A view of the remains of structures hit by Israeli strikes in the Gaza Strip, Aug. 6, 2014. Credit: UN Photo/Shareef Sarhan

By Thalif Deen
UNITED NATIONS, Aug 22 2014 (IPS)

Secretary-General Ban Ki-moon, in a rare moment of political candour, lashed out at Israel last week, questioning its “respect for the principles of distinction and proportionality” – particularly in the context of the civilian death toll that kept rising to over 2,000 Palestinians, with more than 75 percent civilians.

“I expect accountability for the innocent lives lost and the damage incurred,” he warned."The impunity of Israel and the United States are a license for every country to violate humanitarian and human rights laws that are fundamental to civilisation." -- Michael Ratner of CCR

That “accountability” has to come only before the International Criminal Court (ICC) in The Hague where both Israelis and Hamas militants are liable for war crimes – even though only two civilians died in the Hamas rocket attacks against Israel. But the chances of either one of the warring parties going before the ICC are remote.

Asked about a possible ICC intervention, John Quigley, professor emeritus at Ohio State University, told IPS one should not be asking whether Israel can be brought before the ICC.

“The ICC does nothing against states. It prosecutes individuals. So the question is whether Israelis could be brought before the ICC,” he noted.

One way is a Security Council resolution, said Quigley, author of ‘The Statehood of Palestine: International Law in the Middle East Conflict.’

But according to most U.N. diplomats, any such resolution will be vetoed either by one, or all three Western nations – the United States, Britain and France – who traditionally throw their protective arm around Israel, right or wrong.

Quigley said, “If a state is a party to the Rome Statute, then its nationals can be prosecuted in the ICC.”

Israel is not a party to the Rome Statute that created the ICC.

“However, the ICC has jurisdiction based on the territory where a crime is committed. So if an Israeli commits a crime in a state that is a party, the ICC can prosecute that Israeli,” said Quigley, author of ‘Genocide in Cambodia and The Ruses for the War.’

Beyond that, said Quigley, if a state is not a party but files a declaration conferring jurisdiction on crimes within its territory, then anyone who commits a crime in the territory of that state may be prosecuted.

That is the basis on which the ICC has jurisdiction over Israelis who commit crimes in the territory of Palestine, because Palestine filed such a declaration in 2009, he added.

The obstacle is that the ICC prosecutor, Fatou Bensouda, says the Palestine declaration was not valid because Palestine was not a state in 2009.

Michael Ratner, president emeritus of the New York-based Centre for Constitutional Rights, told IPS there is a desperate need to hold Israel, its leadership and military officials accountable for the international crimes Israel is committing today in Gaza, and for the crimes it has committed in the past in Gaza, the West Bank and Israel itself.

“Along with Israeli officials, the aiders of abettors of this ongoing criminal conduct should be in the dock as well,” Ratner said.

This, he said, would include especially officials of the U.S. and other countries who, knowing that Israel is committing war crimes and crimes against humanity, continue to give it the means for doing so, said Ratner, president of the Berlin-based European Centre for Constitutional and Human Rights.

A story in the London Guardian last week said the ICC was under Western pressure not to open a Gaza war crimes case.

Julian Borger, the Guardian’s diplomatic editor, wrote that in recent days, a potential ICC investigation into the actions of both the Israel Defence Forces (IDF) and Hamas in Gaza has become a fraught political battlefield and a key negotiating issue at ceasefire talks in Cairo.

“But the question of whether the ICC could or should mount an investigation has also divided the Hague-based court itself,” he wrote.

An ICC investigation could have a far-reaching impact, he said, pointing out it would not just examine alleged war crimes by the Israeli military, Hamas and other Islamist militants, but also address the issue of Israeli settlements in the Palestinian territories, for which the Israeli leadership would be responsible.

In an exchange of letters in the last few days, Bolger wrote, lawyers for the Palestinians have insisted that Bensouda has all the legal authority she needs to launch an investigation, based on a Palestinian request in 2009. “However, Bensouda is insisting on a new Palestinian declaration, which would require achieving elusive consensus among political factions such as Hamas, who would face scrutiny themselves alongside the Israeli government.”

Ratner told IPS the U.N. High Commissioner for Human Rights, Navi Pillay, in referring Israel to the U.N. Human Rights Council, said Israel was in deliberate defiance of international law.

“While she also referred Hamas for indiscriminate firing of rockets, that violation pales compared to the massacre Israel has carried out,” Ratner added.

Her condemnation also was aimed at the United States for providing the weaponry Israel is employing in its assault on Gaza.

“The High Commissioner is right: Israel is deliberately violating the laws of war and has boasted of it,” he said.

After the second war in Lebanon in 2006 in which Israel flattened the Dahiya civilian neighbourhood of Beirut, an Israeli general said Israel will use disproportionate force against any village that fires upon Israel, “causing great damage and destruction.”

Ratner said by failing to hold Israel accountable in large part because it is protected by the United States, it is making a mockery of the Geneva Conventions and international law.

“The impunity of Israel and the United States are a license for every country to violate humanitarian and human rights laws that are fundamental to civilisation,” he said.

