Wednesday, July 15, 2009

Massive Lawfare in the Wake of Cast Lead in Gaza

Another long overdue bunch of articles I've been sitting on...

Der Speigel reports that the Palestinian Centre for Human Rights (PCHR)will be launching a great many lawsuits against Israel and Israelis as a result of the Israeli war against Hamas in Gaza. To be precise, 936 such cases are planned and lawyers in several European states are preparing the proceedings required. Spain in particular is expected to be a site of many such cases. The countries in question all hold universal jurisdiction, meaning they can prosecute violations of international law to which their state has no obvious connection if the jurisdiction in which the alleged offence took place will not properly investigate the allegation itself. These cases go ahead despite Israel having launched an 11 day investigation into the IDF's conduct in Gaza.

The original article on these cases explains that the "ideal" case being sought by PCHR hard to achieve:

"The perfect case would have certain characteristics. The dead must be
civilians. Credible witnesses are needed. Hamas fighters must not have been in
the area, as they might have abused local residents as human shields. And the
identities of those who gave the orders and those who did the killing must be
clear."

It's very difficult not to be cynical about these cases and to view them as anything more than asymmetrical warfare and lawfare: attempts to harass Israel with little basis.

First the number of cases and the range of jurisdictions in which they could take place. This is what most lawyers would refer to as a "fishing expedition." The Plaintiffs (PCHR) are shopping around for the best jurisdiction in which to be successful, with a number of claims, some of which are of dubious foundation all in the hopes that "Winning a case, just one, would be enough."

Moreover, the way that the "perfect" case is referred to as meeting certain criteria to show certain things is indicative that there's something more than the search for justice afoot here. There's a search for a single instance in which an Israeli soldier has acted in violation of the rules of war. In over 900 cases purporting to be instances of civilian deaths, PCHR hopes that at least one of them will show that Israelis, under clear orders, killed civilians for no reason in the absence of any armed Palestinians. In other words, in any circumstance other than the ones described here, there may be reasonable doubt that civilian casualties were unavoidable consequences of military activity but, PCHR hopes, some Israeli soldier somewhere acted inappropriately. This is what is needed to produce a ruling that could be then used politically as "evidence" of Israel's violation of the laws of war.

Even if an Israeli were to be found guilty of killing civilians while under orders and in the absence of armed Palestinians, it would still prove nothing: other than that an Israeli soldier acted inappropriately. Does this make the Israeli army, or state complicit in war crimes? That depends on the case in question, but probably not. In fact, it may not even be sufficient evidence of a war crime. A clear order given to shoot at civilians in the absence of armed opposition resulting in civilian death could be the result of bad intelligence, misinterpretation of events in a dangerous situation by people under stress or any other number of events.

Der Speigel alludes to this sort of burden of proof:
"Systematic war crimes, of the kind which Al-Alami accuses the Israelis of
carrying out, are not easy to prove. The attorneys must demonstrate that the
Israel military attacked civilians without reason, perhaps even deliberately.
They must prove that these attacks were not part of the conduct of war against
Hamas fighters, and that they were not simply cases of technical or human error,
but the senseless taking of human life. But who is to decide whether such
killings were accidental or intentional and if they show carelessness or
cruelty?"

This is the burden on any prosecution against Israel. It must be demonstrated essentially, that Israeli soldiers killed for the sake of killing that the "guilty act" the "actus reus" was accompanied by a "guilty mind" the "mens rea" which in this case would consist of the desire to kill Palestinian civilians for no other reason than to merely kill. A tall order for any prosecutor indeed.

Is it unimaginable that some crazy person in the IDF may have shot a civilian because that soldier is nothing more than a psychopath? No, it's possible. Crazy and evil people exist everywhere. Was there, however, a systematic policy, or intent to kill Palestinian civilians for no reason? That I sincerely doubt. I do not believe that the Israeli army, as a matter of policy, set about killing Palestinian civilians in Gaza for no reason.

In the absence of evidence that the IDF set out to kill civilians, in the light of the fishing expedition for jurisdictions and cases in the hopes that at least one will "stick" and in the light of the desire for the "perfect case" I would argue that this wave of accusations is little more than unsubstantiated lawfare. An effort to harass Israelis, many of whom will be found not guilty, and to further hamstring future IDF activities out of the fear that more such cases will be brought as a result of activities in confrontations not yet fought.

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