War Crimes And Lawfare

  As Israel continues to strike Hamas strongholds in Gaza, the terrorists and the Jewish state´s many global critics repeatedly denounce what they term a "disproportionate" military response against the Palestinians. Over and over again we hear of a "humanitarian crisis" being caused in Gaza as a result of Israeli blockades and complaints that military retaliation against Hamas for its endless terror against Israeli civilians will create a "massacre," a "genocide," and "crimes against humanity" — all in violation of human rights law.

  Here at al-Ghoul dot com we think this is just an example of the surrealism surrounding everything connected with the Palestinians.

Hamas - War Criminals

  Hamas' ideology and tactics are a "case study par excellence" of a systematic violation of international humanitarian law, according to Canadian MP Irwin Cotler.

  Mr Cotler, who toured the Gaza border area on January 13, 2009, further stated There is "almost no comparable example" anywhere in today's world of a group that so systematically violates international agreements related to armed conflict, Irwin Cotler - a former Canadian justice minister, MP and law professor at Montreal's McGill University - told The Jerusalem Post on Tuesday.

  According to Cotler Hamas is committing at least six violations of international law:

  "First, the deliberate targeting of civilians is in and of itself a war crime," he noted, referring to the Hamas rockets fired at southern towns for eight years.

  "A second war crime is when Hamas attacks [from within] civilian areas and civilian structures, whether it be an apartment building, a mosque or a hospital, in order to be immune from a response from Israel," he went on. "Civilians are protected persons, and civilian areas are protected areas. Any use of a civilian infrastructure to launch bombs is itself a war crime."

  That Hamas bears legal responsibility for the harm to civilians in areas from which it fires is enshrined throughout international law, he said: "In the general principles of customs binding on nations, in the specific international law of armed conflict [also called] international humanitarian law, in the Fourth Geneva Convention, in decisions of the International Court of Justice and the international criminal tribunals for the former Yugoslavia and Rwanda - it's all set out there."

  Third, he explained, "the misuse and abuse of humanitarian symbols for purposes of launching attacks is called the perfidy principle. For example, using an ambulance to transport fighters or weapons using an ambulance to transport fighters or weapons or disguising oneself as a doctor in a hospital, or using a UN logo or flag, are war crimes."

  The fourth violation, "of which little has been made, is the prohibition in the Fourth Geneva Convention and international jurisprudence against the direct and public incitement to genocide. The Hamas covenant itself is a standing incitement to genocide. [Similarly,] just before this fighting started, I saw Hamas leaders on television referring to Israel and Jews as the sons of apes and pigs."

  The fifth crime relates to the scope of the attack on civilians, which upgrades the violation to a crime against humanity. According to Cotler, "when you deliberately hit civilians not infrequently but in a systematic, widespread attack, that's defined in the treaty of the International Criminal Court and international humanitarian law as a crime against humanity."

  The final war crime for which Hamas is responsible is the recruitment of children into armed conflict.

  "Hamas is a case study of each of these six categories of war crime," said Cotler. Unfortunately, the international community "has been minimizing the manner in which Hamas has engaged in consistent mass-violation of international humanitarian law."

  Cotler said specifically delineating Hamas's violations was important in that it would place the onus of responsibility for the civilian tragedy in Gaza on the proper party.

  "The consequences [of the fighting] are tragic in human terms," he said. "Clearly what is happening in Gaza is a tragedy. But there has to be moral and legal clarity as to responsibility. When Israel responds and civilians are killed because Israel is targeting an area from which rockets were launched, then it is Hamas which bears responsibility for the deaths, and not Israel, according to international law."

Hamas Criminals Safe From Prosecution

  Unfortunately, Hamas' terrorists are immune from prosecution at any war crimes trial. On January 14, 2009, the International Criminal Court prosecutor in The Hague said on Wednesday it lacks jurisdiction to investigate possible war crimes recently committed in the Gaza Strip.

  The prosecutor's statement came after a Palestinian organization engaged in "lawfare" harassmentment (see below) called on the ICC to investigate Israel for committing war crimes in Gaza.

  The office of the prosecutor said the court's jurisdiction is limited to war crimes, crimes against humanity and the crime of genocide committed on the territory of, or by a national of, a state party. No wonder the Palestinians have passed on every opportunity for their own state.

  Set up in 2000, the Hague-based ICC is the world's first permanent court established to investigate and prosecute war crimes. Israel and the United States are not among the 108 countries that have signed the Rome Statute creating the court, but that would not prevent the ICC from launching an investigation.

