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Palestinian groups present 'war crimes' evidence to the ICC

The International Criminal Court prosecutor is conducting a ‘preliminary examination’ into the 2014 Gaza war. But are Israeli officials at higher risk of prosecution for illegally building settlements in the West Bank?

Al-Haq director Shawan Jabarin hands the confidential communication to ICC Prosecutor Fatou Bensouda in the Hague, November 23, 2015. (Photo courtesy of Al-Haq)

Al-Haq director Shawan Jabarin hands the confidential communication, complied by four Palestinian human rights organizations, to ICC Prosecutor Fatou Bensouda in the Hague, November 23, 2015. (Photo courtesy of Al-Haq)

Four Palestinian human rights organizations submitted research, testimonies and documentation to International Criminal Court prosecutor Fatou Bensouda on Monday, which they said contain evidence of war crimes and crimes against humanity committed by Israelis during the 2014 Gaza war.

The four Palestinian human rights organizations, Al-Haq, Al-Mezan, Aldameer and the Palestinian Center for Human Rights (PCHR), said the information they handed over to Bensouda on Monday detailed “illustrative instances” of murder, torture, intentional attacks on civilians and and civilian targets, and extensive destruction that had no military necessity.

“We have provided the Office of the Prosecutor with enough information for it to determine that there is a reasonable basis to believe that senior Israeli military and civilian officials committed crimes against humanity and war crimes during the offensive against Gaza,” Al-Haq director Shawan Jabarin said after hand-delivering the materials to Bensouda in The Hague on Monday.

In accordance with the process laid out in the Rome Statute, the treaty that established the International Criminal Court, Bensouda opened a preliminary investigation into the situation in Palestine on January 16, 2015, 15 days after Palestine joined the court.

Following the preliminary examination, the ICC prosecutor will decide whether or not to open a full-fledged investigation, which can result in criminal indictments of individuals suspected of committing war crimes and crimes against humanity.

In the current phase, the ICC prosecutor is gathering information from publicly available sources, as well as from individuals or groups, states, international organizations and from NGOs like human rights organizations. She then “take[s] steps to analyze and verify the seriousness of information received, including through a rigorous and independent source evaluation process.”

In a progress report published prior to the submission from the Palestinian rights organizations, Bensouda’s office said that it had thus far received 66 such communications containing information about alleged crimes committed since the start of the 2014 Gaza war, submitted by both individuals and other organizations.

‘Israel is unwilling to hold its soldiers accountable, Palestine is unable’

Relatives walk amidst the rubble of the home of Zaki Wahdan in the city of Beit Hanoun, northern Gaza City, November 10, 2014. Eight members of the Wahdan family, mostly women and children were killed. (Photo by Anne Paq/Activestills.org)

Relatives walk amidst the rubble of the home of Zaki Wahdan in the city of Beit Hanoun, northern Gaza City, November 10, 2014. Eight members of the Wahdan family, mostly women and children were killed. (Photo by Anne Paq/Activestills.org)

One criterion the prosecutor must take into account, the principle of complementarity, will be particularly important when deciding whether to open a full-fledged investigation into alleged war crimes committed by Israel.

Complementarity means that if Israel investigates its own soldiers for suspected war crimes, and if it does so in good faith, then the ICC has no jurisdiction. But if the ICC determines that Israel is unwilling or incapable of investigating itself, then it may indeed have jurisdiction over war crimes committed by Israeli citizens, ranging from individual soldiers to generals and politicians.

Israel has not codified war crimes into its penal code, with the exception of genocide and crimes related to the Holocaust. Thus far, the only indictments that have been served against Israeli soldiers for crimes committed during the 2014 Gaza war are related to small-scale looting.

Based on experience seeking justice for Palestinian victims through Israeli courts, the Palestinian human rights organizations said they do not believe complementarity will pose a significant hurdle to an ICC investigation in this case. “Israel is unwilling and Palestine is unable to domestically hold to account Israeli perpetrators of international crimes,” PCHR director Raji Sourani said.

In addition to Israeli crimes in Gaza during the 2014 war, however, the ICC preliminary examination is also focusing on alleged Palestinian crimes, particularly the indiscriminate firing of rockets toward Israeli civilians, using civilian buildings and areas for military purposes, and the summary execution of 20 Palestinians accused of collaborating with Israel.

Settlements as a war crime

Settlement construction in Gilo, January 21, 2010. (Photo: Activestills.org)

Construction in the West Bank settlement Gilo, January 21, 2010. (Photo: Activestills.org)

Another area that few people are discussing publicly is the possibility that the ICC will open an investigation into Israeli settlement activities in the West Bank. Under the Rome Statue, an occupying power is prohibited from transferring, directly or indirectly, parts of its own population into the occupied territory.

An estimated 500,000 Israelis live in settlements beyond the Green Line, including in East Jerusalem.

The ICC prosecutor is currently examining the “carefully conceived network of policies, laws, and physical measures” that support the creation and expansion of Israeli settlements in the West Bank, according to an ICC report on the prosecutor’s activities. The prosecutor is also examining an alleged “scheme of subsidies and incentives to encourage migration to the settlements and to boost their economic development.”

Israeli officials may ultimately be far more exposed to the risk of ICC prosecution for settlement activities than suspected war crimes in Gaza. Whereas Israel can attempt a complementarity defense with regards to war crimes in Gaza by pointing to domestic investigations of its soldiers, Israel’s High Court of Justice has never even agreed to hear a single argument on the legality of settlements.

“Israel’s main problem is indeed with settlements since this is a topic that has no complementarity issue at all,” human rights lawyer Michael Sfard explained to +972. “All the evidence and policies are known and accessible.” The magnitude of the crime and the number of people and communities who have been affected by it over nearly 50 years, Sfard added, “makes it the perfect case for a world criminal court.”

