Targeting Israelis via International Law

Israel and Its Enemies

by Barak M. Seener

Middle East Quarterly
Fall 2009, pp. 43-54

Based on principles derived from the Hague and Geneva conventions, individuals have been brought to trial for war crimes, crimes against peace, and crimes against humanity. The outstanding examples of such trials were those held at Nuremberg after World War II where numbers of leading Nazis were brought to court for some of the many crimes committed by Germany under the Third Reich. The shadow of those trials is still visible today. In July 2009, John Demjanjuk, a Ukrainian accused of crimes while working for the Nazis as a concentration camp guard was deported from Canada to Germany to stand trial. On a smaller but significant scale, cases have been brought against individuals responsible for the genocide that took place during the Bosnian war of 1992-95. More recently, however, individuals and organizations with political grievances have started to make use of war crimes legislation in order to pursue a variety of officials from states equipped with well-run courts and tribunals, notably the United States, Great Britain, and—most of all—Israel. Should this matter to us? Aren't war crimes clear and cut; shouldn't those who commit them be pursued with the full force of the law? This essay tries to answer those questions and others.

This poster of Dan Halutz, former IDF chief of staff and Israeli air force commander, is an example of attempts to delegitimize Israel and present its officials as war criminals for conducting antiterrorist actions.

Again and again attempts have been made to indict Israeli soldiers and civilians as war criminals when their only crimes have been to thwart terrorist actions or punish those responsible for murder. A boost was given to this gambit when speeches at the Durban Conference on Racism in 2001 branded Israeli antiterrorist actions as "war crimes" and condemned Israel as "an apartheid state" that has committed ethnic cleansing and acts of genocide. This has set the tone for a series of attempts to summon Israelis before foreign courts, from Ariel Sharon and Amos Yaron (particularly with regard to the 1982 Sabra and Shatila massacre in Beirut, which had already been investigated by Israel's own Kahan Commission),[1] to Avraham (Avi) Dichter for the assassination of a Hamas leader while he was director of the Israeli security service, Shin Bet, to Doron Almog, an Israeli general accused of mass murder in 2002, and Moshe Ya'alon, former head of Israeli military intelligence (and later chief of staff), indicted for bombings in Qana, Lebanon, in 1996.

The sweep of charges is wide. The individuals charged have been important figures in Israeli life and major contributors to Israel's security. Attempts to charge them with crimes against humanity have never been matched by calls to indict Palestinian terrorist chiefs. The bias is very clear, and it is inspired not by humanitarian concerns or a desire for justice but by political motives.

The Durban Strategy

The 2001 Durban conference, organized by the United Nations Commission on Human Rights, crystallized the strategy of delegitimizing Israel as "an apartheid regime" through international isolation based on the South African model. The conference consisted of three parallel gatherings—an official diplomatic forum, a youth summit, and a massive nongovernmental organization (NGO) forum with delegates from 1,250 groups. The delegitimization plan is driven by groups that exploit the funds, slogans, and rhetoric of the human rights movement. The complaints by NGOs against Israeli generals abroad were based on the Durban speeches that branded Israeli antiterrorism responses as "war crimes" and "violations of international law." Article 426 of the declaration of the Durban conference seeks the "condemnation of those states who are supporting, aiding and abetting the Israeli apartheid state and its perpetration of racist crimes against humanity including ethnic cleansing, acts of genocide."[2] Israeli and Jewish NGOs were deliberately excluded from a regional conference in the run-up to Durban, designed to draft a composite declaration against racism. None of the international NGOs present protested at this violation of Israeli rights, and no one protested when Israel was outrageously and falsely accused of "committing holocausts and being anti-Semitic."[3] This last statement deliberately replaced the longstanding and common meaning of "anti-Semitism" (hatred directed against Jews) to mean hatred of Arabs, who are also Semites. The reference to "holocausts" was wholly without historical foundation. These accusations laid the foundation for NGOs to invoke a politicized interpretation of universal jurisdiction in their bid to indict Israeli officials and military abroad.

Ariel Sharon in the political dock. The first case of a civil indictment against an Israeli official was filed in Brussels three months before Durban on June 18, 2001, against Ariel Sharon for his role in the 1982 Sabra and Shatila massacres in Lebanon by twenty-three survivors as well as five eyewitnesses. The reliance upon eyewitnesses is a common strategy used by NGOs that make unverifiable claims. A multiple indictment was made against Ariel Sharon; Amos Yaron, a former general in charge of Israeli troops in Beirut at the time; Rafael Eitan, the Israeli Army chief of staff in 1982; and Amir Drori, the former head of the Israeli Defense Forces (IDF)'s Northern Command. The lawsuit was translated into English by LAW, the Palestinian Society for the Protection of Human Rights and the Environment, an attendee at the Durban conference. Sharon was charged with crimes against humanity, genocide, and war crimes.[4] Dyab Abou Jahjah, president of a Belgian-licensed NGO, the Arab European League (AEL), admitted the political nature of the case, stating, "We had to prepare on the legal level as well as the political, financial, and logistical levels."[5] Abou Jahjah is an uncompromising opponent of assimilation and integration, who insists that European society has to adapt to Muslims, not vice versa. He has stated that he experienced feelings of "sweet revenge" on 9/11.[6]

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