Sunday, January 9, 2011

Can A Judiciary That Convicted Israel's Former President Be Trusted to Investigate Alleged War Crimes?

by Alan M. Dershowitz

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 Wiki leak 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.

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Alan M. Dershowitz

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