Cotler: Israel should probe Operation Cast Lead
Israel could set a legal precedent and diminish the threat of international criminal prosecution for war crimes by setting up an independent commission of inquiry into Operation Cast Lead, Canada's former justice minister Irwin Cotler told The Jerusalem Post on Wednesday.
"Israel can move from being the defendant to framing the international legal narrative," said Cotler, who added that no country had ever conducted such an inquiry into war crimes allegations.
He spoke just one day after Defense Minister Ehud Barak blocked Attorney-General Menahem Mazuz from bringing the matter of an independent inquiry before the security cabinet.
The international community has called on Israel to set up such an inquiry in the wake of Friday's UN Human Rights Council endorsement of the Goldstone Report, which accused Israel of possible war crimes during its military operation in Gaza this past January.
Now that the report has moved on to the UN in New York, the Palestinians are pressing the Security Council to pass the matter on to the International Criminal Court at The Hague.
Although the US is expected to veto such a request, Israel has taken the threat of international prosecution against individual Israelis very seriously and has continued to lobby countries to oppose the Goldstone Report as it winds its way through the UN.
On Wednesday, legal experts told the Post that Israelis could likely avert the threat of international criminal prosecution, if the government complied with one of the report's basic recommendations: that it hold an independent inquiry into its military actions in Gaza.
International criminal justice comes into play only when states are unable or unwilling to conduct an investigation of their own, said Daphné Richemond-Barak, an international law lecturer at the Interdisciplinary Center Herzliya.
The preference was for states to investigate the conduct of their own nationals, said Richemond-Barak.
It's important to understand that the inquiry would look at allegations against individuals and not the state, she said.
It was unclear what the international requirement for such an inquiry would be because the International Criminal Court has only been in operation since 2002, she added.
Cotler said that although he has opposed the report, which he regarded as "tainted," he could not help but note that the creation of an independent inquiry presented a unique opportunity for Israel and international law.
He cautioned that he was not telling Israel what to do, but rather he was suggesting that the situation presented them with an opportunity. Cotle spoke with the Post on the sidelines of President Shimon Peres's 'Facing Tomorrow' Presidential Conference 2009 in Jerusalem.
Earlier in the day, Cotler met with Prime Minister Binyamin Netanyahu. But he told the Post that he would not divulge the contents of the meeting, nor would he state if the idea of a independent inquiry had been raised.
Israel would set a precedent if it did hold such an inquiry, said Cotler.
"I know of no other democracy that has engaged in a review of its warfare and its involvement in hostilities that has gone beyond its military's own internal review. Israel could set a model internationally."
"It would be making an important and maybe enduring contribution to the development of international human rights and humanitarian law. That is not something that should be marginalized," said Cotler.
In the face of such an inquiry, he said, it would be hard to continue to single out Israel, "When it is clear that Israel has gone further than any other democracy" in investigating its own actions.
He added, however, that alongside its exploration into allegations against individual Israelis he would also like to see such an inquiry panel investigate the Goldstone Report and the actions of the Human Rights Council in setting up the four-person fact finding mission led by South African jurist Richard Goldstone.
But not everyone agreed with the conclusions of Cotler and Richemond-Barak.
Some critics have warned that if IDF soldiers were worried about external legal investigations into their actions, their combat ability could be compromised.
Former justice minister Daniel Friedmann said he opposed the creation of such an inquiry commission, because it would legitimize a report that is biased against Israel.
Cotler said that to avert this possibility, he recommended that such a panel also investigate "the illegitimacy of the process that established the Goldstone commission." Friedmann, however, said he believed that "the Goldstone commission is so distorted and so unacceptable" that it should not be justified through an independent investigation.
"What has happened here is that for no justifiable reason Israel was singled out at the UN," he added.
The Human Rights Council did not create a commission of inquiry into the rockets the Palestinians have launched against Israel's southern border or the Palestinian suicide bombers that have killed Israeli citizens.
Israel's military is already in the process of investigating allegations of wrong-doing by some of its soldiers, he said.
"Various military inquiries are being made into incidents all the time," he said, adding that he does not believe an additional inquiry is required.
Israel already did things that no other country has done, he said. During its military engagement in Gaza, it made phone calls to Palestinian civilians to warn them of impending dangers.
"I do not think that Israel should pretend to set higher standards. I think Israeli standards are very high. I do not know of any other country that has done what Israel does," he said.
This was confirmed, he said, by last week's testimony to the Human Rights Council of the former commander of British forces in Afghanistan, Col. Richard Kemp.
He told the council that "the IDF did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare."