Daniel Machover: No Safe Haven for Suspected War Criminals

By Daniel Machover, Huffington Post – 5 Nov 2009
www.huffingtonpost.com/daniel-machover/no-safe-haven-for-suspect_b_346724.html

Daniel Machover

Daniel Machover

London – The Jerusalem Post recently quoted Michael Oren, Israel’s ambassador to the US, as lamenting the “tactical” problem of Israel being unable to defend itself without facing prosecution. He added that “no one in Israel buys” that the Israeli military targeted civilians during Operation Cast Lead last winter.

“It goes not just against all of our principles, but the personal knowledge of people who participated in the operation,” he said, adding that he was speaking from personal experience.

Meanwhile, back in the real world, human rights campaigners and lawyers working in the West Bank and Gaza Strip have been collecting evidence of serious human rights violations by Israel’s military for many years. Some of those violations appear to amount to grave breaches (i.e. war crimes) contrary to the Fourth Geneva Convention 1949, which protects civilians living under military occupation. After many years of placing the evidence of such war crimes before the Israeli legal system and attempting to seek justice locally, Palestinian victims have lost any faith in the Israeli legal system.

The massive scale of the destruction and loss of life achieved by the Israeli armed forces during Operation Cast Lead makes the shortcomings of the Israeli courts all the more noteworthy.

The UN Fact Finding Mission on the Gaza conflict, headed up by Justice Richard Goldstone, made a core recommendation for the Security Council to pass a “Chapter 7 resolution” (i.e. fully binding on Israel) requiring Israel and the Hamas authorities to mount credible criminal investigations. Without this recommendation being taken up, there is little chance the Israeli Government will step out of the fantasy world inhabited by Michael Oren and virtually all Israeli leaders.

Personal attacks on Justice Richard Goldstone and his colleagues are a distraction from a proper analysis of the report’s contents and from the clear need to build upon and act on the report’s recommendations.

The most worrying aspect of the Goldstone Report is not the strong evidence of war crimes in virtually all of the 36 specific incidents that it examined in detail (which resulted in the death of more than 220 persons, at least 47 of whom were children and 19 of whom were adult women). No, the most shocking finding is that all went to plan: “…[T]he incident and patterns of events that are considered in this report have resulted from deliberate planning and policy decisions throughout the chain of command, down to the standard operating procedures and instructions given to the troops on the ground.”

The Commission found that what happened is in line with the so-called “Dahiya doctrine,” developed following the end of the Lebanon conflict in 2006 and named after a quarter of Beirut fired on with hugely disproportionate force. Foreign Minister Tzipi Livni asserted in January 2009, “We have proven to Hamas that we have changed the equation. Israel is not a country upon which you fire missiles and it does not respond. It is a country that when you fire on its citizens it responds by going wild – and this is a good thing.”

In September 2005, it was the evidence of the involvement of Doron Almog in the destruction of just 59 homes in the south of the Gaza Strip, in Rafah, in January 2002 that persuaded a District Judge in London to grant an arrest warrant against him. When he arrived at Heathrow airport, had Almog been brave enough to leave the El Al aircraft that brought him to the UK he would have faced a detailed criminal investigation and possible charges for war crimes.

The devastation wrought recently by the Israeli military far surpasses the destruction that was alleged to constitute a war crime in the case of Almog. It is therefore highly likely that similarly strong evidence tying named Israeli suspects to the destruction of so many civilian homes, buildings, and civilian deaths will result in the grant of arrest warrants, should such suspects ever come to the United Kingdom. Likewise, such suspects face the possibility of arrest and prosecution if they travel to many other countries across Europe and elsewhere, including South Africa. Indeed, the Goldstone report backs the use of universal jurisdiction in clear terms as “a potentially efficient tool” for enforcing international criminal law, “preventing impunity and promoting international accountability.”

Consequently, those of us who have collected such evidence and act for victims of alleged war crimes will continue to make case files available to the prosecuting authorities of any country where a suspect may travel. Prosecution is simply a matter of time.

Fundamentally, what is required is for the victims on both sides to see a judicial process that they can have confidence in unfold as quickly as possible. It is in the absence of such judicial processes that the victims on both sides of the divide will decide that the only recourse they have is to support yet more naked aggression and criminality.

Daniel Machover, partner at London law firm Hickman & Rose, specializes in assisting victims of alleged international crimes gain access to justice.

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