Pantomime cases against Israelis make a mockery of international justice

The JC essay

By Oliver Kamm, February 24, 2012

There is a concerted effort by Israel's adversaries to try to delegitimise it by using the rhetoric rather than the substance of international law. It is tempting to ignore such an obviously tendentious and malevolent campaign. But there is a good argument instead for Israel's friends to counter it, by counterposing to it the justification for international tribunals to try suspects for genuine war crimes.

International war crimes tribunals are an important humanitarian advance that have unfortunately become a destructively politicised notion. Anti-Israel campaigners bear much of the responsibility. Israeli politicians are used to frivolous invective but they have also had to contend with the threat of legal harassment and even arrest if they venture to Europe.

Fortunately that legal loophole has been closed in the UK, but the experience has tarnished the cause of universal jurisdiction applied to war crimes. That is a shame, for international justice is an essential tool in combating terrible crimes. Jews in particular have strong historic reason to welcome it and to support its most recent achievement, the creation of the International Criminal Court at The Hague.

Tzipi Livni, the leader of Israel's Kadima opposition party, is a prime example of the undoubted problem. She experienced what can only be described as an abuse of legal process when she prepared to visit the UK in 2009. She had accepted an invitation to speak at an event in London. It emerged in the meantime that British magistrates had issued a warrant for her arrest in connection with Israel's military campaign in Gaza the previous winter, when Livni had been Foreign Minister. The warrant had been sought by a pressure group. It was rescinded only when the court learnt that she had cancelled her trip.

It was not clear whether Livni's decision against travelling to the UK was due to these legal manoeuvres, but the Israeli foreign ministry was understandably incensed. Campaigners had attempted similar harassment against Ehud Barak, Israel's defence minister, on an earlier visit to the UK. It turned out that, as a serving minister, Barak enjoyed immunity from prosecution. But as my own newspaper, The Times, commented after these techniques were attempted against Livni, it was preposterous that so serious an issue should have been reduced to a legal technicality.

Israel is assailed by essentially political campaigns through domestic courts and at international forums

After this fiasco, the new British government moved mercifully swiftly (as its Labour predecessor was also committed to do) to ensure that the Director of Public Prosecutions had the power of veto over arrest warrants. Livni has since visited the UK and met William Hague.

This is, of course, as it should be. Though no longer in office, Livni is an important political figure in a vital ally of this country. It is legitimate for allies to criticise each other. The Times is a proud friend of Israel's, and insists on the Jewish state's right of self-defence, but had reservations about the tactics of the Israeli Defence Forces in the Gaza incursion. (The newspaper exposed the use of white phosphorus, against official denials). Reasoned criticisms are entirely different from the abuse of the important principle of applying the rule of law to the conduct of warfare. And here a distinction needs to be drawn.

The legal basis for the arrest warrants issued by an English court against Israeli politicians was the principle of universal jurisdiction. This allows courts to indict and try suspects for crimes against humanity regardless of where the offences were committed or the nationality of the accused. There is good reason for upholding that principle in the affairs of states, because not all states have robust enough a legal system to apprehend suspects. Some states, such as the Baathist regime in Syria now slaughtering demonstrators in order to retain power, are indeed so far outside the norms of international conduct that they are themselves an affront to the notion of justice.

Israel is nothing like such a state. The independence of its judiciary is demonstrable and highly prized. Yet Israel is assailed by essentially political campaigns through domestic courts and at international forums. The Goldstone Report into Operation Cast Lead issued under UN auspices was plainly biased and its central contention has been retracted by its chairman. None of this is disputable by a disinterested observer. But there are reasons, even so, for concluding that Israel should take its case to those forums and support the principle of universal jurisdiction.

Shlomo Avineri, the Israeli scholar and diplomat, argued powerfully last year that Israel had made a strategic error when it decided not to appear before the International Court of Justice in The Hague regarding the security barrier. The UN and other international forums are essentially political rather than legal bodies and Israel cannot give up on politics.

Avineri is right in his reading and recommendation. International law is an important construct, but it lacks a supranational body capable of exercising sovereignty to implement it. A transparent attempt to present partial political campaigns as some scrupulous quasi-judicial process is bound to bring it into disrepute. The disrepute does indeed follow, but it needs to be combated rather than allowed to go by default.

The ICJ judgement on Israel's security barrier is no model whatever for conflict resolution, let alone a conflict as intractable as the one between Israel and the Palestinians. Peace between the contending parties, when it comes, will take the form of a negotiated territorial compromise in which a secure Israel will coexist with a sovereign Palestinian state, in something approximating the pre-1967 armistice lines. But it would be politically more effective not to ignore this arena but to drive a wedge between properly constituted judicial bodies and ad hoc institutions of civil society.

