Elna Sondergaard, The Electronic Intifada, 17 January 2009
The brutal and indiscriminate Israeli attacks on the Palestinian population in Gaza during the last weeks have entailed numerous violations of basic norms of international law, such as the principles of proportionality and distinction (between civilians and combatants; and between civilian and military targets). Military acts such as intentionally targeting schools and other civilian facilities are considered violations of international humanitarian law in relation to which the state of Israel bears responsibility -- but they also constitute serious crimes under international law (e.g., war crimes and eventually crimes against humanity) in relation to which individuals should stand trial.
The international community agreed to this principle of individual responsibility for international crimes in the wake of the Second World War; genocide, crimes against humanity and war crimes were considered totally unacceptable and individuals committing such crimes should be held accountable. The rational behind the Nuremberg Tribunal in 1945 was clear: without a trial, justice and peace would never prevail. This idea of individual accountability has subsequently been implemented in the case law of the ad-hoc tribunals for Rwanda and the former Yugoslavia, and the International Criminal Court (ICC) in The Hague will develop it further in the future.
Applying this standard of justice to the hostilities in Gaza obviously leads to the conclusion that the language of politicians remains insufficient to address the latest atrocities and that the time has come for a trial of individual Israeli soldiers, commanders of the Israeli army and other high ranking army officials, and more importantly of the Israeli Prime Minister, Ehud Olmert; the Foreign Minister, Tzipi Livni; and the Defense Minister, Ehud Barak. Eventually other cabinet ministers should also be tried, as those who are ultimately responsible for the disproportionate military operations in which thousands of civilians (including many children) have been killed and injured.
The crucial question is however: To which courts of justice can Palestinian victims bring their claims? There are Palestinian courts in Gaza but they have no jurisdiction over criminal cases involving Israelis. As stateless people, Palestinians have no state which could sign the Rome Statute with a view to seeking the adjudication of the ICC, or which would be entitled to bring a case to the International Court of Justice (ICJ) in The Hague as Bosnia and Herzegovina did concerning the massacre at Srebrenica. Without a state, Palestinians are also denied the legal protection offered by classic interstate diplomacy.
Initiating criminal prosecution against Israelis within the Israeli criminal system would be a matter for the public prosecutor to decide. Since the beginning of the Israeli occupation of the West Bank and Gaza in 1967, most grave breaches of international humanitarian law, including willful killings of civilians, have not been investigated by the Israeli army, let alone the subject of prosecution. Most often the Israeli authorities have turned a blind eye to serious violations of international law. In the few cases when an investigation has been carried out by the army, it has been of very poor quality, and testimonies from Palestinian victims have not been considered. This fact is well known and has been convincingly documented by numerous human rights and non-governmental organizations. In other words: discrimination against Palestinians within the Israeli criminal system leaves them with no access to effective judicial remedies. As a result, Israeli courts will not be in a position to impartially and independently adjudicate criminal cases concerning Gaza.
The likely denial of proper domestic criminal investigation and prosecution leaves Palestinians with the option of seeking justice in other countries on the basis of universal jurisdiction. Although such criminal cases against Israelis have been brought to courtrooms in Belgium, Netherlands, New Zealand, Spain, Switzerland, and the United Kingdom, these initiatives have not (yet) resulted in any trial of alleged Israeli perpetrators (the case in Spain is, however, still pending). Due to several political, legal and practical hurdles associated with adjudicating cases in foreign countries, these fora will probably not be available for the vast majority of Palestinian civilians from Gaza who have lost loved ones; been injured; displaced; or seen their houses being destroyed during the last weeks.
All this implies that prosecution of these international crimes will not be a domestic matter: Palestinians from Gaza rely solely upon the international community to provide proper remedies by putting alleged perpetrators on trial. The international community -- through the United Nations -- may seek such accountability either by referring the matter to the ICC (as the Security Council decided in the case of Darfur) or by taking the initiative to establish an ad-hoc tribunal with the mandate to adjudicate serious crimes committed by Israeli authorities in Gaza during the last weeks -- in addition to those committed as a result of the blockade of Gaza. The tribunal should also have the mandate to adjudicate crimes committed by Hamas when firing rockets into Israel.
A proper trial would provide the victims with the opportunity to tell their stories and to present their evidence to independent judges; Palestinian and Israeli victims would be equal -- the disadvantage of being stateless and the power imbalance between the two parties would no longer exist; testimonies of thousands of Palestinians would finally be heard -- people who have already suffered tremendously from the illegal Israeli occupation during which they have been deprived of the most basic human rights for over 40 years.
Such a trial might silence the endless accusations from both parties by opening up an impartial and legal assessment of relevant arguments. Such a trial would send the message that in modern times, all individuals have to take responsibility for their actions. Such a trial would also likely assist in efforts to prevent future atrocities in Gaza and support conditions for a long-term peace.
Putting perpetrators on trial would cost the international community nothing, but a lack of such individual responsibility and accountability would cost the civilians in Gaza dear leaving them without remedies and hope -- while politicians and soldiers would again be encouraged to think that they are exempted from the law and that they can get away with anything.
Thus, we cannot allow these crimes to remain untried.
Elna Sondergaard is the Director of the Human Rights Program and Associate Professor of Law at the American University in Cairo. From 2000-2004, she worked as a legal officer for UNRWA at their headquarters in Gaza.
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