Indeed, the issue of gravity and the ICC’s willingness to investigate alleged Israeli crimes has been a hot topic in the ICC in recent weeks. Earlier this month an ICC appeals court essentially rejected a decision by Bensouda not to investigate Israel’s killing of 10 Turkish nationals aboard the Mavi Marmara in 2010. Bensouda had decided not to investigate based on her assessment that the alleged crime was not of “sufficient gravity” to warrant intervention by the ICC.

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    COMMENTS

    1. Ginger Eis

      “Complementarity means that if Israel investigates its own soldiers for suspected war crimes, and if it does so in good faith, then the ICC has no jurisdiction.”

      No, Mr. Omer-Man, that claim is false! “If Israel investigates its own soldiers for suspected war crimes, and if it does so in good faith, then” it means that the specific allegation is not ADMISSIBL!. “Complementarity” regards not “Jurisdiction”, but rather “Admissibility”. (a) “Jurisdiction” and (b) “Admissibility” are two totally different things. Before adjudicating any case, the first test the ICC (and indeed ALL Courts – both domestic and Int.!) must run is whether or not it has Jurisdiction. The criteria for determining Jurisdiction are different from the criteria for determining Admissibility. If the ICC has no Jurisdiction, you don’t even get to the second test, i.e. Admissibility, of which “gravity” and “complementarity” are the constitutive criteria. If the Court has Jurisdiction, but the requirements of gravity and/or “complementarity are NOT met, then the case is NOT admissible.

      Get that right, Mr. Omer-Man!

      Reply to Comment
    2. Ginger Eis

      “Israel has not codified war crimes into into its penal code, with the exception of genocide and crimes related to the Holocaust. Thus far, the only indictment that have been served against Israeli soldiers for crimes committed during the 2014 Gaza war are related to small-scale looting.”

      This is quite a very false claim, and disturbingly uninformed – for the following reasons:

      (1) Pursuant to the Israeli legal system and relevant Rulings of the Israeli Supreme Court, the Geneva Conventions, the Hague Regulations concerning the Laws and Customs of War on Land are directly applicable in Israel by Israeli Courts and Executives. As such, it gigantically false to claim that that reason why only “small scale looting” has been prosecuted by Israel is because Israel has “not codified war crimes into its penal code”. While codification is ideal, the absence thereof is NOT an impediment to investigating and prosecuting war crimes UNDER Israeli law – because of the direct applicability of the Geneva Conventions and the laws of war in Israel. This is not particularly difficult to understand.

      (2) The State of Israel has investigated numerous allegations of war crimes that were brought forward by the Arabs and diverse political NGOs masquerading as Human Rights Orgs. and found that no war crimes have been committed.

      (3) The State of Israel is currently investigating numerous allegations of war crimes brought forward by aforementioned groups. The decisions are still pending.

      ACCORDINGLY

      “Complementarity” – assuming the “gravity test is met” – would not be a problem for Israel.

      Reply to Comment
      • Ginger Eis

        Correction:

        “…As such, it *IS* gigantically false to claim that *THE* reason why only “small scale looting” has been prosecuted by Israel is because Israel has “not codified war crimes into its penal code.”

        ——–is what was meant in the sentence.

        Reply to Comment
      • Ben

        This crochety, obscure philippic rather misses the main point doesn’t it, Eis?:

        “Israeli officials may ultimately be far more exposed to the risk of ICC prosecution for settlement activities than suspected war crimes in Gaza. Whereas Israel can attempt a complementarity defense with regards to war crimes in Gaza by pointing to domestic investigations of its soldiers, Israel’s High Court of Justice has never even agreed to hear a single argument on the legality of settlements. …“The magnitude of the crime and the number of people and communities who have been affected by it over nearly 50 years, Sfard added, “makes it the perfect case for a world criminal court.”

        Reply to Comment
        • Ben

          Correction:

          “crotchety…not crochety”

          ——–is what was meant in the sentence.

          Reply to Comment
          • Merkava

            BEN says:

            “This crochety, obscure philippic rather misses the main point doesn’t it. Israeli officials may ultimately be far more exposed to the risk of ICC prosecution for settlement activities than suspected war crimes in Gaza.”

            QUESTION

            1. How so, BEN? Does the ICC have jurisdiction over the “settlement activities”? If so, why and how?

            Does BEN have the intellectual power to make coherent legal arguments to support his claim, OR, is BEN going to continue to hid behind un-substantiated, un-supported headlines, slogans and clichés like his copy and paste post above?

            Oh, this gonna be good. Pls. present your arguments, BEN!

            We are waiting…..

            Reply to Comment
          • Merkava

            Oh boy… BEN is on the run and in hiding – yet again!

            Hey BEN, come out of hiding and present your coherent arguments to support the rather idiotic claim you copied and pasted.

            Don’t be such a coward, BEN. Let the debate begin. The Clock Is Ticking….

            And We are STILL waiting……

            Reply to Comment
          • Yeah, Right

            O-M: “Israel has not codified war crimes into its penal code,”

            That is true: Article 146 GCIV says that “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.”

            Israel has signed that Convention, but has not enacted any such legislation.

            GE: “This is quite a very false claim, and disturbingly uninformed”

            Actually, no, it is right on the money, precisely because Israel has given an undertaking to enact such penal codes, yet it has completely failed to do so.

            GE: “Pursuant to the Israeli legal system and relevant Rulings of the Israeli Supreme Court, the Geneva Conventions, the Hague Regulations concerning the Laws and Customs of War on Land are directly applicable in Israel by Israeli Courts and Executives.”

