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December 22, 2014 / 30 Kislev, 5775
 
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Posts Tagged ‘International Criminal Court at The Hague’

Palestinian Terrorism and Statehood

Thursday, November 7th, 2013

In his September 24 speech at the United Nations, President Obama spoke passionately in favor of a Palestinian state. In this connection, his plea for full Palestinian independence strongly reinforced an earlier action by the UN General Assembly. Lamentably, to be sure, on November 29, 2012, the UNGA – without any expressed regard for the governing Convention on the Rights and Duties of States (1934) – had enthusiastically upgraded the Palestinian Authority to the status of a “nonmember observer state.”

Among other things, this elevated status will allow the Palestinian Authority to bring certain alleged criminals (read “Israelis”) before the International Criminal Court at The Hague. In other words, it will provide the PA with official cover for transforming a thoroughly crude geopolitics into law.

Reciprocally, however, any impermissible uses of insurgent force by assorted Palestinian factions, even if now cumulatively and officially called “Palestine,” would still be classified as criminal.

Moreover, these egregious Palestinian resorts to violence would still be an expression of terrorism. From the beginning, supporters of Palestinian terror-violence against Israelis have insisted that the preferred ends of that insurgency, Palestinian “independence,” necessarily justify any means, including recurrent attacks upon defenseless Israeli civilians. Nonetheless, as Obama’s UN speech conveniently neglected to mention, in jurisprudence the ends can never be invoked to justify the means. Rather, universally core philosophical, religious, and legal principles of humankind, principles identified as peremptory under international law, have long stipulated that intentional violence against the innocent is always repugnant, and therefore always prohibited.

Despite the apparent ease with which television “experts” discuss the subject, international law is not self-explanatory. As in the case of any formal and complex body of disciplined knowledge, therefore, some actual and industrious study of pertinent jurisprudence is required. A layperson is generally no more qualified to offer snap judgments on what is permissible or impermissible under international law, than he or she would be suited to evaluate alternative techniques of brain surgery.

In law, one man’s terrorist can never be another man’s freedom fighter. Although fashionable to repeat at cocktail parties and gatherings of sclerotic university professors, this facile expression remains little more than an empty witticism. It is true that certain insurgencies can sometimes be judged lawful (this is, after all, a manifestly founding principle of the United States Declaration of Independence), but even these selectively permissible resorts to force must still conform to humanitarian international law.

Whenever an insurgent group resorts openly to unjust means, e.g., shooting Israeli civilians in buses, schools, or restaurants, their actions are always “terrorism.” Even if ritualistic Palestinian claims of a hostile Israeli “occupation” were somehow reasonable rather than contrived, any related claims of entitlement to employ “any means necessary” would remain false.

International law always has precise and determinable content. It cannot be gratuitously invented and reinvented by terror groups, or even by “nonmember observer states,” simply to satisfy particular interests. This is especially the case where terror violence intentionally targets a country’s most fragile and vulnerable civilian populations.

National liberation or self-determination movements that fail to meet the test of just means can never be protected as lawful or legitimate. Even if one were to accept the argument that Hamas and its sister groups could satisfy the relevant struggle criteria, it is still clear that they would not satisfy the critically-involved legal standards of discrimination, proportionality, and military necessity. These basic standards of the law of armed conflict have been applied to insurgent organizations by the common Article 3 of the four Geneva Conventions of 1949, and also by the two Protocols to these Conventions of 1977.

They are also binding on all combatants by virtue of broader customary and conventional international law, including Article 1 of the Preamble to the Fourth Hague Convention of 1907. This rule, called the “Martens Clause,” makes all persons responsible for the “laws of humanity,” and for the associated “dictates of public conscience.”

Under international law, the ends can never justify the means, even at the hands of a “nonmember observer state.” As in the case of war between states, every use of force by insurgents must always be judged twice, once with regard to the justness of the objective (in this case, a Palestinian state, to be built explicitly on the charred ruins of a pre-existing Jewish state), and once with regard to the justness of the means used in reaching that objective.

We’ll See You in Court

Wednesday, May 8th, 2013

For months now, the Palestinian Authority has threatened to file for membership at the International Criminal Court at The Hague, which would enable it to press war crimes charges against Israeli soldiers and senior officials. This was one of PA President Mahmoud Abbas’ primary objectives when he submitted the PA’s candidacy at the U.N. for nonmember observer state status, because one year earlier, devoid of this status, the ICC denied the PA’s membership request.

Abbas uses this threat like the Sword of Damocles over Israel’s head. If the peace process fails to move forward, and if the Israeli government builds in E1 (the area connecting Jerusalem with its Ma’ale Adumim neighborhood), he will use this weapon.

The ICC is eager to pursue cases that don’t involve the slaughter and all-out warfare against tribes in Africa. The debate over the Israeli-Palestinian conflict, especially when Israel is on the defendant’s stand, tops the wish list for the war crimes tribunal, which portends to be the ultimate authority on human rights. Out of the hundreds of claims submitted to the ICC, it will choose to tackle those it has desired the most: the prosecution of Israeli soldiers.

Such prosecutions could have fateful consequences. The ICC has the authority to issue arrest warrants against those it convicts, and it is the duty of member countries to make these arrests. IDF soldiers, therefore, will be prevented from setting foot in more than 100 member countries, including Brazil, Canada, Cyprus, Denmark, Finland, France, Germany, Greece, Italy, Japan, Jordan, Mexico, New Zealand, Norway, Panama, Portugal, South Africa, Spain, Sweden, Switzerland, and the U.K.

This would be a decisive blow not only to Israeli backpackers recently discharged from the army, but to all fighting units, which new recruits will seek to avoid due to the risk involved. What’s the point, they’ll say, in sacrificing not only three years to the IDF, but also the freedom to move around in the world afterward.

Of his two options – starting a third intifada or turning to the ICC – Abbas will choose the most preferable, the one that doesn’t come at the cost of blood, that grants him credit with European leaders for choosing the nonviolent path, and that affords him the greatest odds of winning. He’ll turn to The Hague.

The Hague’s authority, however is a two-way street. From the moment the PA becomes a member, it opens itself to similar war crimes claims. Its leaders are liable to find themselves responsible for crimes against humanity and genocide.

Sending terrorists to commit suicide bombings; launching tens of thousands of missiles and rockets against civilian communities; inciting and directing its own population and security forces to kill innocent civilians, as these efforts have become increasingly systematic to the point of being a long-standing official policy against another civilian population – these are all crimes against humanity and genocide. There is already such a precedent, after a New York federal court in 2007 ruled that intifada-related crimes were crimes against humanity, and that Israeli victims of terror had the right to pursue legal action against those who aid and abet terrorism.

The only way to protect IDF soldiers from international prosecution is to deter the PA from turning to The Hague, and this is by threatening to submit thousands of counter-suits against it on behalf of terror victims.

Subsequently, the Israeli-based civil rights organization Shurat HaDin (Israel Law Center) has in recent days commenced with a pre-emptive attack. We are collecting testimonies from any Israeli who was a victim of terrorism and are asking that these testimonies be posted to our Facebook page as evidence that can be used in counter-suits against leaders of the Palestinian Authority for their roles in the perpetration of war crimes.

If Mahmoud Abbas and Hamas leader Ismail Haniyeh want to go to The Hague – we will be there to meet them.

Printed from: http://www.jewishpress.com/indepth/opinions/well-see-you-in-court/2013/05/08/

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