How To Evade Responsibly And Rationalize Callousness And Criminality
Anti-Israel "Lawfare" in Europe
U.S. Hijacks ICC Conference : By Francis Njubi Nesbitt, June 29, 2010
Right Wing Nuttiness And Opposition To Help For Homeless Vets
by Soeren Kern : June 30, 2010 at 5:00 am
( This will tell where these folks are coming from http://www.hudson-ny.org/archives/ )
Pro-Palestinian activists are launching a new round of anti-Israel lawsuits in European courts. The lawsuits, which exploit the legal principle of universal jurisdiction, are being used to harass current and former Israeli political and military leaders, with the twin aims of tying Israel's hands against Palestinian terror and delegitimizing the Jewish state.
Although so far none of the lawsuits filed against Israel in European courts has reached the stage of a trial in which Israeli leaders have appeared before a foreign judge, even short of actual prosecutions, pro-Palestinian activists have scored huge propaganda victories by charging Israeli officials with war crimes. This alone makes the pursuit of frivolous universal jurisdiction lawsuits a winning proposition for many activist groups.
On June 23, two Belgian lawyers, representing Palestinians, filed suit in Belgium against 14 Israeli officials on charges of war crimes allegedly committed during the Gaza War, a three-week armed conflict that took place in the Gaza Strip during the winter of 2008–2009. Those charged include Israeli opposition leader Tzipi Livni for her role as foreign minister during the war, former Israeli Prime Minister Ehud Olmert, Deputy Defense Minister Matan Vilnai, and other Israeli military and intelligence officials.
The 70-page lawsuit is based on a report by Judge Richard Goldstone, which claims that an Israeli attack on a mosque near the Jabalia refugee camp in the Gaza Strip killed 16 civilians, including women and children. The plaintiffs, who include one Palestinian-Belgian national and 13 Gaza Strip residents, were either wounded or lost relatives in the attack.
The Goldstone Report claims that Israel committed war crimes during the offensive, code-named Operation Cast Lead. The 575-page report calls for prosecuting Israeli officials in international courts should Israel refuse to conduct a credible investigation into its army's conduct during the war.
Georges-Henri Beauthier and Alexis Deswaef, the two lawyers representing the Palestinian plaintiffs, say Belgium's attorney general will evaluate the case "by the end of August" to determine whether it provides just cause to open formal proceedings against the Israeli officials for "committing crimes against humanity."
Pro-Palestinian activists in France said on June 13 that they would file a lawsuit against Israeli Defense Minister Ehud Barak both in France and at the International Criminal Court in The Hague. The International Civil Campaign for the Protection of the Palestinian People (CCIPPP) and Palestinian Charity and Aid (CBSP) are suing over the Israeli army's May 31 raid on the Gaza-bound Freedom Flotilla in which nine activists were killed. The groups say Barak should be held personally responsible for the deaths.
The lawsuit, which has been joined by three members of the French parliament, forced Barak to cancel a visit to Paris, during which he was scheduled to open the Israeli pavilion at the Eurosatory defence industry trade show on June 14-18. Pro-Palestinian activists had also called for French police to arrest Barak at the airport upon his arrival in the country. The Israeli Defense Ministry said Barak decided to remain in Israel "until the team of experts investigates the raid on the Gaza-bound flotilla."
The new lawsuits are the latest salvo in a long-running propaganda war against Israel that is being waged in European courts under the guise of universal jurisdiction.
In December 2009, a British court issued an arrest warrant for Tzipi Livni for her role in Operation Cast Lead. Livni, who had been due to address a meeting in London, ended up cancelling her attendance. The court issued the warrant at the request of lawyers representing Palestinian victims of the Gaza War. The 1988 Criminal Justice Act gives courts in England and Wales universal jurisdiction in war crimes cases.
In October 2009, Deputy Prime Minister Moshe Ya'alon cancelled a planned trip to Britain for fear of being arrested there. Ya'alon had been invited to London to attend a fund-raising dinner. As chief of staff of the Israel Defense Forces from 2002-2005, Ya'alon is one of several current and former senior officers being pursued by pro-Palestinian groups for so-called war crimes.