The model for politicised, pseudo-legal meddling is a purported tribunal set up by Bertrand Russell, the philosopher and peace activist, during the Vietnam war. Sidney Hook, the philosopher and fierce opponent of totalitarianism, wrote illuminatingly of the Russell tribunal when it was established, in 1966. Hook had nothing against the principle of a tribunal, but cautioned that "whoever conducts such an investigation must not be a party to the conflict or violently prejudiced against either side. He must not be so committed to an antecedent conclusion that he weighs the evidence unfairly. He must not have previously condemned the 'crimes' to be investigated."

There is, to this day, a "Russell tribunal" on Palestine. Its deliberations are worthless, for exactly the reasons Hook anticipated. Similar charades take place periodically under the auspices of Blair-hating campaigns. A purported international tribunal (with absolutely no powers of arrest) took place recently in Kuala Lumpur at the instigation of the antisemitic former prime minister of Malaysia Mahathir Mohamad.

Its prosecuting counsel, Francis Boyle, is a notorious 9/11 conspiracy theorist. The judges included another American lawyer, Alfred Lambremont Webre, who goes one better by maintaining that there is a conspiracy of extraterrestrial reptilians.

Such pantomimes do great damage to the participants, but more seriously they bring the concept of judicial deliberation into disrepute. It is not hard to spot the difference, and Jews and other friends of Israel have particular cause for stressing it. The worst acts of the modern age were committed by Nazi Germany when that crime did not even have a name. The very term "genocide" is a neologism invented by Raphael Lemkin, a Polish Jewish lawyer and émigré, after the Second World War to try to capture the distinctive barbarism of what had just happened. A student of philology, Lemkin wanted a term that would describe a crime referring not merely to violence against civilians and aggression but to the attempted destruction of a people in whole or in part.

Horrifyingly, the crime of genocide, given official definition in the UN Genocide Convention of 1948, is very much a part of more recent history. Lemkin insisted that genocide referred not only to the attempted annihilation of every last member of a national or other grouping. It was the obliteration of a group as such, whether or not some of its members survived. Saddam Hussein's campaign against the Kurds clearly fell into this category of unique crime. So did the slaughter of 8,000 Bosnian Muslims by Serb forces at Srebrenica in 1995. Most chilling of all postwar atrocities was the genocide in Rwanda in 1994. Astonishingly, Hutus slaughtered some 800,000 out of a population of 930,000 Tutsis in just three months.

In the 1990s, the UN set up temporary tribunals to try those suspected of war crimes and genocide in the former Yugoslavia and Rwanda. These institutions continue to do important work. Radovan Karadzic and Ratko Mladic, the Bosnian Serb leaders, are currently being tried at The Hague. But these are costly and slow-moving institutions. Because they are explicitly temporary, they do not serve as a credible deterrent to those in other conflicts who might be tempted to use extreme violence against civilians and national groupings.

There is now, however, a permanent, treaty-based court that can try war crimes cases where a domestic legal system is inadequate. It is the ICC, established under the Rome treaty of 1998. The United States, which supported the ad hoc tribunals for the former Yugoslavia and Rwanda, has not signed up to the ICC, partly out of fear that its military personnel might one day be the target of frivolous prosecution.

That apprehension is not groundless. Israeli statesmen can testify that international jurisprudence is periodically misused as a political tool by campaigners and states who do not have the interests of Western democracies at heart. But as a practical matter, the ICC has demonstrably not behaved in such a way. It has, on the contrary, acted speedily against genuine threats to legal standards. It issued an arrest warrant in June against Saif al-Islam Gaddafi, the late dictator's son, for the murder and persecution of civilians. (In a neat historical twist, the younger Gaddafi's doctoral thesis at the London School of Economics praised the establishment of the ICC. Satisfyingly, Gaddafi now has an involuntary chance to engage in direct research of its procedures.)

The postwar history of Western foreign policy has been marked by what can perhaps most diplomatically be termed pragmatic insouciance in the face of great crimes. As the catastrophe of the Balkan wars of the 1990s showed, such a stance is morally culpable and not even in the narrow strategic interests of democratic nations. International war crimes tribunals, dispensing disinterested justice, are a message to potential aggressors that they will be found and put on trial. Just as important, they signal to threatened peoples that they are not on their own - not this time; and, let us profoundly hope, never again.

Oliver Kamm is a leader writer for The Times

Last updated: 12:56pm, June 7 2012