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Former ICC Chief Prosecutor Tells Israel Not to Worry About War Crimes

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Luis Moreno-Ocampo on Israeli war crimes: “don’t worry, be happy.”

Haaretz’s Anshel Pfeffer writes a typical “happy-talk” article, Israel Has Little to Fear from International Criminal Court, about a visit to Israel by former ICC chief prosecutor, Luis Moreno-Ocampo.  In the interview, Pfeffer displays a strong distaste for the ICC; or at least profound skepticism for its mission.  This is, of course, a standard attitude among Israelis who are deeply hostile toward international institutions, since they know how far below international standards Israel falls in so many areas of human rights and freedoms.

But what truly surprised me was how little Ocampo knows about Israel’s legal system.  Considering he is an international jurist, you’d think he’d know even a tiny bit about the way Israel works.  Here are a few ‘words of wisdom’ from Ocampo:

Last week, on his first visit to Israel, Moreno-Ocampo was full of praise for the local legal system and eager to point out that joining the ICC could backfire for the Palestinians. “Being here in Israel is not liking talking about international justice in Boston or Sweden,” said Moreno-Ocampo, who was here as a guest of the Fried-Gal Transitional Justice Initiative at the Hebrew University of Jerusalem’s law school. “The issues here are not academic.”

But he isn’t at all sure that if the Palestinian Authority were to join the ICC — or if Israel were to join, for that matter — the international court would actually play an active role in the conflict.

The ICC’s job is to investigate and prosecute only in cases in which the local legal system is not performing. “In a dictatorship they can make you disappear and kill you,” said Moreno-Ocampo. “But here, even if the situation is awful, you cannot disappear; you have the rule of law.”

…For the ICC to rule on Israel’s activities, he said, “the Palestinians have to prove that the [Israeli court’s] decision was to shield the defendants. They would have to prove that it wasn’t a fair proceeding.”

That penultimate paragraph is worth unpacking.  He is right in saying that the ICC only acts if a national court refuses to accept cases.  And that is precisely what happens in Israel.  There are security cases alleging torture before the Supreme Court which have been outstanding for years.  Even when the Court renders decisions it invariably sides with the State against the rights and interests of the victims (almost always Palestinian).  And even when it doesn’t and does side with the victims (as in the decision which forbids torture except in certain cases), the security forces essentially ignore the court ruling (as the did in the case which Anat Kamm brought to Uri Blau, which got both of them charged with treason).

What Ocampo misses is that Israel has a semblance of a legal system when it comes to national security cases, not a real one.  This is precisely the circumstances under which an international mandate should kick in.  No Israeli court would ever hear a war crimes charge against an Israeli official.  None.  Not ever.

Further, the ex-prosecutor’s last sentence in that paragraph cries out for rebuttal.  In Israel, despite it’s purported rule of law, people disappear regularly.  Anat Kamm was disappeared for weeks and only her family and lawyer knew she’d been arrested by the Shabak.  Just a few weeks ago, the Shabak arrested and disappeared Majd Kayyal, an Israeli Palestinian journalist.  It was only the exposure by this blog and Noam R, an Israeli blogger, which forced the Shabak to admit he was detained, and later to release him with the most serious of the (laughable) charges against him dropped.  Not to mention Ben Zygier, the Prisoner X who committed suicide before anyone even knew he was jailed.  Or Prisoner X2, a former Mossad agent whose name no one knows.  Every time Israel arrests anyone for security offenses (and it does so regularly) they are arrested in secret and under gag.  So yes, Mr. Moreno-Ocampo, people do disappear in Israel.  The fact that most eventually turn up (some years later) is no defense.

I find unfathomable the Israeli certainty that the fact that Palestinians might find themselves sitting in the Hague would deter the PA from trying to join the ICC.  Of course, there will be Palestinians in the Hague.  But for every Palestinian there there will be ten Israeli generals, prime ministers, and defense ministers.  That little fact is the one Israelis like Pfeffer forget.  Remember there are six Palestinian civilians killed for every Israeli civilian killed.  That tells you something of the scale of the ICC charges that could be brought against Israel.  Who do you think the world blames more for the indiscriminate killing?  Palestinians?  Please, get real.

Finally, the visits to Israel by international luminaries like Ocampo serve an important purpose in anesthetizing Israeli public opinion from any moral responsibility for their nation’s crimes.  This is why BDS is so important.  Figures like Ocampo, when they visit Israel, in effect are prejudging the issues which might come before the ICC.  His job, even as former chief prosecutor, is to support the court, not to reassure Israelis that they will never have to face it.

