By obsessively pursuing alleged Israeli atrocities in Gaza, the worldwide institutions violate one of the most basic tenets of the international justice system: its need to bow to local jurisdiction.
The top international player in Gaza, the UN Relief and Works Agency, was forced to admit last month that during a January incident in its Jabalyia camp, a local school was never hit by the IDF. Nevertheless, UNRWA’s earlier assertion - that Israeli artillery shells hit the school, and that the IDF may have deliberately targeted the civilians who sought refuge there - already made the headlines. The outrage was so universal that even America was forced to sign on to a Security Council demand to investigate all incidents of Israeli targeting international installations in Gaza. The outcome of the investigation, led by an old UN hand named Ian Martin, is to be published by the end of March.
Separately, two reports alleging Israeli violations of the laws of war were issued this week by experts at the Geneva-based UN Human Rights Council.
Arab League diplomats also launched a drive to establish a Gaza war-crimes tribunal. If America uses its veto to block the Security Council from creating such a court, the Arabs plan to turn to the General Assembly under a UN procedure known as “Uniting for Peace.”
And the prosecutor of the permanent war crimes international venue, the International Criminal Court’s Luis Moreno Ocampo, said he would consider requests to investigate Gaza war crimes.
The latest serious allegations of abuse came from Israeli soldiers complaining about the behavior of army colleagues during this winter’s operation in Gaza. The tales were read in Western - and Israeli - press accounts as shocking cases of cruelty by Israeli Defense Force troops. For outsiders, it proved once more, from the horse’s mouth no less, that atrocities were committed during “Operation Cast Lead” and that the world needs to intervene to try these cases. In reality, this exercise in self flagellation came close to proving that Israel has “the most moral army in the world,” as the IDF chief of staff, Lt. General Gabi Ashkenazi, put it.
The transcript of a closed-door soul search that took place at a military seminar in Oranim, a college affiliated with Israel’s political left, was leaked to two mainstream newspapers, Ha’aretz and Ma’ariv, last week. Headlines were soon followed by a fierce debate in a country that considers the prevention of war atrocities (as committed by the Nazis) to be one of the major reasons for its existence. World press followed, including three prominently-placed stories in the New York Times.
Two specific allegations led the IDF’s chief prosecutor, Brigadier General Avichai Mandelblit, to launch an investigation even though, according to the transcript, the most shocking revelations were no more than hearsay. A soldier relayed the story of a sharpshooter killing a woman and her children who made a wrong turn into his “no go” zone. But the soldier said he had not actually witness the incident, but merely heard about it.
Nevertheless, the allegations were serious enough for Mr. Madelblit to investigate and see whether he could prosecute. At the same time, world bodies are on a Gaza feeding frenzy, using similar hearsay to pursue allegations of IDF wrongdoing.
This is despite Israel’s long legacy of seeking balance between its survival and the “purity of arms,” which begun when it formed its state army during the1984 War of Independence. Fiction literary works by the likes of author S. Yizhar sought to clarify wartime moral dilemmas, describing atrocities committed by soldiers of the new Jewish army. Later, in 1967, the Triumphalism of the Six Days War was dampened somewhat when soldiers discussed similar moral conflicts in a widely published book “Warriors Talk.”
The dilemma was probably best demonstrated by one of the Oranim soldiers who reported disapprovingly that troops operating in Gaza were told by their unit commanders to be more protective of their own lives than of the Palestinian civilian population.
The Israeli army has internalized the society’s sensitivity to war morality by constantly improving and adding to its rules of conduct with the help of civilian thinkers and ethicists of all political stripes. Nevertheless, atrocities do occur and the local press aggressively pursues stories of wrongdoings by Israeli troops. Local human rights groups highlight such cases and legislators and cabinet members habitually deliberate them. Most importantly, civilian and military courts, operating very independently of other state institutions, investigate and prosecute serious violations.
One of the most important principles of international jurisdiction is that a world court does not intervene where local institutions are active. As stated in Article 17 of the Rome Statute that established Mr. Moreno Ocampo’s ICC, a case is inadmissible in the international war crimes court if it “is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”
It would be self defeating for international jurists to sacrifice this fundamental principle in order to satisfy al Jazeera watching countries yearning for an IDF war crime scalp. I would not be surprised, though, if an exception would be made in Israel’s case.