Lawfare - Terrorism by Other Means

  One thing Israel's enemies have learned in their 60-year jihad is that Arab armaments alone are insufficient to complete the task. Thay have adopted another tactic; since the 1990s with the creation of an International Criminal Court (ICC), has been the reframing and manipulation of concepts of international rights law to hobble Israel´s ability to secure its borders and citizenry and to defend itself against unrelenting Palestinian terrorism.

  In recent years non-governmental organizations (NGOs)seeking to hobble Israel have waged a campaign of "lawfare" - the frivolous exploitation of Western courts to harass Israel and its government officials. In 2003, the Council of Foreign Relations defined lawfare as "a strategy of using or misusing law as a substitute for traditional military means to achieve military objectives." Anne Herzberg, legal advisor to the watchdog group NGO Monitor, has more recently described in an extensive study how lawfare is now being used as a diplomatic weapon almost exclusively against Israel, how it has become "a non-military means of warfare to advance the Palestinian cause, and to deter future acts of Israeli self-defense against terror."

  While the ICC and assumptions of international human rights were implemented as a well-intentioned way to protect the victims of tyrants, autocratic regimes, dictatorships, and oppressive or criminal governments, lawfare has devolved into a one-sided, ideologically-driven campaign to delegitimize and weaken Israel, not only in actual courts where litigation can stymie their military operations and leadership, but also, as important, in the court of public opinion—a place where Israel frequently suffers defeat.

  Lawfare cases ignore the difficulties involved in fighting terrorists who target Israeli civilians while hiding among their own civilian populations. The accusations also ignore the measures Israel takes to avoid civilian casualties, including the strictest rules of engagement for any Western army.

  Such cases have been filed in Spain, Belgium, Switzerland, New Zealand, the UK, Denmark, the Netherlands, Canada and the U.S. by exploiting "universal jurisdiction" statutes. These laws allow courts to rule on cases even though the parties and events at issue are wholly foreign. The honorable intent was to provide relief to victims of real mass murderers in countries that don't respect the rule of law. Instead, these statutes have been co-opted by NGOs to advance an anti-Israel agenda.

  The NGOs leading the lawfare campaign are the Palestinian Center for Human Rights (PCHR), the Ramallah-based Al-Haq and the Center for Constitutional Rights (CCR) in New York. They are funded by various European governments, the European Union, the Ford Foundation, George Soros's Open Society Institute and others. Many of the cases are filed in the very countries that have provided the organizations with financial aid.

  NGO superpowers with budgets in the tens of millions of dollars, such as Human Rights Watch, Amnesty International and the International Federation of Human Rights (France), have supported these efforts by providing publicity, organizing demonstrations and issuing reports crafted as legal briefs to coincide with court hearings.

  PCHR, for example, was responsible for a case in Spain, seeking arrest warrants for seven former Israeli officers allegedly involved in the 2002 targeted killing of Hamas leader Salah Shehadah in Gaza. Israel's foreign ministry warned the men against travel to Spain for fear of arrest while Madrid tried to defuse the tensions.

  PCHR was also sought arrest warrants against several Israeli officials as "war criminals" in the U.K. (2004, 2005) and New Zealand (2006). Like the Spanish case, at issue in these countries is the 2002 targeted killing of Shehadah. PCHR claims 15 Palestinian bystanders were "deliberately" killed in the operation.

  Nothing could be further from the truth. Israel tries its utmost to limit collateral damage. Its ability to do so, though, was frustrated by Shehadah himself, who hid in a residential neighborhood. Shehadah was responsible for the deaths and injuries of hundreds of Israelis and was planning more attacks when he was killed. That made him a legitimate target. The Geneva Conventions make clear that the possibility of civilian casualties do not render a military target immune. If these cases were to succeed, all Western democracies, not just Israel, would be rendered powerless against terrorists in urban warfare.

  CCR, with assistance from PCHR, filed a civil lawsuit in the U.S. in 2005 against a former chief of staff of the Israel Defense Forces, Moshe Ya'alon, for "murder" and "crimes against humanity" allegedly perpetrated during a 1996 battle with Hizballah at Qana, Lebanon. At the time, the IDF tried to stop the terror organization from launching Katyusha rockets against Israeli civilians. During the battle, Israel accidentally hit a United Nations compound, leading to a hundred casualties.

  CCR's pleadings ignored Hezbollah's targeting of Israeli civilians as well as the fact that the terrorists placed their artillery batteries next to the U.N. compound. U.S. President Bill Clinton said at the time that the incident was a "tragic misfiring in Israel's legitimate exercise of its right to self-defense" against the "deliberate tactics of Hezbollah in their positioning and firing."