In September 2009, a British court was asked to issue an arrest warrant for Ehud Barak, who was attending a meeting at the Labour party conference in Brighton. He escaped arrest after the Foreign Office told the court that he was a serving minister who would be meeting his British counterparts. The City of Westminster magistrates' court ruled that as a minister, Barak enjoyed immunity under the 1978 State Immunity Act.
In September 2005, retired Israeli Major General Doron Almog arrived in London on an El Al flight, only to learn that a British judge had issued a warrant for his arrest for allegedly violating the 1949 Geneva Convention in Gaza. Almog stayed on the plane and was allowed to return to Israel.
In February 2004, a London court rejected an application for an arrest warrant to be issued against Israeli Defense Minister Shaul Mofaz. District Judge Christopher Pratt argued that as a government minister, Mofaz qualified for immunity. Pro-Palestinian lawyers had asked Pratt to issue an arrest warrant for Mofaz for allegedly committing "grave breaches" of the Geneva Convention in dealing with the Palestinian uprising.
In January 2010, a group of Israeli military officers called off an official visit to Britain over fears they could be arrested on war crimes charges. The delegation had been invited to visit by the British Army.
The arrest warrants have provoked a furious reaction in Israel; and British officials have now vowed to change the law on universal jurisdiction to make it harder to arrest foreign officials. In May 2010, Britain's new coalition government said it would seek to prohibit private groups from seeking to prosecute crimes committed abroad. British Foreign Secretary William Hague said: "We cannot have a position where Israeli politicians feel they cannot visit this country. The situation is unsatisfactory [and] indefensible. It is absolutely my intention to act speedily."
Spain is also pushing back against mounting abuses of universal jurisdiction. In May 2009, the Spanish parliament approved a measure to limit the power of judges to prosecute people for crimes committed abroad under the concept of universal jurisdiction. The parliament acted on fears that activist judges were abusing the Spanish justice system for politically motivated prosecutions.
Spanish judges have gained a reputation for activism in recent years by using the principle of universal jurisdiction to pursue cases against suspected overseas human rights violators, most famously the former Chilean dictator General Augusto Pinochet. Until recently, judges at the Spanish National Court (Audiencia Nacional) were pursuing more than a dozen international investigations into suspected cases of torture, genocide, and crimes against humanity in places as far-flung as Tibet and Rwanda. But many of these cases have little or no connection to Spain, and critics say the judges are interpreting the concept of universal jurisdiction too loosely.
Calls to rein in the judges increased when Spanish magistrates announced probes involving Israel and the United States. In January 2009, for example, Spanish National Court Judge Fernando Andreu said he would investigate seven current or former Israeli officials suspected of "crimes against humanity" in a 2002 air attack in Gaza that killed Salah Shehadah, a top Hamas militant. The Andreu case involved former Israeli Defense Minister Binyamin Ben-Eliezer; former Air Force Commander Dan Halutz; former head of the National Security Council Giora Eiland, and four other senior officials. Had Andreu decided to issue an international arrest warrant for any of the seven Israelis, they could have been detained upon arrival in any EU member state.
Most of the universal jurisdiction lawsuits that have been presented in Spanish courts have been the handiwork of one Gonzalo Boyé, a Marxist-Leninist "human rights lawyer" who earned his law degree through correspondence courses while in a Spanish prison. He was serving a 10-year sentence for collaborating with the Basque terrorist group ETA, and for his participation in the kidnapping of Emiliano Revilla, a well-known Spanish businessman. Boyé is now the Spanish representative of a group calling itself the Palestinian Centre for Human Rights.
The problem of frivolous lawsuits and freewheeling judges came to a head after Andreu rejected requests by Spanish prosecutors to suspend his inquiry on the grounds that Israel was already investigating the attack. Attorney General Cándido Conde-Pumpido has warned of the risks of turning the Spanish justice system into a "plaything" for politically motivated prosecutions.
For now, Israel's best option for avoiding a messy and precedent-setting trial will be to exert diplomatic pressure on European authorities to persuade them that they have a vested interest in protecting their justice systems from malicious abuse. That strategy, which appears to be working in Britain and Spain, should now be applied in Belgium and France.
