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Should IDF Soldiers Be Prosecuted for War Crimes?

Though rockets continue to land in Israel every day, and Israel continues to drop bombs in Gaza, most of the media seems to have gotten bored with the situation and moved on to other things. Welcome to intractability! Where the … Read More

By / February 2, 2009

Though rockets continue to land in Israel every day, and Israel continues to drop bombs in Gaza, most of the media seems to have gotten bored with the situation and moved on to other things. Welcome to intractability! Where the exciting becomes deadening.

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. The allegations surround the use of white phosphorous, which some Palestinian and international groups claim was inappropriate. Ha’aretz has details:

The IDF is itself currently investigating whether a reserve paratroops brigade made improper use of phosphorus shells during the 22-day offensive against Hamas in Gaza.

The brigade fired about 20 such shells in a built-up area of northern Gaza.

Aside from this one case, the shells were used very sparingly and, in the army’s view, in compliance with international law.

No one knows yet what exactly happened in that instance. It’s important to note that white phosphorous is not itself illegal under international law, and that the Red Cross has so far sided with Israel in the public debate (i.e. that Israel only used the agent to light up combat areas, not directly against enemy combatants or civilians).

The question: if they are found to have used white phosphorous inappropriately, should these soldiers be prosecuted for war crimes?

Argument for: White phosphorous is an incredibly inhumane weapon. It burns clean through anything it touches, including human flesh and bone, unless its oxygen supply is cut off. It is indiscriminate and extremely difficult to escape — if it was used as a weapon it likely injured or killed many civilians. Israel, in compliance with international law, explicitly bans its use in this fashion. Any soldiers who were using it this way violated the laws of their own country as well as the laws of international human rights. In other words, this was not an innocent mistake — the soldiers knew that they were breaking the law, and they chose to proceed anyway.  Israel has an obligation to give these men and women up to the ICC.

Argument against: The legacy of "Cast Lead" is still indeterminate. The 2006 Lebanon War solidified for Israelis a feeling of impotence and helplessness that very much contributed to its Gaza operation. War crimes trials for Israeli soldiers would seal the fate of "Cast Lead" for the public as one more failure. Trials would give credence and support to the paranoia of the far-right in Israel, and their incoming governing coalition would be immensely strengthened. At a time when moderates have so much hope that Obama will part ways with Bush, Netanyahu may part ways with Olmert, leaving us with the same situation, the roles merely reversed. While those soldiers may be criminals, a prosecution by the ICC (or, again for some reason, by the Spanish) represents a potentially catastrophic failure to see the big picture. Israelis will not make concessions to Palestinians if they feel that their ability to defend themselves has been jeopardized, period. ICC prosecutions, no matter how justified, must be postponed indefinitely.

Honestly, I don’t know where I stand on this one. The pragmatist in me would prefer to see guilty parties prosecuted within the Israeli system. That would be a fair compromise, except that the Israeli court’s record of actually convicting guilty soldiers is, well, not good. Basically, either decision will mean giving something up. The question we’ll have to ask ourselves is whether we give up the Palestinian ability to seek justice, or the Palestinian prospects for statehood in the next four to eight years; a bit of the Israeli soul, or the prospect for a lasting peace.

Maybe folks out there don’t believe me, or think that we could have it both ways: submit to the ICC, and still get Obama to find a way to put some muscle behind the peace process. And that may be correct; I don’t think anybody ever made a lot of money betting against the President’s political skill.

I met Benyamin Netanyahu yesterday. He came to the Jerusalem Post and sat with us for about an hour and a half, answering questions and laying out his vision for the future of Israel. While the meeting was off the record, and so I can’t actually quote him on anything, I will say this: Netanyahu is looking to build a "big-tent" Likud. And as reprehensible as I find many of his policies to be, I’ll say it again: I don’t think anybody ever made a lot of money betting against the man’s political skill.

Netanyahu’s path to victory has been very clear. Play to Israeli fears of impotence, then reap the benefits. The more that the international community interferes with what Israelis perceive as personal business, the stronger Netanyahu is going to get, and the bigger his tent is going to become. And as in any multi-party system, a big tent is not just about winning the next election. It’s about the act of governance itself. If Netanyahu builds a broad coalition — if, for example, the country is shifted far enough to the right that Kadima has no choice but to join such a coalition — Netanyahu will essentially be given carte blanche.

What’s scariest about this prospect is that Netanyahu made if fairly clear that his focus is going to be on Israel’s (ailing) domestic system. He wants to talk about taxes and education reform. The "national security" and "Palestine" portfolios may well end up with another party in the coalition. Can you guess who that might be? I’ve been thinking about it all day, and I have to say I give the edge to Yisrael Beitenu (Israel Our Home) over Kadima. That, folks, is not just a temporary bump in the peace process. It’s a shock to the system.

Maybe this will all go another way. But building something good out of the bad is going to take a light touch, not the Hague. I don’t think that those who are serious about the success of the peace process can afford to squander some of the opportunities that have been presenting themselves: reports that Hamas is considering a one-year deal, that a pragmatic wing, more interested in governance than war, is beginning to emerge in the party.

Make no mistake: a strong Netanyahu will squander these opportunities, purposefully, and with relish. I know that it’s not for the ICC to take a political stance. But I hope that the US and the UN will see their way to at least putting off any talk of a trial.

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