Put Hamas, Not Israel, on Trial

By Alan M. Dershowitz

Originally published Feb. 15
on Aish.com Web site:

For the Criminal Court to work, the worst must come first.

There are efforts now under way 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.