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• 
  By Sven 12/21/09 at 1:24 p.m. UTC

  the Belgians should maybe deal with their own history first instead of acting the role of global prosecutor. the genocide they committed in Belgian Congo (today’s Democratic Republic of Conco) was by far the worst in African colonial history and still affects the country to this day.
• 
  By Bill Levinson 2/5/09 at 10:22 p.m. UTC

  Re: "
  Two groups have not lost interest yet: the Spanish court system and the
  Hague, both of which are laying the groundwork for pursuing war crimes
  cases against Israel."

  Israel
  should ask both of these entities up front whether they plan to pursue
  war crimes cases against Hamas, noting that Hamas perpetrated multiple
  war crimes, such as use of civilians as shields with death resulting
  from such actions, that are punishable by death under the U.S. Code.  http://www4.law.cornell.edu/uscode/10/usc_sec_10_00000950—v000-.html

   "(9)
  Using protected persons as a shield.—
  Any person subject to this chapter who positions,
  or otherwise takes advantage of, a protected person with the intent to
  shield a military objective from attack, or to shield, favor, or impede
  military operations, shall be punished, if death results to one or more
  of the victims, by death or such other punishment as a military
  commission under this chapter may direct, and, if death does not result
  to any of the victims, by such punishment, other than death, as a
  military commission under this chapter may direct."

  If
  Spain and the Hague reply that they have no plans to prosecute Hamas,
  but intend to prosecute the IDF, Israel can rightly take the position
  that they are on the side of the terrorists, and that they may even
  have had their palms greased by the terrorists.

   Spain is,
  incidentally, a living record of the dirt and ignorance of primitive
  medieval superstition as embodied in the Spanish Inquisition–which was
  abolished only in the 19th century. Spain is a nation of losers whose
  last significant military achievement was the victory over militant
  "Islam" at Lepanto (1572). A mere 16 years later, the overwhelming
  superiority of British military science wrecked the invincible Armada
  at Gravelines (1588). The reason for this superior science is simple:
  people who read books tend to stay well ahead of those who burn them
  (and their authors).

  Afterward, Spain tended to serve as a parade
  ground for every army in Europe (noting that the Netherlands were once
  part of Spain).  England generally loved wars with Spain because
  the rich treasure galleons were manned by Spaniards, and were therefore
  essentially defenseless against anyone who had firearms (as opposed to
  the spears of the natives whom Spain could usually defeat). The English
  were delighted when Spain sided with France at Trafalgar, because that
  meant more prize money for the English crews.

  Spain still regards
  bullfighting, in which an animal is tortured to death in a rigged and
  one-siged fight, as a "manly" or macho activity. (Analogues of
  bullfighting such as dog fighting are felonies in most U.S.
  jurisdictions, and legal in none.) Bullfighting may be compared to the
  Course Landais, in which REAL men vault over cows (which are not
  killed) in an acrobatic display that descends from Cretan bull-jumping.

  Spanish is the language of poverty, noting the number of poor
  and relatively backward Spanish-speaking countries, while English is
  the language of freedom and prosperity. This is almost certainly due to
  England’s history of relative political and individual freedom (even
  during the time of Queen Elizabeth) versus Spain’s history of medieval
  ignorance and superstition, as embodied by the Inquisition and
  doubtlessly exported to its New World colonies. Spain has nothing to
  teach Israel or anybody else about how to run their internal or foreign
  affairs, just as a drunk has nothing to teach anybody about sobriety
  (except for setting an example of how not to behave).

  Now for Belgium, re: "In
  that case Belgian courts were famously going to start putting
  Israeli leaders on trial for war crimes, but reality set in and nothing
  happened (except that Belgium ceased to exist as a functional nation in
  the in meantime)." We need to remind the world of Belgium’s
  Hitler/Stalin and the Holocaust he perpetrated in the Belgian Congo.
  "Holocaust" is not an exaggeration, because it is believed that King
  Leopold’s excesses killed up to ten million Africans (roughly the same
  number of Jews, Polish Catholics, Gypsies, and Slavs that Hitler
  killed), and the Belgians still have statues of this mass murderer in
  their public places.
  Belgium, through the person of its former monarch, is guilty of actual
  genocide, so it has nothing to say to which Israel should listen either.
• 
  By Matthew Zagor 2/5/09 at 9:41 p.m. UTC

  A few points of clarification: 

  1. Let’s stop using the ICRC as a point of reference. The ICRC have not said that the use of white phosphorus was legal. The ICRC spokesperson has said: ‘We have not commented publicly on the legality of the current use of phosphorous weapons by Israel, contrary to what has been attributed to us in recent media reports.’ What they have said about the use of such incendiary weapons in Gaza is to acknowledge that the evidence indicates that they have been used, and to reiterate that use of air-dropped incendiary weapons against military objectives within a concentration of civilians is simply prohibited. This is made absolutely clear in article 2 of the Protocol III of the Convention on Certain Conventional Weapons.

