Barak M. Seener: Targeting Israelis via International Law
[Barak Seener is the Greater Middle East section director of the Henry Jackson Society.]
Based on principles derived from the Hague and Geneva conventions, individuals have been brought to trial for war crimes, crimes against peace, and crimes against humanity. The outstanding examples of such trials were those held at Nuremberg after World War II where numbers of leading Nazis were brought to court for some of the many crimes committed by Germany under the Third Reich. The shadow of those trials is still visible today. In July 2009, John Demjanjuk, a Ukrainian accused of crimes while working for the Nazis as a concentration camp guard was deported from Canada to Germany to stand trial. On a smaller but significant scale, cases have been brought against individuals responsible for the genocide that took place during the Bosnian war of 1992-95. More recently, however, individuals and organizations with political grievances have started to make use of war crimes legislation in order to pursue a variety of officials from states equipped with well-run courts and tribunals, notably the United States, Great Britain, and—most of all—Israel. Should this matter to us? Aren't war crimes clear and cut; shouldn't those who commit them be pursued with the full force of the law? This essay tries to answer those questions and others.
Again and again attempts have been made to indict Israeli soldiers and civilians as war criminals when their only crimes have been to thwart terrorist actions or punish those responsible for murder. A boost was given to this gambit when speeches at the Durban Conference on Racism in 2001 branded Israeli antiterrorist actions as"war crimes" and condemned Israel as"an apartheid state" that has committed ethnic cleansing and acts of genocide. This has set the tone for a series of attempts to summon Israelis before foreign courts, from Ariel Sharon and Amos Yaron (particularly with regard to the 1982 Sabra and Shatila massacre in Beirut, which had already been investigated by Israel's own Kahan Commission),[1] to Avraham (Avi) Dichter for the assassination of a Hamas leader while he was director of the Israeli security service, Shin Bet, to Doron Almog, an Israeli general accused of mass murder in 2002, and Moshe Ya'alon, former head of Israeli military intelligence (and later chief of staff), indicted for bombings in Qana, Lebanon, in 1996.
The sweep of charges is wide. The individuals charged have been important figures in Israeli life and major contributors to Israel's security. Attempts to charge them with crimes against humanity have never been matched by calls to indict Palestinian terrorist chiefs. The bias is very clear, and it is inspired not by humanitarian concerns or a desire for justice but by political motives.
The Durban Strategy
The 2001 Durban conference, organized by the United Nations Commission on Human Rights, crystallized the strategy of delegitimizing Israel as"an apartheid regime" through international isolation based on the South African model. The conference consisted of three parallel gatherings—an official diplomatic forum, a youth summit, and a massive nongovernmental organization (NGO) forum with delegates from 1,250 groups. The delegitimization plan is driven by groups that exploit the funds, slogans, and rhetoric of the human rights movement. The complaints by NGOs against Israeli generals abroad were based on the Durban speeches that branded Israeli antiterrorism responses as"war crimes" and"violations of international law." Article 426 of the declaration of the Durban conference seeks the" condemnation of those states who are supporting, aiding and abetting the Israeli apartheid state and its perpetration of racist crimes against humanity including ethnic cleansing, acts of genocide."[2] Israeli and Jewish NGOs were deliberately excluded from a regional conference in the run-up to Durban, designed to draft a composite declaration against racism. None of the international NGOs present protested at this violation of Israeli rights, and no one protested when Israel was outrageously and falsely accused of" committing holocausts and being anti-Semitic."[3] This last statement deliberately replaced the longstanding and common meaning of"anti-Semitism" (hatred directed against Jews) to mean hatred of Arabs, who are also Semites. The reference to"holocausts" was wholly without historical foundation. These accusations laid the foundation for NGOs to invoke a politicized interpretation of universal jurisdiction in their bid to indict Israeli officials and military abroad.
