For the Criminal Court to work, the worst must come first - Alan M. Dershowitz

There are efforts now underway to try to bring Israel before the International Criminal Court (ICC) in The Hague on charges of alleged war crimes. Neither Israel nor the United States has signed on to this court, primarily out of fear that its power would be used against democracies that try their best to avoid war crimes, rather than against dictatorships and terrorist nations that routinely engage in them. This has certainly been the experience with many United Nations organizations, even including the International Court of Justice, which is largely a sham when it comes to Israel and other democracies under attack.

There has been high hope among some human rights experts that the ICC would be different for two reasons: First and foremost it is not a United Nations court. It was established by the Rome Statute, a treaty adopted in 1998 after years of negotiations, and is largely independent of the United Nations, though not completely so. Cases can be referred to it by the UN Security Council under Article 13(b) of the treaty. The second reason the ICC has encouraged optimism is that the person appointed as the court's Chief Prosecutor, Luis Moreno-Ocompo, has a sterling reputation for objective law enforcement and basic fairness.

The ICC has rightly opened up investigations of genocide in Darfur, Sudan. (It is now under pressure to suspend any prosecution of President Omar al-Bashir). It has not opened investigations with regard to Russia's alleged war crimes in Chechnya and Georgia, where thousands of innocent civilians were killed. Nor has it opened investigations with regard to Pakistan, Afghanistan, Sri Lanka, Zimbabwe, the Congo and other places where civilians are routinely targeted as part of military and terrorist campaigns. Nor -- to its credit -- has it opened an investigation of Great Britain and the United States, whose armed forces have inadvertently caused the deaths of thousands of civilians in Iraq and Afghanistan.

Were it now to open an investigation of Israel, ICC would be violating the cardinal principle that must govern all international prosecutions: namely, that the worst must be prosecuted first. It would also be violating its own rules which mandate that the International Criminal Court will not become a substitute for domestic courts. If there are processes within the State of Israel to consider allegations against the Israel Defense Forces (IDF), then those processes must be allowed to move forward unless Israel is "unwilling or unable genuinely to carry out the investigation or prosecution," according to the Rome Statute. There is no country in the world -- literally none -- that has a judicial system that is more open to charges against its own government. Not the United States, not Great Britain, and certainly not Russia, Zimbabwe or Pakistan! Moreover, Israel has a completely open and very critical free press, which is constantly exposing Israeli imperfections and editorializing against them.

Third, the IDF has legal teams that must approve of every military action taken by the armed forces. There are obviously close questions, about which reasonable experts can disagree, but there is no country in the world that goes to greater lengths in its efforts to conform its military actions to international law. Listen to retired British Colonel Richard Kemp - a military expert who, based on his experience, concluded that there has been "no time in the history of warfare when an Army has made more efforts to reduce civilian casualties...than [the Israel Defense Forces in Gaza].

"Despite deliberate efforts by Hamas to maximize Palestinian civilian casualties by firing rockets from behind human shields, Israel has succeeded in its efforts to minimize civilian casualties. Hamas has a policy of exaggerating civilian casualties, both by inflating the total number of people killed and by reducing the number of its combatants included in that total. A recent study conducted by the Italian Newspaper Corriere della Sera disputed Hamas figures and put the total number of Palestinians killed, including Hamas terrorists, at less than 600. And this week, the UN withdrew claims made during the war that Israel had shelled a school run in Gaza by the UN Relief and Works Agency.

The same Rome Statute that established the ICC also describes many of Hamas's actions during the war, such as attacking Israeli civilians and using Palestinian civilians as human shields, as war crimes. Any fair investigation by the ICC would have to conclude that Israel's efforts to prevent civilian casualties, while seeking to protect its civilians from Hamas war crimes, rank it at the very top of nations in compliance with the rule of law. It would also conclude that efforts to brand Israel's actions as war crimes are crassly political, based on ideology and not law. If anything, Hamas belongs in the dock, not Israel.

The prosecutor of the ICC must resist pressures -- from the United Nations, from radical ideologues and from other biased sources -- to apply a double standard to Israel by singling the Jewish state out from among law-abiding democracies for a war crimes investigation. No international court can retain its credibility if it inverts the principle of "the worst first" and instead goes after one of the best as one its first.

