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Jan. 31, 2009
NITSANA DARSHAN-LEITNER , THE JERUSALEM POST
While the
government and IDF strenuously strove to implement lessons learned
from the last war and provide the troops in Gaza with every possible
means to shield themselves against enemy fire, they negligently
allowed our soldiers' flanks to be exposed to danger from
a different quarter.
The international
campaign accusing officers of war crimes against Palestinian
civilians has steadily been gathering steam over the past decade.
The short-sighted reluctance of elected officials and the IDF's
legal department to confront the issue head-on has left the
government and its senior officers scurrying to develop an effective
strategy and play catch up.
Indeed, no sooner
had the first F-16 been fueled up and the netting pulled off the
first Merkava tank than the United Nations and its backup chorus at
Human Rights Watch, Physicians for Human Rights and B'Tselem began
yodeling their malicious assertions that Israel was violating
international law; targeting innocent civilians; shelling
disproportionably; inflicting collective punishment and utilizing
illegal armaments. Our troops couldn't fire a bullet anywhere in the
terrorist-controlled enclave without some human rights expert
flaming on CNN and the BBC that they had wounded an innocent
Palestinian. A "humanitarian crisis" was announced by the UN within
the opening hours of the operation and the canard was repeated daily
for the next 21 days. Even before the smoke had cleared in Gaza
City, UNRWA and UN Rapporteur Richard Falk had concluded that war
crimes had been committed.
IT SHOULD have
been obvious to our leaders given their experiences in Lebanon, when
similar allegations were loudly being cast and even earlier - during
Operation Defensive Shield when Palestinian officials were swearing
to the media that 1,500 civilians had been massacred in Jenin - that
the IDF had a serious problem. A comprehensive strategy was needed
to shield soldiers from criminal prosecutions.
Indeed, a disaster
had just narrowly been averted in the UK. On September 10, 2005,
Maj.-Gen. (res.) Doron Almog was disembarking from an El Al flight
in London when he was warned at the last moment by the embassy's
military attaché that a warrant had been issued by a British
magistrate for his arrest for allegedly violating the Geneva
Convention in carrying out house demolitions in Gaza. Almog remained
on the plane and returned to the country unharmed. Although, British
foreign minister Jack Straw eventually apologized for the incident
and the warrant was canceled, IDF officers are still wary of
visiting the UK.
In another, better
publicized affair, in 2001 prosecutors in Belgium filed a war crimes
indictment against former prime minister Ariel Sharon and Maj.-Gen.
(res.) Amos Yaron on allegations they were responsible for the
massacre of Palestinians in Lebanon. An appeals court eventually
dismissed the case, stating that no individual could be tried in
absentia under Belgium law unless he was found within its territory.
While pressure from the government and a diplomatic campaign managed
to resolve these two incidents, the results were less than
reassuring.
ONE NEED only to
look to the US to see what sorts of potential legislative defenses
are possible. In 2002, the Rome Treaty creating the International
Criminal Court (ICC) was signed by numerous countries. With American
troops being sent into Iraq and Afghanistan, however, there was a
growing concern in the US that its forces could be arrested and
prosecuted for war crimes by the ICC. Many in the US fiercely
opposed the treaty, fearing it would become a vicious tool to
obstruct American foreign and military policy. The Senate passed the
American Service-Members Protection Act (ASMPA) in response. ASMPA's
stated purpose was to "to protect United States military personnel
and other elected and appointed officials of the United States
government against criminal prosecution by an international criminal
court to which the United States is not party."
ASMPA gave the
president far-reaching powers to take action against those who might
try to prosecute soldiers, especially the ICC. Most strikingly,
ASMPA provides the president with "all means necessary and
appropriate to bring about the release of any US or allied personnel
being detained or imprisoned by, on behalf of, or at the request of
the ICC." Simply stated, the law permits the president to employ
military force, if necessary, to free any American soldier arrested
on charges of war crimes from the custody of the ICC. It was for
this reason that ASMPA has earned the nickname "The Hague Invasion
Act."
Furthermore, ASMPA
prohibits any American governmental entity or court from cooperating
with the ICC and bars the US from transferring any information to
the ICC or to countries that are party to the Rome Treaty.
There is no
reason that the Knesset to date has not passed similar legislation
designed to protect IDF soldiers from criminal prosecutions. If the
US, with its tremendous international clout, its massive
underwriting of the UN budget and its overwhelming foreign relations
capabilities felt the need to pass ASMPA to head off war crimes
prosecutions, certainly Israel should have followed its lead and
passed its own defensive legislation.
Relying
solely upon the Foreign Ministry's competence and timely diplomatic
intervention is too risky a
strategy to safeguard IDF officers from the threat of an onslaught
of post-Gaza indictments.
The Knesset must immediately legislate
a far-reaching law prohibiting any agency, court or citizen from
cooperating or passing information to any war crimes tribunal. It
should block access to foreign investigators, including UN special
rapporteurs. The government should be empowered to utilize all
necessary force to resist any
effort to arrest IDF officers accused
of war crimes anywhere in the world.
Foreign countries
should be made to understand we mean business.
The author
is an attorney and director of Shurat Hadin - Israel Law Center
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