Call for War Crimes Trials for Israeli Soldiers

[Pangloss]

Apparently groups like Amnesty International and even some governments are calling for Israeli soldiers to be prosecuted for war crimes. Not once amidst all of this hullabaloo does anyone even remotely suggest the same treatment for Hamas terrorists.

 

Now I am not one to ever suggest that two wrongs make a right. Certainly if any member of the Israeli military deliberately committed some atrocity, then they should absolutely be prosecuted for it. But we all know what this is really about, don't we? This is about Israeli policy. Specifically the policies of dropping bombs on civilian areas that Hamas terrorists were hiding in, and/or the use of white phosphorous. Now how is THAT the fault of the soldiers who carried out their orders?

 

And by the way, isn't this just further confirmation of why it would be a bad idea to join the International Criminal Court ourselves? Every time the world uses that stage to make political statements, it undermines the credibility of the very idea of impartial international war crimes trials.

 

Some background:

http://www.latimes.com/news/nationworld/world/la-fg-gaza26-2009jan26,0,2328336.story

 

Condemning what he called the "moral acrobatics" of critics he alleged are "trying to turn the attacker into the attacked and vice versa," Olmert said a specialized government team, headed by Justice Minister Daniel Friedmann, would coordinate a legal defense if necessary.

 

Global activists and some governments have called for an inquiry into charges that Israeli soldiers employed disproportionate force and used white phosphorus munitions in dense residential areas.

[iNow]

I'm not sure, Pangloss. There's a real chance that this is not political, and that Israel has been going too far for too long in too many ways. Even on 60 Minutes tonight was a story that really didn't do wonders to help Israels image (talking about West Bank settlers and how the Palestinians are being treated).

 

I can support certain actions. I can condemn others. I guess I'll need to wait and see what the charges are and see if those charges are warranted before I judge this to be mere public theatre based on ideologies.

[DJBruce]

I agree with Pangloss, in any war there are going to be civilian casualties I do not feel that you can prosecute an army from attempting to fight a war because there are civilian casualties especially when the enemy is using civilians as human shields. Why didn't Amnesty International call for war tribunals for Hamas when they fired rockets randomly into cities hoping to cause panic and casualties in a civilian population; it seems to be a double standard to me.

[Pangloss]

There's a real chance that this is not political, and that Israel has been going too far for too long in too many ways. Even on 60 Minutes tonight was a story that really didn't do wonders to help Israels image (talking about West Bank settlers and how the Palestinians are being treated).

 

I can support certain actions. I can condemn others. I guess I'll need to wait and see what the charges are and see if those charges are warranted before I judge this to be mere public theatre based on ideologies.

 

Heh, it actually sounds like you just said "it's not about politics... it's about politics"! But if I'm reading you right (and please correct me if I'm wrong) I think what you're suggesting is that it's a matter of attacking Israel's strategic/tactical choices in the Gaza conflict, rather than a predisposition to judge Israel in the wrong. Yes?

 

If that's correct then I actually agree with that, having pondered your point and given the subject in general some more thought. I may not agree with their position but I see the point -- it's certainly the sort of thing that international courts (both of law and of public opinion) can and should look at (though I find it hypocritical when they don't cast the same jaundiced eye towards Hamas -- but again, two wrongs don't make a right).

 

But what I was actually trying to focus on here is fairness in prosecuting the men and women who had to execute that policy. While one could say that they should question their orders, etc, the fact remains that if the "atrocity" in question was a subtle and debatable point, the sort of thing academics and lawyers will debate for years, then the prosecution of the soldiers following those orders on a battlefield seems wrong to me.

 

Put another way, unless it can be demonstrated that the individual soldier being prosecuted SHOULD have been able to make a distinction between a valid order and the one he was given, in a clear and unassailable manner, and had the opportunity to do so, then he cannot and should not be prosecuted.

 

Without that distinction, such a prosecution would constitute an act of political retaliation, not an act of justice. Wouldn't you agree?

[iNow]

But if I'm reading you right (and please correct me if I'm wrong) I think what you're suggesting is that it's a matter of attacking Israel's strategic/tactical choices in the Gaza conflict, rather than a predisposition to judge Israel in the wrong. Yes?

 

If that's correct then I actually agree with that, having pondered your point and given the subject in general some more thought.

Yes, I think you've nailed it. We should visit these "same pages" more often.

 

 

But what I was actually trying to focus on here is fairness in prosecuting the men and women who had to execute that policy.

That's an interesting question. Some soldiers likely acted beyond the scope of their orders, and perhaps failed to exercise "good judgement" or follow some sort of "prime directive." In those cases, then abso-friggin-lutely they should be prosecuted. However, if they were "just following orders," then the one giving the order should be the focus of the prosecution. I'm pretty sure most would agree on this logic. It will be interesting to see where the gray areas live and parse through the details on each case as they're reported upon.

