5 thoughts on “Israel’s Supreme Court Confirms IDF General’s Impunity – Tikun Olam תיקון עולם إصلاح العالم
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  1. Retired Supreme Court Judge Turkel is still defending the appointment of Galant. He said that “Galant was rejected because of media lashing.” and blamed the political echelon of government, namely Netanyahu and Barak. Turkel’s remarks indicate that his role is simply a rubber stamp and that no information would have prevented the appointment. He said “It is inconceivable that a man that served his country faithfully for so many years and through so many different roles would be deposed in this manner.” http://www.jpost.com/Defense/Article.aspx?id=206381

    Turkel’s assignment of blame seems to be correct, since the High Court dismissed the requests for temporary injunctions in both the Galant and Naveh proceedings. In the Naveh case the Attorney General argued that the Court should dismiss the petition because it had “dismissed similar claims against other appointments in the past.” http://www.jpost.com/Defense/Article.aspx?id=206478 Even in the Galant case, the AG argued that the final decision regarding whether Galant could serve as chief of staff rested with the cabinet, not the Court. http://www.jpost.com/Defense/Article.aspx?id=206259

    There is an abundance of prima facie evidence available from the public record which would lead a reasonable person to conclude that the IDF and the Government have ignored the Court’s rulings on “Outposts”, “bargaining chips”, the “Neighbor policy”, “torture”, “targeted killings”, & etc. In cases where there is a “genuine dispute” regarding a material fact that might effect the outcome of a case under governing law, summary judgment is not appropriate. So, the Court went out of its way to rule on the merits of the petition and held that the targeted killings were consistent with the Court’s earlier decisions.

    Of greater doctrinal concern is the proposition which flows from Judge Arbel’s official ruling here that the High Court “could not draw from the existent law a sweeping rule on targeted killings.” The Geneva Conventions provide that “violence to life and person, in particular murder of all kinds” and “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” are acts that “remain prohibited at any time and in any place whatsoever”.

    Targeted killings are acts that fall within the Article 7 & 8 criminal jurisdiction of the ICC. Many of the State parties to the Geneva Conventions and the Rome Statute have recognized the State of Palestine within the 1967 borders. The government of Palestine has accepted the jurisdiction of the ICC in accordance with article 12(3) of the Rome Statute. So, it would not be unreasonable for the Office of the Prosecutor to investigate the possibility that Judge Arbel and the other High Court Justices have “contributed to the commission or attempted commission of such a crime by a group of persons acting with a common purpose” and with “the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court”. http://untreaty.un.org/cod/icc/STATUTE/99_corr/cstatute.htm

    1. Exactly right. Turkel is a servant of the military intelligence community as shown by his lackeyish performance on the mavi marmara commission. He might as well have been comatose as SHabtai Rosenne was…

    2. There has been talk of the ICC accepting jurisdiction in the matter of Cast Lead. But I think it’s a political hot potato. I’d love to see them put Israel on notice that henceforth their every move will be watched w. the understanding that future violations will definitely be accepted by the ICC.

      1. The decision to investigate will be up to the Pre-Trial Chamber. Under the terms of the Statute it cannot prejudice future investigations or prosecution by the Court.

        The arguments raised so far are somewhat nonsensical, i.e. that Palestine does not fulfill the criteria contained in the 1933 Montevideo Convention or the (undefined) term “State” in article 12(3) of the Rome Statute. Many, if not most State parties to that convention have accepted the legal personality of the State of Palestine “with all of the rights and duties determined by international law.” Under the express terms of that Convention, those determinations are irrevocable. There is no compromissory clause or dispute resolution regime that would permit a Court to overturn them.

        Many of the “Montevideo” countries are also State parties to the Rome Statute. It contains a safeguarding clause (Article 98) regarding any agreements the member states might conclude with the State of Palestine concerning immunity or extradition. It is highly unlikely that the term “State” in Article 98 has a different meaning than the same term in Article 12(3). http://untreaty.un.org/cod/icc/STATUTE/99_corr/cstatute.htm

        Another argument is that it is not the role of international courts, including the ICC, to undertake a unilateral decision about the matter of statehood. But a determination of the existence of statehood is a necessary preliminary to an investigation and prosecution of the crimes under the Court’s jurisdiction. For example, in the Bosnia genocide case, the ICJ had to determine State responsibility in accordance with Article IX of the Convention. It was necessary for the Court to first determine when States ceased to exist and when new ones came into existence in order to determine who had “effective control” over the militias which committed the acts.

        In similar fashion, the ICC will have jurisdiction over the crime of aggression. An “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” An individual cannot incur responsibility for this crime in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State.

  2. RE: “The statements of the respondent are problematic not only because they encourage defiance of the rulings of the court and lack of faith by society in the judicial system and the principle of the rule of law which obligates every citizen.” -the lone Israeli Palestinian judge

    ELOQUENTLY PUT ANOTHER WAY – Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States (1928):

    “In a government of law, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.”

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