War crimes convictions after Gaza?
By Anita Rice

As the UN and human rights groups demand independent investigations into the conduct of Israel’s offensive in the Gaza Strip, the world’s attention is focusing on whether Israeli or Hamas officials could face prosecution for war crimes.

Whatever the inquiries find, bringing suspected war criminals to court will be far from straightforward.

There is a world of difference between establishing that war crimes have been committed, and then holding those responsible to account, says Mark S Ellis, the executive director of the International Bar Association (IBA).

"Often, people view these as the same, but they are not under international law. There is a gap ... regarding the issue of accountability," Ellis says.

Even if independent inquiries do establish that gross violations of the laws of armed conflict have taken place during the war in Gaza, the mechanisms to ensure those responsible on either side are brought to justice "simply don’t exist".

Four options

There are four main options open to states, groups or individuals seeking to launch legal proceedings against suspects should investigators find war crimes have been committed during the 22-day assault on the Strip, Ellis says.

All four routes are fraught with complexities, particularly in relation to the Gaza conflict.

First, individual war crime cases would ordinarily be referred to the International Criminal Court (ICC).

"The ICC simply doesn’t have jurisdiction over this conflict," says Ellis, "because Israel has not signed up to the Rome Statute [that enshrined the ICC]."

As the ICC requires states to adopt the court’s jurisdiction, it is unable to bring any actions against non-signatories itself, unless the UN Security Council votes to refer specific cases for potential prosecution.

While that happened when ICC prosecutors accused Omar al-Bashir, the president of Sudan - another non-signatory state - of committing war crimes in Darfur, it is unlikely to occur in relation to the Israel-Gaza conflict.

Gaza is not formally recognised as a state by the UN and "the US, and perhaps other [security council] member states, would veto any resolution that would ask for the ICC to investigate Israel," says Ellis.

"The ICC option is effectively closed."

The second route would be for the UN General Assembly to request an advisory opinion from the International Court of Justice (ICJ), also based in The Hague, on the legality of specific actions taken by states.

However, the ICJ has no enforcement powers, as was witnessed by its inability to act following its ruling that Israel’s construction of a separation barrier breached aspects of international law.

The ICJ requested Israel rectify elements of the construction, which Tel Aviv ignored - something any state can choose to do, Ellis notes.

Geneva conventions

The third option involves states trying their own citizens or soldiers for war crimes – a requirement under the Geneva Conventions.

"That’s unlikely to happen on both sides, but that is still a responsibility of the state, body, or entity that’s responsible for, or has authority over, the individuals who have committed these crimes," says Ellis.

Finally, Ellis points to a legal concept referred to as "universal jurisdiction", where any state can choose to launch legal proceedings against any person, anywhere in the world, who is suspected of committing crimes such as genocide, torture, and other grave breaches of international law.

But states have already proven themselves reluctant to take responsibility for holding individuals to account for crimes committed in other countries and Ellis believes it is "highly unlikely that a third party is going to step up and bring actions against Israeli or Palestinian individuals".

Despite this, lawyers across the globe, and particularly in the Arab world, are seeking ways to take legal action in relation to events they believe constitute war crimes.

Dr Abdullah Al-Ashal, a professor of international law at the American University in Cairo and a former Egyptian foreign minister, belongs to both the Arab Bar Association and the Arab Federation of Lawyers (AFL).

He believes that Israel has breached all four Geneva Conventions that cover conduct during armed conflict with relation to civilians, prisoners of war, sick and injured combatants, weapons used and how troops engaged in fighting.

Al-Ashal claims that Jordan, the Comoros Islands and Djibouti – all signatories to the Rome Statute – have committed themselves to bringing war crimes cases against Israel to the ICC if needs be, following the recent Kuwait-hosted Arab summit on Gaza.

'Pursuing all options'

In addition, members of the AFL are set to meet in Tunis on Thursday, January 29, to "discuss how to progress the prosecution of Israel for war crimes", and Al-Ashal said that Arab lawyers are "seriously pursuing" all options to put Israelis on trial.

Meanwhile, both sides say they acted in self-defence and within the confines of international law.

Mark Regev, the spokesman for the Israeli prime minister, insists Israel takes "extremely seriously any allegation of either improper or illegal behaviour by servicemen in combat" and carries out its own investigations.

On Israel’s refusal to sign up to the Rome Statute, he cites Israeli concern over "the politisation of the international human rights mechanisms in the international judicial system", a reference to resolutions that Israel regards as hostile and were passed by UN bodies without the backing of western states.