Author Biography:
Alan M. Dershowitz is the Felix Frankfurter professor of law at Harvard Law School and author of The Case for Israel.

Peres: I was wrong about disengagement - JPost.com

Feb 18, 2009 13:00 | Updated Feb 19, 2009 1:07
By ETGAR LEFKOVITS

President Shimon Peres said Wednesday that he erred in supporting Israel's unilateral withdrawal from the Gaza Strip in 2005.

"What will happen in the future, we shall not repeat the wrongs we did in leaving Gaza," Peres said in a question and answer session with a group of American Jewish leaders. "It should have been done otherwise. I was for leaving Gaza. I feel myself as one of the persons mistaken." (read full article)

The Path of Realism or the Path of Failure

by Elliott Abrams
03/02/2009, Volume 014, Issue 23

Repetition of failed experiments is not a sign of mental health or a path to scientific progress, nor is it a formula for Israeli-Palestinian peace. Yet that is the road we may again take, unless the lessons of the Bush years are learned.

As an official of the Bush administration I made three dozen visits to the Middle East in the last eight years, and in February, as Israelis voted, I made my first visit as a private citizen in nearly a decade. After lengthy discussions with Israelis and Palestinians, it seems to me obvious that it is time to face certain facts, facts that President Bush actually saw clearly during his first term: We are not on the verge of Israeli-Palestinian peace; a Palestinian state cannot come into being in the near future; and the focus should be on building the institutions that will allow for real Palestinian progress in the medium or longer term. (read full article)

Freedom of Speech: Wilders, Orwell, and the “Koran Ban”

February 21st, 2009 by Andrew Bostom |
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Dutch Parliamentarian Geert Wilders will be in the United States this week, arriving direct from Italy where he received the Oriana Fallaci Free Speech Award.

During his acceptance speech, Wilders implored the audience in Rome to protect our most fundamental Western freedom, freedom of speech. Wilders expressed this commitment—contra the willful media distortions of his views—in this pellucid formulation: (click here to read full article)

A Chamberlain Moment - FrontPageMagazine.com

By Stephen Brown
Friday, February 13, 2009

It was a watershed moment of capitulation.

On Thursday, February 12, visiting Dutch politician Geert Wilders was humiliatingly bundled back on to a plane to his native Holland shortly after arriving in London. Wilders had been invited to show his controversial, 17-minute documentary film, Fitna, in Britain’s House of Lords but was warned in a letter from the British Home Office last Tuesday he would be denied entry to the country. As reasons for his being declared persona non grata, Wilders was told in the letter he would “threaten community harmony and therefore public security.” The directive never stated, however, that the statements Wilders made in Fitna are false or misleading in any way. (read full article)

Column One: Enter the Netanyahu gov't - JPost

Feb 12, 2009 20:27 | Updated Feb 13, 2009 17:04
By CAROLINE GLICK

Who won the election on Tuesday night and what do the results tell us about the composition of the next government?

Israeli voters decided two things on Tuesday. First, they decided that they want the political right to lead the country. Second, leftist voters decided that they want to be represented by a big party, so they abandoned Labor and Meretz and put their eggs in Kadima's basket.

These two decisions - one general and one sectoral - are what brought about the anomalous situation where the party with the most Knesset seats is incapable of forming the next governing coalition. Despite Kadima leader Tzipi Livni's stunning electoral achievement, she cannot form a coalition. Binyamin Netanyahu will be Israel's next prime minister. The Likud will form the next coalition.(click here to read full article)

Mr. Obama, Speak First at TouroFebruary 8th, 2009 by Andrew Bostom

Touro Synagogue This morning at The American Thinker, I urge President Obama to acknowledge the contemporary plight of Jews beset by resurgent jihadism, and traditional Islamic Jew hatred—before he makes his widely ballyhooed conciliatory speech in a Muslim capital. And=2 0I have the ideal venue for Mr. Obama’s address to Jews—an iconic American symbol of freedom of conscience, and freedom from persecution, which President Kennedy characterized thusly, on September 15, 1963:

It [Touro] is not only the oldest Synagogue in America but also one of the oldest symbols of liberty. No better tradition exists than the history of Touro Synagogue’s great contribution to the goals of freedom and justice for all.
http://www.americanthinker.com/printpage/?url=http://www.americanthinker.com/2009/02/mr_obama_speak_first_at_touro.html February 08, 2009

Mr. Obama, Speak First at Touro
By Andrew G. Bostom
Barack Obama's recent inauguration as our 44th President demonstrates the promise and progress of the unique, livin g American experiment in governance begun when George Washington delivered his inaugural address on April 30, 1789.