            There are two things to say about that disturbingly uninformed comment:
            1) The IHCJ has never once ruled upon the “applicability” of the GC to the occupied territories. It has, indeed, consistently refused to address the issue, always stating that “the issue is not before us”.
            2) Even a moments thought will tell you that Ginger has just pulled a pea-and-thimble trick. The issue is whether “war crimes” are prosecutable under “Israel’s penal code”, it isn’t whether (or not) the IHCJ considers that the Israeli govt decisions should voluntarily be in compliance with the “humanitarian articles of Geneva Convention IV”

            After all, ask yourself this simple question:
            Q: Is the Israel High Court of Justice a CRIMINAL court?
            A: Why, no. No, it is not.

            (and, as an aside, I’ll point out that the IHCJ has never once defined which articles of GCIV it considers to be “humanitarian articles” and which are not, which rather makes the entire charade an exercise in pointlessness even according to Ginger-Logic).

            GE: “The State of Israel has investigated numerous allegations of war crimes that were brought forward by the Arabs and diverse political NGOs masquerading as Human Rights Orgs. and found that no war crimes have been committed. ”

            Again, disturbingly uninformed.

            Those “investigations” are military tribunals, they are not criminal trials conducted under the Israeli penal code.

            They can’t be, because there is nothing in the Israeli penal code that makes it a criminal offense under Israeli law to carry out grave violations of International Humanitarian Law.

            And this is an old legal adage, one that even Ginger should be able to understand: where there is no “law” there can be no “illegality”.

            Omer-Man is quite correct. Ginger, sorry, her not so much.

            Reply to Comment
          • Yeah, Right

            Merkava: “1. How so, BEN? Does the ICC have jurisdiction over the “settlement activities”? If so, why and how?”

            The ICC has jurisdiction over war crimes committed in the territory of states that have signed up to the Rome Statute.

            That would include war crimes committed in the territory of the state of Palestine, which the court now definitely considers to be “a state party” to the Rome Statute.

            So a case has to be made that this “settlement activity” is a prime face war crime as defined by the Rome Statute.

            Looking…
            Looking…
            Looking…

            Oh, gosh, look here: Article 8 War Crimes.
            Article 8(2)(b)(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

            I would suggest that answers both the “why” and the “how” of your question.

            Reply to Comment
          • Ginger Eis

            You might want to look up Articles 11(1), 11(2) and 12(3) Rome Statute of the ICC. Thoes are essential parts of the jurisdiction questions I am sure you have no understanding of. If those questions are not answered, we don’t even get to the issues you rant about, but do not even understand. But you would not know that, would you? After all, you are a complete fool who ASSUMES to know and understand what he neither knows nor understands, are you not? Nah…Never mind, your response is not needed.

            Regardless,

            For those who genuinely seek knowledge, I will offer the following thoughts to compensate for your time:

            Article 11(2) of the Statute does not offer the option of a declaration to a State that becomes a party to the Statute. The exception mentioned, a declaration under article 12(3), relates to an already existing State that makes a declaration as a non-Party State BEFORE becoming a party. If such declaration is made, the jurisdiction would apply retroactively from the time-frame mentioned in the declaration (which may not go beyond 19 September 2002). This is settled law!

            Now, we know that on 1 January 2015, the Government of “Palestine” lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”. On 2 January 2015, the Government of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General.

            We also know when Jewish Communities in Judea&Samaria were established and that no new Communities have been built since June 2014.

            (I make my arguments as a form of legal exercise, not that I believe that the ICC or any other non-Israeli Court has the authority to say anything on whether or not Jews have the right to live in the Heart of the Ancestral Homeland Of the Jewish People, or that the ICC should take up such a case if the Arabs file one, and they have not – so far!).

            Reply to Comment
          • Yeah, Right

            GE: “You might want to look up Articles 11(1), 11(2) and 12(3) Rome Statute of the ICC.”

            Hahahahahahah.

            Settlement activity is an ongoing war crime, Ginger.

            Reply to Comment
          • Yeah, Right

            GE: “We also know when Jewish Communities in Judea&Samaria were established and that no new Communities have been built since June 2014.”

            Rome Statute: “The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;”

            It is clear that the crime involves an occupying power transferring its P.E.O.P.L.E. into an occupied territory. There is nothing in the Rome Statute or in the Geneva Conventions that outlaws a building and construction industry.

            So pointing out that no new colonies “have been built” is a red herring, since the issue is whether any new COLONISTS have transferred into this territory since June 2014.

            And the answer is…. yes.

            Yes, their numbers continue to grow, and all with the “direct or indirect” blessing of the Israeli govt.

            And that’s a war crime because it is the transfer of those COLONISTS that is prohibited.

            Reply to Comment
      • Yeah, Right

        O-M: “Israel has not codified war crimes into its penal code,”

        That is true: Article 146 GCIV says that “The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.”

        Israel has signed that Convention, but has not enacted any such legislation.

        GE: “This is quite a very false claim, and disturbingly uninformed”

        Actually, no, it is right on the money, precisely because Israel has given an undertaking to enact such penal codes, yet it has completely failed to do so.

        GE: “Pursuant to the Israeli legal system and relevant Rulings of the Israeli Supreme Court, the Geneva Conventions, the Hague Regulations concerning the Laws and Customs of War on Land are directly applicable in Israel by Israeli Courts and Executives.”

        There are two things to say about that disturbingly uninformed comment:
        1) The IHCJ has never once ruled upon the “applicability” of the GC to the occupied territories. It has, indeed, consistently refused to address the issue, always stating that “the issue is not before us”.
        2) Even a moments thought will tell you that Ginger has just pulled a pea-and-thimble trick. The issue is whether “war crimes” are prosecutable under “Israel’s penal code”, it isn’t whether (or not) the IHCJ considers that the Israeli govt decisions should voluntarily be in compliance with the “humanitarian articles of Geneva Convention IV”

        After all, ask yourself this simple question:
        Q: Is the Israel High Court of Justice a CRIMINAL court?
        A: Why, no. No, it is not.