   

  1. Let’s also drop the ‘no evidence’ line. I encourage people to read the credible, non-partisan reports of what these weapons have done to civilians in Gaza. Even if there were ‘necessity’ or ‘proportionality’ defences to the use of the weapon in densely populated areas, it would be hard for Israel to demonstrate. I also encourage people to read about the use by the Israeli military of similarly indiscriminate devices (notably cluster bombs, or flechettes) in the Gaza, Lebanon and the West Bank. In several instances, these were quite clearly used against civilians, including during ‘reprisals’.  Let’s stop pretending these are just a few rogue elements, or mistakes.

   

  1. On what the ICC can and cannot do. Israel is not a signatory to the Rome Statute. However, the Palestinian National Authority has now recognised the ICC’s authority in the West Bank and Gaza, and referred the matter to the ICC, opening up a legal can of worms for Israel if the ICC finds that the PNA does indeed have sovereignty over these territories. That seems to me unlikely, but not out of the question. The other way Israel can get before the ICC is if the Security Council refers the matter to the Prosecutor under Ch VII of the UN Charter (see article 13 Rome Statute). With the US veto, this is even more unlikely.

   

  1. The Spanish courts are not being ‘selective’ in singling out Israel and not the Madrid bombers. There have been investigations, prosecutions and convictions for the latter. Let’s not insult the Spanish judiciary, or indeed their democracy (why exactly it is less a democracy than Israel, which increasingly disenfranchises and discriminates against its non-Jewish minority, is beyond me).

   

  1. Hamas is not immune from the ICC’s jurisdiction. There is no reason why the Security Council cannot refer Hamas’ military or political leaders to the Court. Indeed, it should do this: Hamas’ actions have been blatantly criminal. It is well recognised in international criminal law that non-state actors can be held accountable for international crimes.

   
• 
  By Reality_Check 2/4/09 at 7:28 p.m. UTC

  http://zope.gush-shalom.org/home/en/channels/avnery/1233508695/

   

   

  Facts are stubborn things
• 
  By stubs 2/4/09 at 2:48 p.m. UTC

   

  and if CRIMINAL wrongdoing is found, there should be consequences. And the Israelis should do it, no one else. Israel is not Hamas, Israel proudly, and rightfully, goes to extreme lengths to protect the innocent civilians during war, and if there is a renogade who wants to inflict pain for the sake of inflicting pain, well…

  The results will be clear, folks. The investigation would be looking for a criminal, and if it doesn’t find a criminal, then nothing. In war, people including innocent civilians get hurt and killed, sometimes horribly.

  If Hamas wants to protect the Palestinians, let them do the one sure thing that will almost guarantee it: make peace. Never before have the victors in war gone to such lengths to appease the vanquished.
• 
  By Reality_Check 2/3/09 at 11:51 p.m. UTC

  Now even the prosecution of war crimes is debatable.

  The way we are going, before we know it we will be debating PM Lieberman’s ethnic cleansing. 

  Way to go. 

   

  Facts are stubborn things
• 
  By Throbert McGee 2/3/09 at 6:17 p.m. UTC

  But getting back to the subject at hand: I sometimes think it would be
  better to let the ICC, the UN, the Hague, et al prosecute one of these
  cases to the full extent. It would shine a light onto the
  preposterousness of the whole affair. As it is, they get to level one
  sided accusations willy-nilly against Israel and then stand back as
  "the Jewish lobby" or "world Zionism" react strongly and vociferously.

  Alas, I think that Disco_Stu gravely underestimates the choking, smoggy opacity that prevails in the ICC, the UN, the Hague, et al. — dealings with them are always gonna be a matter of damned if Jew do, damned if Jew don’t.

  ?????
• 
  By Disco_Stu 2/3/09 at 3:56 p.m. UTC

  Max, I’m no expert on the ICC myself. It’s a seven year old organization whose only work so far has been to hold government agents in largely lawless countries like the Sudan and Congo accountable for actions of genocide. If Ocampo, the founding president of the ICC, thinks that a one time use of phosphorous by Israel in the circumstances discussed somehow parallels the war crimes by unelected, unaccountable despots in Sudan and Congo–particularly when not even the ICRC is condemning Israel’s phosphorous usage–then I’d say he’s just hastened the death by irrelevancy of the ICC.