The United States managed to foil the International Criminal Court’s (ICC) adoption of the crime of aggression as part of its mandate during the just-concluded review conference in Kampala, Uganda. Despite the fact that the United States is not a signatory to the Rome Statute, which established the ICC, and thus did not have a vote at the conference, U.S. negotiators cajoled a majority of the state parties to delay the definition and adoption of the crime of aggression for another seven years.
Where the Bush administration used threats and tried to intimidate, the Obama team offered sweet-talk and enticements to get states to delay the amendment expanding ICC jurisdiction to include the crime of aggression. It also managed to water down the definition of aggression and to exempt U.S. personnel from prosecution. The latter was a goal of the previous administration and the reason for U.S. hostility toward the ICC.
Crowing with satisfaction, the State Department reported on June 16 that the agreement had ensured “total protection for our Armed Forces and other U.S. nationals going forward.” This indemnity was achieved by a series of amendments that exempted non-state parties from prosecution and gave the U.N. Security Council the power to determine if a crime of aggression has occurred. If the Security Council finds that aggression has not occurred, then the prosecutor would have to seek a majority vote of pre-trail judges and even then, the Security Council would still have the power to thwart the process with a binding Chapter 7 resolution disapproving the action. Even if the United States becomes a state party to the ICC at some point, it could still opt out of having U.S. citizens prosecuted for aggression.
The Carrot Approach
The success in promoting U.S. interests was achieved by offering inducements, such as “generous” support for national legal systems in state parties through information sharing and support in arresting suspects. The focus on national legal remedies for war crimes and crimes against humanity has been touted as the alternative to international justice. The International Criminal Tribunal for Rwanda -- which I am currently visiting -- and the International Criminal Tribunal for the Former Yugoslavia, in particular have been criticized for spending hundreds of millions of dollars with little to show for it. Critics such as President Paul Kagame of Rwanda argue that the local Gacaca courts, based on indigenous norms, are faster and more relevant to ordinary Rwandans than distant international tribunals. Both the international tribunals and the local courts, however, suffer from the malady; both tend to prosecute the “losers” and ignore crimes that may have been perpetrated by the victors. The only exception is the Special Court for Sierra Leone which prosecuted both sides of the civil war.
Another incentive offered to mitigate U.S. meddling is “cooperation,” such as information sharing and support in the location and arrest of suspects. ICC officials argued before the conference that the United States could provide critical counterintelligence support in the search for, and arrest of, indicted war criminals such as Joseph Kony, leader of the Lord’s Resistance Army. The ICC charged Kony with individual criminal responsibility on 33 counts of crimes against humanity including, murder, mutilation, rape, mass burnings, and enslavement. It issued an arrest warrant for him on July 7, 2005. The United States has also designated Kony a “specially designated terrorist” (SDT), a designation that allows the United States to block his assets and criminalize any association with the said individual or group. Other SDTs include Osama bin Laden and Hamas.
A Renewed U.S. Role
Despite its success in delaying the ICC’s jurisdiction over aggression, the United States failed in its main objective to defeat the amendment altogether. Instead, the United States tried to politicize the ICC by enhancing the role of the Security Council and therefore giving permanent members the power to subvert the process. Ironically, this is the very issue, politicization, that the United States claimed was the problem with the ICC in the first place.
This renewed engagement with the ICC suggests that the Obama administration is interested in shaping international law while remaining immune to prosecution under the very laws it helps develop. In the case of the ICC, the cover story is that the United States is concerned that its troops engaged in peacekeeping around the world may be subject to malicious prosecution.
Critics of the ICC argue that it is a toothless watchdog because it relies on member states to arrest suspects. They point to Omar al-Bashir of Sudan who continues to thumb his nose at the ICC, despite an arrest warrant issued in 2009 for war crimes and crimes against humanity in Darfur. The counter argument is that international war crimes tribunals have successfully prosecuted heads of state including former Prime Minister John Kambanda of Rwanda, and former presidents Slobodan Milošević of Serbia and Charles Taylor of Liberia.
The latter case is particularly instructive as the Special Court for Sierra Leone, which prosecuted Taylor for his role in the civil war, is a hybrid of national and international justice, bringing together both local and international prosecutors and judges. Such hybrid processes have also worked in the case of Cambodia where a U.N.-backed tribunal is trying senior members of the Khmer Rouge for violations of international humanitarian law. Locating the tribunals in the countries where the crimes were committed both enhances the capacity of national judicial systems and involves the local communities in the process. In some cases, however, powerful individuals are able to thwart efforts to establish local tribunals. In such cases, for example the recent experience in Kenya, it may be necessary to resort to international courts.
