Al-Jazeera — 29 March 2014
For the first time Israel’s Supreme Court is set to consider evidence on April 2 that senior Israeli political and military officials committed war crimes in relation to major military operations in Gaza and Lebanon.
Former Prime Minister Ehud Olmert and his Foreign Minister Tzipi Livni, the current justice minister, are among the high-level figures accused of breaking the laws of war when they launched attacks on Lebanon in 2006, and on Gaza in the winter of 2008-09.
The allegations have been levelled by Marwan Dalal, the only Israeli lawyer to have served as a senior prosecutor in one of the international criminal courts at The Hague in the Netherlands.
Dalal, who spent three years as a prosecutor at the International Criminal Tribunal for the former Yugoslavia, belongs to Israel’s Palestinian minority, which comprises a fifth of the country’s population.
He said he had based his petition to the court on “strong factual and legal findings” from public sources, including the reports of Israeli official inquiries.
His evidence includes statements from senior Israeli officials in which they appear to implicate themselves in actions — including killing, collective punishment and attacks on civilian infrastructure — not justified by military necessity. Such acts are breaches of the Fourth Geneva Convention as well as Israeli law.
Dalal will argue before the court that the Israeli police are required to investigate the evidence in preparation for possible indictments for war crimes.
“The evidence is in the public realm and obliges Israeli prosecutors to order investigations,” he said. “The failure to do so is unreasonable conduct and the court must rectify the matter.”
The action is the first brought by Dalal under the auspices of Grotius, an organisation he founded last year to collect information on war crimes. Although Grotius’ focus is on Israel and the occupied territories, it has also provided information to the special tribunal for Lebanon, investigating the killing in 2005 of Lebanon’s Prime Minister Rafiq Hariri.
The 52-page petition relates to three major military operations launched by Israel over a four-year period, in which many of the same officials were involved: the war against Lebanon in summer 2006, Operation Cast Lead in Gaza in late 2008, and a naval attack in international waters on a humanitarian aid flotilla to Gaza in May 2010.
Israel has become increasingly fearful that its officials may face prosecutions for war crimes, either in third countries or, since the United Nations’ vote in 2012 to upgrade the Palestinians’ membership status, at the International Criminal Court in The Hague.
One of the conditions insisted on by Israel and the US before launching the current peace talks, was that the Palestinian leadership under Mahmoud Abbas promise not to apply for membership of international bodies, including The Hague court.
The Israeli legal system has launched a handful of criminal investigations into the actions of relatively low-ranking soldiers involved in Cast Lead. The three-week operation killed some 1,400 Palestinians, of which only 400 have been identified as fighters.
Of the criminal prosecutions, the longest sentence, at seven and a half months, was imposed on a soldier who stole a credit card.
Israeli prosecutors have so far not considered the evidence of war crimes committed by its leaders.
Sarit Michaeli, a spokeswoman for B’Tselem, an Israeli organisation that documents human rights abuses in the occupied territories, said the impunity of senior Israeli officials was a great concern.
“There has been no discussion in Israel of the responsibility of high-ranking officials for issuing apparently illegal orders such as using white phosphorus in built-up areas, the adoption of flexible open-fire regulations, and a policy of targeting certain population groups, such as males over a certain age.”
Dalal has had previous high-profile successes against the Israeli military in Israel’s Supreme Court. In 2005, the court ordered the Israeli army to stop the practise of using Palestinians as “human shields” during military operations.
Grotius has sent an advisory paper to the Palestinian Authority in Ramallah detailing the status of Israeli settlement-building in the occupied territories as a war crime.
Palestinian chief negotiator Saeb Erekat told Al Jazeera in February that the Palestinians’ first approach to the International Criminal Court (ICC) would be to ask it to investigate Israeli officials for sanctioning the construction of settlements and moving Israelis into the occupied territories.
Sharon Weill, an international law expert at the Sciences Po in Paris, said that the ICC is only authorised to consider war crimes that occur after a party ratifies its establishing treaty, the Rome Statute.
“It seems clear that in international law the settlements are a war crime and an ongoing one as they are being continuously built and expanded. So the Palestinians could bring a case after they decide to join the ICC.”
Dalal conceded that he expected “judicial resistance” in Israel to his current petition.