        (and, as an aside, I’ll point out that the IHCJ has never once defined which articles of GCIV it considers to be “humanitarian articles” and which are not, which rather makes the entire charade an exercise in pointlessness even according to Ginger-Logic).

        GE: “The State of Israel has investigated numerous allegations of war crimes that were brought forward by the Arabs and diverse political NGOs masquerading as Human Rights Orgs. and found that no war crimes have been committed. ”

        Again, disturbingly uninformed.

        Those “investigations” are military tribunals, they are not criminal trials conducted under the Israeli penal code.

        They can’t be, because there is nothing in the Israeli penal code that makes it a criminal offense under Israeli law to carry out grave violations of International Humanitarian Law.

        And this is an old legal adage, one that even Ginger should be able to understand: where there is no “law” there can be no “illegality”.

        Omer-Man is quite correct. Ginger, sorry, her not so much.

        Reply to Comment
        • Ginger Eis

          Right now, you have only succeeded in showing that you are a complete mad dunce! (a) You don’t even know what “direct applicability” means and how it relates to Int. law. (b) You don’t have any idea that it is a General Principle Of Law. (c) You have no idea what General Principles of law mean, their place and function in the application of the law and their underlying philosophical rationale within the science of the law. Also as a result of that, (d) You are quite ignorant of the systems and methods of application of Treaties and Conventions in domestic legal systems. All of the above are inter connected, but that you do not know, because you have ZERO knowledge of the law and are as such unable to make sense. You might want to look all that up before you start jumping up and down like a mad fool making a fool of yourself in the eyes of those who have knowledge of the stuff. Just as an advice, start with legal theories of “monism” and “pluralism” and after that do some study on “direct applicability here: http://rbdi.bruylant.be/public/modele/rbdi/content/files/RBDI%201980/RBDI%201980-2/Etudes/RBDI%201980.2%20-%20pp.%20317%20%C3%A0%20344%20-%20Marc%20Bossuyt.pdf. and DO NOT and do not get more confused than you already are. Those are the tools you need to be ABLE and CAPABLE to engage in this legal debate, and YOU DON’T have those tools. Deal with it!

          As I have told you time and time again:

          “He who knows not and knows not that he knows not is a fool. Shun him.”

          Be gone, imbecile!

          Reply to Comment
          • Ginger Eis

            “the legal theories of monism and dualism”

            —— was meant in the sentence (not “pluralism”)

            Reply to Comment
          • Yeah, Right

            Never mind the quality, feel the width, hey, Ginger?

            Here is a simple question, one that you and I both know the answer to.

            BANG! An Israeli citizen commits a clear and unambiguous war crime.

            Q: Can he/she be tried in an Israeli criminal court for that war crime?
            A: No, they can not.

            And the reason why is simplicity itself: the Israeli Penal Code contains no provision that defines a war crime as a criminal act under Israeli law.

            There would be absolutely no point – none whatsoever – in dragging that war criminal before an Israeli criminal court, because the very first thing the trial judge would say is “What are the charges?”.

            And the prosecutor would have to reply “We couldn’t find any, Your Honour”.

            Where there is no law there can be no illegality.

            There is nothing in the Israeli Penal Code that makes a grave violation of international humanitarian law (i.e. a “war crime”) a prosecutable offense in an Israeli criminal court, and without such a provision in the Penal Code then an Israeli criminal court has no jurisdiction.

            Queue some more Ginger-blather…..

            Reply to Comment
    3. Michael Thomas

      I agree with the author and with Michael Sfard. The case under Geneva Four and related provisions of international humanitarian law (IHL) relating to violations of the rights of occupied populations is both stronger (because it avoids the complementarity obstacle) and more important (because it goes to the heart of the conflict). I wrote an article for MERIP outlining the basis upon which Israeli political and military leaders could be investigated for crimes committed during Protective Edge. Because the proportionality rule under IHL, properly interpreted, requires measuring the expected military advantage by the overall goals of the operation rather than tactical decisions, the strategic and political decisions of the leaders must be interrogated. Neither the IDF nor any other Israeli authority is going to do that, which provides an argument that complementarity does not bar the ICC prosecutor from proceeding. (Ginger Eis is correct, it is a question of admissibility rather than strictly one of jurisdiction). Nevertheless, when Ambassador Areikat was recently at the Palestine Center, I pressed him as to whether Palestine was pushing to get the occupation issues taken up as a priority. I understood him to say that President Abbas had done exactly that when he visited the Chief Prosecutor this fall.

      Reply to Comment
      • Ginger Eis

        Mike,

        The OTP is obligated to examine whether or not the requirements of “sufficient gravity” and “Complementarity” are met BEFORE any decision on indictment can ever be made. That is settled both in the science of the law and the jurisprudence. The allegations (I mean allegations) made of war crimes – taken together – would satisfy the requirements of “sufficient gravity”. For the sake of this discussion I take it as a given and discuss it no further. However, this is totally different with regard to “Complementarity”. If the requirements of “Complementarity” are met, the case ends there – with immediate effect! I don’t see how you “avoid Complementarity” and still get to “proportionality”, because in order to get to “proportionality”, the case must first be admissible (complementarity is an inseparable component of admissibility), you see? And if the case is not admissible, then the question of “proportionality” does not even arise, don’t you see?

        Israel has to date investigated hundreds, and I mean HUNDREDS, of allegations of war crimes brought forward against the IDF. Israel has verifiably, and I mean VERIFIABLY the best equipped and independent system of investigating allegations of war crimes on earth (if you disagree, pls. point out any other country that bests Israel in this regard. It a challenge, Mike). Anyone/org. from anywhere may make allegations against the IDF. Those allegations are ALL investigated by the Military Advocate General (a senior lawyer who is qualified to be a Supreme Court judge!). The MAG-hearings are public (with few exceptions involving National Security). The decisions of the MAG are subject/appealable to review by the Attorney General of the State Of Israel. The decisions of the Attorney General are subject/appealable to Judicial Review by the Israeli Supreme Court. This happens ONLY in Israel, not in the US, France, Uk, etc. I am certain that Israel is able to provide- and is currently providing the OTP verifiable evidence of the criminal procedures and mechanisms (the best in the world) she has in place to investigate ALL allegations of war crimes brought forward against the IDF and make prosecutorial decisions as would any independent and objective prosecutor based on all available evidence and the specific circumstances of each case. That is what lies at the heart of the Complementarity issue, not the strong, often irrational Emotions and Sentiments of hate against the Jewish State and (Israeli) Jews seen daily on this site.