Asked if Israel intends to indict any Hamas leaders on charges of war crimes, Regev says Hamas is "recognised legally as a terrorist organisation" by the European Union, Japan, Australia, Canada and the US, adding: "I don’t think anyone has expectations as to the behaviour of a terrorist organisation."

While Hamas is regarded as a "terrorist group" by many western governments, the Palestinian faction came to power after democratic elections in 2006 that were deemed fair and free by international observers.

Hamas says not only are Palestinians the victims of war crimes perpetrated by Israelis, but they are left without recourse to international justice.

Going back to Ellis' "accountability gap", the IBA chief puts the blame squarely on nation states - including the US - for failing to accept the legitimacy of the ICC.

"The ICC is probably the most important body with regard to individual responsibility for these crimes ... it is the responsibility of all civilised nations to agree that if these types of crimes have been committed, they should be brought to justice.

"Ultimately, that’s where we want to be and we are a long way from that today," he says.



http://english.aljazeera.net/focus/2009/01/20091229274380583.html


...........................................

Despite the source (because I know all the pro-Israel readers will scoff and protest) I found this to be remarkably unbiased and interesting. While speaking about war crimes committed in Gaza it speaks of the near impossibility of bringing either side to justice.

NO ONE will ever charge Israel with war crimes because if they did...there would be cries of Anti-Semitism...be seeing you

Related article..............



UN releases Gaza attack photos


The United Nations has released images of what it believes are white phosphorus munitions raining down on one of its compounds during Israel's war on Gaza.

The pictures, broadcast by Al Jazeera on Thursday, show what appears to be flame-generating munitons, thought to be white phosphorus "wedges", falling into a UN compound in Gaza where hundreds of people were sheltering.

Two Palestinian boys, aged five and seven, were killed in the attack on January 17.

Israel has said it will investigate the issue, but has not publicly acknowledged using the controversial chemical.

Al Jazeera has learnt that a total of 53 installations used by the United Nations Relief and Works agency, Unrwa, were damaged or destroyed during Israel's Gaza campaign including 37 schools - six of which are being used as emergency shelters - six health centres, and two warehouses.

White phosphorus - a high-incendiary substance that burns brightly and for long periods on contact with the air - is often used to produce smoke screens.

But it can also be used as a weapon producing extreme burns when it makes contact with human skin.

The Israeli newspaper Haaretz has reported a brigade of paratroop reservists fired about 20 white phosphorus shells into the built-up area of Beit Lahiya on January 17, which landed in the UN-run compound where the two Palestinian children were killed and severe burns were inflicted on 14 other people.

Amnesty International, the London-based rights group, has accused Israel of war crimes over its use of the munitions in heavily populated areas.

Children killed

International law forbids white phosphorus use against military targets within areas where civilians are concentrated, except when the targets are clearly separated and "all feasible precautions" are taken to avoid casualties among non-combatants.

If the claims are proved, Israel's use of the chemical could form the basis of war crimes charges.

Ban Ki-moon, the UN secretary-general, on Wednesday repeated his demand for a full explanation of Israel's attacks on UN facilities in the Gaza Strip.

With the UN secretary general unable to speak due to a sore throat, Lynn Pascoe, the UN under secretary-general for political affairs, read out a statement on his behalf saying Ban wanted "a thorough investigation by Israel into every single one of these incidents".

The attacks, which Ban described as "outrageous", included strikes on a compound of the UN agency providing aid for Palestinian refugees (Unrwa) and on a UN school last week during Israel's three-week war on Gaza.

"I expect a full explanation of each incident and that those responsible will be held accountable for their actions," the statement quoted Ban as saying.

Deadly weapons

The Israeli military has also been accused of using Dense Inert Metal Explosive (Dime) weapons in urban areas, causing horrific abdominal and leg injuries.

When detonated, a Dime device expels a blade of charged tungsten dust that burns and destroys everything within a four-metre radius.

Israel has been criticised by human rights groups and foreign officials over its suspected use of a number of weapons during its aerial, naval and ground assault on the Palestinian territory in which over 1,300 Palestinians were killed.

The UN's International Atomic Energy Agency (IAEA) said on Wednesday it will open an investigation into whether Israel used depleted uranium, which is added to munitions as its density allows them to penetrate armour more easily, during the conflict.

