Y Net News | 26Jan2009 | Yael Levy

Legalist: 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 in Gaza.

"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.
"What Israel 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 Belgium.
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."

'Firing at 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 evidential difficulty."
He explains that the prosecution must present unequivocal and direct proof that the defendant executed the crime himself, in an active manner.
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 prosecution."

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.