        Pls. See also: http://mfa.gov.il/ProtectiveEdge/Documents/IsraelInvestigations.pdf

        (re-post. Pls. ignore if the initial post emerge)

        Reply to Comment
        • Michael Thomas

          Complementarity will arguably present no barrier to formal investigation and indictment if there is a class of cases (those involving decisions by senior political and military leaders) which are not investigated by Israeli authorities. So far, that has been the case, and there is no reason to expect the Advocate General will suddenly develop the suicidal courage to open cases against his bosses, bosses who were advised on the law of war by the Advocate General’s staff. If complementarity is no obstacle, then we get to the application of the rules of distinction, proportionality, etc. But I suspect you knew all that, and found it too uncomfortable to admit.

          Reply to Comment
        • Ben

          All pretensions as to how Israel scrupulously investigates itself, Eis, are fatally undermined by any single one of the reports by Yossi Gurvitz / Yesh Din, in these pages. This is just one of them. There are many >>

          http://972mag.com/how-the-government-rewards-its-most-violent-settlers/113683/

          See also the voluminous material collected by Breaking the Silence.

          Pretensions wrapped in officious legalistic claptrap are still pretensions. That Israel is even minimally competent, never mind exemplary, in investigating itself in regards to war crimes committed by IDF or their “settler” proxies upon persons under belligerent occupation is an assertion that, to put it mildly, is unsupported by the evidence.

          Reply to Comment
          • Ginger Eis

            @ Mike Thomas

            “Complementarity will arguably present no barrier to formal investigation and indictment if there is a class of cases (those involving decisions by senior political and military leaders) which are not investigated by Israeli authorities. So far, that has been the case,….”

            Agreed, except for the part that reads: “So far, that has been the case”.

            I disagree because the claim is generalized and unsupported by facts. That would suggest that the claim is without merit. Could you cite examples/cases, along with the facts of each case? Are you talking about complaints filed with the MAG that were not investigated, or, are you referring to complaints that are not filed with the MAG (which I suppose you know will not affect complementarity)?

            Reply to Comment
          • Yeah, Right

            GE: “Could you cite examples/cases, along with the facts of each case?”

            Bizarre. Truly bizarre.

            Michael points out (quite correctly) that the Advocate General has opened no investigation into the political and military decisions taken at the top-echelon.

            To which Ginger replies with her nonsense: can you cite the cases?

            Honey, he is pointing out that there are *NO* cases involving *THAT* level of Israeli decision-making, nor even an investigation, nor even the hint of an investigation.

            So Israeli decision-making at *THAT* level in the Israeli political/military establishment is wide-open to investigation by the ICC, with nary a hint of “complementarity” standing in the Prosecutor’s way.

            Reply to Comment
          • michael thomas

            For examples of political and strategic military decisions that arguably trigger ICC jurisdiction and have thus far not been the subject of any Israeli investigations, see my article in MERIP, “Operation Protective Edge: The War Crimes Case Against Israel’s Leaders,” published 26 October 15. More generally, see the comprehensive review of the available evidence about Protective Edge (Israel refused to participate) by the commission appointed by the UN Human Rights Council. Much of that report dealt with specific tactical operations, but there is a fair amount of material concerning statements of policy by government ministers and senior military officials on the goals of the operation, the nature and identity of the “enemy,” and the means and methods (the military doctrines) to be applied in operations like Protective Edge. Nearly all of that material was taken from official Israeli sources or Israeli media reports. There can really not be any doubt that the horrors that occurred in Shuja‘iyya and elsewhere were the direct result of those political and strategic choices. When I asked Colonel (ret) Sharvit Baruch, now at INSS but formerly the IDF’s adviser on law of war during Cast Lead, about the implications of Shuja’iyya in light of her position that the rule of proportionality required assessing the military objectives of the overall operation rather than individual engagements, she said that she hoped the investigations would go wherever the facts took them, in order to sort out whether the problem was the orders given or their implementation. A good answer, but an additional year has passed since that conversation, and the investigations have, not surprisingly, not pursued the larger questions.

            Reply to Comment
    4. Ginger Eis

      Dear Michael Thomas,

      Before I responded to your comment, I did do a background check and read your article before you asked me to do so, but did not mention it because, it, imo, is below the standard of what I would expect from an attorney. Since you insist I respond to it, I shall now proceed to debunk said article as follows:

      1. YOU CLAIMED: “Defense Minister Moshe Ya’alon said in December 2013 that an operation in Gaza would have to deal a harsh blow to Gaza and to the organizations operating there, in a way that would damage their capabilities and exact a heavy toll.”

      THAT IS FALSE. Here is what Yaalon actually said:

      “The main threat from the Gaza Strip is rockets and terror — above ground and underground. Therefore, the operation that the IDF would be required to undertake would have to deal a harsh blow to Gaza and to the organizations operating there, in a way that would damage their capabilities and exact a heavy toll.” Thre is nothing wrong with that statement.

      2. YOU CLAIMED: “During the earlier 2012 Gaza bombardment, Deputy Prime Minister Eli Yishai said, “We must blow Gaza back to the Middle Ages, destroying all the infrastructure including roads and water.”