Ariel Sharon in the political dock. The first case of a civil indictment against an Israeli official was filed in Brussels three months before Durban on June 18, 2001, against Ariel Sharon for his role in the 1982 Sabra and Shatila massacres in Lebanon by twenty-three survivors as well as five eyewitnesses. The reliance upon eyewitnesses is a common strategy used by NGOs that make unverifiable claims. A multiple indictment was made against Ariel Sharon; Amos Yaron, a former general in charge of Israeli troops in Beirut at the time; Rafael Eitan, the Israeli Army chief of staff in 1982; and Amir Drori, the former head of the Israeli Defense Forces (IDF)'s Northern Command. The lawsuit was translated into English by LAW, the Palestinian Society for the Protection of Human Rights and the Environment, an attendee at the Durban conference. Sharon was charged with crimes against humanity, genocide, and war crimes.[4] Dyab Abou Jahjah, president of a Belgian-licensed NGO, the Arab European League (AEL), admitted the political nature of the case, stating,"We had to prepare on the legal level as well as the political, financial, and logistical levels."[5] Abou Jahjah is an uncompromising opponent of assimilation and integration, who insists that European society has to adapt to Muslims, not vice versa. He has stated that he experienced feelings of"sweet revenge" on 9/11.[6]
The Sabra and Shatila Committee. Among other NGOs responsible for indicting Ariel Sharon was the Belgian Centre for Palestinian Development, Documentation, and Information (CODIP) that cooperated closely with the Arab European League to campaign for the indictment. AEL's founder and president Abou Jahjah was also chairman of the Sabra and Shatila Committee (SSC), which he used as another catalyst for the indictment of Sharon. The SSC was formed by the AEL,"to create a larger platform to involve non-Arabs as well."[7] AEL itself was openly anti-Zionist and had been condemned as anti-Semitic. In 2002, Belgium's federal anti-racist agency, the Centre pour l'égalité des chances et la lutte contre le racisme, lodged a complaint against the AEL for breach of Belgian laws on racism. The AEL has also condoned the killing of coalition troops in Iraq,[8] and has published anti-Semitic cartoons portraying Holocaust denial. At an AEL demonstration on April 3, 2002, participants shouted"Death to the Jews," and descended upon the Jewish quarter of Antwerp, smashing shop windows belonging to diamond merchants.[9] The AEL was also accused of anti-Semitism by the Stephen Roth Institute for the Study of Contemporary Antisemitism and Racism.[10]
The Sabra and Shatila Committee, which actively supported the plaintiffs by paying their legal fees,[11] remained connected with the AEL, whose support for terrorism was explicit in such statements as,"The AEL admires resistance organizations such as Hezbollah which are fighting against Israel."[12] In March 2009, Abdoulmouthalib Bouzerda of the AEL attended the International Conference on Support for the Oppressed Palestinian Nation in Tehran. Other invitees to the conference were representatives of Hamas, Hezbollah and the Islamic Jihad.[13]
Initially the plaintiffs made a general claim stating they were working with committees in Lebanon, France, Spain, Britain, Italy, the United States, and Canada.[14] The committee set up in"Palestine" was run by Ingrid Jaradat from the BADIL Resource Center for Palestinian Residency and Refugee Rights, which housed the Palestine Committee for Justice for the Victims of Sabra and Shatila. The plaintiffs later contradicted their original claim and stated that the legal action in Belgium was"pursued separately and independently from the activities of these committees, and the legal team in no way endorses or shall endorse these activities, however supportive they may be in many instances."[15]
Sabra and Shatila—The Politicization of Death. As further evidence that the indictment had been politicized, Irit Kohn of Ariel Sharon's defense pointed out that the complaint was filed one day after the BBC aired its controversial Panorama documentary The Accused[16] about Sharon's role in the Sabra and Shatila affair, and soon after Belgium took up its presidency of the European Union.[17] Abou Jahjah knew the BBC program was to be aired on June 17, 2001, a day before the complaint against Sharon was filed, stating:"Maybe we took that into consideration in filing the complaint on the 18th."[18] The indictment was also accompanied by an international petition of support,[19] and other NGOs including Human Rights Watch (HRW) and Amnesty International issued statements in support of the plaintiffs.[20]
HRW called on the Belgian government not to dismiss the Sabra and Shatila case and urged a criminal investigation against Ariel Sharon."There is abundant evidence that crimes against humanity were committed in the massacre of over 700 civilians, but not a single individual has been brought to justice … President Bush should urge Prime Minister Sharon to cooperate with any investigation," said Hanny Megally, executive director of the Middle East and North Africa division of Human Rights Watch.[21]
Fabricated Evidence. Demonization of Israel extends further than redefining terms such as crimes against humanity or politicizing universal jurisdiction. NGOs in the Sharon case also fabricated events while making ambiguous claims that could not be verified. For example, Irit Kohn recalled that one victim was asked by the media how she knew those soldiers she had identified as Israeli were indeed Israeli. She replied that she recognized them by the Stars of David on their helmets, something that, in fact, she could only have seen in caricatures of Israeli soldiers in the Arab press.[22] Real IDF helmets do not bear a Star of David.
The plaintiffs relied upon as evidence the narratives of survivors compiled by journalists, including the well-known critic of Israel, Robert Fisk. Other nonofficial sources were provided in the form of inquiries and reports whose accounts could not be verified. These included those of Sean MacBride (who chaired the International Commission) and the Nordic Commission, which were presented as facts.[23] The plaintiffs provided speculative accounts as evidence, which served a political agenda to take events out of context.
Ariel Sharon's immunity as prime minister of Israel rendered more difficult the NGOs' efforts to try him for alleged war crimes. This was not the case with other public figures such as Avi Dichter and Moshe Ya'alon, who were accused of grave breaches of the Fourth Geneva Convention...
