That is why all well-intentioned people should welcome the action of the prosecutor in seeking arrest warrants for Hamas and Israeli leaders. That class does not include Australia’s Opposition Leader,Peter Dutton,who describes the action as “abominable” and “antisemitic”.
Israelis protest in Tel Aviv on Saturday against Prime Minister Benjamin Netanyahu and call for a deal to secure the release of hostages held by Hamas.Getty Images
No doubt he thinks all the judges on the UN’s are antisemitic,too,because of their ruling on the weekend that Israel must end its military assault on Rafah.
As everyone who uses the word should know,antisemitism means hatred of Jewish people in general,and it is the vilest and most destructive form of race hatred. It is not constituted by condemning the policy or the war tactics of the Israeli government. Dutton’s attempt to conflate the two,and his call on the Australian government to withhold support from an independent international justice process,is shameful.
There can be no objection to the warrants for the Hamas leaders. My only criticism is that they are sought too late. Nonetheless,if they are apprehended,sending them to The Hague for trial has advantages over shooting them on sight or prosecuting them in Israel:their crimes of mass murder and hostage taking will be described and condemned by independent and impartial judges,and they will be sentenced to life imprisonment. Some support may drain from an organisation that seeks criminally to destroy the state of Israel.
The prosecution’s delay in applying for the Hamas warrants has given rise to the false inference of “equivalence” although the allegations are entirely different. What the prosecutor is saying,quite correctly,is that in dealing with both sides of a conflict,there must be equal justice,not victor’s justice.
Until recently,war crimes were only committed by those who lost the war – nobody thought to prosecute Royal Air Force marshal Arthur “Bomber” Harris for the blanket-bombing of Dresden at the end of World War II or the US for the firebombing of Tokyo which incinerated 100,000 civilians.
It was my war crimes court in Sierra Leone in 2010 that endorsed the equal justice principle by allowing the prosecutor to proceed not only against barbarous rebel commanders but against the quite heroic defence minister who had fought them off – with the help,unfortunately,of child soldiers. He turned up to take his trial (the prison guards saluted him as he arrived) and it is to be hoped that Israeli Prime Minister Benjamin Netanyahu will follow this lead.
Of course,this may not be necessary as the court may not grant the warrant. The defendants will have every opportunity to challenge it,whether for lack of evidence or for lack of legal weight. If the court rules that he has a case to answer,it should grant him bail so he can continue his political life in Israel until his trial gets under way.
This was done in the case of the Kenyan prime minister who respectfully attended the court and fought the indictment until it was withdrawn. If Netanyahu’s case goes all the way to trial,he will have a fair opportunity to answer the charges before independent and impartial judges.
The allegation that the Israeli ministers used starvation as a deliberate tactic of war will depend on the facts and the prosecution must prove them guilty beyond reasonable doubt.
The accusation of indiscriminate bombing,which by now has killed more civilians in Gaza than the 25,000 who died at Dresden,is more significant because this is not a war crime as such but requires the court to decide whether the deaths and injuries it has caused are “clearly excessive” in relation to the military advantage achieved by the slaughter. This has been kept vague because of British embarrassment over Dresden and American defensiveness over the Tokyo firebombing.
The prosecution had the opportunity to clarify this crime back in 2003 by charging NATO over its infamous bombing of Belgrade (hitting bridges with civilians on them,the water supply,a TV station and the Chinese embassy) but lacked the gumption to do so. The Netanyahu case,if it does go to trial,will clarify the law about the proportionate use of bombs and drones in tightly packed cities.
It is to be hoped that Netanyahu has the integrity – he claims to have the confidence – to submit himself to this justice process and fight the case,not on the battlefield but in the courtroom (where the casualties are much fewer). If convicted,he would have an appeal,and in mitigation the court would take account of the Hamas provocation and the sentence would be no more than seven years.
Netanyahu may,if found to have a case to answer,simply stay in Israel and refuse to answer it. His status then,as an indicted war criminal,would not be comfortable,either to himself or for his country.
And history would note the irony that a law forged at Nuremberg to prevent repetition of the sufferings of millions of Jewish people was,77 years later,dodged and despised by none other than the leader of Israel.
Geoffrey Robertson is a barrister and the author ofThe Trial of Vladimir Putin.He was the president of the UN war crimes court in Sierra Leone.