Navi Pillay is the UN High Commissioner for Human Rights. Her title is one of the great misnomers of our time. The group she represents contains countries that are serial human rights violators, such as Vietnam, Saudi Arabia, and Russia. It should be called the UN Human Wrongs Council since it ignores killings of innocent civilians in Syria, Tibet, Nigeria……. And it especially ignores human rights violations in the countries of its members. It’s more a mutual protection scheme for the evil regimes of this world.

Technically though, she is correct to say that Israel could be committing war crimes in Gaza. You might equally say that the Falkland Islands ‘could’ be committing war crimes in Gaza – but we just haven’t seen them yet. It’s a careful formulation of words that are slanderous since she knows they will be taken by Israel’s enemies as more than allegation, as proof. Essentially this is incitement to an international lynch mob.

There is a proper legal system to handle these matters, the International Criminal Court (ICC). Israel has been threatened with this. ‘The ICC monster is coming to get you.’ Now, I am not an international human rights lawyer – but I am a good researcher. And as I see it, even in a world of international institutions that love to demonize Israel, Israel should not be concerned – if the theoretical procedures of international law bear any resemblance to future reality.

First, neither Israel nor Palestine are members. Israel because, although it started the process, it has now stated it will not join. And Palestine, because it was not deemed a state when it tried before, and it has not yet tested to see if its status has changed. And, as Ambassador Ibrahim Khraishi, Palestinian representative to the UN Human Rights Council, famously admitted, this could be very dangerous for Palestine.

Non-membership is important because to be accused in cases of war crimes and crimes against humanity, the accused or alleged crime have to be in a member state. And, importantly, it seems you cannot bring allegations of crimes committed before you joined.

As an aside, note that some countries claim universal jurisdiction with war crimes.  Examples are Belgium, Canada, and Spain. For example, a Spanish lower court started proceedings against 7 senior Israelis for IDF’s targeted killing of Shehadeh, a Hamas leader, in 2009, at the instigation of pro-Palestinian organizations. The Spanish Supreme Court stopped this. As a generalization, Western countries are backing off from universal jurisdiction for war crimes because of its potential for abuse. 

A second protection is that the ICC system is designed for countries that do not have a rugged legal system for prosecuting war crimes. The ICC is a court of last resort when national courts have failed. Israel is a country that can find its president and ex prime ministers guilty of crimes in an open legal system. So (theoretically) Israel would be allowed to conduct its own war crimes trials. Palestine may not be so protected. The Palestinian Legislative Council has not met since 2007.  It has a supreme court, but no track record of dealing with political or military leader. Seriously, can you imagine Khaled Masha being extradited from his 5 star hotel in Qatar to Palestine to face a court?

There is another way the ICC can receive cases. This is from the UN Security Council, and is probably the most dangerous for Israel. As we saw in the UN HRC meeting, only the USA voted against. The other western countries just abstained. Israel would need a veto to protect it against referral to the ICC. Vetoes are available to permanent members: China, Russia, France, UK, and USA. Which means that it would effectively just take the USA to refrain (‘selling Israel down the river’) to put Israel in the hands of the ICC. You can make your own guess whether this might happen.

Another Security Council route, which is unlikely but not impossible, is to set up special tribunal. This was the case for the prosecution of war crimes from the former Yugoslavia.

To try leaders of a democratic country with strong legal processes in the ICC would be dramatic and unprecedented. Only the worst of the worst have been indicted by the ICC. And, interestingly, only one out of the 36 people indicted by the ICC has actually been found guilty. The others have died, had charges withdrawn, have cases in progress, or are fugitives. On current form the ICC is a paper tiger.

Once in the ICC, Israel would have to argue the merits of its case. In principle, as I have explained in earlier blogs, it has an excellent case.

In practice the politics and emotion could easily overwhelm reason and create yet another lynch mob baying at Israel.