      (a) You provide no source for that quote. (b) The “Ecologist” has that quote, but also failed to provide a source. Beyond that, (c) you MOST IMPORTANTLY failed to demonstrate how a spontaneous, reflexive exclamation of an Israeli Official made at the heat of the moment when enemy rockets and missiles were terrorizing entire country, amounts to “policy” and/or “decisions” – official or otherwise of the State of Israel. As an attorney, I would assume that you know what State “policy” and “decisions” are and where they are found. If we apply your standard to the Arabs, Mahmoud Abbas et. would facing Genocide charges!

      3. YOU CLAIMED: “Moshe Feiglin, the deputy speaker of the Knesset and head of the Jewish Leadership faction of the Likud Party, laid out a seven-step plan for Gaza that included giving a single ultimatum “to the enemy population,” defining any who did not move from Gaza to Sinai as the enemy, and destroying all infrastructure. After eliminating all armed enemies and treating generously those who wished to leave, he went on to say, Gaza would be populated by Jews.

      (a) Moshe Feiglin is not an Israeli Govermnent Official, but an MK/MP with his own opinion; (b) Moshe Feiglin neither sets policy nor makes decisions on behalf of the Government Of the Jewish State and/or the IDF; (c) Moshe Feiglin is considered even within Likud as an extremist with a fringe following; Moshe Feiglin (who is indeed a true “feiglin”!) is, as is every human being, entitled to his own opinions, no matter how despicable they may be, but such opinion may not be confused with the “policy” and “decisions” of the Jewish State. As an attorney, I would expect you to know that.

      4. YOU CLAIMED: “Knesset Member Ayelet Shaked, who currently serves as justice minister and has thereby been entrusted with overseeing application of the rule of law, made what amounted to an explicit call for war crimes on Facebook shortly before Protective Edge. She said, in part, “The Palestinian people has declared war on us, and we must respond with war…. Who is the enemy? The Palestinian people…in wars the enemy is usually an entire people, including its elderly and its women, its cities and its villages, its property and its infrastructure.” Women who gave birth to “martyrs” should follow their sons (i.e., into their graves). “Otherwise, more little snakes will be raised there.”

      THAT IS FALSE and LIBELOUS – as demonstrated here: http://www.jewishpress.com/indepth/opinions/the-washington-post-sinks-to-mondoweiss-level-updated/2015/05/13/0/?print . BTW, your source is “ElectronicIntifada”, right?

      5. YOU CLAIMED: “Israeli military doctrine and practice has for years similarly equated physical location or ethnic identity with status as an enemy combatant.”

      THAT IS (a) unsupported and as such baseless and false, and given the nature thereof tantamount to quite a nasty smear that should not be dignified with further response by any decent person.

      [In ‘Part 2’ I will respond to your claims with regard to Gabi Sibouni, the Dahiya Doctrine and our own Gabi Eizenkot. My recent posts are missing for reasons unbeknown to me. If this post is published, I will send in ‘Part 2’. If not, there would be no reason for me to border posting it].

      Reply to Comment
    5. Ginger Eis

      Part 2

      6. YOU CLAIMED: “Gabi Siboni, director of the Military and Strategic Affairs Program at INSS and editor of the journal Military and Strategic Affairs, made this “Dahiya doctrine” a more general statement of the Israeli military approach in October 2008: “With an outbreak of hostilities, the IDF will need to act immediately, decisively, and with force that is disproportionate to the enemy’s actions and the threat it poses. Such a response aims at inflicting damage and meting out punishment to an extent that will demand long and expensive reconstruction processes…. This approach is applicable to the Gaza Strip as well.… The IDF should not be expected to stop the rocket and missile fire against the Israeli home front through attacks on the launchers themselves, but by means of imposing a ceasefire on the enemy. In other words, rather than targeting the specific combatants and weapons acting against them, the Israeli military would design its operations to use disproportionate (and less discriminate) force in such a way as to punish, destroy infrastructure and require lengthy, costly reconstruction. That is certainly what was done in Gaza in 2014”.

      THAT IS FALSE. IF YOU BORDERED TO CHECK, you would have noticed that “INSS”: The Institute for National Security Studies, is an independent Israeli research institute and THINK TANK affiliated with TEL AVIV UNIVERSITY dealing in areas of national security matters such as military and strategic affairs, terrorism and low intensity conflict, military balance in the Middle East and Cyber warfare. The INSS is just another independent think tank, like other think tanks and think tankers (hihi hihi) operating in the US and Europe!

      It is quite unconscionable, is it not, Mike, to transform the opinion piece of an independent, self-styled “expert” into the “policy” and “decisions” of the State Of Israel and accuse the Jewish State of war crime on that basis? I am not just flabbergasted by your claim, but really feel immense sorrow at the length you folks go to smear, demonize and delegitimize the Jewish State, her leader and citizenry. This is very painful and sad. Very sad!

      (Part 3 will deal with the Dahiya Doctrine. If this Part 2 shows up, I will send in Part 3. Otherwise there will be no reason for me to bother posting).

      Reply to Comment
    6. Ginger Eis

      Part 3 (last one)

      7. YOU CLAIMED: “Maj. Gen. Gadi Eizenkot commanded Northern Command in 2006 during Israel’s incursion into Lebanon. When the Israeli army received fire from the southern Beirut suburbs known as the dahiya, the response of troops under Eizenkot’s command was to devastate the entire dahiya area from the air with 2,000-pound bombs and similarly massive and indiscriminate ordnance. In 2008, Eizenkot made clear that the strikes upon the dahiya reflected explicit Israeli military doctrine: “What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on…. We will apply disproportionate force on it and will cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases.… This is not a recommendation. This is a plan. And it has been approved.” [3] Maj. Gen. Eizenkot was deputy chief of staff at the time of Protective Edge, and has since been promoted to chief of staff of the Israel Defense Forces (IDF).