[Pangloss]

Exactly. So here's the problem -- if what you just said is true, that most would agree with the logic that the guys on the ground shouldn't have to pay over the larger socio/political/ideological questions being raised here, then it actually brings it right back to the original question of whether this is really about politics.

 

In my opinion there are some objectively valid reasons to be at least asking whether this is a malicious, retributive, ideological, or otherwise political move. It isn't as if a routine inspection of military records suddenly turned up a big surprise that was brought forward only reluctantly by some JAG lawyer who was saddened by what he found -- the timing, the parties involved, and the lack of any mention of Hamas prosecutions all suggest a political motivation. That may be circumstantial evidence, but it's not even denied -- they brag about it. Mr. Hamas Spokesman says, "Look over here, we've got Amnesty International backing us up! And never mind the terrorist behind the curtain."

 

And if my concerns are valid then this also points directly to why the US doesn't want to (and shouldn't) join the ICC.

[iNow]

There is a clear legitimacy to your concern. I hadn't considered it that way, but it makes good sense. The only thing I caution you on is that you seem to suggest that any move can ever be done in a vacuum... in the absence of politics. I think that this is how it would work ideally, but that we don't live in an ideal reality (in other words, politics are ALWAYS involved).

 

As an idea to avoid the "never mind the terrorist behind the curtain" issue, it sure would be nice if amnesty would follow parallel suits against Hamas.

 

 

To the US joining the ICC... I'm thinking it may well be time for the US to sacrifice a shred of sovereignty and gain the benefit of being closer to the rest of our global community. That's a longer and separate discussion, however, and I know many of my friends here at SFN would vehemently disagree with such a suggestion.

[ecoli]

To the US joining the ICC... I'm thinking it may well be time for the US to sacrifice a shred of sovereignty and gain the benefit of being closer to the rest of our global community. That's a longer and separate discussion, however, and I know many of my friends here at SFN would vehemently disagree with such a suggestion.

yup, and its not because international standards are inherently bad either... We have a clear constitutional statement about how things like habeas corpus, search warrants, etc. need to be handled. I don't think international law respects that.

 

Plus there's the whole enforcement mechanism (or lack thereof) Why should Israel give up its own soldiers to stand trial in some potentially politically motivated court? We would all like to see the guilty punished (if indeed this was going on) but sovereign law should be respected.

 

Though, interestingly, Israel is a country still without a constitution.

[Pangloss]

The only thing I caution you on is that you seem to suggest that any move can ever be done in a vacuum... in the absence of politics. I think that this is how it would work ideally, but that we don't live in an ideal reality (in other words, politics are ALWAYS involved).

 

Yes, quite true. And I have great admiration for those who have to produce justice in politically charged circumstances, and no reason at all to think that in a case of American soldiers such judges could only be Americans.

[Severian]

This is about Israeli policy. Specifically the policies of dropping bombs on civilian areas that Hamas terrorists were hiding in, and/or the use of white phosphorous. Now how is THAT the fault of the soldiers who carried out their orders?

 

Obeying an illegal order is itself illegal. Ignorance is no defense for breaking the law, and neither should lack of a backbone be.

[iNow]

TBH, what worries me a bit more is that some of these cases had nothing to do with soldiers missing backbones, and a lot to do with soldiers harboring a deep religiously reinforced hatred and desire to ethnic cleanse. I'm choosing extreme language to make a point, but this was also mentioned on the 60 Minutes special last night which I referenced above. They spoke of soldiers coming in to clear Israeli settlers from the West Bank, and the settlers said, "The soldiers will not obey those orders and will mutiny."

 

 

See video below "Is Peace Out Of Reach?"

 

http://www.cbsnews.com/video/watch/?id=4752349n

[ecoli]

Obeying an illegal order is itself illegal. Ignorance is no defense for breaking the law, and neither should lack of a backbone be.

According to who's laws?

[Pangloss]

Obeying an illegal order is itself illegal. Ignorance is no defense for breaking the law, and neither should lack of a backbone be.

 

Well that principle (while IMO a poorly reasoned oversimplification) may be applicable, but note that it doesn't help the prosecution's case a whole lot. It actually puts more pressure on the prosecution than the defense, assuming the goal if the tribunal is actually justice rather than retribution.

 

For example, in the case of an order to drop a bomb on a populated area, you'd have to prove that the dropping of that bomb would be in violation of the law (whatever law ended up being applied). Presumably you'd have to prove that the bomb wouldn't hit its target and that it would kill or injure civilians. And both the order-giver and the order-implementer would have to have access to this information.

 

Also, you can't decide after the fact what's legal and what's illegal. If it's a judgment call, then they obviously cannot make soldiers scapegoats.