   It may sound reactionary to say "Israel is right and the professionals are wrong," but in these situations it seems to be true. I can’t imagine a scenario in which an objective judge looks at Hamas, Israel, and the situation in Gaza, and decides that a one time potentially negligent use of phosphorous is grounds for putting IDF personnel on trial, as if they were Sudanese death squad despots and not officers serving a democratic nation which holds its military accountable for criminal activity. Ocampo is Argentinian. Between Argentina, Spain, and Israel, I’d argue that Israel is the strongest democracy, and I’m certainly confident that Israel’s government and society is far less corrupt and more transparent than Argentina’s. 

  But getting back to the subject at hand: I sometimes think it would be better to let the ICC, the UN, the Hague, et al prosecute one of these cases to the full extent. It would shine a light onto the preposterousness of the whole affair. As it is, they get to level one sided accusations willy-nilly against Israel and then stand back as "the Jewish lobby" or "world Zionism" react strongly and vociferously. Then they shrug their shoulders and blame their lack of success on the over-reactive Zionists, call it a draw, and wait for the next Israeli crime against humanity to do it all over again. There is no downside for selectively fixating on Israel. And yet despite certain Spaniards’ interest in holding Israelis to the letter of the law, it’s not Israelis or their sympathizers who blow up Spanish train stations or hold violent street demonstrations. 

  If you ask me, the last thing Europeans actually want to see is European courts and prosecutors putting Israelis, and only Israelis, on trial. It would be a show trial, and even if the Israelis were exonerated, the publicity of Jews being put selectively on trial and selectively condemned by Europeans would a) make most Europeans take pause at the unfairness as well as the historical parallels, and b) make the recent Muslim and left-wing anti-Israel protesters even more motivated to riot and attack. I doubt Europe would want that. No, it’s far more preferable for them to continue making beau gestes about being the world’s conscience without actually doing anything (leave that to the Americans).
• 
  By Max Socol 2/3/09 at 2:32 p.m. UTC

  Just to quickly respond to those citing the ICRC: please see that I say very clearly in this article that the ICRC has taken Israel’s side in this matter so far.  Just an attempt to leaven the claims of ‘self-righteousness.’

  Stu, I take the point that if this movement is confined to a fringe Spanish party, it’s not such a serious political issue.  What originally called my attention to the story, though, was the interest of ICC prosecutor Ocampo.  I’m not going to pretend to be an expert on the ICC, but presumably if one of their officias considers a prosecution justified and likely of success, Israel will be hearing from more than just one Spanish judge, yes?

  Again, nothing has happened yet, and perhaps nothing will come of either the ICC’s interest or the initial allegations against the soldiers.
• 
  By Disco_Stu 2/3/09 at 2:02 p.m. UTC

  I may be missing something, but this op-ed doesn’t seem well thought out. As I’m reading the situation, a single Spanish judge, has ruled that IDF personnel may be subjected to war crimes trials, but that the Spanish government is working to quash this fringe element and ensure that Spain will not play host to this sort of show trial. Am I wrong about that?

  This reminds me of what happened in Belgium several years ago. In that case Belgian courts were famously going to start putting Israeli leaders on trial for war crimes, but reality set in and nothing happened (except that Belgium ceased to exist as a functional nation in the in meantime).

   In other words, there is no case here. We have one lone judge acquiescing to a leftist, anti-Israeli ‘human rights’ group’s demand that IDF people be indicted if they set foot on Spanish (ergo EU?) soil. It’s a non-starter. 

  What’s baffling is that the author of this piece automatically accepts the validity of the claim of illegal phosphorous use and of the Spanish court’s jurisdiction, and his only quandary is whether the ‘justice’ of rendering a guilty verdict is worth the boost it would give to the right wing in Israel.

   Even the ICRC has said Israel has complied with proper phosphorous use. Going after one unit’s questionable use of phosphorous as an international war crime, while ignoring everything that Hamas has done (let alone all the other human rights abuses going on concurrently in the world) is absurd and a flagrant abuse of jurisprudence.

  Again, let’s not get carried away by the majesty of European law makers. Spain has only been a democracy for thirty years. And let’s not forget the Belgians before them, who deigned to put Israelis (ie Israel) on trial, yet are barely a functional nation themselves.

  I have my own detailed theories on European postWW2 dysfunctionality and how it plays out vis a vis Israel and Muslims. Let’s just say I’m not impressed with the progressiveness of Progressives in Europe, at least in terms of their geopolitics. They (those who would selectively put Israel and Israelis on trial) deserve to be ignored at the very least, or ridiculed, but certainly not given respect for the abuse of their authority.
• 
  By Morganfrost 2/3/09 at 11:10 a.m. UTC

  And it was a stupid question.