Read entire article at Middel East Forum (Fall Edition)
Based on principles derived from the Hague and Geneva conventions, individuals have been brought to trial for war crimes, crimes against peace, and crimes against humanity. The outstanding examples of such trials were those held at Nuremberg after World War II where numbers of leading Nazis were brought to court for some of the many crimes committed by Germany under the Third Reich. The shadow of those trials is still visible today. In July 2009, John Demjanjuk, a Ukrainian accused of crimes while working for the Nazis as a concentration camp guard was deported from Canada to Germany to stand trial. On a smaller but significant scale, cases have been brought against individuals responsible for the genocide that took place during the Bosnian war of 1992-95. More recently, however, individuals and organizations with political grievances have started to make use of war crimes legislation in order to pursue a variety of officials from states equipped with well-run courts and tribunals, notably the United States, Great Britain, and—most of all—Israel. Should this matter to us? Aren't war crimes clear and cut; shouldn't those who commit them be pursued with the full force of the law? This essay tries to answer those questions and others.
Again and again attempts have been made to indict Israeli soldiers and civilians as war criminals when their only crimes have been to thwart terrorist actions or punish those responsible for murder. A boost was given to this gambit when speeches at the Durban Conference on Racism in 2001 branded Israeli antiterrorist actions as"war crimes" and condemned Israel as"an apartheid state" that has committed ethnic cleansing and acts of genocide. This has set the tone for a series of attempts to summon Israelis before foreign courts, from Ariel Sharon and Amos Yaron (particularly with regard to the 1982 Sabra and Shatila massacre in Beirut, which had already been investigated by Israel's own Kahan Commission),[1] to Avraham (Avi) Dichter for the assassination of a Hamas leader while he was director of the Israeli security service, Shin Bet, to Doron Almog, an Israeli general accused of mass murder in 2002, and Moshe Ya'alon, former head of Israeli military intelligence (and later chief of staff), indicted for bombings in Qana, Lebanon, in 1996.
The sweep of charges is wide. The individuals charged have been important figures in Israeli life and major contributors to Israel's security. Attempts to charge them with crimes against humanity have never been matched by calls to indict Palestinian terrorist chiefs. The bias is very clear, and it is inspired not by humanitarian concerns or a desire for justice but by political motives.
The Durban Strategy
The 2001 Durban conference, organized by the United Nations Commission on Human Rights, crystallized the strategy of delegitimizing Israel as"an apartheid regime" through international isolation based on the South African model. The conference consisted of three parallel gatherings—an official diplomatic forum, a youth summit, and a massive nongovernmental organization (NGO) forum with delegates from 1,250 groups. The delegitimization plan is driven by groups that exploit the funds, slogans, and rhetoric of the human rights movement. The complaints by NGOs against Israeli generals abroad were based on the Durban speeches that branded Israeli antiterrorism responses as"war crimes" and"violations of international law." Article 426 of the declaration of the Durban conference seeks the" condemnation of those states who are supporting, aiding and abetting the Israeli apartheid state and its perpetration of racist crimes against humanity including ethnic cleansing, acts of genocide."[2] Israeli and Jewish NGOs were deliberately excluded from a regional conference in the run-up to Durban, designed to draft a composite declaration against racism. None of the international NGOs present protested at this violation of Israeli rights, and no one protested when Israel was outrageously and falsely accused of" committing holocausts and being anti-Semitic."[3] This last statement deliberately replaced the longstanding and common meaning of"anti-Semitism" (hatred directed against Jews) to mean hatred of Arabs, who are also Semites. The reference to"holocausts" was wholly without historical foundation. These accusations laid the foundation for NGOs to invoke a politicized interpretation of universal jurisdiction in their bid to indict Israeli officials and military abroad.
