The decision this week of Israeli cabinet minister Moshe Yaalon not to fly to Britain for fear of being tried for an alleged seven-year-old war crime is seen as just the latest in a series of attempts to demonize Israel in the eyes of the world.
And with the release Sept. 15 of a United Nations report written by Richard Goldstone that alleged Israel took “actions amounting to war crimes, possibly crimes against humanity” during its 22-day military offensive in the Gaza Strip last winter, it is feared that thousands of Israeli soldiers could now face similar charges.
Alarmed by this prospect, Israeli Prime Minister Benjamin Netanyahu last week directed his justice, defense and foreign ministers to come up with a series of recommendations on how to confront the problem. Two such cases were brought in the United States against senior Israeli officials, and the U.S. Supreme Court last week agreed to review a different case that could put an end to such cases here. At issue before the High Court is an appeals court ruling that allows Somalis to sue Mohamed Ali Samantar of Fairfax, Va., for overseeing killings, torture and rape while he served as defense minister and prime minister of Somalia in the 1980s and early ‘90s. The court will consider whether the Foreign Sovereign Immunities Act grants him immunity from the lawsuit; the appellate court ruled that the law applies only to foreign states and their agencies, not individuals.
Marc Stern, acting co-executive director of the American Jewish Congress, pointed out in a memo to his leadership: “Given the effort to pursue legal action against Israel, its officials and soldiers in foreign courts, in the wake of the Goldstone Report, Israel has much riding on the outcome of the case — though saying so means aligning oneself with a rather disreputable Somali official in this case, and many serial human rights violators in others.”
In an interview, Stern said that should the U.S. Supreme Court side with the Somali citizens, “it makes a lot of Israeli officials open to suits here.”
Yaalon termed the efforts to charge him in Britain a “campaign to delegitimize Israel.” And Netanyahu reportedly called this “trend of demonizing Israel” something that is “bigger than Goldstone.” Barak Seener, Greater Middle East section director of the Henry Jackson Society, pointed out in the fall issue of the Middle East Quarterly that the UN’s Durban Conference on Racism in 2001 added fuel to this tactic when it labeled Israel’s anti-terrorist actions “war crimes” and labeled the Jewish state an “apartheid state” responsible for ethnic cleansing, he noted.
Gerald Steinberg, a professor of political science at Bar-Ilan University, said Palestinians are behind this campaign and that since Durban they have alleged that Israel is guilty of violations of international law and human rights abuses and should be completely isolated as an apartheid state.
“These groups took the issue of the separation barrier to the International Court of Justice, and there have been calls for academic boycotts of Israel around the same theme — that Israel is a serial violator of international law and human rights and should be punished just as South Africa was,” Steinberg said. “That means that every Israeli response to an attack by Hamas or Hezbollah is a violation of international law and that Israel is not allowed to defend itself.”
In their attempt to demonize Israel, these activists in the last 10 years or so have “tried to apply legal jurisdiction beyond borders,” according to Brett Schaefer, a fellow working on international regulatory policy at the Heritage Foundation in Washington, D.C.
“In some cases they will claim violations of international law or linkages to their own citizens,” he said. “And they argue that the universal jurisdiction standard should be applied. But for the most part, it has not been very successful.”
The first attempt to summon an Israeli official before a foreign court came in Belgium three months before the start of the Durban Conference. A civil indictment was filed in Brussels against Ariel Sharon for his role in enabling the 1982 massacres at Sabra and Shatila in Lebanon. Twenty-three survivors and five eyewitnesses filed it along with several NGOs, including the Belgian Centre for Palestinian Development, Documentation and Information.
Seener noted that other Israeli officials, including Yaalon and former Internal Security Minister Avi Dichter, had cases brought against them in such countries as Britain and the United States.
The charges, which were dismissed and included allegations of crimes against humanity, were “clearly manufactured in order to portray Israel as the constant villain,” he said.
However, in 2005 the former Israeli chief of the Southern Command, Maj. Gen. Doron Almog, was nearly arrested by British authorities when he landed at London’s Heathrow Airport. But he was tipped off that the police were waiting outside with a warrant based on his troops’ demolition of Palestinian homes in a combat zone, and he remained on the plane until it flew him back home.
Two years later, Dichter turned down an invitation to visit Britain after being advised that he would be arrested for his involvement in the July 2002 assassination of Selah Shehadeh, the head of the armed wing of Hamas. When an Israeli warplane dropped a one-tonbomb on Shehadeh’s home in Gaza City, it also killed 14 civilians, including his wife and nine children.
This is the same incident that this week kept Yaalon from flying to Britain. At the time of the assassination, Yaalon was serving as the military’s chief of staff.
A Spanish court rejected earlier this year an investigation by Spanish Judge Fernando Andreu of this same incident. Spanish legislators have since voted to change the law that allows judges to indict foreigners, limiting it to cases in which there is a clear Spanish tie.
Lawmakers in Belgium also changed the universal jurisdiction principle after the U.S. threatened to move NATO headquarters from Brussels, Schaefer noted.
Daniel Derby, a professor of law at Touro Law Center on Long Island, said, “One of the biggest questions now is how many countries will end up going the route of Belgium.”
“It had a vigorous universal jurisdiction rule that allowed for no compromise,” he said. “But after a couple of missteps … the legislature modified it to limit jurisdiction to where Belgium has a significant interest in the case.”
Steinberg said he expects the Israeli Foreign Ministry to take the lead in pressing European countries to similarly change their laws.
“One of the tactics is to point out that a law used against Israel can be used against everybody else,” he said, such as Tibetan sympathizers suing China.
Steinberg added that Foreign Minister Avigdor Lieberman has already said he would urge European countries to stop funding Palestinian NGOs that have been pressing these lawsuits. When Israeli Defense Minister Ehud Barak was in Britain last week, two of those groups, Al Haq and Al Mezan, sought to file war crimes charges against him. British authorities refused, however, saying he was there on official business and thus had diplomatic immunity. Steinberg said European governments fund both of those groups.
“There have been at least a dozen such cases around the world involving Israelis,” he said. “All of the cases were dismissed. The whole purpose of this is to present Israelis as war criminals. Nobody expects that Israelis will actually be brought to trial, but what they want is to have that label. The Goldstone report is just another aspect of that.”
Yuval Shany, a visiting professor of law at Columbia University Law School, said he doesn’t believe European countries will change their laws in “the foreseeable future.”
“Most of continental Europe does not allow for broad prosecutorial discretion,” he pointed out. David Rivkin, a partner at Baker Hostetler in Washington, D.C., said the cases that were brought against Israeli officials in Europe “underscore the extent to which foreign prosecutions are undertaken without a full appreciation of the relevant facts and circumstances.”
Those can be best ascertained, he said, “by the military commanders operating within the context of the military justice system.”
But Rivkin said such prosecutions “even if not politically driven … can impact adversely the ability of officials from a sovereign state to do such basic things as travel. That is a bad thing. Critics often argue that this is a way to bolster compliance with humanitarian norms. I happen to think that this is a specious argument, because in law-abiding states like the U.S. and Israel there are more than enough deterrent” factors.