UPDATED ON:
Thursday, January 22, 2009
13:16 Mecca time, 10:16 GMT
FOCUS: CRISIS IN GAZA
War crimes convictions after Gaza?
By Anita Rice
Demonstrators in Belgium accused Israel of war crimes, as the Israeli foreign
minister visited the headquarters of the European Union [AFP]
As the UN and human rights groups demand independent investigations into the
conduct of Israel’s offensive in the Gaza Strip, the world’s attention is
focusing on whether Israeli or Hamas officials could face prosecution for war
crimes.
Al Jazeera spoke to experts in international law to find out how and if
officials could be tried for breaching international armed conflict laws during
Israel's war on Gaza.
There is a world of difference between establishing that war crimes have been
committed, and then holding those responsible to account, says Mark S Ellis,
the executive director of the International Bar Association (IBA).
"Often, people view these as the same, but they are not under international
law. There is a gap ... regarding the issue of accountability," Ellis said.
Even if independent inquiries do establish that gross violations of the laws of
armed conflict have taken place during the war in Gaza, the mechanisms to
ensure those responsible on either side are brought to justice "simply don’t
exist", he said.
Four options
There are four main options open to states, groups or individuals seeking to
launch legal proceedings against suspects should investigators find war crimes
have been committed during the 22-day assault on the Strip, Ellis says.
All four routes are fraught with complexities, particularly in relation to the
Gaza conflict.
First, individual war crime cases would ordinarily be referred to the
International Criminal Court (ICC).
"The ICC simply doesn’t have jurisdiction over this conflict," says Ellis,
"because Israel has not signed up to the Rome Statute [that enshrined the ICC]."
As the ICC requires states to adopt the court’s jurisdiction, it is unable to
bring any actions against non-signatories itself, unless the UN Security
Council votes to refer specific cases for potential prosecution.
While that happened when ICC prosecutors accused Omar al-Bashir, the president
of Sudan - another non-signatory state - of committing war crimes in Darfur, it
is unlikely to occur in relation to the Israel-Gaza conflict.
Gaza is not formally recognised as a state by the UN and "the US, and perhaps
other [security council] member states, would veto any resolution that would
ask for the ICC to investigate Israel," says Ellis.
Israel has been condemned of using white phosphorus in attacks [GALLO/GETTY]
"The ICC option is effectively closed."
The second route would be for the UN General Assembly to request an advisory
opinion from the International Court of Justice (ICJ), also based in The Hague,
on the legality of specific actions taken by states.
However, the ICJ has no enforcement powers, as was witnessed by its inability
to act following its ruling that Israel’s construction of a separation barrier
breached aspects of international law.
The ICJ requested Israel rectify elements of the construction, which Tel Aviv
ignored - something any state can choose to do, Ellis notes.
Geneva conventions
The third option involves states trying their own citizens or soldiers for war
crimes – a requirement under the Geneva Conventions.
"That’s unlikely to happen on both sides, but that is still a responsibility of
the state, body, or entity that’s responsible for, or has authority over, the
individuals who have committed these crimes," says Ellis.
Finally, Ellis points to a legal concept referred to as "universal
jurisdiction", where any state can choose to launch legal proceedings against
any person, anywhere in the world, who is suspected of committing crimes such
as genocide, torture, and other grave breaches of international law.
But states have already proven themselves reluctant to take responsibility for
holding individuals to account for crimes committed in other countries and
Ellis believes it is "highly unlikely that a third party is going to step up
and bring actions against Israeli or Palestinian individuals".
Despite this, lawyers across the globe, and particularly in the Arab world, are
seeking ways to take legal action in relation to events they believe constitute
war crimes.
Dr Abdullah Al-Ashal, a professor of international law at the American
University in Cairo and a former Egyptian foreign minister, belongs to both the
Arab Bar Association and the Arab Federation of Lawyers (AFL).
He believes that Israel has breached all four Geneva Conventions that cover
conduct during armed conflict with relation to civilians, prisoners of war,
sick and injured combatants, weapons used and how troops engaged in fighting.
Al-Ashal claims that Jordan, the Comoros Islands and Djibouti – all signatories
to the Rome Statute – have committed themselves to bringing war crimes cases
against Israel to the ICC if needs be, following the recent Kuwait-hosted Arab
summit on Gaza.
'Pursuing all options'
In addition, members of the AFL are set to meet in Tunis on Thursday, January
29, to "discuss how to progress the prosecution of Israel for war crimes", and
Al-Ashal said that Arab lawyers are "seriously pursuing" all options to put
Israelis on trial.
Meanwhile, both sides say they acted in self-defence and within the confines of
international law.
Mark Regev, the spokesman for the Israeli prime minister, insists Israel takes
"extremely seriously any allegation of either improper or illegal behaviour by
servicemen in combat" and carries out its own investigations.
On Israel’s refusal to sign up to the Rome Statute, he cites Israeli concern
over "the politisation of the international human rights mechanisms in the
international judicial system", a reference to resolutions that Israel regards
as hostile and were passed by UN bodies without the backing of western states.
Asked if Israel intends to indict any Hamas leaders on charges of war crimes,
Regev says Hamas is "recognised legally as a terrorist organisation" by the
European Union, Japan, Australia, Canada and the US, adding: "I don’t think
anyone has expectations as to the behaviour of a terrorist organisation."
While Hamas is regarded as a "terrorist group" by many western governments, the
Palestinian faction came to power after democratic elections in 2006 that were
deemed fair and free by international observers.
Hamas says not only are Palestinians the victims of war crimes perpetrated by
Israelis, but they are left without recourse to international justice.
Going back to Ellis' "accountability gap", the IBA chief puts the blame
squarely on nation states - including the US - for failing to accept the
legitimacy of the ICC.
"The ICC is probably the most important body with regard to individual
responsibility for these crimes ... it is the responsibility of all civilised
nations to agree that if these types of crimes have been committed, they should
be brought to justice.
"Ultimately, that’s where we want to be and we are a long way from that today,"
he says.
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Jusfiq Hadjar gelar Sutan Maradjo Lelo
Allah yang disembah orang Islam tipikal dan yang digambarkan oleh al-Mushaf itu
dungu, buas, kejam, keji, ganas, zalim lagi biadab hanyalah Allah fiktif.
[Non-text portions of this message have been removed]
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