Taub in Yediot: Get a grip — unless Israel launches its own credible investigation now, it faces the full brunt of universal jurisdiction
As the danger of the application of universal jurisdiction over the Gaza war crimes becomes more tangible, the buzz regarding an independent Israeli investigation is increasing.
Israeli strategy remains confused, however. Yediot reported on December 28 2009 that a limited inquiry, aimed at stemming the “political and economic tsunami” caused by the Goldstone report, would be launched “within two weeks.” The has yet to happen. A January 19 2010 report in Haaretz may help explain why: Retired Chief Justice Aharon Barak has stated that only a full-fledged commission of inquiry, with subpoena powers, would be acceptable to him. His unequivocal position is probably deterring other eminent jurists.
Apparently Israel would like to make some concrete announcement before, or along with, its official response (due apparently on February 5 2010.) Meanwhile, Israel’s advocates abroad are gearing up. A draft response to Goldstone by Alan Dershowitz has been circulating in the internet for few days. Mondoweiss publishes an excerpt, which reveals some desperation. No longer is there an attempt to deny the existence of war crimes. Rather, focus is on defense of the top brass, through the shifting of responsibility to “rogue soldiers.”
Israeli pragmatists are losing patience. In a Yediot op-ed this morning (January 20 2010; full text below) centrist author Gadi Taub after blasting Goldstone, tells the Israeli government to get a grip: Without a credible independent investigation now, Israel will bear the full brunt of universal jurisdiction.
Time is running out
Op-ed, Gadi Taub, Yediot, January 20
International law makes it possible to prosecute Israelis who are suspected of war crimes allegedly committed in Operation Cast Lead, in courts belonging to other countries. This option is subject to one restriction: It is valid if and only if Israel has not launched an independent investigation into the matter itself. This option has a time limit, and time is running out. Israel was given six months from the publication of the Goldstone report, and this period will end on March 15.
The accusations of Judge Goldstone appear to be mostly groundless. Goldstone’s method, in which clearly biased testimonies were accepted without question or further examination, is not only unfair, but absolutely scandalous. Goldstone himself admitted, in an interview to the American Jewish newspaper The Forward, that there was nothing in the report that would stand up as proof of a war crime in court. Moreover, the commission acquitted Hamas of deliberately using civilians as a human shield for fighters, and did not accuse it at all of a blatant war crime: Firing rockets at civilian targets. Instead, the report speaks about rockets fired by “armed Palestinian groups.” This is a manipulation that omits, as commented by independent journalist Jonathan Dahoah-Halevi, the entire cause of the operation against Hamas and turns Israel into an indiscriminate aggressor.
Israel erred by choosing to boycott the commission. But its choice not to honor the terms of the international community and to launch its own investigation by an independent agency, is much more severe. Such an agency could be a commission headed by a judge, or an inquiry by the State Comptroller’s Office.
Judging by the findings of an inquiry conducted by the IDF—the full IDF report has not yet been submitted—it will be easy to disprove Goldstone’s poorly-substantiated accusations. Independent journalists and other commentators have already provided an abundance of testimonies demonstrating the weakness of the report. Israel has no cause to fear such an investigation, and without it, any officer or politician who were involved in the operation or in the decisions made regarding it will be exposed to arrest and trial in foreign countries. The future effects of this phenomenon are far-reaching: We cannot afford to have our representatives in the government and the army, the people in charge of our security, making decisions under concern for their personal freedom upon leaving Israel’s borders.
Why, in that case, has no investigation been launched? Chief of Staff Lt. Gen. Gabi Ashkenazi and Defense Minister Ehud Barak continue to oppose it. They wish to maintain the chain of command and the accountability of the officers towards their commanders, not towards an external tribunal. If officers feel that every order, not only a patently illegal order, requires the consent of a lawyer, the chain of command could be disrupted.
But what the chief of staff and defense minister believe to be protecting their subordinates is actually forsaking them. An internal IDF inquiry will not succeed in protecting those who acted properly, because it does not meet the terms of an independent investigation, and the outcome will be that in future, every officer will fear to carry out orders, even completely legitimate orders, because even when he acts properly, the state forsakes him upon leaving its borders.
If war crimes were committed in Operation Cast Lead, we have a right to know about them, and their perpetrators should stand trial here in Israel. But it is no less important that we not leave this manipulative report unanswered, and leave those who were sent to defend our security exposed to prosecution and imprisonment. If the IDF is proud of the fact that it does not forsake its soldiers in the hands of the enemy, it should understand that we have enemies of a new kind, and they are damaging our ability to defend ourselves.