In 2003, the Supreme Court rejected a petition from Yesh Gvul, a group of Israeli combat veterans who refuse to serve in the occupied territories, which argued that the head of the Israeli air force should be investigated for breaches of international law.
Israel Defense Forces (IDF) Deputy Chief of Staff Major General Dan Halutz had approved dropping a one-tonne bomb on a residential district of Gaza in 2002 that killed 14 people, many of them children.
However, Dalal and other leading lawyers note that refusal by the court to order an investigation could suggest that Israel lacks a reliable domestic procedure for holding officials accountable for war crimes.
Several countries, including most prominently, the UK, the Netherlands and Spain, have adopted the principle of universal jurisdiction, which allows them to prosecute war crimes that took place outside their territory and did not involve any of their nationals.
Michael Sfard, an Israeli lawyer who was involved in the Yesh Gvul petition, said: “A case that indicates Israel is unwilling to seriously investigate or bring to justice officials whose decisions appear to have violated international law can help outside actors seek their own legal remedies.”
In addition to Olmert and Livni, the petition names two former military chiefs of staff, along with a former domestic intelligence chief and a former minister of defence.
According to Dalal, factual evidence of war crimes is provided in official Israeli reports produced by the Winograd inquiry into the 2006 Lebanon war and the two Turkel inquiries into the 2010 attack on the aid flotilla.
Dalal also drew on the extensive research of UN-appointed investigations, including the Goldstone commission into the attack on Gaza in late 2008, and two commissions, led respectively by Karl Hudson-Philips and Geoffrey Palmer, into the flotilla attack.
In the case of the 2006 Lebanon war, for example, Dalal cites several statements that implicate Halutz, the then-military chief of staff, in policies of collective punishment and targeting civilian infrastructure.
Some 1,200 Lebanese were killed in the month-long war, of which the majority were civilians. The UN children’s charity UNICEF has estimated that nearly a third of the dead were children under the age of 13.
In the Winograd inquiry, Halutz is quoted as saying, shortly after two soldiers were captured by the Lebanese militia Hezbollah, his forces “should operate on two levels, against the state of Lebanon and against Hezbollah without leaving anyone immune from targeting. This is the meaning of deterrence.”
The same day, the media reported him issuing similar threats to “turn back the clock in Lebanon by 20 years”, unless the soldiers were returned.
The Winograd report cited him telling the prime minister the next day: “The main objective is to make Lebanon take a stance [against Hezbollah] by targeting infrastructure.”
Dalal said: “The Winograd report clearly shows that the military and political leadership either intended to hurt civilians in Lebanon or at the very least had a disregard for their safety. From their statements we can show both an intention and operational results that accorded with that stated intention.”
Halutz and Olmert, who ordered the attacks on Lebanon and Gaza, recently announced that they would be setting up a new consultancy firm expected to offer advice on defence matters.
The UN’s Palmer Commission into the killing by Israeli naval commandos of nine humanitarian activists aboard the Mavi Marmara aid ship to Gaza in May 2010, found evidence that suggested most of the victims had been executed.
In its prepared response to the court, the Israeli justice ministry stated: “Our position is to recommend the rejection of this petition because the accusations are too general, they lack a minimal foundation in factual evidence, while the events are now far in the past, as well as being unrelated to each other.”
Israel has claimed that efforts to prosecute its officials are part of a campaign of delegitimisation it terms “lawfare“.
It has also pressured European countries to change their universal jurisdiction laws. Its concerns were heightened in 2009 by the decision of a London court to issue an arrest warrant for Livni in connection to Operation Cast Lead. The warrant was revoked when it emerged that Livni was not in the UK.
Earlier, several senior Israeli military commanders, including Halutz, were forced to cancel visits to the UK for fear of being arrested.
Under pressure from Israel, Britain altered its rules in 2011, giving the head of the state prosecution service the power to overrule a court decision to issue an arrest warrant for a visiting official.
Weill said it would be difficult to get either the ICC or countries with universal jurisdiction laws to investigate Israel because political considerations tended to overshadow legal ones.
“It is hard to persuade Western countries that a state like Israel, which is seen as a similar kind of democracy, has a failing legal system, incapable of conducting proper investigations.”