Ratner argued that the United Sates is too powerful and the chances of an ICC investigation, much less a prosecution, are remote. Even were the court by some miracle to launch an investigation, it would never, because of U.S. pressure, result in a prosecution. But this does not mean Palestinians and their allies should stop trying, said Ratner.

“Every means to expose and hold Israel accountable and demonstrate the bias of our international system is important,” he added. “The effort is clearly terrifying Israel because Israel knows the criminality it is engaged in.”

So, if the ICC is not really a means to hold Israel and the U.S. accountable, then efforts should be doubled to hold Israeli and U.S. officials accountable through universal jurisdiction in every national court of every state, he noted.

Many countries have jurisdiction over war crimes and crimes against humanity no matter where committed and even if the perpetrator is not in the country.

“The goal is to make Israel the pariah state it ought to be for committing these crimes, to make its officials unable to move outside the country and to ultimately send a message: Enough! It is saddening at this moment to see horrendous crimes committed hourly and watch the governments of many states stand by or enable,” he added.

“Our hope to hold Israel accountable should be in the outpouring of opposition to these crimes by citizens throughout the world. Ultimately, the courts will need to act,” declared Ratner.

Edited by: Kitty Stapp

The writer can be contacted at thalifdeen@aol.com

The United Nations, which has remained deadlocked over Syria, is in danger of being craftily exploited to justify the impending air strike on Damascus.

The threat of double vetoes by Russia and China against an attack on Syria has shifted the focus to the U.N. team of inspectors whose report on the chemical weapons attack may be released either later this week or next week."The claim will be that the U.N. is involved and somehow that means it's a legal attack." -- Michael Ratner of the Centre for Constitutional Rights

But the conclusions of the report are predictable – within the team’s limited mandate, as laid out by Secretary-General Ban Ki-moon. The team is expected to only confirm the use of chemical weapons in Syria and leave unanswered the more important question of who used those weapons.

The Syrian government and rebel forces are blaming each other, with no positive proof on either side.

But the administration of President Barack Obama has repeatedly said the U.N. evaluation is “irrelevant” – and it knows more about the chemical weapons attack than the United Nations does and hopes to.

Still, European governments, and particularly France, have said they would not endorse a military strike until the U.N. report is released. French President Francois Hollande was quoted as saying last week his government would not act militarily before the U.N. inspectors presented their findings on the Aug. 12 attack in Syria.

According to one published report, the U.N. findings “would enable European governments to tell their constituents that there has been U.N. involvement before military action, and it would not appear to tie the Americans’ hands.”

Michael Ratner, president emeritus of the New York-based Centre for Constitutional Rights, told IPS many of those governments prefer to support the United States and will use the “fig leaf of the U.N. inspections” and its conclusion – assuming it states chemical weapons are used – to give that support.

“The claim will be that the U.N. is involved and somehow that means it’s a legal attack. Nothing could be further from the truth or law,” he said.

Without Security Council approval, an attack violates the U.N. Charter and is utterly lawless.

“Let’s hope for once that governments, including my own, listen to people they purportedly represent. [That] would be a major breakthrough in the struggle for a more democratic world,” said Ratner, who is also president of the Berlin-based European Centre for Constitutional and Human Rights.

He said most of Europe, particularly its population, like that of the United States is reluctant or opposed to bombing of Syria.

Meanwhile, reports surfaced Monday that Russia, backing a demand from the United States, was urging Syria to give up its chemical weapons and put them under international control and then destroy them.

Such a move could also possibly prevent a U.S. military attack on Syria.

“We have given our proposal to Syria’s Foreign Minister Walid al-Moallem and are counting on a fast and, I hope, positive response,” Russian Foreign Minister Sergey Lavrov told reporters.

Asked for his comments, U.N. Secretary-General Ban Ki-moon told reporters Monday, “I have already been considering certain proposals that I could make to the Security Council when I present the investigation team’s report.

“I am considering urging the Security Council to demand the immediate transfer of Syria’s chemical weapons and chemical precursor stocks to places inside Syria where they can be safely stored and destroyed.

“And I urge again [that] Syria should become party to the OPCW [Organisation for the Prohibition of Chemical Weapons]”, which bans the production, use and distribution of chemical weapons, he added.

Pressed about a timeline for such a transfer, Ban said if and when Syria agrees to the proposal, “I am sure that the international community will [take] very swift action to make sure these chemical weapons stocks will be stored safely and will be destroyed. I do not have any doubt and worry about that.”

But first and foremost, he noted, Syria must agree positively to this.

Asked about the punishment for the use of chemical weapons, either by the Syrian government or the rebels, Ban said there will be an “accountability process” making sure that nobody commits such horrendous use of chemical weapons and gets away with it.

“So I believe that even with this, accountability should be pursued in accordance with what had happened, in accordance with the investigative team’s report,” Ban said.

Ratner told IPS it’s hard to believe people and governments are accepting anything the U.S. says on this topic.

“Even assuming the U.N. inspectors conclude chemical weapons were used on Aug. 21 – and we do not yet know – where is the proof that Assad ordered them used?” he said. So far, he noted, the U.S. has offered the world no proof – except what it calls “common sense”.