Mr. Obama's inaugural rhetoric, and symbolic granting of his first post-inauguration interview to the Saudi-owned Al-Arabiyya network, emphasized the importance of the Muslim community in the United States, and a "restored" and "respectful" relationship between America and the global Muslim umma (community). The President felt compelled to tell Hisham Melham of Al Arabiyya that it was his administration's solemn duty, "...to communicate the fact that the United States has a stake in the well-being of the Muslim world, that the language we use has to be a language of respect. I have Muslim members of my family. I have lived in Muslim countries." Obama reiterated the point. "My job to the Muslim world is to communicate that the Americans are not your enemy. We sometimes make mistakes. We have not been perfect."

As if to underscore the primacy of this outreach effort to the Islamic world, Obama characterized America itself as a country of "Muslims, Christians, Jews" -- having in his earlier inaugural address -- disregarding actual US demography (i.e., recent Pew Data indicating the number of US Muslims are half, or less, the number of US Jews) -- only accorded Muslims second position, after American Christians, but before American Jews, Hindus, and others.
While several commentators, particularly Charles Krauthammer have noted how Mr. Obama's self-flagellating apologetics distort and sully the actual historical record of US actions vis a vis the Muslim world over the past three decades, I was struck by another alarming incongruity: the complete absence of any comparably expressed concerns by the new President for a much more beleaguered and vulnerable people, worldwide -- the Jews.

This unsavory rhetorical omission will almost certainly be compounded by one of Mr. Obama's looming actions, his now much anticipated (since the December 10, 2008 Chicago Tribune story, "Which Muslim capital will Barack Obama choose?" ) delivery of a "major speech" in an Islamic capital aimed, yet again, at "restoration" of US-Muslim relations.
On the one hand, the fact that Cairo, Egypt is being touted as a potential location for this conciliatory address highlights Mr. Obama's willful blindness to the pandemic of jihadism, intimately conjoined to annihilationist Islamic Jew-hatred, afflicting Muslim communities globally, including those within Europe, Canada, and the United States. Yet Cairo is also a very appropriate potential venue for Mr. Obama's pending speech. The capital of Egypt, the world's most populous Arab Muslim nation, Cairo's 1000 year old Al Azhar University (and its mosque) represents the pinnacle of Islamic religious education. Egypt also receives nearly $2 billion US aid per annum. Such American largesse, one could reasonably argue, should provide Mr. Obama persuasive leverage over our erstwhile Muslim ally -- for example, demanding, under threat of withdrawing this aid, that Egypt actively seek out and destroy the smuggling tunnels through which flow rockets and other munitions from the Sinai peninsula into Gaza, to be fired by Hamas (and its allied) jihadists upon civilian population centers in southern Israel.

But apart from diplomatic threats -- which can be made privately, Mr. Obama should demonstrate courageous moral leadership in his public address, demanding an end to the declarations of Jew-hatred, and even calls for jihad genocide against the Jews, issued regularly by Egyptian clerics, including authoritative Islamic religious leaders at the renowned Al Azhar University.
Preaching this sacralized hatred is endemic in Egypt. A front page New York Times story published January 10, 2009, included extracts from the Friday sermon (of 1/9/09) at Al Azhar mosque pronounced by Egyptian-government appointed cleric Sheik Eid Abdel Hamid Youssef. Referencing well-established Antisemitic motifs from the Koran (citations provided, below), Sheikh Youssef intoned,

Muslim brothers, God has inflicted the Muslim nation with a people whom God has become angry at [Koran

Israel, Gaza and International Law

Alan M. Dershowitz - Jan 27, 2009
The Jerusalem Post

The cease fire on the ground has not ended the war of words against Israel. Indeed, efforts to charge Israel with war crimes and other violations of international law are escalating. The time has come, therefore, for a common sense legal and moral analysis of the events in Gaza and southern Israel.

