Prosecuting Israel sets dangerous precedent

The EU is working to end 'lawfare' in national courts but facilitating it in the International Criminal Court.

By EVELYN GORDON
icc hague 248 88 (photo credit: Courtesy)
icc hague 248 88
(photo credit: Courtesy)
Last week, Britain’s new government submitted legislation to amend its universal jurisdiction law, under which pro-Palestinian groups have repeatedly tried to indict Israeli ministers and army officers for “war crimes” in the West Bank and Gaza. Last year, Spain did the same, and in 2003, so did Belgium, thereby eliminating two other popular venues for anti-Israel “lawfare.”
That countries initially sympathetic to the idea have since moved to exciselawfare from their own courts is obviously encouraging. Yet Europe continues toencourage lawfare in international venues, seemingly oblivious to the fact that this is equally detrimental to its own interests.
The countries that changed their national laws did so not because they suddenly became pro-Israel, but because they realized that lawfare was indeed undermining their own interests.
First, they could hardly play an important role in the “peace process” if no Israeli official would enter them for fear of being arrested. That had increasingly become the case, since lawfare practitioners targeted all Israelis indiscriminately: Last year, they even sought a British warrant against Europe’s favorite Israeli, former foreign minister Tzipi Livni. And for whatever reason, involvement in the peace process matters greatly to the European Union: A study done by Finnish Foreign Minister Alex Stubb this fall found that while EU foreign ministers had devoted only one meeting over the past four years to China, a rising foreign policy power, they discussed “the Middle East peace process” 12 separate times in 2009 and the first part of 2010 alone.
Second, they couldn’t be important players in any international arena if American officials refused to enter them. That’s why Belgium, which seemed untroubled by anti-Israel cases, moved quickly to change its law after lawfare enthusiasts, emboldened by initial successes against Israel, sought warrants against senior American officials for alleged war crimes in Iraq.
In contrast, Europe continues to facilitate lawfare in the International Criminal Court. Most EU countries abstained in both the UN Human Rights Council and the General Assembly votes on the Goldstone Report, which urged an ICC indictment against Israel for “war crimes” in Gaza; a few even voted for it. Last year, Germany even asked the US not to block UN Security Council action on Goldstone unless Israel froze settlement construction (Washington declined). Nor has Europe protested the ICC’s consideration of a Palestinian Authority request to be treated as a state for the purpose of joining the court and filing war-crimes charges against Israel, though this amounts to retroactively amending the treaty (which doesn’t allow non-state parties) without existing signatories’ consent.
Yet all the same arguments hold against ICC prosecutions. First, an ICC warrant against Israeli officials would preclude them from visiting Europe, which is treaty-bound to enforce it. But more importantly, as the Belgium precedent shows, success against Israel would embolden lawfare practitioners to pursue other countries, America would obviously be first: As the country most actively engaged in counterterrorist warfare, it has increasingly adopted Israeli tactics. For instance, its drone strikes on suspected terrorists, whose legality Washington recently defended in the UN, are identical to the Israeli “targeted killings” that human rights organizations have repeatedly denounced as “extrajudicial executions.” Indeed, a Spanish court seriously considered indicting top Israeli officials and army officers over one such killing, of Hamas mastermind Saleh Shehadeh in 2002; the case was dropped only because Spain amended the universal jurisdiction law under which it was filed.
Similarly, The New York Times reported last month that American forces “have been systematically destroying” hundreds of houses and farm buildings in Afghanistan’s Kandahar region, because the Taliban had booby-trapped so many that searching them “was often too dangerous.” Israel did the same thing in its war in Gaza two years ago, for the same reason: Hamas had systematically booby-trapped hundreds of homes, schools and other buildings. And human rights organizations, followed by the Goldstone Report, deemed it a war crime, accusing Israel of wantonly destroying property in a deliberate effort to target civilians.
But many European countries also have troops in Afghanistan, and they would be next in line. Last year, for instance, a German officer ordered an air strike in Afghanistan that killed as many as 142 people, mainly civilians, due to faulty intelligence. That dwarfs the 14 other people (also mainly civilians) killed in the Shehadeh strike, similarly due to faulty intelligence, or the 13 killed at the Ibrahim al-Maqadmah Mosque during the Gaza war, for which Goldstone wants Israel indicted in the ICC (Israel says the mosque wasn’t hit intentionally).
Moreover, like Israel, Germany deemed criminal or disciplinary action against the officer unwarranted - opening the way for the ICC, which can only pursue cases that national governments don’t prosecute. Yet two months after this deadly strike, Berlin urged Washington not to block Security Council action on Goldstone if Israel didn’t freeze settlement construction - apparently oblivious to the dangerous precedent a Goldstone-inspired ICC case against Israel could set for itself.

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The problem is that most European countries still believe ICC prosecutions could be confined to Israel: that nobody would ever lump them together with the loathed Jewish state. But ultimately, lawfare enthusiasts won’t distinguish between “evil” Israel and “good” Europe any more than they distinguish between extremist settlers and Tzipi Livni. They are simply smart enough to realize that it’s easier to set a precedent by prosecuting an unpopular country first. Then, once the precedent is set, they will gleefully use it against everyone.
The writer is a journalist and commentator.