Al-Ahram Weekly Online   5 - 11 March 2009
Issue No. 937
Opinion
 
Published in Cairo by AL-AHRAM established in 1875

Azmi Bishara

Suing for war crimes

Any recourse to international law in seeking to bring Israeli officials to book must be carefully considered, writes Azmi Bishara

It is not my intention to discuss the definitions of resistance, the legitimacy of resistance or the laws of war in general. Nor will I delve into the definition of war crimes, the relevant articles in international conventions, the jurisdiction of the International Criminal Court, the duties and obligations of its member states, the powers of its prosecutor and the difference between this court and those that were established for the prosecution of war crimes and crimes against humanity in specific countries, such as the International Criminal Tribunal for former Yugoslavia. All these subjects have been treated extensively in numerous other publications. My purpose here is to shed light on some possibly unfamiliar aspects of the notion of appealing to this form of international arbitration.

All such tribunals and conventions have derived their impetus from the will on the part of powerful nations to bring war criminals to account and from the ability of these powerful sovereign nations not only to draw up the law but to put it into effect when they want. Given this, it is fundamentally erroneous to liken international law to the rule of law in sovereign countries. International law does not prevail internationally, is not applied around the globe as though the world was a single sovereign country, and has no executive authority to put it into effect apart from powerful nations. It is thus subject to political aims and interests. Above all, the principle of equality before the law that applies in democratic countries does not exist in international law, either practically or theoretically.

Since it was founded Israel has claimed that its civilians have been the victims of "crimes of terrorism" perpetrated in the course of the clash between its occupation forces and the Palestinian resistance. Yet Israel -- the one state established by UN resolution (or by what the Arabs like to call "international legitimacy") -- has never once appealed to the international justice system. Instead its security agencies took the matter in hand, exacting revenge upon those on its hit lists, even resorting to operations carried out in Western Europe on the territory of its allies. The US has acted similarly in its global "war on terror".

It is no coincidence that it is not Arab governments but the Arab people and their rights activists and civilian organisations that are pressing for international enquiries into the crimes committed by Israel in Gaza and, to a lesser extent, in Lebanon. The people realise that their governments are too weak to act to redress the wrong and humiliation inflicted upon them. They also resent the double standards in international law and justice, epitomised by the contrast between the International Court's campaign over Darfur and its indifference to American crimes in Iraq. Arab public opinion cares little for details and explanations. There is, however, a widespread sense of injustice combined with frustration at the weakness of their regimes which is why the Arab public has high expectations from any efforts to exact revenge upon Israeli officials through recourse to international criminal law.

International law was established to regulate relations between Western nations after a long and painful process, extending from the rise of the international order in the late 19th through the 20th century. Its provisions on war crimes, the laws of war, the rights of POWs, the Red Cross and the rights of civilians and wounded, as well as the right of resistance, all emanated from the Western experience of war, in the two world wars in Europe itself, in Europe's colonies and even in such grey cases as the Boer war. Throughout this long period there was no mention of the need to respect the right of Third World peoples to resist occupation, of their rights as captives, or of war crimes perpetrated against them. Western countries exchanged Western POWs, not African or Asian prisoners who had no rights. In modern times, there was no thought of bringing a single American official to justice when atom bombs were dropped on Hiroshima and Nagasaki at the end of World War II with the deliberate aim of wreaking the greatest possible degree of death and destruction. Yet this was a crime against humanity as horrific as the crimes committed by the Nazis against European peoples.

International law on war crimes, POWs, civilians and the like arose in the context of what we might call a European civil war, and even then it was only put into effect against the defeated party. The victors were never brought to account for their crimes. International law still adheres to this tradition, which now extends to Western powers in general, especially if they emerge victorious from a war. The US has never been tried for war crimes in Vietnam, Iraq or elsewhere. The same applies to all colonial powers, from the conventional European powers to their more contemporary Zionist version. (It also applies to other major powers such as China).

Only in the latter half of the 20th century has there emerged a theoretically and morally universalised jurisprudence of international law intended to comprehend peoples who are not white or of European origin.

A liberation movement that turns to a corpus of law that is international in name only sacrifices its liberationist substance to legal formalities that it lacks the capacity to enforce. In other words, it concedes its natural right to liberation and to build and utilise the force necessary to achieve this in favour of principles of international law that were never conceived for it, over which it has no say and which it would never be able to enforce anyway if it relinquishes the sources of its own strength.

International law recognises states, not liberation movements. If it did recognise them before they obtained the status and sovereignty of a state it would encumber them with the duties of states without granting them the rights of states. Duties are imposed by others. People must secure their own rights if they are not to be prey to the will of others.

The International Criminal Court offers a previously unavailable avenue to punish people guilty of war crimes. It was inspired by the need to offer a means to prosecute such crimes, in the absence of a state or judiciary willing to bring to justice persons responsible for the massacres in Rwanda, Burundi and elsewhere. The strong point of this court is also its weak point.

Criminal law punishes individuals and holds them to account individually. As such it acts as a deterrent to individuals who issue or execute orders to commit crimes. Recourse to it does not entail conceding principle, accepting the legitimacy of entities one does not recognise, or relinquishing the right to resist. Also, in this case, the international prosecutor is not an individual but rather the embodiment of a sort of international "public right", while the defendants are not governments, but rather military and political officials being called to account as individuals responsible for their acts.

