA). http://www.un.org/unrwa/

(11) Initiate boycotts, divestments and sanctions at all levels and including asking leaders to expel the Israeli ambassadors (an ambassador of an apartheid and rogue state). See Palestinian call http://tinyurl.com/94aafw

(12) Work towards bringing Israeli leaders before war crime courts (actions along those lines in courts have stopped Israeli leaders from traveling abroad to some countries like Britain where they may face charges).

(13) Calling upon all Israelis to demonstrate in front of their war ministry and to more directly challenge their government

(14) Do outreach: to neighbours and friends directly. Via Internet to a lot of others (you can join and post information to various listservs/groups).

(15) Start your own activist group or join other local groups (simple search in your city with the word Palestine could identify candidate groups that have previously worked on issues of Palestine). Many have also been successful in at bringing coalitions from different constituencies in their local areas to work together (human rights group, social and civil activists, religious activists, etc).

(16) Develop a campaign of sit-ins at government offices or other places where decision makers aggregate.

(17) Do a group fast for peace one day and hold it in a public place.

(18) Visit Palestine (e.g. with http://www.sirajcenter.org)

(19) Support human rights and other groups working on the ground in Palestine.

(20) Make large signs and display them at street corners and where ever people congregate.

(21) Contact local churches, mosques, synagogues, and other houses of worship and ask them to take a moral stand and act. Call on your mosque to dedicate this Friday for Gaza actions.

(22) Sign petitions for Gaza, e.g. http://tinyurl.com/8nt5on

(23) Write and call people in Gaza, they need to hear from the outside world.

(24) Work with other groups that do not share your political views (factionalism and excessive divisions within activist communities allowed those who advocate war to succeed).

(25) Dedicate a certain time for activism for peace every day (1 hour) and think of more actions than what are listed above.

(26) Urge your local radio talk shows and news editors to call any of us here in Palestine to report live what is happening on the ground.

For support and contacts of people in Gaza or to volunteer, please contact the Palestinian Center for Rapprochement Between People, via gaza@imemc.org, or call +1-989-607-9480 (from the US and Canada) or +972-2-277-2018 (from other places).

Ref: Desert peace

Hamas ready to accept 1967 borders

Hamas has said it is ready to accept a Palestinian state within the 1967 borders but “will not recognise Israel”.

Speaking at a news conference on Monday, Khaled Meshaal, the exiled Hamas political leader, reaffirmed Hamas’s stance towards Israel and clarified his comments as relayed earlier by Jimmy Carter, the former US president.
“We accept a state on the June 4 line with Jerusalem as capital, real sovereignty and full right of return for refugees but without recognising Israel,” Meshaal said.

The Hamas leader was making his first public comments following two meetings with Carter in Damascus last week.
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Carter, speaking in Jerusalem earlier on Monday, said that Hamas had told him it would accept the right of Israel “to live as a neighbour” if a peace deal was approved by a Palestinian referendum.

Carter said Hamas leaders had told him they would “accept a Palestinian state on the 1967 borders if approved by Palestinians”.

But Carter also said Meshaal turned down his appeal for a unilateral ceasefire with Israel to end violence threatening peace efforts.

“I did the best I could on that,” Carter said of his failure to persuade Hamas to halt rocket fire for one month from the Gaza Strip it has controlled since June when it ousted the Fatah movement of Mahmoud Abbas, the Palestinian president.

US dismisses comments

The United States brushed off Carter’s report on Hamas on Monday, saying the group’s basic stance had not changed.

“What is clear to us … is that nothing has changed in terms of Hamas’s basic views about Israel and about peace in the region,” Tom Casey, the state department spokesman, said.

“They still refuse to acknowledge or recognise any of the basic quartet principles, including recognising Israel’s right to exist; renouncing terrorism; and acknowledging all the previous agreements that have been made between the Palestinian Authority and Israel,” he added.

Dana Perino, the White House press secretary, said the Hamas position should be taken “with a grain of salt”.

“We have to look at the public comments and we also have to look at actions, and actions speak louder than words.”

Referendum

Carter said his understandings with Hamas called for a referendum to be preceded by reconciliation between the group and Abbas’s Fatah faction.

In his news conference, Meshaal said Hamas would “respect Palestinian national will, even if it was against our convictions”.

Sami Abu Zuhri, a Gaza-based Hamas official, said Palestinian refugees living in exile must take part in a referendum – a condition that could dim the chances of approval since Israel opposes their mass return, which could skew the state’s ethnic make up.

Ghazi Hamad, a former Palestinian government spokesman, told Al Jazeera that Hamas would be willing to accept a Palestinian state within the 1967 borders (leaving a reduced Israeli state inside its 1948 borders) but insisted that Hamas would not recognise Israel.

Carter, in his news conference, said excluding
Hamas was ‘just not working’
“Hamas says frankly – we will not recognise the right of Israel,” he said.

“Israel until now has no clear position on recognising the rights of the Palestinian people within the 1967 borders or the right of return or the rights in Jerusalem.”

He also said that a ceasefire with Israel was possible.

“Many times Hamas has stopped firing missiles from Gaza but Israel continues its aggression against our people, especially in Gaza,” he told Al Jazeera.

“If Israel stops all military aggression against our people, I think Hamas will have no problem in reaching a compromise.”

Carter criticised

Carter’s meeting with Hamas has drawn criticism from both the Israeli and US administrations.

Ehud Olmert, the Israeli prime minister, has refused to see Carter, who has for years been critical of Israeli policy towards the Palestinians.

Carter, who helped negotiate a 1979 peace treaty between Israel and Egypt, said excluding Hamas is “just not working”.

“The problem is that Israel and the United States refuse to meet with these people, who must be involved,” he said.

Ref: Al Jazeera

Free Palestine: born here, DAM (palestinian hip hop)

Hebron “shamota” jews

Israel boycott may be the way to peace

There is a fragile ceasefire in Lebanon, albeit daily violated by Israeli overflights. Meanwhile the day-to-day brutality of the Israeli army in Gaza and the West Bank continues. Ten Palestinians are killed for every Israeli death; more than 200, many of them children, have been killed since the summer. UN resolutions are flouted, human rights violated as Palestinian land is stolen, houses demolished and crops destroyed. For archbishop Desmond Tutu, as for the Jewish former ANC military commander now South African minister of security, Ronnie Kasrils, the situation of the Palestinians is worse than that of black South Africans under apartheid.

Meanwhile, western governments refer to Israel’s legitimate right of self-defence, and continue to supply weaponry. The challenge of apartheid was fought better. The non-violent international response to apartheid was a campaign of boycott, divestment and UN-imposed sanctions which enabled the regime to change without bloodshed.

Today, Palestinians teachers, writers, film-makers and non-governmental organisations have called for a comparable academic and cultural boycott of Israel as offering another path to a just peace. This call has been endorsed internationally by university teachers in many European countries, by film-makers and architects, and by some brave Israeli dissidents. It is now time for others to join the campaign – as Primo Levi asked: “If not now, when?” We call on creative writers and artists to support our Palestinian and Israeli colleagues by endorsing the boycott call.

While Mike Foster is right to point out (Letters, December 9) that the Balfour declaration of 1917 did not grant Israel its right to exist; it also could not promise a Jewish national home, as he says it did, because it was not in its power to do so. The British government merely “looked with favour” on such an idea. More importantly, he omits, as many do, the subsequent words, “… it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of the existing non-Jewish communities in Palestine …”. It is impossible to say that those qualifying words have been observed.
Malcolm Hurwitt
London

Read the Palestinian call