Criminals call for Court

Legal issuesInside Shuj'iyaIsrael charged with war crimes at International Criminal Court (ICC)

Will ICC will accept jurisdiction? I doubt it. It has refused in the past. Palestine is not a member state, neither is Israel, and only member states can raise charges. Apart from that the court will not take a case unless it is convinced the state where the individual accused resides is incapable or unwilling to deal properly with the charges domestically. Israel is fine – Gaza not so much. However, logic doesn’t always apply in a lynching.

Personally I don’t think they mean to go through with it. Rather this is, as with the UNHRC investigation, warfare by other means. Hamas clearly believes/hopes that sufficient public diplomacy pressure can successfully persuade Israel to withdraw.

Should the court accept, we should welcome it and counter sue both the plaintiff AND the Palestinian Authority. Use of the legal system cuts both ways and it is about time the Israeli case is heard.

11 war crimes committed by HamasHamas leader leads people to death

  1. Hamas has fired 1000s of rockets and mortars at Israeli communities. Their systems are not accurate enough to accurately attack a legitimate military target so they are forced to fire at large civilian targets WAR CRIME1.
  2. Some of these missiles have been placed in and near civilian buildings (homes, hospitals, schools & mosques) to hide them from Israel and dissuade the IDF from attacking WAR CRIME2.
  3. Those same premises have been used for military purposes, for example, storing rockets in UNRWA schools and placing their HQ in and under Shifa Hospital WAR CRIME3.
  4. Hamas has used ambulances for military purposes WAR CRIME4.
  5. Hamas has sent fighters dressed in IDF uniforms WAR CRIME5.
  6. Although Hamas claims every death of someone under the age of eighteen as a child it sends fighters much younger into battle WAR CRIME6.
  7. Hamas has ordered noncombatants to ignore IDF warnings to evacuate WAR CRIME7.
  8. In some cases Hamas has stopped noncombatants who received IDF warnings from fleeing WAR CRIME8.
  9. Hamas has ordered the kidnapping of civilians to be used as hostages WAR CRIME9.
  10. Hamas has prevented civilians from reaching the field hospital that Israel set up at the Erez Crossing to treat injured Palestinians, and it has even fired missiles on this hospital to frustrate attempts to treat them WAR CRIME10.
  11. Hamas has diverted hundreds of thousands of tons of concrete that entered Gaza for civilian purposes, to build a vast network of underground tunnels and missile silos instead of meeting the humanitarian needs of the Palestinian population. Diverting humanitarian aid for military purposes WAR CRIME11

Each individual instance is a prima facie‡ war crime

So why the Palestinian Authority?Fatah-Hamas accord 2014

Fatah’s military wing, the Al Aqsa Brigades takes credit for similar war crimes, especially the shooting of missiles during the current conflict. Apart from that the P.A. consistently claims that Gaza is an integral and indivisible part of the State of Palestine and that Hamas is now part of the PA government. The PA has paid the salaries of public servants in Gaza, since they were brutally booted out by Hamas in 2006 (most or all these officials have nothing to do) and considers it has responsibility to pay for (that they owe billions of shekels is another issue) for water and power supplied from Israel.

The only way Abbas can argue his way out of it is to deny Gaza is part of the P.A. That would be a major PR defeat for their bid to have Gaza included in the State of Palestine. Win-Win for us.

My warning to Hamas. Be careful what you wish for.

Defending Israel against the charges

It could and should be argued that no matter how guilty Hamas and allies are of every charge that doesn’t excuse anything improper that Israel might have done. We should have our day in court. Surprisingly this has never happened, before. Israel refused to appear before the travesty of the International Court of Justice (tactical error, I think).

Proving a war crime has been committed by Israel will be much harder than against Hamas. Despite what Hamas and their mouthpieces in the Media have been saying relative casualty figures prove nothing and never have. It is a little known fact that between 15,000 and 20,000 French civilians were killed during the Normandy Campaign. As many French civilians died in the D-Day offensive as allied military personnel. So was the invasion of Europe a war crime?

Neither is the relative amount of ordinance that each side fires or the amount of damage resulting from it. In this war (you may insert Praise God or whatever exclamation of thanks you wish) the Hamas missile attack has been almost a total failure while virtually everything Israel sent over his the target destroys it. (Check out Throwing punches at Klitschko). During the Second World War America dropped 623,418 tons of bombs on Germans compared to zero bombs dropped on America. What legal conclusions should we draw from that?

Even allowing for the casualty rate that Hamas presents to be deliberately exaggerated both in quantity and the relative proportions of combatants to non-combatants the Geneva Conventions are quite explicit:

The presence of a protected person may not be used to render certain points or areas immune from military operations.