Its weak point is that it does not prevail where there exists a national judiciary capable of performing its function, which is a claim made by the majority of Western governments, including Israel. And perhaps they do exist -- in form. They bring suspected officials to trial, put them through the required steps and then acquit them for lack of evidence or because the national law allows leeway for "collateral damage"; or the defendant's lawyers make a deal with the prosecution to have the charges reduced. More important from the perspective of a resistance movement, criminal law does not differentiate between the occupier and the occupied; it deals with individuals who commit crimes. It has been demonstrated recently that even international rights organisations have a problem with their formal logic when it comes to differentiating between a protracted crime, such as the violence perpetrated by occupation, and the intermittent and exceptional response to it, as represented by the violence of the resistance. What compels international criminal law to bring to account an Israeli officer for issuing orders leading to a massacre of Palestinians may also compel it to bring to account a Palestinian resistance fighter who kills Israeli civilians in the course of his fight against the occupation. The primary factor that stands in the way of such a prospect is the Israeli claim that it is capable of avenging itself. It does, in its own way, hunting down and kidnapping the "perpetrator", prosecuting him, or assassinating him along with everyone living in the same building if need be.

If we looked beyond such obstacles, recourse to criminal prosecution would entail the following.

Firstly, the persons or agencies that are bringing suit must be thoroughly compared and must coordinate effectively among themselves. The presentation of their case must be so solid that they cannot lose. The Palestinian people hardly need an international court to acquit Israel for war crimes on technical or procedural grounds after having accepted that body's legitimacy to pursue the matter.

Secondly, all procedural formalities will have to be taken as given. When one goes to court one plays by its rules, which means presenting arguments and submitting evidence that can be substantiated and corroborated and, if need be, dropping important and powerful claims that, as convinced as one may be of their veracity, cannot be proven in the language of the courts.

Thirdly, it will be important to distinguish between combat and massacre, and fighters who fell in the course of battle and civilians who were deliberately targeted and slaughtered. In Arabic they may all be "martyrs" but the language of the courts insists on the distinction. And why not make the distinction? Surely it is wrong, for example, to regard a heroic stand on the part of resistance as a massacre. There are times when the Palestinian people should be proud of their struggle, and these are the instances that should not be taken to the court as though the courageous fighters that took part were mere victims of a massacre. Summoning the necessary precision will be difficult because it conflicts with the Palestinians' day-to-day awareness and prevailing sympathies and culture. However, Israel did indeed commit massacres of Palestinian civilians, and these must be isolated with the dispassion of a surgeon. The hard facts must be presented to prove that they did indeed occur and more hard facts need to be presented to establish the responsibility of Israeli political and military officials.

Fourth, as in any criminal case, it will be necessary to establish the existence of all elements constituting the perpetration of a crime. The precise nature of the crime must be defined, means and motive established, and evidence produced with an eye to distinguishing between the circumstantial and the direct.

In order to establish Israeli culpability in this type of crime Palestinians will have to demonstrate from official statements, political literature and the prevailing climate that there was a deliberate policy of targeting civilians as a form of collective punishment or for other political aims. They will have to furnish concrete evidence that Israeli political or military officials knew in advance that a military action would take a severe civilian toll but pressed ahead with the action anyway. They will further have to establish that the Israeli judiciary, to the legitimacy of which Palestinians in the occupied territories have lent credence by continually resorting to it, does not seriously punish war crimes (as was the case when the court fined the man who ordered the Kafr Qasem massacre one piastre).

It would not be wise for Palestinians to seek recourse to the international justice system under current international circumstances, in which, at best, the criminal is equated with the victim and more often than not the victim is blamed, if this course requires conceding political positions that would lend legitimacy to Israel or involve conceding the right to resist and to fight for national liberation. The court remains an alternative, but it is one that needs to be considered carefully. Remember, the court attributes individual responsibility. It does not deal with political entities. Yet this latter aspect is extremely important. Any case must be grounded in the fact that the Palestinian victims of Israeli violence are not mere side-effects from the bombarding of resistance fighters. Attention must be drawn to the history of Israeli war crimes and to the culture of unleashing massively excessive force against the indigenous population whether to teach them a lesson about supporting the resistance or to drive them off their land. Any legal action must also work to refute the claim that Israel is an organised state with a judicial system that has not collapsed and which is capable of bringing the guilty to justice. In matters of security and war the Israeli judiciary has amply demonstrated that it is part of the machinery of repression and occupation. It does not prosecute criminal behaviour among its security forces so as not to dampen their combat energies.

No one expects the official Arab order to contribute seriously to the drive to seek redress for war crimes, including those perpetrated against Arab citizens in other Arab countries. When there was a state of war Arab governments thought that apart from the routine of going to the Security Council, war meant taking revenge through warfare, not through wailing and laments. Later, after Arab states turned to the negotiating process and peace initiatives, they succumbed to a general impression that there was a contradiction between accusing Israeli rulers of being war criminals and making peace with them. For this reason, when Arab officials refer to war crimes at all, they do so timidly and in Arabic, and then take the matter no further. This inconsistency in Arab behaviour does little to help in the arena of litigation. It somehow jars to hear Arab officials levelling charges of war crimes against Israeli officials and then having to watch one news report after another of the same officials flying off to peace conferences and shaking hands and exchanging visits with the person they accused. The world is not stupid. It is always on the lookout for those who vouch for Israel.

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