It is thought that the dust left at blast sites after the weapons have hit also pose a health risk, but a definitive link has not yet been proven.


http://english.aljazeera.net/news/middleeast/2009/01/200912284850930973.html

..........................................

The photo accompanying the article certainly shows what appears to be White Phosphorous.

Is Israel a terrorist nation?

I think so...!

It's quite ironic that the Jewish government of Israel is oppressing and murdering the Palestinians in quite the same fashion that Nazi Germany did with the Jews in the 1930's and 40's, by forcing them into confined segregated "concentration camp" areas, denying them access to clean water and passage into Jewish settlements, and now doing an ethnic cleansing sweep of the Gaza Strip.

Call me an anti-semite. I could care less. I boycott the Zionist/terrorist nation of Israel.

-Mahan

Arabs have more rights in Israel than they do in any Arab country.

The fence was built and the checkpoints maintained to prevent homicide bombers from killing innocent Israelis (which includes a substantial number of Muslims).

I'm sure your heart is in the right place, but you don't have a firm grasp on the facts of the situation. Israel cannot allow people to freely enter their country, when those people might have a bomb attached to them. Israel has supported the two nation solution since 1948, it is the Palestinians who desire war and death. The leaders of Hamas live in Syria and Iran, where they are safe. Their commands cause innocent Palestinians to be used as human shields. Their actions are inhuman and pure evil. A Palestinian doctor stated yesterday that only around 500-600 Palestinians were killed by the Israeli offensive and that most of them were Hamas recruits.

You don't have to accept my word on any of this, but I encourage you to do the research on your own. By getting all of the facts and putting them into perspective, you might find you feel differently about Israel.

That's just wrong, IMO, to be called Anti-Semitic if you are against war crimes. A war crime is a war crime irregardless of the religion.

When you are only willing to charge Israelis with war crimes...and you ignore the fact that they are defending themselves as allowed by international law...that is Jew hatred. Pure and simple. To deny a group of people the right to defend themselves is biased and hateful.

There ya go.....

Yes, well, I was wondering if Israel ever got charged for any of the crimes against humanity that they have perpetrated? I dont think so.

Israeli terrorism has been the instigating factor behind all that has happened since.
At the end of WWI there was a very organized and cooperative Arab (Palestinian) Gov in Palestine.
The Israeli's were welcomed and prospered with freedom and equality.
Now look how things are.
And it all started going bad with Israeli terrorism.
These terrorist killed Arab civilians by bombing their markets while they shopped, their trains while they traveled, and theirs and the British Gov offices.
To condemn the Palestinians while forgetting their own past terror is irrational and prejudiced thinking.
The Israelis have honored their terrorists. Naming streets after them, giving military awards in their names, and putting them in their highest Gov positions with the authority to commit more terror in the name of The State of Israel.
To support them is to encourage and support terrorism and is prejudice behavior.
Instead of thinking of those who dont support Israel, in a prejudice light as anti-semantic, maybe you should turn that prejudice light on Israel, and condemn them and their supporters for Arab prejudice.

First...The "Palestinians" were under the rule of various other countries, mainly Jordan and Egypt.

Second...Israel was attacked THE NEXT DAY after they were declared a country by five Arab countries.

I don't know if you are lying or simply repeating a lie, but it's not true. Read any impartial source and you will see that your statement is completely wrong.

Your history lessons are severely inept.

Why did Israel cut off all exits out of Gaza 18 mths. ago?
Why did they even cut off their fishing area?

You can lead a horse to water...

http://wiredispatch.com/news/?id=229517


Why?

1) Hamas broke their treaty.
2) Hamas commited war crimes
3) When Israel tried to ship in food (at their expense) Hamas fired rockets at them.

It's called: perspective and intellectual honesty. What you need to do is look at both sides of the story and determine which one is telling the truth.

anyone who thinks Israel is a terrorist nation has the IQ of an infant

spider you might as well talk to the wall

some want to pick and chose what history they wish to use

history also shows that egypt enslaved the jewish nation thus lost their country but that is not supposed to matter

it is also documented that when the state of isreal was mandated into existance that the arabs said they would do everything possible to destroy it -- but that does not matter

pick and choose and you can make almost anything look almost anyway you want

The only right Israel has to the land exists in a story book.

Even then you must ignore the facts of the crimes used to steal that land from its inhabitants of the time.

Nothing will be done.

Israel acts with impunity knowing they have the support of the U.S. no matter how illegal, aggressive and heinous their actions are.

It's disgusting.