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 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.

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