      THAT IS FALSE: ‘Dahiya’ was a military doctrine suggested in 2006 by an Israeli general, Gadi Eizenkot, during the Lebanon war. In theory, its aim was to deter terrorists from using civilian areas as military zones. It is theoretically applicable in Lebanon where Hizbullah, while operating outside of the national interest and without the co-operation of the majority of citizens – turned villages, civilian homes and infrastructure into military barracks and battle fields from where it fired close to 4.000 Katusha rocks and Grad-missiles into Israeli civilian population and with the goal of deterring Israel from defending herself and using dead civilians as powerful weapons propaganda. It goes without saying that any civilian infrastructure used to execute a war, is a legitimate military target under Int. law. In 2006, the residents of Dahiya were asked in their own mother tongue, orally and in writing – and given reasonable time to vacate, before Hizbullah was dealt the iron-fist by the IDF – in accordance with the laws of war. Israel has been accused of applying ‘The Dahiya Doctrine’ in every conflict since 2006 even though Gaza is not Lebanon and the Israeli military is MORE THAN capable of creating conflict specific strategies. EVERY SINGLE military operation undertaken by the IDF in Gaza is well documented by the IDF along with the reasons why and the manner in which they were embarked upon in accordance with more than the requirements of Int. law. The IDF aborted hundreds of strikes that would have evaporated its mortal enemies in the battle fields – just to save the lives of the civilians of said mortal enemies who are used as human shields as can, e.g., be seen here: https://www.youtube.com/watch?v=giJlG3KXq8c&feature=youtu.be. The only reason, this Dahiya Doctrine even gets airtime is because it can be used to smear Israel.

      Beyond that, It is well documented that the IDF – more than any other army in the entire history of mankind – takes measures to protect civilians of the enemy from harm during war, sometimes at the cost of the lives of IDF-soldiers (e.g. seven IDF-soldiers who were burnt alive inside their APCs, because the IDF placed the lives of enemy’s civilians above the lives if its own soldiers as a result of which they met most agonizing, most horrific deaths!), while the enemies fight from behind their wives and little kids, hospitals and kindergarten, etc! NO other army in the entire history of mankind and warfare has ever attempted such “madness”! Our brothers who did not make it out of Gaza alive would have been alive today, if Dahiya were an IDF-policy as you falsely claimed.

      With all due respect, Mike, the pillars on which your article rest are at best bogus.

      ACCORDINGLY, your claims as brought forward in your article are without legal merit.

      Reply to Comment
      • Michael Thomas

        I won’t begin to respond to each tendentious and false assertion. By now, any readers will have enough to make up their own minds as to whether it is worthwhile to follow you down every rabbit hole. Suffice to say, each of your guesses as to sources is wrong: INSS is of course a think tank, but an authoritative one made up largely of former ranking officers in the Israeli army or security services (ie, Col Sharvit Baruch, the IDF’s law of war expert); the war-fighting doctrines of the IDF are widely understood to be as I described them, and defended by their authors as such; and despite protestations of being the most moral army in the world, the IDF’s actions in Shuja‘iyya, which were similar to operations elsewhere in Protective Edge, stunned American officers who reviewed reports of them as being massively disproportionate. We will neither convict nor acquit Israeli officials in the course of this exchange; my point is only that there is more than enough evidentiary and legal basis for the Chief Prosecutor of the ICC to open investigations.

        Reply to Comment
      • Ben

        Regretfully, Eis, you can dress all this up in umbrage-taking and obscurantist nitpicking and jump up and down and be as aggressive and wild and rude as you always are, but Michael Thomas essentially quotes these things correctly and uses them correctly.

        Ya’alon really did say what he said, Feiglin was a part of Israel’s political leadership, Shaked really did post those words on her Facebook page–and screenshots of the Hebrew before she took it down (why did she take it down?) show the English translation is highly accurate, Deputy Prime Minister Yishai really did say what he said and he was a political leader when he said it and it was guidance to the commanders and troops. Siboni is not just another think tanker and INSS is not just another think tank, and what Siboni declared should be done actually was done in Gaza. And Eizenkot really did explicitly declare the IDF’s dahiya doctrine and the IDF really did enact it.
        http://972mag.com/how-an-alleged-war-crime-goes-away-and-resurfaces-a-year-later/107357/
        Along with other war crimes as in the ‘Hannibal Procedure’ carpet bombing of Rafah.

        Reply to Comment
        • Daniel

          “Better to remain silent and be thought a fool than to speak out and remove all doubt”.

          – Abraham Lincoln

          Reply to Comment
      • Ginger Eis

        Dear Michael Thomas,

        1. THE LAW is clear on what may “trigger an investigation by the OTP”. See with regard to the Gaza war Article 8(2) in conjunction with Article 17(1)(a)(b)(c), Article 17(2)(a)(b)(c) and Article 17(3) of the Rome Statute of the ICC. By law, the investigation of OPT cannot be “triggered” based on (conjecture re) (a) the personal opinions of MKs(/MPs/Congressmen) Moshe Feiglin and Eli Yishai, or (b) an opinion piece in which a PRIVATE and INDEPENDENT self-styled expert expresses his own opinion, or (c) what Eizenkot said about the Lebanon war in 2006 or (d) the libelous claims against Madame Shaked! Pls. read the provisions of the Statute I just stated.

        2. THEREFORE: the questions you must answer within the meaning of above mentioned provision are as follows: (a) Which specific complaints of alleged war crimes were filed with the MAG or any other Israeli agency? (b): did the MAG investigate said complaints, c.q. is/are investigation(s) still ongoing? (c) did the MAG, after said investigations, fail to prosecute the alleged suspect, while an objective prosecutor – given the same available evidence – should/ought to have proceeded with criminal prosecution (the good-faith test; e.g. an objective prosecutor does not proceed with prosecuting a case he, from the evidentiary point of view, knows he cannot win)? If the answer to this last question is no, the case will be declared inadmissible – WITH PREJUDICE!

