Prosecuting international crimes perpetrated by Israeli forces in the Occupied Territories (2) by CENAP ÇAKMAK

January 10, 2009, Saturday/ 20:21:00
War crimes are acts that are committed most extensively in wartime. Making comments on the list of war crimes that might have been committed by the Israeli forces will depend on whether the Gaza offensive is an international armed conflict or an armed conflict not of an international character.

Assuming that this is an internal conflict (because Israel has jurisdiction over the Occupied Territories), one of the possible war crimes committed  may also include "Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives" (Rome Statute, Article 8.2.e).

How to prosecute crimes against humanity and war crimes

The best way to deal with the commission of these most heinous crimes is empowerment of the national courts over prosecution of the perpetrators. However, it is a fact that the Israeli courts have rarely taken action against grave breaches of international humanitarian law and certainly will not address the recent Gaza attacks. In cases where the national courts prove to be unable or reluctant to prosecute the perpetrators, special tribunals are set up to try the culprits of crimes against humanity and war crimes.

There are a number of examples for this, including the tribunals established to deal with atrocities committed in Rwanda and the former Yugoslavia. Similar to this option is the authorization of so-called hybrid courts whose precedents may be found in Kosovo, Sierra Leone, East Timor and Cambodia. However, neither an international tribunal nor a hybrid court seems likely in the case of Israeli attacks because it always requires international resolution and prior authorization by the UN Security Council to set up such institutions.

ICC adjudication is another option for prosecution of crimes against humanity and war crimes committed in the occupied Palestinian territories. The court does not have automatic jurisdiction over these crimes because neither Israel nor the Palestinian Authority is party to the Rome Statute establishing the court. However, the court's jurisdiction may be extended to deal with these crimes provided that the UN Security Council grants prior authorization. This was exactly the case with respect to the crimes committed in Darfur, Sudan; the council referred the case in war-torn Darfur to the court and subsequently the prosecutor of the ICC initiated an investigation with regard to the crimes committed in the region. In this case, the US abstained in the voting session, thus allowing the court to proceed with prosecution despite its prior commitment suggesting that it will not be part of any action that will legitimize the court.

However, it is not realistic to expect that the UN Security Council will act similarly with respect to the Israeli violations and breaches and refer the alleged crimes against humanity and war crimes to the ICC. Above all, it is highly unlikely that such a motion will be brought to the agenda of the council. And even if we assume that the council finally discusses such an option, the US will certainly wield its veto power to ensure that Israeli authorities perpetrating international crimes in the Occupied Territories go unpunished.

There is one last option for prosecution of international criminal acts committed by Israeli forces in the Palestinian territories: trial of war criminals relying on the principle of universal jurisdiction. International criminal lawyers hold that rules on international crimes -- war crimes, crime of aggression, crime of genocide and crimes against humanity -- are part of  customary international law requiring no additional authorization or formal obligation resulting from being party to a certain international convention or treaty. In other words, any individual accused of committing these crimes may be held responsible and prosecuted by any state regardless of where the crime was committed.

This option is actually weakly enshrined in the Convention on the Prevention and Punishment of the Crime of Genocide and the four Geneva Conventions, which require state parties to take action against respective violations. However, despite the novel arrangements these instruments introduced, there is virtually no enforcement mechanism by which the perpetrators will be effectively prosecuted. Acting in accordance with the principle of universal jurisdiction, any state may enact legislation providing punishment for the grave breaches of international humanitarian law. However, this is a rarely exercised option. One famous example of this is a piece of Belgian legislation because of which Ariel Sharon, also known as Butcher of Beirut, was unable to travel to Belgium. A lawsuit was filed against Sharon because of his involvement in the Sabra and Shatila massacres under the Belgian universal jurisdiction law. This is an effective option that every state may rely on; however, even this lawsuit against Sharon became inconclusive after the court dismissed the case on the grounds that his prosecution was impossible because of physical and practical barriers.

After this relatively lengthy explanation, I may say further details are actually redundant because it looks like Israeli authorities perpetrating grave crimes in Palestine will continue enjoying impunity for some time to come.

*Dr. Cenap Çakmak is an instructor at Muğla University and a senior researcher at the Wise Men Center for Strategic Research (BİLGESAM).

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