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{ 14 comments… add one }
  • Jackdaw May 19, 2014, 11:56 PM

    Didn’t Chief Prosecutor Moreno-Ocampo also warn the Palestinians that if the Palestinians put themselves under the court’s jurisdiction, that Gaza’s Hamas rulers also could be investigated for rocket fire and suicide bombings against Israeli civilians?

    http://www.haaretz.com/news/diplomacy-defense/1.589457

    • Richard Silverstein May 21, 2014, 12:56 AM

      @ Jackdaw: You’re trying my patience. Yes, it’s in the articles to which I link (why did you need to add an extraneous link when I’ve already done it?). I’ve also acknowledged in my post that Palestinians will be summoned to the Hague. READ MORE CAREFULLY. Don’t publish a comment till you’ve read the entire post and all the articles linked in it. Don’t waste my time!

  • Oui May 20, 2014, 1:19 AM

    The Rome Statute and Israel’s War Crimes

    Irrespective of either of these routes, Prosecutor Luis Moreno-Ocampo indicated in an interview with an Arabic paper that one of the Israeli legal advisers involved was South African, and the ICC could gain jurisdiction through that route as well. South Africa ratified the Rome Statute on Nov. 27, 2000.

    Moreno-Ocampo also revealed that he is contemplating charges against Israel for Operation Cast Lead.

  • Oui May 20, 2014, 1:20 AM

    A Palestinian Child Against Israel at The ICC

    THE HAGUE – Amira Al-Qirim, a Palestinian girl aged 15, a victim and survivor of the Israeli massacre in Gaza in January 2009, held a press conference together with her French lawyer Gilles Devers in International Criminal Court (ICC).

    “On a much larger scale, the coming into force of the Rome Statute has inspired demands for justice even in countries that are not yet State Parties. In Israel and the Occupied Palestinian Territory, for example, the ICC has been under discussion since the Statute came into force. This has contributed to widespread discussions on the substance of crimes and whether creative ways can be found to access the Court’s jurisdiction. This is particularly true in the aftermath of Operation Cast Lead in Gaza in December 2008–January 2009, which led to the formation of the United Nations (UN) Fact Finding Mission on the Gaza Conflict.”


    During the reporting period, the Prosecutor met with various stakeholders, including representatives of the Palestinian National Authority, the League of Arab States Secretariat, League of Arab States’ Independent Fact Finding Committee, as well as a number of Palestinian and Israeli NGOs, to discuss, inter alia, the Court’s jurisdiction.

    Referral under Articles 14 and 12(2)(a) of the Rome Statute arising from the 31 May 2010, Gaza Freedom Flotilla situation.

  • Greta Berlin, Free Gaza movement May 20, 2014, 1:49 AM

    Right. And we are going to listen to Ocampo, a man forced out of the ICC for various reasons.

  • Greta Berlin, Free Gaza movement May 20, 2014, 1:51 AM
  • Oui May 20, 2014, 1:51 AM

    Luis Moreno-Ocampo, professor at Yale University, gives lecture on The Rome Statute, the ICC and the Pursuit of Justice.

    In Israel, he could forward his credentials in an open sollicitation while visiting Hebrew University …
    War crimes junta hires ex-war crimes prosecutors – to get a favorable report.

  • Greta Berlin, Free Gaza movement May 20, 2014, 1:52 AM

    There is ALWAYS another point of view. http://allafrica.com/view/group/main/main/id/00028877.html

  • Oui May 20, 2014, 1:52 AM

    Oops, I missed this one, Luis Moreno Ocampo was already hired in his home country of Argentina:

    MercoPress: Argentina/Iran accord increases crossfire between government and Jewish community

    Former prosecutor of the International Criminal Court Luis Moreno Ocampo, legal adviser of DAIA and AMIA Jewish organizations analyzed the accord between Argentina and Iran to investigate 1994 bombing …

  • It is an odd claim, isn't it? May 20, 2014, 3:27 PM

    Moreno Ocampo’s claim that Israel is immune to ICC investigations because its own legal system is already serving that function is… odd, to say the least.

    Take this simple example: Article 49 of Geneva Convention IV prohibits an occupying power from colonizing an occupied territory. Article 8(2)(b)(viii) of the Rome Statute of the ICC defines such a colonization as a war crime.