“So the U.S. and European countries should bomb another country and kill people based on common sense. Common sense makes no sense,” Ratner concluded.

The growing political uproar over the unlawful denial of European airspace for a jet carrying Bolivian President Evo Morales has spilled over into the United Nations.

Bolivian President Evo Morales. UN Photo/Rick Bajornas

The 120-member Non-Aligned Movement (NAM), the largest single political grouping in the world body, has expressed its “deep concern over the flagrant violation of the diplomatic immunity” of a sitting head of state.

“This serious incident put at risk the life of the Head of State of a sovereign developing country and the entourage that accompanied him by forcing the official airplane that carried him to make an emergency landing in Austria,” said the NAM statement.

“The Heads of State and their airplanes enjoy full immunity in accordance with international law,” the group asserted.

On Tuesday, a delegation of ambassadors from Bolivia, Cuba, Ecuador, Nicaragua and Venezuela met with Secretary-General Ban Ki-moon to register a formal protest over the violation of diplomatic immunity. The meeting was followed by widespread speculation that the issue may surface at the Human Rights Council in Geneva, and possibly before the 193-member General Assembly in New York.

The Bolivian presidential jet was denied airspace by several European countries, including Italy, France, Spain and Portugal, while it was returning from Moscow where Morales had attended a meeting in early July.

The denial is attributed to “unfounded rumours” that the plane also carried Edward Snowden, a U.S. national and whistleblower who is in “legal limbo” in the transit lounge of the Moscow airport, after leaking details of a massive U.S. phone and Internet surveillance programme.

The administration of President Barack Obama has accused Snowden of espionage and wants him back in the United States for prosecution.

Michael Ratner, president emeritus of the New York-based Centre for Constitutional Rights, told IPS, “It’s always interesting to me how the old and remaining powerful nations such as the United States sometimes tear off their human rights mask and undermine their pious words in the efforts to ensure continuing hegemony and empire.”

He said the forcing down of the diplomatically-protected plane of President Morales is a prime example of wielding the big stick of imperialism and trying to teach a lesson to the smaller countries of the world.

“I have no doubt it was an act of aggression under the U.N. Charter and a kidnapping of the president,” said Ratner, who is president of the Berlin-based European Centre for Constitutional and Human Rights.

In the end, he said, the law embodied in the U.N. Charter and Universal Declaration of Human Rights (UDHR) is cast aside by the big powers when convenient.

“But we are in a different time,” he added. “The United States has again exposed itself as the world’s bully, as did the UK, when it threatened to extract Julian Assange (Wikileaks founder) from the Ecuador Embassy in London.”

Now, the reaction of what were once the colonies is a check on these powers, said Ratner, who is one of the U.S. attorneys for Assange and Wikileaks.

In a statement released after his meeting with Latin American envoys Tuesday, the U.N. secretary-general said he understood “the concerns which have been expressed about this unfortunate incident”.
Ban said he was relieved it did not lead to consequences for the safety of President Morales and his entourage, and it was important to prevent such incidents from occurring in the future.

Ban also said “a head of state and his or her aircraft enjoy immunity and inviolability”.

He expressed the hope that “all of the concerned governments will discuss these concerns amicably and in good faith, with full respect for all legitimate interests involved, and with a view to maintaining friendly relations among nations.”

At a summit meeting of Latin American political leaders in Bolivia last week, Morales said “apologies from a country that did not let us pass over its territory are not enough.”

“Some governments apologised, saying it was an error, but this was not an error,” the Bolivian president declared.

The incident also triggered strong denunciations by leaders from Venezuela, Ecuador, Uruguay and Argentina, among others.

Asked about the U.S. role in the denial of European airspace, State Department spokeswoman Jennifer Psaki refused to confirm or deny whether U.S. authorities had asked other countries to deny airspace to the Bolivian plane.

“I would point you to them to describe why they made decisions if they made decisions,” she told reporters.

Ratner told IPS the laws broken by the United States and its allies that it pushed around are myriad.

President Morales’ diplomatic plane was protected and so was he as the president.

“Imagine a country forcing down Air Force One with Obama on board as the plane tried to refuel. That country would likely be obliterated,” said Ratner. “It was not only the president and his plane that were protected but so would Edward Snowden have been, had he been on the plane.”

A person seeking asylum has a right under Article 14 of the UDHR to go to a country to seek asylum from persecution. Even the United States recognises that whistle blowers are entitled to protection under the refugee convention, he added.

The U.S. actions here, and those of France, Spain and Portugal, have interfered with this important right.

“Luckily, there seems to be a tide in the world flowing over old habits of imperialism and that has the potential to limit the exploitation and power of countries that used to act with impunity,” Ratner said.

“We see it on the streets of Greece, Spain and Italy. We see it in the actions of those like Julian Assange, Wikileaks, Edward Snowden, Bradley Manning, Jeremy Hammond, Barrett Brown [all of them either whistleblowers or journalists under siege] and others who understand what is at stake: our freedom,” said Ratner.