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A real threat of ICC prosecution

jpostDan Izenberg, 31 December 2009, updated 1 January 2010

Despite an optimistic prognosis by the military advocate-general on the future of Israel’s international position following the Goldstone Report, speakers at an Israel Bar forum on Thursday warned of severe measures that might be taken against Israel and its military and political leaders.

Daniel Reisner, former head of the IDF’s international section, said that in the past he had not been concerned that the International Criminal Court (ICC) would accept a Palestinian complaint against Israel because the Palestinians did not represent a state. However, during the past year ICC prosecutor Luis Moreno-Ocampo has not ruled out the possibility of investigating a Palestinian Authority complaint against Israel after reversing his own previous opinion that he was not authorized to do so.

“Suddenly, the ICC has turned into a potential threat,” warned Reisner, who was one of the architects of Israel’s policy not to have the military police investigate IDF soldiers suspected of involvement in the deaths of Palestinian civilians, a policy that has been in force since the beginning of the intifada in 2000. “If that happens, it will be a turning point in Israel’s position in the world.”

Earlier, Major-General Avihai Mandelblitt, the military advocate-general, told the audience of lawyers that he did not see a threat from the United Nations, even though the General Assembly is due in five weeks to hear a report on the progress Israel has made in investigating the war crime allegations included in the Goldstone Report.

Mandelblitt said that the army has investigated all of these incidents and will publish its findings soon. However, the Goldstone Committee has insisted that the investigations must not be carried out by the army.

Nevertheless, Mandelblitt said he believed that as Israel published its findings, pressure from the UN would decline.

“I think the danger will recede as the situation clarifies itself – and it will,” he said.

Although Mandelblitt said he regarded the principle of universal jurisdiction – where Israelis can be tried in foreign courts for alleged war crimes – as more of a threat, he said this danger was also diminishing. He cited the decision of the Spanish court of appeals to close the case of a criminal complaint against Israeli officers involved in the targeted assassination of Izzedin El-Kassem leader Saleh Shehadeh in Gaza on the grounds that the matter had been dealt with in the Israeli courts.

But attorney Michael Sfard, a left-wing lawyer who has represented Palestinians in the Supreme Court, said Mandelblitt should not be so sanguine. After the initial complaint against the IDF officers had been lodged in Spain, Israel appointed a committee to investigate the assassination, in which at least 13 civilians were also killed and dozens wounded. Since then, Spain rejected the complaint and the Israeli-government appointed committee dissolved without reaching conclusions, after its chairman, attorney Zvi Inbar, died.

Now, said Sfard, there is an appeal in Spain against the decision to close the case and it is no longer certain that it will not be revived. “The danger still exists,” he warned.

In his opening remarks, Mandelblitt charged that the true purpose of the Goldstone Report was not to attack Israel, “but against all countries fighting terrorism.”

“The report is not aimed at Israel,” he said. “It is aimed at the West, at any country fighting terrorism. It is meant to tie their hands and cause them to lose the wars.”

This, he continued, was the main reason he opposed Goldstone’s demand to conduct an independent investigation of the charges. He said that by refusing to comply, Israel was defending the West’s war against terrorism.

Sfard said that what was new in the report was not the charge that Israel had committed war crimes. Such charges had been made in the past. What was new, he maintained, was that the report “asserts categorically that the IDF investigations are not investigations because they do not meet any of the standards demanded of investigations regarding war crimes allegations.”

Sfard said he agreed that the field investigations conducted by officers without legal training – which do not question civilian witnesses and are meant primarily to study how operational mistakes were made – cannot be considered genuine investigations. He added, however, that he had confidence in criminal investigations carried out by the military police.

However, the military police could only investigate individual incidents, not policy decisions made by the high command, such as the use of phosphorous, the decision to bomb densely populated civilian areas, questions of proportionality and other matters involving international law.

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