Ariel Sharon in the political dock. The first case of a civil indictment against an Israeli official was filed in Brussels three months before Durban on June 18, 2001, against Ariel Sharon for his role in the 1982 Sabra and Shatila massacres in Lebanon by twenty-three survivors as well as five eyewitnesses. The reliance upon eyewitnesses is a common strategy used by NGOs that make unverifiable claims. A multiple indictment was made against Ariel Sharon; Amos Yaron, a former general in charge of Israeli troops in Beirut at the time; Rafael Eitan, the Israeli Army chief of staff in 1982; and Amir Drori, the former head of the Israeli Defense Forces (IDF)'s Northern Command. The lawsuit was translated into English by LAW, the Palestinian Society for the Protection of Human Rights and the Environment, an attendee at the Durban conference. Sharon was charged with crimes against humanity, genocide, and war crimes.[4] Dyab Abou Jahjah, president of a Belgian-licensed NGO, the Arab European League (AEL), admitted the political nature of the case, stating,"We had to prepare on the legal level as well as the political, financial, and logistical levels."[5] Abou Jahjah is an uncompromising opponent of assimilation and integration, who insists that European society has to adapt to Muslims, not vice versa. He has stated that he experienced feelings of"sweet revenge" on 9/11.[6]
The Sabra and Shatila Committee. Among other NGOs responsible for indicting Ariel Sharon was the Belgian Centre for Palestinian Development, Documentation, and Information (CODIP) that cooperated closely with the Arab European League to campaign for the indictment. AEL's founder and president Abou Jahjah was also chairman of the Sabra and Shatila Committee (SSC), which he used as another catalyst for the indictment of Sharon. The SSC was formed by the AEL,"to create a larger platform to involve non-Arabs as well."[7] AEL itself was openly anti-Zionist and had been condemned as anti-Semitic. In 2002, Belgium's federal anti-racist agency, the Centre pour l'égalité des chances et la lutte contre le racisme, lodged a complaint against the AEL for breach of Belgian laws on racism. The AEL has also condoned the killing of coalition troops in Iraq,[8] and has published anti-Semitic cartoons portraying Holocaust denial. At an AEL demonstration on April 3, 2002, participants shouted"Death to the Jews," and descended upon the Jewish quarter of Antwerp, smashing shop windows belonging to diamond merchants.[9] The AEL was also accused of anti-Semitism by the Stephen Roth Institute for the Study of Contemporary Antisemitism and Racism.[10]
The Sabra and Shatila Committee, which actively supported the plaintiffs by paying their legal fees,[11] remained connected with the AEL, whose support for terrorism was explicit in such statements as,"The AEL admires resistance organizations such as Hezbollah which are fighting against Israel."[12] In March 2009, Abdoulmouthalib Bouzerda of the AEL attended the International Conference on Support for the Oppressed Palestinian Nation in Tehran. Other invitees to the conference were representatives of Hamas, Hezbollah and the Islamic Jihad.[13]
Initially the plaintiffs made a general claim stating they were working with committees in Lebanon, France, Spain, Britain, Italy, the United States, and Canada.[14] The committee set up in"Palestine" was run by Ingrid Jaradat from the BADIL Resource Center for Palestinian Residency and Refugee Rights, which housed the Palestine Committee for Justice for the Victims of Sabra and Shatila. The plaintiffs later contradicted their original claim and stated that the legal action in Belgium was"pursued separately and independently from the activities of these committees, and the legal team in no way endorses or shall endorse these activities, however supportive they may be in many instances."[15]
Sabra and Shatila—The Politicization of Death. As further evidence that the indictment had been politicized, Irit Kohn of Ariel Sharon's defense pointed out that the complaint was filed one day after the BBC aired its controversial Panorama documentary The Accused[16] about Sharon's role in the Sabra and Shatila affair, and soon after Belgium took up its presidency of the European Union.[17] Abou Jahjah knew the BBC program was to be aired on June 17, 2001, a day before the complaint against Sharon was filed, stating:"Maybe we took that into consideration in filing the complaint on the 18th."[18] The indictment was also accompanied by an international petition of support,[19] and other NGOs including Human Rights Watch (HRW) and Amnesty International issued statements in support of the plaintiffs.[20]
HRW called on the Belgian government not to dismiss the Sabra and Shatila case and urged a criminal investigation against Ariel Sharon."There is abundant evidence that crimes against humanity were committed in the massacre of over 700 civilians, but not a single individual has been brought to justice … President Bush should urge Prime Minister Sharon to cooperate with any investigation," said Hanny Megally, executive director of the Middle East and North Africa division of Human Rights Watch.[21]
Fabricated Evidence. Demonization of Israel extends further than redefining terms such as crimes against humanity or politicizing universal jurisdiction. NGOs in the Sharon case also fabricated events while making ambiguous claims that could not be verified. For example, Irit Kohn recalled that one victim was asked by the media how she knew those soldiers she had identified as Israeli were indeed Israeli. She replied that she recognized them by the Stars of David on their helmets, something that, in fact, she could only have seen in caricatures of Israeli soldiers in the Arab press.[22] Real IDF helmets do not bear a Star of David.
The plaintiffs relied upon as evidence the narratives of survivors compiled by journalists, including the well-known critic of Israel, Robert Fisk. Other nonofficial sources were provided in the form of inquiries and reports whose accounts could not be verified. These included those of Sean MacBride (who chaired the International Commission) and the Nordic Commission, which were presented as facts.[23] The plaintiffs provided speculative accounts as evidence, which served a political agenda to take events out of context.
Ariel Sharon's immunity as prime minister of Israel rendered more difficult the NGOs' efforts to try him for alleged war crimes. This was not the case with other public figures such as Avi Dichter and Moshe Ya'alon, who were accused of grave breaches of the Fourth Geneva Convention...