Although critics are furious at the role of the United States in shaping the agenda of the review conference, this reengagement with international institutions is a positive step. The United States can play a role in the international arena by supporting efforts to bring suspects such as Kony to justice and putting pressure on sitting presidents such as Omar al-Bashir. Meanwhile, expanding the jurisdiction of the ICC to include aggression will be revisited in 2017, giving activists and other interested parties another opportunity to advocate for the increasing role of the ICC in international law.
Francis Njubi Nesbitt is a Foreign Policy In Focus contributor and teaches African politics and conflict resolution at San Diego State University. He is the author of Race for Sanctions (Indiana University Press, 2004) and is completing a book on peacemaking in the Horn of Africa.
Sir John Holmes, former ambassador to France, said France had wanted to give UN weapons inspectors more time…
One of Britain's most senior diplomats today contradicted outright claims made by the Blair government to parliament and the public that France had scuppered any chance of UN backing for the invasion of Iraq.
Tony Blair repeatedly blamed Jacques Chirac, the then French president, for the failure to get a second security council resolution – something most senior government lawyers, including at first the attorney general, Lord Goldsmith, agreed was needed if the invasion was to be lawful.
The claim was repeated in evidence to the Chilcot inquiry, notably by Jack Straw, foreign secretary at the time of the invasion. Straw pointed to a television interview Chirac gave on 10 March 2003, less than two weeks before the invasion.
Straw claimed Chirac had made it clear France would not back a fresh UN resolution "whatever the circumstances". Straw added: "I don't think there was any ambiguity." Asked what his view was of Chirac's intervention, Sir John Holmes, British ambassador to France at the time, replied: "The words are clearly ambiguous."
Holmes suggested one interpretation was that Chirac was simply warning that France would veto a fresh UN resolution at that time since UN weapons inspectors had not been given a proper chance to do their job.
The former ambassador, now a senior UN official responsible for humanitarian affairs, was giving evidence to the Chilcot inquiry on its first day of public hearings since it was broken off at the start of the general election campaign.
The issue is important since, as Straw made clear in his evidence to the inquiry in January, the Blair government claimed Chirac's TV interview killed off hopes of a diplomatic solution. Straw claimed: "This was the great Chiracian pronouncement. Whatever the circumstances, he says, la France will veto. Unquestionably, if we had had a second resolution we might have avoided war and if we had not done so there would have been wider international and domestic consent."
However, Holmes told the inquiry that he interpreted Chirac's words quite differently. The former ambassador said: "I think he was saying that the text we have at this moment is not one we can support and we will vote against it." Asked by Sir Roderic Lyne, a member of the Chilcot panel, whether this interpretation was communicated to British ministers in London, Holmes replied: "We had expressed our view about what he may or may not have meant by what he said. It was ambiguous. There was genuine ambiguity there, there was scope for interpretation."
France was concerned about the issue of weapons of mass destruction in Iraq but wanted the problem solved through UN inspectors rather than an invasion, he said.
Holmes also questioned claims to the inquiry by Goldsmith. Goldsmith told the inquiry in January that he had consulted senior US officials and lawyers a month before the invasion. But said he could not have consulted France about UN resolutions since it had been clear Paris opposed an invasion.
Asked about Goldsmith's claims that he could not have gone to Paris, Holmes said: "I don't see why he couldn't have done".
British and US efforts to rebuild Iraq's police after the 2003 invasion were under-funded and unrealistic, the inquiry was told earlier. Douglas Brand, former deputy chief constable of South Yorkshire Police and the first UK chief police adviser in Baghdad, said there was an assumption that an efficient Iraqi police force would simply "rise like a phoenix" within months.
He criticised the lack of support he received, including the Foreign Office's failure to give him bodyguards for his first three weeks in Iraq.
In a statement Sir John Chilcot, told the hearings: "We have made a deliberate choice to conduct our work in a way which seeks to remain outside party politics." He added: "We intend to complete our report around the turn of the year. We remain committed to a transparent, open, thorough and fair process and conducting the inquiry in a cost effective way.".