Y Net News | 26Jan2009 | Yael Levy
It's a long road to Hague
What does it
take to prosecute Israeli officer for war crimes, can government's
legal backing help and which countries should IDF soldiers beware?
International law expert explains
Should Israeli officers and soldiers think twice before traveling
abroad? Prof. Natan Lerner, an international law expert at the
Interdisciplinary Center in Herzliya does not foresee a wave of
prosecution following the Israel Defense Forces' offensive
"We've exaggerated," he says in response to other legal experts'
opinions that there is room for concern.
Following the government's decision to provide legal backing to IDF
soldiers and commanders in the event of a wave of lawsuits worldwide
over Operation Cast Lead, Prof. Lerner explains to Ynet to what extent
Israeli troops should fear prosecutions and in which countries they
should be particularly watchful.
The first obstacle facing those who wish to prosecute IDF commanders or
soldiers in a foreign country is lack of jurisdiction.
fears today is that certain countries will exercise the 'universal
principle', according to which each country can launch legal
proceedings against a person without being required to prove a
connection to the place of occurrence or the potential plaintiffs and
to identify the crime's victims or executor," the expert explains.
He adds, however, that "not many countries try to do so, and in most of
them the court will exercise the principle only when discussing crimes
against humanity, genocide and war crimes.
"But in England, for example, it's very easy to set it in motion. Any
person can file a lawsuit, and the judge presented with the case
decides whether it's justified or not. This is what happened in the
Doron Almog case."
In 2005, Major-General Almog was forced to return to Israel from a year
of studies in Britain for fear of being arrested. The warrant for his
arrest was later canceled
by a British court, but the United Kingdom is believed to be the most
problematic country in this sense.
"Other countries require the approval of the attorney general, and it's
much more complicated," says Lerner.
Like in the Eichmann case
According to Prof. Lerner, the universality principle is usually used
only in cases of extremely severe crimes.
"All the lawsuits I've seen using this principle were based on very
severe crimes, essentially genocide – extreme cruelty like what took
place in the countries of Yugoslavia, in Rwanda or in Sierra Leone."
He adds, however, that in recent years people have attempted to apply
this principle to terror, human trafficking and drugs. "It's
developing," he says.
The State of Israel has also used the universality principle in cases
of Nazi criminals like Adolf Eichmann and John
Demjanjuk, as did other Western countries like
Spain and Belgium.
Following lawsuits filed in Belgium in the past against former Prime
Minister Ariel Sharon and the leader of Congo, it was determined that
heads of state are immune to prosecution, prompting Belgium to change
its legislation. Today, a person cannot be tried in Brussels if he is
not present in the country, and only if the crime is somehow linked to
As for the fresh cabinet decision, Lerner says that "the Israeli
government did what it should have done, but should realize that the
legal aid is much more ethical than practical. If an Israeli officer
did something wrong and is prosecuted in a country exercising the
universality principle, what will save him is his innocence or a
failure to apply the principle.
"However, we must remember that these are people who acted in the name
of the State, so the ethical act is also highly important."
UNRWA facility legitimate if fired on'
After overcoming the authority obstacle, Prof. Lerner
explains, the prosecution must still prove that the defendant violated
international law, for instance the Geneva Convention. This step, he
says, faces evidential difficulties.
"These are very complicated issues. In law-abiding states it's
impossible to hurl an accusation at someone. There is a fundamental
He explains that the prosecution must present unequivocal and direct
proof that the defendant executed the crime himself, in an active
He adds that "not only senior officers can be committed for trial, but
soldiers who exaggerated as well. It depends which point one can reach
in the chain of command in terms of proof."
In any event, he stresses, every case will be examined independently.
"If, for example, our forces were fired on from an UNRWA school before
it was attacked – the response is legitimate. Otherwise, it's against
the Geneva Convention's instructions and the forces may face
Another, less realistic, possibility is to try Israeli commanders and
soldiers at the International Criminal Court in the Hague, Lerner says.
"This is a different procedure, which requires a United Nations
Security Council resolution. It's very unlikely that this will happen
in this case," he concludes.