Let us begin with an argument that is frequently made against Israel. It is pointed out by supporters of Hamas that the official governing authority of Gaza is Hamas, because Hamas won the election. To the extent this is true, however, it is an argument in justification of Israel's actions. If Hamas is the official government of Gaza and if Hamas ordered the firing of more of than 6,000 deadly rockets at Israeli civilians, then it follows that the government of Gaza has engaged in an armed attack against Israel under Article 51 of the United Nations Charter. In other words, the government of Gaza has declared war against the government and people of Israel. This should not be surprising, since the Hamas Charter calls for the military destruction of Israel.

Under international law, and under the UN Charter, Israel has the right to respond to these thousands of armed attacks. Indeed every rocket fired into Israel is an armed attack and Israel is entitled to take whatever military actions is deemed reasonably necessary to stop these armed attacks from occurring. If Hamas were merely a small terrorist gang operating from Gaza but without the approval of the government, it would be more difficult to justify a military response that destroyed government buildings and targeted police. Israeli military actions resulted in civilians dying. Precisely how many is hotly disputed: a study conducted by the Italian Newspaper Corriere Del Sera disputed Hamas figures and put the total number of Palestinians killed, including Hamas terrorists, at less than 600. The sad reality is that people who voted for and actively support a terrorist government bear more responsibility for the actions of their government than they would for a gang operating against the wishes of the government. Surely the voters in Germany who elected Hitler bore more responsibility for Nazi atrocities than the people of Iraq did for the atrocities of the dictator Saddam Hussein, who was never fairly elected.

Israel clearly had to right to take whatever military action was necessary to stop the Hamas government from playing Russian roulette with the lives of its children. So far, no problem under international law. But here's the rub. International law also requires that Israel's actions must not be disproportional to its military aims and it also prohibits the willful targeting of Palestinian civilians.

To make things even more complicated, international law prohibits the use of human shields to protect combatants from lawful military actions taken by those against whom it has waged an armed attack. And there can be absolutely no doubt that it is the official policy of Hamas to use children, women, schools, mosques, hospitals and other civilian institutions and areas as shields to protect its combatants from legitimate Israeli military actions. In addition to the video evidence showing Hamas fighters deliberately placing their rockets adjacent to UN schools, mosques and to residential areas, there are the express statements of officially-elected Hamas leaders both before and during the fighting. Consider the following public statement delivered by a Hamas legislator, transmitted on Hamas television and widely circulated by video. The legislator's name is Fathi Hammad and here is what he said:

[The enemies of Allah] do not know that the Palestinian people has developed its [methods] of death and death-seeking. For the Palestinian people, death has become an industry, at which women excel, and so do all the people living on this land. The elderly excel at this, and so do the mujahideen and the children. This is why they have formed human shields of the women, the children, the elderly, and the mujahideen, in order to challenge the Zionist bombing machine. It is as if they were saying to the Zionist enemy: 'We desire death like you desire life.'"

There are videos available for all to watch in which Al-Aqsa TV news broadcasts a report showing a crowd of civilians gathered on the roof of a home that was a military target. Indeed those who arranged for these human shields to protect that military target do not shy away from actually using the term "human shield." On another occasion, Hamas leader, appearing on television demands that "the people of Palestine should gather as one to protect the Jihad warriors' house," calling for these civilians to "die as warriors."

So here is the legal dilemma faced by democracies such as Israel. They have every right under international law to take whatever military actions are necessary to stop the rockets randomly fired at their civilians. Their enemy uses human shields to prevent Israel from destroying the rockets without also killing Palestinian civilians. All the law requires under these circumstances is that Israel take reasonable precaution to minimize enemy civilian deaths in order to prevent the murder of its own civilians. Has Israel taken such precautions? Let retired British colonel Richard Kemp answer that question as he did in a recent BBC interview. He said that there has been "no time in the history of warfare when an army has made more efforts to reduce civilian casualties and the deaths of innocent people than the [Israel Defense forces did in Gaza.]" To accuse Israel of "war crimes" under these circumstances is to distort international law and expose the bias of the accuser.