 

 

some of these cases had nothing to do with soldiers missing backbones, and a lot to do with soldiers harboring a deep religiously reinforced hatred and desire to ethnic cleanse

 

I haven't seen evidence of this but if that were true then it would be wrong, and subject to prosecution, IMO.

 

Palestinian testimony requires objective corroboration on this subject, btw.

 

(Like that bit on 60 Minutes -- that piece was irrelevant until it showed the two Israeli soldiers hiding in the staircase.)

[padren]

The problem I see with Israel being charged with war crimes (and in fact, pretty much anything the ICC can do other than in extreme cases) is the fact any law selectively enforced cannot be just in it's execution.

 

Justice and Equality have to go hand in hand, or it doesn't exist, period.

 

I can see the ICC having a useful purpose in providing agreeable standards for nations to deal with extreme cases, such as the equivalent to the Nuremberg Trials... but to selectively pick at any possible deed that could be deemed a war crime either has to be equally called against all who commit them on that scale, or it's just a mob making examples out of whomever they see fit.

 

 

I will say though - the article mentioned says there have been calls for the ICC to get involved, but I didn't see anywhere in that article that the ICC has gotten involved - is there any update on this?

 

If the ICC does investigate this I would desperately hope they see the need to stop first, establish standards with the international community on when issues on this scale should(must) be referred to them, and then proceed forward with that mandate regarding Israel and any others that fall within it.

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Consecutive posts merged

Obeying an illegal order is itself illegal. Ignorance is no defense for breaking the law, and neither should lack of a backbone be.

 

There is a pretty wide range of what is considered an "Illegal Order" though. Being ordered to decapitate a captive's child to extract information would be pretty black and white.

 

However, being ordered to fire on a gathering of protesters could get gray in a hurry if:

1) A soldier is told they have to be ready to fire if the crowd begins firing.

2) Sporadic fire is occurring, but the soldier holds for the order.

3) Soldier is ordered to open fire, (assumed to be in response to being fired on)

4) It is later determined the officer in charge gave that order while knowing the crowd was not actually responsible for firing on the soldiers.

 

Technically the soldier fired on a non-violent gathering of protesters - is he guilty of that crime? Does a soldier have to personally verify the conditions on the ground, or do we require him to rely on the intel he's given?

[bascule]

My concern over the use of white phosphorus in areas populated by civilians remains

[Pangloss]

Fair enough -- it remains. I meant to acknowledge your point earlier, so let me amend my error now. The inquiry appears to be legitimate.

 

But I'm not at all convinced that this whole "white phosphorus" business isn't just an overreaction to normal smoke grenades or whatnot -- special interest groups trying to find something extra evil to pin on the group that caused a surge in violence.

[john5746]

My concern over the use of white phosphorus in areas populated by civilians remains

 

My concern that all countries should either grow some balls and demand that Hamas stand down and quit the violence or let Israel handle it remains.

[Mr Skeptic]

I think that the reason no one is calling for Hamas to be tried in court is because they are hiding and no one knows which of them is responsible for what (in general). Hamas seems to be the kind of thing that is best dealt with intel and bullets, not courts and lawyers. Israel on the other hand is not hiding much and innocents inevitably get hurt, and that is the perfect recipe for lawyers to get involved.

 

I don't think that the ICC will be holding any trials, as their reputation is bad enough as it is without holding one-sided trials against a country which probably wouldn't send their soldiers to the court anyways.

[Pangloss]

I think it's even simpler than that. The world hasn't yet learned that some things are more important than the latest body count.

[npts2020]

The problem a soldier faces in disobeying an illegal order is that often it is called mutiny and if everyone else seems to be doing it, not going along is exceedingly difficult.

[JohnB]

The world hasn't yet learned that some things are more important than the latest body count.

The world did learn it.

 

Some people have forgotten that there is a difference between intentionally targetting civillians and civillians being caught in a war zone.

 

Jeez, if WW2 had been fought under the rules some people seem to think the Israelis should be using, it would still be going. Air attacks and artillery flattened entire towns and cities.

[Pangloss]

Yup, now we see one picture of an overturned stroller and it's a race to see how fast we can appease the nearest religious zealot or half-baked dictator.

 

This is the consequence of a world that is informed and educated by the axiom "if it bleeds, it leads".

[bascule]

My concern that all countries should either grow some balls and demand that Hamas stand down and quit the violence or let Israel handle it remains.

 

So what Hamas has done is so bad that Israel should be given carte blanche to do whatever they want to the Palestinian people?

 

When did the Palestinians stop deserving human rights?

 

Are you cool with Israel opening fire on the UN and the Red Cross?

[Mr Skeptic]

Are you cool with Israel opening fire on the UN and the Red Cross?

 

Yes, as cool as I am with 31% of Israeli soldiers casualties being from Israeli fire.

[Pangloss]

rofl