If the US and Israel want to move beyond victor’s justice, they should make sure that the same laws apply to them and the same consequences follow for the violation of international humanitarian law (IHL) by their leadership as were to follow if a weaker country like North Korea violated IHL.
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GEORGE Orwell famously wrote, “All animals are equal, but some are more equal than others.”
It was a political allegory that critiqued the Russian Revolution, highlighting the hollowness of the communists’ claims of equality in the socialist regime, which remained good in theory and inapplicable in practice. This allegory perfectly describes the international dynamics and State hierarchies in the twenty-first century.
The United Nations (UN) is based on the principle of the sovereign equality of all its members. All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of economic, social, political or other nature.
IHL and its violations by the IDF
With the principle of sovereign equality in our minds, let us turn to the recent developments with a critical eye. Newsmedia and reports by non-governmental organisations are filled with reports on the violations by the Israeli Defence Forces (IDF) of the international humanitarian law (IHL), a body of rules aimed at limiting the effects of armed conflict.
IHL, rooted in the Geneva Conventions of 1949 and customary international law, is designed to safeguard civilians and restrict use of weaponry and combat tactics. Its provisions, which are binding on all States in a conflict, prohibit indiscriminate attacks, targeting civilians and collective punishment.
The protracted blockade of the Gaza Strip and recurrent airstrikes on it by the IDF, which has led to high civilian casualties, especially among children, have been documented by many organisations. There are also serious allegations that Israel has employed white phosphorus, a substance with devastating effects on human tissue, in densely populated areas of Gaza.
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Such use of phosphorus in civilian areas contravenes IHL due to the indiscriminate suffering it causes. Further, attacks on schools and UN infrastructure are another instance of grave violation of IHL.
Will the perpetrators be held accountable?
The question which then arises is: are the people responsible for these war crimes going to face the consequences of their actions? Will they be held accountable for these gross violations of human rights? Who will hold them liable for that? Should domestic military tribunals of Israel or the criminal courts of Israel be entrusted with criminal trials of these violating commanders? Could it be expected that such a trial would be fair to both parties and that justice would be done?
All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of economic, social, political or other nature.
At this point, it would be instructive to remember the old legal principle, “Justice must not only be done but must also be seen to be done.” Thus, even if it is accepted for argument’s sake that the judges sitting in the Israeli courts and tribunals are so impartial that they will fairly try a claim brought by an enemy nation against their own army commanders, having such a trial cannot in any manner increase the faith of the victim in the justice system and he will continue to doubt whether his case will be heard justly.
Thus, for justice to be achieved, it must be seen to be done by ensuring trials by an independent agency, which is unbiased and neutral to the conflict.
International tribunals that conducted criminal trials
It is well established that criminals must be brought to justice, and State sovereignty cannot protect the leadership of a State from the criminal actions they commit. This principle became evident when the Allies, spearheaded by the US, constituted the Nuremberg Tribunal to prosecute the Nazi leaders.
The Nuremberg Tribunal reasoned that in the name of sovereignty, had the trial been left to the German courts, it was inevitable that those guilty of the worst war crimes would have been acquitted.
Similarly, the international community found it necessary to establish a tribunal for prosecuting those responsible for violating IHL and committing war crimes in Rwanda and Yugoslavia. Tribunals were established that tried these leaders and sentenced them to long terms of imprisonment to bring some justice to the victims and to act as a deterrent for future violators.
The foundation of the ICC
However, constituting ad hoc tribunals to try people for war crimes had its own faults. It was rightly argued that it represented ‘Victor’s justice’. Victor’s justice refers to excessive or unjustified punishment of defeated parties and the light punishment of or clemency for offences that victors have committed.
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For instance, the Allied powers also committed war crimes during World War II which went unpunished by the Nuremberg Tribunals. Subsequent tribunals witnessed the same pattern where the victor would constitute a proxy tribunal and then hand the strictest punishments to the defeated party while acquitting its own leaders of IHL violations and war crimes.
Thus, it was felt necessary that a permanent International Criminal Court (ICC) should be established, which would try criminals from both sides of the war and deal neutrally with all the grievances raised.
Such a court, by virtue of its inception and method of functioning, would have more legitimacy than local courts influenced by national politics and the rhetoric or an ad hoc tribunal that derives its power from a party to the conflict. Thus, with the ratification of 127 countries, the ICC was established in 2002.
The US and Israel and their stand on ICC
It is most natural to expect then that no country should have any reservations about subjecting its leaders to the ICC if war crimes have been alleged against them.
IHL, rooted in the Geneva Conventions of 1949 and customary international law, is designed to safeguard civilians and restrict use of weaponry and combat tactics.
In particular, countries with both muscle and money power should not doubt that such a tribunal will either be tilted in their favour or it would, in the best case scenario, be neutral while passing its judgments.
As international tribunals tried the Rwandan, Yugoslavian and Nazi leadership to further the cause of justice, so should the British, Indian or American leaders be tried by an international forum when charges are levelled against them which are as grave as a war crime and crimes against humanity so that a fair trial could ensue.
However, it comes as a surprise that neither Israel nor the US have signed the Rome Statute nor become parties to the ICC, thus protecting their criminal leaders from being prosecuted by an international forum like the ICC in the name of protecting their State sovereignty.
Add to this that when the Palestinian Authority (PA) entered the ICC, the US actively opposed this move and also considered a Bill in the US Congress that sought to impose sanctions on the PA for becoming a party to the ICC.
Among other claims, this Bill states as follows, “Whereas Congress recognises the commitment of Israel’s civilian and military leadership to applicable international legal norms, and the commitment of the Israel Defence Forces to act strictly within the confines of the Law of Armed Conflict in all of its military engagements.
“Whereas Israel’s civilian judiciary is impartial and internationally respected and has established a well-earned reputation for being a champion of human rights and respect for international legal norms.
Use of phosphorus in civilian areas contravenes IHL due to the indiscriminate suffering it causes. Further, attacks on schools and UN infrastructure are another instance of grave violation of IHL.
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Thus, the Bill seeks to penalise the PA for being a part of the ICC, holding that any charge of war crime against Israeli commanders should be tried only in Israeli courts and tribunals as they have been self-certified to be the champion of human rights.
Adding insult to injury, the US went further, imposing sanctions on the ICC prosecutors and threatening legal action against them if they investigated American or Israeli crimes.
Conclusion
The principle of equal sovereignty of the States as the basis of all international relations is inconsistent with the status quo, where the international tribunals should have the right to prosecute the defeated countries and their leadership for war crimes.
In contrast, the more powerful nations, which more often than not are capable of committing war crimes, remain free from being tried by any international tribunal for the charges levelled against them.
If the domestic courts and tribunals of Germany cannot be trusted with a fair criminal trial of the Nazi leadership, why should the Israeli courts be trusted with trying the IDF commanders?
If the Israeli courts and the IDF, with all the reported violations of the IHL, are considered a champion of human rights that needs no other supervision, why should the local judicial systems of other countries not be accorded the same degree of deference?
When the Palestinian Authority (PA) entered the ICC, the US actively opposed this move and also considered a Bill in the US Congress that sought to impose sanctions on the PA for becoming a party to the ICC.
If the US and Israel want to move beyond victor’s justice and seek to establish actual mechanisms for the prosecution of the accused of war crimes, they should make sure that the same laws apply to them and the same consequences follow for the violation of IHL by their leadership as were to follow if a weaker country like North Korea violated IHL.
As long as these countries do not willingly ratify the Rome Statute and become a party to the ICC, extending the court’s jurisdiction to themselves, the concept of equal sovereignty for States would remain just that, a mere concept with no practical significance or application.
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