Long arm of ICC may fail to reach Israeli army

Experts on international law believe that the possibilities of bringing war crimes charges after Gaza conflict are extremely slim.

Above, a Palestinian woman searches through the rubble of her home for her belongings after an Israeli air strike. Below, a Sudanese boy holds up a banner calling on the ICC prosecutor Luis Moreno OcaShow more

London // No Israeli soldier or politician will ever appear in court charged with war crimes committed during the Gaza offensive, international law experts predicted yesterday. Although lawyers are trying to unravel a tangled web of international law, many believe that the eventual outcome will be either that the laws will prove not to be applicable to the Israeli and Palestinian combatants or that it would be impossible to apply them.

The International Criminal Court (ICC) in The Hague, constituted seven years ago as the main forum for investigating and prosecuting war criminals, is attempting to determine if it has the powers to embark on such an investigation over the Gaza war. Its first problem is to decide if Palestine is de facto a state, even if not an internationally recognised one. The ICC can only investigate war crimes committed within or by a state.

Problem two is that, because Israel (along with the United States, Russia and China) has not ratified the treaty setting up the ICC, the court could only act against Israel with the blessing of the UN. And that would mean a vote in the Security Council - something the United States would seem bound to veto. The ICC has received more than 200 complaints from human rights organisations and individuals alleging war crimes committed by the Israeli defence force during the 22-day offensive.

Ban Ki-moon, the UN secretary general, has accused Israel of using "excessive force" while Navi Pellay, the UN human rights commissioner, has demanded an independent investigation into whether or not war crimes had been committed. "Despite the high death toll among Palestinian civilians and despite the testimonies of apparently disinterested parties who witnessed assaults on UN compounds, schools and so on, it is extremely unlikely that the ICC has jurisdiction," said an expert in international law, who spoke on condition of anonymity because of the sensitivity of her position, in London yesterday.

"Even if the ICC did decide it had jurisdiction, Israel could even pre-empt any action by establishing an independent war crimes commission of its own. "There are other avenues that can be pursued, particularly as many European nations have their own laws which enable individuals to be prosecuted. That, though, could be circumvented by the simple act of individuals never visiting the countries where there is a warrant out for them. Inconvenient? Yes ? but scarcely the stuff of justice."

The central issue of any war crimes offence is not simply whether or not civilians are killed. Rather, it rests on a civilian population being deliberately targeted and on the issue of whether or not a military response is deemed proportionate, something enormously hard to judge. An additional complication is that it is not clear that the International Humanitarian Law, first set out in the 1949 Geneva Conventions, is even applicable to the Gaza conflict.

"The whole basis of the law assumes a symmetrical conflict: basically, one state doing battle with another state," said the international law expert. "That certainly wasn't the case in Gaza, where you had a nation's armed forces on one side, and what amounts to urban guerrillas on the other. "That then raises the question of what is proportionate when the person fighting you one minute is going back to his job as a bricklayer the next."

Under the international legal conventions, the Hamas tactic of hiding among the civilian population and using human shields is outlawed. Also, the firing of rockets aimed at civilian populations is clearly regarded as a war crime. Then there is the question of the status of Gaza itself. Although the Palestinian Authority is now claiming jurisdiction in a bid to get ICC involvement, it has hitherto maintained that Gaza was actually an occupied territory because Israel controlled its borders.

All of which has left lawyers scratching their heads over the next move. "What international laws apply to this conflict? The answer is none," maintained Daniel Reisner, a former head of the Israeli military's international law department. "If you think international law has anything to say about this situation, you are wrong." Ehud Olmert, the outgoing Israeli prime minister, has vowed that his soldiers need not fear prosecution. "The commanders and soldiers who were sent on the task in Gaza should know that they are safe from any tribunal and that the state of Israel will protect them as they protected us with their bodies during the military operation in Gaza," he said last week.

The Institute for Policy Studies (IPS) in Washington accepts that "despite widespread accusations of war crimes by Israel, there is growing scepticism of any Israeli leader being brought before an international tribunal". Phyllis Bennis, the director of the IPS's New Internationalism Project, said that although the calls for an independent war crimes investigation are "unprecedented", no Israeli individuals are ever likely to come to court.

"Individual accountability for war crimes or crimes against humanity is always difficult," she said. "For officials of a government with such close ties to, and such a strong history of impunity guarantees from the most powerful country in the world, it is even more difficult." Accepting that the bid by the ICC will probably come to nothing, Ms Bennis argued that there are hopes that Israel could be held accountable for alleged war crimes in Gaza, which, she points out, are very similar to allegations of war crimes made against Israel in previous conflicts, making the state "a serial offender".

"The General Assembly could impanel its own investigative tribunal to convene legal, military and human rights experts to investigate the entire range of war crimes allegations made against both sides during the Gaza war," she said. "The General Assembly could also request that the International Court of Justice (ICJ) issue an advisory opinion on what actions should be taken against a government, or individuals, who are such serial offenders against war crimes statutes."

Involvement of the ICJ, which is also based in The Hague, is the best way that international law can play a useful role after the Gaza conflict, according to Richard Bennet and Nicholas Quinn, both master's graduates of war studies at King's College, London. "The elder statesman of Hague courts, the ICJ can be mandated to issue advisory opinions on matters of international law," they say in a paper published last week.

"Once referred by the General Assembly or the Security Council, an authoritative legal opinion could dispel the hyperbolic accusations surrounding IDF [Israeli defence forces] conduct while identifying those in most need of redress. "Submitting to an ICJ opinion would carry no binding legal consequences for either side and, by accepting such a course of action, Israel could pre-empt attempts in other countries to assert universal jurisdiction over its officials."

Reluctantly, even the organisations that have lodged formal complaints of war crimes against Israel accept that cases against individuals are unlikely to come to court. They do, however, want some form of independent, international investigation so that both sides will be held publicly accountable for their misdeeds. "As long as there is no mechanism that can enforce accountability, this cycle will just continue again and again," said Donatella Rovera, the chief researcher at Amnesty International.

Accountability, however, is not on the minds of many Israelis who are demanding tougher measures by politicians to protect their soldiers and leaders from any sort of war crimes investigation. "The Knesset must immediately legislate a far-reaching law prohibiting any agency, court or citizen from co-operating or passing information to any war crimes tribunal," Nitsana Darshan-Leitner, the director of Shurat HaDin-Israel Law Centre in Tel Aviv, told the Jerusalem Post.

"It should block access to foreign investigators, including UN special rapporteurs. The government should be empowered to utilise all necessary force to resist any effort to arrest IDF officers accused of war crimes anywhere in the world." The Shurat HaDin-Israel Law Centre describes itself as a human rights organisation. [e-mail]