    Q: Sooo, does Israel’s own judiciary consider in its rulings the allegation that Israeli settlements is a violation of Article 49 of Geneva Convention IV?
    A: No, absolutely not.

    Any attempt by any plaintiff to point to the articles of GCIV is immediately cut off with a curt “the issue is not before us”.

    It’s now 47 years since Israel imposed this belligerent occupation upon the Palestinians, and while the Israel High Court of Justice has no problem ruling that this **is** an occupation, it has never once in all those long, long decades ever so much as LISTENED to a single argument that these Israeli settlements constitute a “grave violation” of Article 49 of GCIV i.e. that they constitute a war crime.

    That’s an important point i.e. the Israel High Court of Justice won’t say that those settlements *are* a violation of GCIV, and it won’t say that those settlements *aren’t* a violation of GCIV.

    The court simply refuses to even discuss the issue. Ever.

    If that doesn’t fit Moreno-Ocampo’s definition of “cases in which the local legal system is not performing” then, honestly, what does?

  • editorsteve May 20, 2014, 8:46 PM

    Reading the direct Moreno-Ocampo quotes in the article, it seems that both Pfeffer and Richard are over-interpreting what he actually said. And as distasteful as I find the Israeli government and court system, I also find a big difference between being “disappeared” in Argentina decades ago and being imprisoned in Israel with your family and attorney knowing about it, and a public gag order imposed. All that said, I was disappointed when the court ducked its responsibility to prosecute clear violations of international law with regard to civilian safety in Operation Cast Lead. Israelis, Palestinians, the US military — anyone — who even risks the taking of civilian lives in avoidable situations should pay the legal price. By ignoring the Goldstone Report the ICC sent a bad message — that you REALLY have to go over the line to risk be prosecuted. More civilians have died as a result.

  • Oui May 20, 2014, 11:28 PM

    Judge Goldstone expresses regrets about his report into Gaza war

    (Guardian) Apr. 3, 2011 – Judge Goldstone was asked to head a fact-finding committee into allegations of war crimes by the United Nations Human Rights Council (UNHRC). Israel refused to co-operate with the mission and would not allow Goldstone’s committee to travel to the Gaza Strip via Israel.

    The report accused both Hamas and Israel of war crimes and deliberately targeting civilians. It urged that both sides should investigate their own actions or risk being investigated by the International Criminal Court.

    Goldstone was vilified after the publication of the report by supporters of Israel who accused him of a “blood libel”, a false accusation that had been used to demonise Jews in the past.

    Note: Goldstone initially barred to attend his grandson’s bar mitzvah in South Africa.

    ‘Goldstone retraction reduces chance of similar probe’

    (JPost) Apr. 4, 2011 – Judge Richard Goldstone’s retraction and new-found faith in the Israeli legal system will likely contribute to Israeli efforts to prevent the establishment of a new probe following military action in a future conflict with Hamas in the Gaza Strip, a senior IDF officer predicted. Goldstone published an op-ed in The Washington Post in which he said he that he no longer believed that Israel had intentionally targeted civilians during Operation Cast Lead in the Gaza Strip in 2009.

  • Oui May 20, 2014, 11:29 PM

    [Excerpt of a review]
    Gowlland-Debbas notes that if Palestine was prevented from applying its criminal law to Israelis who committed crimes on its territory, this would paradoxically fulfill the admissibility requirements under Article 17(1)(b) of the Rome Statute, since the case could not be investigated due to the inability of the state to prosecute.

    Is There a Court for Gaza? is a useful contribution to the debate on Palestinian statehood and the quest to achieve justice for the long-suffering people of Gaza. In addition to the academic articles mentioned in this review, the book contains resolutions from the UN Human Rights Council, including documents from the Committee of Independent Experts on Follow-up to Recommendations in the Goldstone Report, and will surely need to be consulted should the ICC address the Palestine issue in a more comprehensive manner in the future.

    Indeed, the arguments made in the book are not only relevant to the situation in the Gaza Strip during Operation Cast Lead in the winter of 2008–2009 but may also be relevant to any future situations that may be referred to the Court – especially if the Palestinians attempt to submit to the ICC’s jurisdiction retroactively and/or accede to the Rome Statute. Since the precise moment at which Palestine became a state, and the extent to which the Oslo Accords are in force is not clear, it may be expected that these issues will have to be dealt with at length in submissions and pleadings before the ICC should Palestine decide to lodge a new Article 12(3) declaration or reiterate the previous declaration lodged in January 2009.

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