  In several countries, NGO "lawfare" has led to arrest warrants for former Israeli military officers. Most of these actions, though, have been dismissed during the preliminary stages. A February 2008 decision by the U.S. Court of Appeals in Washington, D.C., for instance, found that these cases "concern acts allegedly done by the military of the state of Israel in the conduct of hostile operations" and that the NGOs illegitimately seek to engage courts "in the micro-management of military targeting decisions." The court added that these are not the sort of cases the U.S. statutes were intended for, such as prosecuting "an Idi Amin or a Mao Zedong."

  Nevertheless, the propaganda impact of charging Israeli officials with war crimes and securing arrest warrants is enormous. It further delegitimizes the Jewish state. The threat of future lawsuits restricts the foreign travel of Israeli officials and strains diplomatic relations. Many countries have begun to re-evaluate their laws and the ability of private groups to initiate these lawsuits to prevent future abuse.

  The "lawfare" against Israel raises troubling questions: Why do NGOs supposedly promoting "universal" human rights only target Israel and fail to hold responsible Palestinian or Hezbollah terrorists for hiding among civilians - turning their neighborhoods into legitimate military targets? Why do these NGOs fail to seek "justice" for Israeli terror victims? Why do the EU and European governments fund these NGOs under ironically named programs like the "Partnership for Peace"? Europe's taxpayers may want to ask their leaders why they are footing the bill for these frivolous lawsuits.

  As proof that lawfare against Israel can embolden and even provide moral and legal cover for some of the world´s most egregious human rights offenders, Iran inanely announced in early 2009 that it was establishing a special court to try Israeli officials, in absentia, for their war crimes committed in Gaza operations. Justified by a 1948 U.N. convention on the prevention of genocide to which Iran is a signatory, Iranian Foreign Minister Manouchehr Mottaki asserted that Israel obviously was committing "genocide against humanity" in Gaza, and that Iran, one of the world´s most deficient nations for the protection of human rights, would now stand in judgment of Israel. "The court is in a special branch in Tehran," crowed judiciary spokesman Alireza Jamshidi, "and entrusted with the task of dealing with the executors, planners and officials of this (Israeli) regime who have committed crimes."

  In an inverted moral universe where enemies of the Middle East´s only democratic state regularly seek its destruction, the tactic of lawfare — with its once-meaningful language of genocide, international human rights, and war crimes—is now being used, by state and non-state actors alike, as an alternate, but equally dangerous, weapon in the unrelenting jihad against Israel.

IDF Prepares for 'War Crimes' Lawsuits

  Defense Minister Ehud Barak has ordered the IDF to set up a team of intelligence and legal experts that will collect evidence related to IDF operations in the Gaza Strip, that could be used to defend military commanders against future lawsuits.

  Called an "Incrimination Team," the group of experts has already received all of the footage filmed by IDF Combat Camera teams deployed inside the Gaza Strip, to review and decipher. All footage taken by Combat Camera soldiers is first given to brigade intelligence officers who study it for intelligence information.

  The decision to set up the team was made as part of IDF preparations for a wave of international lawsuits related to Operation Cast Lead, which Attorney-General Menahem Mazuz warned would be filed against soldiers following the operation.

  "We need to be prepared for the potential lawsuits that will be filed against senior officers," a defense official explained. "The team will review the footage and intelligence information and formulate arguments that can be used to defend against claims that Israel committed war crimes in Gaza." The footage collected by the team was filmed by regular combat soldiers who received special training on how to film and document military operations under combat conditions. The unit is part of the IDF Spokesman's Unit and is headed by Maj. Zvika Golan.

  The history of the IDF's Combat Camera Unit goes back eight years to the beginning of the second intifada. While the IDF claimed Palestinian terrorists were using groups of stone-throwing children as cover, the IDF Spokesman's Office had difficulty backing up the claim without documentation of the events.

  Following the Second Lebanon War, the IDF decided to set up a new unit to train regular combat soldiers to film events under combat conditions, and ahead of Operation Cast Lead, the IDF succeeded in training at least one soldier in each company of the Golani, Givati and Paratroop brigades.

Sources:

Law professor: Hamas is a war crimes 'case study'

ICC prosecutor says has no jurisdiction in Gaza

Lawfare Against Israel

Lawfare:´ Another Weapon in the Jihad Against Israel

International Law and the Fighting in Gaza

IDF legal team gathering Gaza evidence