Gaza, War Crimes, and the Path to Accountability

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Electronic Intifada

Gaza, War Crimes, and the Path to Accountability

by
Sunera Thobani

British Prime Minister Gordon Brown and Secretary of State for Foreign Affairs David Milliband acted swiftly to withdraw the warrant for the arrest of former Israeli Foreign Minister Tzipi Livni, one of the architects of last winter's Israeli attack on Gaza. A British magistrate issued the warrant under universal jurisdiction laws in response to allegations of war crimes committed by Israel in Gaza. This prompted Brown to phone Livni and assure her she was "welcome" in Britain, and Milliband stated his government's intention to remove the power of UK magistrates to issue any such future warrants against Israeli politicians.

As foreign minister, Livni used the Israeli-dubbed "Operation Cast Lead" to brand herself as an astute politician who would ride to power on the bodies of dead Palestinians. She became a media darling in the West, and the Gaza attack was to be the ticket to her rise to prime minister. However, although the attack killed more than 1,400 Palestinians and wounded thousands more, Livni's political ambitions did not materialize quite as planned. Benjamin Netanyahu and Avigdor Lieberman out-hawked her, and the Palestinians are still paying the price for the invasion. Gaza remains under a murderous siege, enforced by the Israelis and backed by its Western allies and Egypt.

A number of reasons have been put forward for the British government's eagerness to protect Israeli politicians from the threat of arrest. These include Britain's staunch support for the State of Israel since its inception; the organizational strength of Zionist lobbies, and in particular, their ability to impact the outcome of electoral politics; and lastly, the desire to avoid being branded anti-Semitic. While these are certainly important considerations, there is yet another pressing concern that has received little attention. This is a concern shared by the Americans and Canadians, and it speaks directly to the specificity of this particular moment in the so-called War on Terror. Indeed, this concern may well eclipse all other considerations for the moment.

The US, UK and Canadian governments are all embroiled in attempts to immunize themselves from accountability under international law for their own actions in the War on Terror. Protecting Israel from international law has therefore acquired an added urgency, not only in the interests of the Zionist regime, but also in the interests of the US and its two staunchest allies in the War on Terror, Britain and Canada, to remain beyond the reach of international law. In other words, if Israeli politicians can successfully be taken to court under international law for committing war crimes, the precedent would greatly embolden attempts to do likewise with American, British and Canadian politicians in relation to their actions in Afghanistan and Iraq.

In September 2009, the UN-mandated Goldstone report on Israel's invasion was released. Placing the treatment of civilian populations at the heart of the investigation, Judge Richard Goldstone, who was the Prosecutor for the International Tribunals for the former Yugoslavia and Rwanda, found Israel's attack on Gaza (as well as specific actions by Palestinian groups, including Hamas) to amount to war crimes. The Israelis refused to cooperate with the Goldstone mission, unlike the Palestinian Authority, and Hamas. Public hearings were held in Gaza. The Goldstone report called for credible independent internal investigations of Israel's actions in Gaza which included: the deliberate bombing of civilian sites (including the Palestinian Legislative Council building, a Gaza prison, two hospitals, shelters and houses); the killing of civilian police forces; the use of mortars to hit "armed" Palestinian groups in the vicinity of large numbers of civilians; the destruction of food production factories, of water and sewage treatment facilities; and the direct killing of civilians. All were deemed violations of international law. In the absence of such independent investigations, the report called for the matter to proceed to the International Criminal Court.

In light of Israel's refusal to cooperate with its mission, the Goldstone report unequivocally stated its "support for reliance on universal jurisdiction" as an avenue for further investigation and action on "grave breaches" of the 1949 Geneva Conventions and to "prevent immunity and promote international accountability." Israel rejected the report's findings, accusing Judge Goldstone -- a Zionist and strong supporter of Israel -- of anti-Israel bias. Other supporters of the report were likewise attacked as being anti-Semitic. The US ambassador to the UN, Dr. Susan Rice, admonished the report's authors, and the US House of Representatives voted 344 to 36 to call on the Obama Administration to reject it. The Obama Administration has maintained this position and also exerted immense pressure on the Palestinian Authority to withdraw the report from consideration at the General Assembly of the UN. Neither the UK nor Canada supported the Goldstone report.

Many of the acts identified in the Goldstone report as constituting violations of international law are reported to have taken place in both Afghanistan and Iraq. The disproportionate killing of civilians in both countries is being tracked by human rights organizations; civilian sites are regularly reported to have been bombed, and targeted assassinations of "terrorists" are also reported to routinely kill family members of these alleged "terrorists," as well as other bystanders. Collective punishment also seems to be meted out regularly, and the civilian infrastructure has been demolished in many places. There is also the question of the torture of detainees captured, held or transferred by US, British and Canadian forces. Indeed, some legal scholars have questioned the very legality of both the Afghan and Iraq "wars" and occupations.

As the Guardian reported on 26 November 2009, the UK's Chilcot Inquiry recently heard that the government of former Prime Minister Tony Blair decided to participate in the American invasion of Iraq a year before it actually took place. Any concern about Saddam Hussein's alleged amassing of weapons of mass destruction and his ties to al-Qaeda were nothing more than a red herring, and in any event, proved to be the result of falsified intelligence reports. Moreover, on 14 November, the Telegraph reported that British soldiers -- men and women -- have been dogged since 2003 with allegations of torture and sexual abuse of Iraqi prisoners in their custody. Noting that 33 allegations of torture, rape and sexual abuse have surfaced about particular incidents, the Telegraph stated that "a pre-action protocol letter has been served on the [Ministry of Defense]" by a lawyer representing Iraqis subjected to this abuse. It also cited British Armed Forces Minister Bill Rammell calling for "formal investigations" into the matter.

Meanwhile, Canadians are mired in their own allegations of complicity in the torture of Afghan detainees. Senior diplomat Richard Colvin testified to a parliamentary committee that many of the Afghan detainees captured by Canadian soldiers were innocent civilians who were most likely abused or tortured by the Afghan authorities to whose custody they were delivered. He has further testified that despite his warnings to the Canadian government about this likelihood, no action was taken by the government to avert this possibility. Malalai Joya, the Afghan Member of Parliament who fled the country after being suspended from that body, has substantiated Colvin's claims. She has also added that many of those tortured and raped were women and children. The Canadian Broadcasting Corporation reported on 26 November that Defense Minister Peter McKay and former Chief of Defense Staff General Rick Hillier both denied Colvin's allegations. However, if Colvin's claims are vindicated, it could well be the case that the Canadian government was complicit in the torture and abuse of these detainees under the rules of international law.

If Israel can now be hauled before the International Criminal Court, who might it be next? If Israeli politicians can be arrested by warrants issued under universal jurisdiction, why not officials from the US, Britain and Canada as well? Who knows how quickly and how far things could unravel? If one occupying power could be held liable for war crimes, why not the other occupying powers who may have also engaged in collective punishment, in the destruction of civilian infrastructure, in the torture and killing of civilians? Where might it all end?

In seeking to protect Israel from the Goldstone report and Israeli politicians from the threat of arrest in the UK, the British, American and Canadian governments might well be engaged in a battle to save their own skins in the face of an emboldened legal activism. Gaza may well be the gateway to anti-imperialist accountability in the 21st century.

Sunera Thobani teaches Women's Studies at the University of British Columbia. She is the author of Exalted Subjects: Studies in the Making of Race and Nation in Canada (University of Toronto Press: 2007). She traveled to Gaza in September 2009 with the Rachel Corrie Foundation Delegation.

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