        I understand why you are avoiding these questions, Mike, (i.e. you have neither seen nor read nor have any form of knowledge of the case-files and their contents and are, as such, unable to answer these questions!), but you really can’t run away from them either, as long as you stand by your claims. Those questions lie at the heart of the Complementarity question.

        Semper necessitas probandi incumbit ei qui agit!

        Reply to Comment
      • Ginger Eis

        Dear Michael Thomas,

        1. THE LAW is clear on what may “trigger an investigation by the OTP”. See with regard to the Gaza war Article 8(2) in conjunction with Article 17(1)(a)(b)(c), Article 17(2)(a)(b)(c) and Article 17(3) of the Rome Statute of the ICC. By law, the investigation of OPT cannot be “triggered” based on (conjecture re) (a) the personal opinions of MKs(/MPs/Congressmen) Moshe Feiglin and Eli Yishai, or (b) an opinion piece in which a PRIVATE and INDEPENDENT self-styled expert expresses his own opinion, or (c) what Eizenkot said about the Lebanon war in 2006 or (d) the libelous claims against Madame Shaked! Pls. read the provisions of the Statute I just stated.

        2. THEREFORE: the questions you must answer within the meaning of above mentioned provision are as follows: (a) Which specific complaints of alleged war crimes were filed with the MAG or any other Israeli agency? (b): did the MAG investigate said complaints, c.q. is/are investigation(s) still ongoing? (c) did the MAG, after said investigations, fail to prosecute the alleged suspect, while an objective prosecutor – given the same available evidence – should/ought to have proceeded with criminal prosecution (the good-faith test; e.g. an objective prosecutor does not proceed with prosecuting a case he, from the evidentiary point of view, knows he cannot win)? If the answer to this last question is no, the case will be declared inadmissible – WITH PREJUDICE!

        I understand why you are avoiding these questions, Mike, (i.e. you have neither seen- nor read- nor do you have any form of knowledge of the case-files and the contents thereof and are, as such, unable to answer these questions!), but you really can’t run away from them either, as long as you stand by your claims. Those questions lie at the heart of the Complementarity question.

        Semper necessitas probandi incumbit ei qui agit!

        Reply to Comment
        • Ben

          Descendam lepus foramen iterum? Non est semper necessarium.

          Reply to Comment
          • Daniel

            “Better to remain silent and be thought a fool than to speak out and remove all doubt”.

            • Abe Lincoln

            Moving forward: ‘google-translate’ is never your best friend. Latin is not actually a very difficult language. If you make the necessary effort and invest the time you use obsessing about Ginger Eis Jews and Israel, you might in fact learn Latin. This might help ya quite a bit:

            http://www.thelatinlibrary.com/101/Declension123.pdf

            Reply to Comment
          • Daniel

            “Better to remain silent and be thought a fool than to speak out and remove all doubt”.

            • Abe Lincoln

            Moving forward: google-translate is never your best friend. Latin is not actually a very difficult language. If you make the necessary effort and invest the time you use obsessing about Ginger Eis, Jews and Israel, you might in fact learn Latin. This might help ya quite a bit:

            http://www.thelatinlibrary.com/101/Declension123.pdf

            Reply to Comment
    7. Daniel

      “Better to remain silent and be thought a fool than to speak out and remove all doubt”.

      • Abe Lincoln

      Moving forward: ‘google-translate’ is never your best friend. Latin is not actually a very difficult language. If you make the necessary effort and invest the time you use obsessing about Ginger Eis Jews and Israel, you might in fact learn Latin. This might help a bit. It’s Latin for dummies ….

      http://www.thelatinlibrary.com/101/Declension123.pdf

      Reply to Comment
      • Ben

        Oh, hey, thanks, I love you too, sweet pea. lol. Three times! Anxious to reach out and get in touch? I understand. Here, this might help you. English for dummies:

        http://www.walmart.com/ip/English-Grammar-for-Dummies/12168513

        Enhancing your speaking and writing skills helps in everyday situations, such as writing a paper for correspondence law school, giving a presentation to a rightist group, communicating effectively with family and friends, or being an online troll.

        It has a special chapter about avoiding placing “said” before every noun, how to avoid pretentious legalistic jargon, when and when not to use the key phrase “rambling mumbo jumbo,” and how to avoid usages that convey mind-blowing rudeness. The chapter subtitle: “How to avoid being harpy or coming across as a screeching harridan pouncing from trees.”

        Gaudiam in Veritate,
        Ben

        Reply to Comment
        • Daniel

          You really are a psychotic lunatic, Ben. What kind of rambling mumbo jumbo is this latest screed of yours? And why are you asking your fellow men to “get in touch with you”?

          Take your meds, moron, and Get A Life!

          Reply to Comment
      • Ben

        And sweet pea, one more thing. Noch einmal:

        Leges sine moribus vanae.

        As always, it is necessary to remind you that what you can possibly get away with legally is not the same thing as a moral and reputable course of action. As any lawyer should know. You missed that course? To tout as your moral standard what you can possibly get away with legally is a moral standard worthy of Vito Corleone. Gangsters.

        Reply to Comment
        • Merkava

          You did not get it, Daniel!

          BEN see Ginger everywhere and in everyone. He thinks that YOU are Ginger! BEN’s sick obsession with Ginger started way back when he was posing as Bryan/Brian and sending sexual comments to her. But Ginger, as the record on this site shows, called BEN “a pig” and told him that he is not worth responding to. BEN could not handle that. BEN went all bonkers and berserk and has not yet recovered. BEN’s latest comments about “sweet pea”, “wanting to meet” were meant for Ginger, not you, Daniel. BEN is probably whacking it right now. ROFLMAO!

          This is getting way too hilarious.

          Oh boy…..

          Reply to Comment
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