  First, let’s have a serious discussion about prosecuting (and hanging) Hamas’ leadership for war crimes (using civilians as shields, deliberately tareting a civilian population, sending armed combatants to a conflict without uniforms, etc.).  Then, let’s discuss prosecuting various Iranians for supplying weapons and training to terrorists for use against civilians.  Then, let’s reflect on the fact that there is no indication whatsoever that any Israeli misused WP, and that the Red Cross (which, by the way, allows the use of a crescent but not a Jewish star) has stated that Israel did not, in fact, misuse the stuff.

  Then, when the rockets start falling on your self-righteous little head, by all means, let’s discuss what weapons you don’t want used in your defense.

   Until then, kindly put a sock in it.
• 
  By Tzvi ben Rachmiel 2/3/09 at 10:45 a.m. UTC

  I guess the bottom line is that I don’t completely trust B’tselem’s data. As I’m sure you’re aware, the Jerusalem Center for Public Affairs (JCPA) recently published (Oct 2008) a scathing critique of B’tselem’s annual survey of human rights violations. The author of JCPA’s survey found  "many flaws in information gathering, omission of essential items of information, failure to include relevant information, bias and false information."

  Although the author, Jonathan Dahoah-Halevi, is quite conservative, Ha’aretz described him as "a systematic and thorough researcher of the Palestinian side," and advised that "it is worth paying attention to his claims about the quality of the information that B’Tselem supplies."

  Here’s a brief summary of his findings that challenge B’tselem’s 2007 report:

  (1) among the 119 Palestinians killed who according to B’Tselem did not participate in fighting, 55 were terror operatives (and one was an operative in the PA’s national-security services), 60 were uninvolved civilians and three were not killed by Israel at all.

  (2) Out of the 66 "uncategorized," he found 60 terror operatives and six civilians.

  (3) His total: 66 civilian deaths (17.5% and not 31.3% as reported by B’tselem).

  Just because B’tselem levels claims against IDF soldiers doesn’t mean they are guilty; hence, you can’t assert that the government has a poor record of enforcing human rights violations in the disputed territories. 
• 
  By Empress Trudy 2/3/09 at 8:51 a.m. UTC

  So called white phosphorous, or as we call it "road flares" are used for that purpose; flares. They are shot overhead to illuminate and then slowly come down where the residual elements burn off. The Red Cross stated that the use of these flares is neither illegal nor are they particularly unusual. It is unfortunate that today’s generation of up and coming Jewish leaders feel the need to set Israel aside and demand that they unlike any other conflict in the history of the earth, fight a bloodless war in the face of rockets and mortars which are deployed to strike at unprotected civilians 100% of the time. I suppose that the legal nitpickers among you would assert that Hamas isn’t a legal entity and therefore immune from prosecution, but then I’d have to ask you how you sleep at night.
• 
  By Max Socol 2/3/09 at 6:42 a.m. UTC

  Thanks for clearing that up.  I’ve been reading a bit more about the ICC and you’re absolutely right that a national court takes precedence.  However, Israel is not a signator to the ICC, which means that prosecution by its national court, as far as I understand, would not be considered legally sufficient by the Hague (part of the reason that Spain is trying to become the national court designated to fill that role).

   In any case, that’s tangential to what I was getting at in the line you quoted.  I was talking not about a legal obligation but a moral one — I should have been more clear.

  I’m curious why you take issue with B’tselem’s opinion of the national court’s track record with the IDF.  Are you thinking of cases that I’m not?
• 
  By Tzvi ben Rachmiel 2/2/09 at 4:23 p.m. UTC

  You write: Israel has an obligation to give these men and women up to the ICC.

  According to my understanding of the ICC, it is a suplementary court, which means that a national court takes precedence. The ICC would only have jurisdiction when the national court is unable or unwilling to pursue a case. Despite your claim (or B’tselem’s claim) that Israel doesn’t have a good record of pursuing justice against IDF violations of the laws of combat, Israel has demonstrated that it pursues IDF violations vigorously. 
• 
  By Ashley Tedesco 2/2/09 at 3:26 p.m. UTC

  I can’t say I know enough about either side of the matter to comment objectively or intelligently, but I have to say I think it’s unfortunate that tensions between Israel and Palestine have come to such a point where things like white phosphorous are used. It’s sad that the conflict has gone on for so long and that there doesn’t appear to be an end in sight, no matter how many times a cease fire is called. Regardless, I appreciate the thoughtfulness and balance of this post.

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