Article 28 of the 1949 Geneva Convention IV

Mistakes, missing the target, intelligence failures, etc. do not constitute war crimes. Only when the target was not a legitimate military target i.e. any attack must be justified by military necessity or the the harm caused to civilians or civilian property was not proportional i.e. excessive in relation to the anticipated concrete and direct military advantage could a war crimes charge be justified.

In other words, each alleged war crime will have to be examined individually.

I know that I am completely over-simplifying here. If some legal eagle would like to write about what war crimes actually mean in this conflict I will gladly publish it.

Kangaroo ICC?

International Criminal Court Cour pénale internationale

International Criminal Court
Cour pénale internationale

Does Israel have anything to fear from the court? Leaving aside for the moment that Israel has informed the UN Secretary General that it no longer intends to become a state party to the ICC and, as such, has no legal obligations arising from their former representatives’ signature of the Statute and that it is unclear whether the Palestinians have any standing at all, what could happen if the court accepts the case?

As a lawyer friend of mine once told me, “Never underestimate the stupidity of a judge”.  That said, the judges of the Court are: Sang-Hyun Song (Republic of Korea), Sanji Mmasenono Monageng (Botswana), Cuno Tarfusser (Italy), Akua Kuenyehia (Ghana), Erkki Kourula (Finland), Anita Ušacka (Latvia), Ekaterina Trendafilova (Bulgaria), Joyce Aluoch (Kenya), Christine van den Wyngaert (Belgium), Silvia Alejandra Fernández de Gurmendi (Argentina), Kuniko Ozaki (Japan), Howard Morrison (United Kingdom), Olga Herrera Carbuccia (Dominican Republic), Robert Fremr (Czech Republic), Chile Eboe-Osuji (Nigeria) and Geoffrey A. Henderson (Trinidad and Tobago). Unlike the Human Rights Council none of these countries stand out out-and-out enemies of Israel or major human rights offenders.

Israel stands a good chance of a fair trial and equally important Hamas and the P.A. stand a good chance of receiving the legal hiding they so richly deserve.

Could the legality of Israel be called into question?  Personally I would love to see that because I’m convinced that every Palestinian claim would fail but the ICC doesn’t seem to be the place. Currently the jurisdiction is to prosecute individuals for genocide, crimes against humanity, war crimes and only that.

Still remember what my friend said about judges especially judges where pressure could be exerted on their countries. We’ll have to wait and see.

Extra credit

Every charge is documented

  1. Gaza: Palestinian Rockets Unlawfully Targeted Israeli CiviliansPatrick Worrall, Channel 4, 24 July 2014
  2. Grad Rocket Launchers Discovered Next to Gaza School, IDF blog, 24 July 2014
  3. UNRWA Condems Placement of Rockets, For a Second Time, in One of its Schools, UNRWA Press Release, 22 July 2014*
  4. Israel-Gaza Conflict : Hamas Uses Ambulances to GazaVINESMediaTV, 22 July 2014
  5. Revealed: Hamas Wore IDF Uniforms in Latest Infiltration Attempt, Koby Finkler & Tova Dvorin, Arutz Sheva, 21 July 2014
  6. 16-year-old Gaza terrorist treated in Israeli hospital, The Times of Israel staff, 22 July 2014
  7. FactCheck: Does Hamas use civilians as human shields?, Patrick Worrall, Channel 4, 24 July 2014
  8. Hamas calls on evacuated Gazans to ‘return immediately’, Roi Kais, ynet news, 13 July 2014
  9. Hamas’ “Kidnappers Handbook”, Elder of Ziyon, 27 June 2014
  10. IDF Opens Hospital for Palestinians, Hamas Prevents Access, IDF Blog, 25 July 2014
  11. The denial of humanitarian assistance as a crime under international law,

† Kinda cute how the French manage to find a Gallic angle to the story.
‡ I’m getting all legally here. Prima facie is a Latin expression meaning on its first encounter or at first sight. The Palestinians would have to defend every instance.
* Does UNRWA’s denial remind you of this famous scene in Casablanca (1942)?
Rick: How can you close me up? On what grounds?
Captain Renault: I’m shocked, shocked to find that gambling is going on in here!
[a croupier hands Renault a pile of money]
Croupier: Your winnings, sir.
Captain Renault: [sotto voce] Oh, thank you very much.
[aloud]
Captain Renault: Everybody out at once!

Ga

About David Guy

B.A./B.C.A. (Communication and Media Arts) University of Wollongong, AUSTRALIA M.A. in Government (Diplomacy and Conflict Studies) Inter Disciplinary Center, Herzliya, ISRAEL Twitter @5MFI
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