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war and crimes


It was still dark on the morning of Jan. 4, 2009, when Israeli military bulldozers rumbled into the Gaza Strip. Directly in their path was the home of the Awajas, eight people in all.

As Kamal Awaja would later tell it, there was no warning as bulldozers began demolishing his house with the family still inside. They scrambled through a hole and hid for three hours before returning to grab some food and clothes.

On their way back, Awaja says, the soldiers opened fire, wounding him, his wife and 9-year-old Ibrahim. Then they fired again, striking the boy in the head.

"Blood and bones of skull hit my face,'' his father says.

Ibrahim was one of more than 1,400 Gazans killed during Operation Cast Lead, Israel's air and ground offensive in the winter of 2008-09 to stop rocket attacks on Israeli cities. Palestinians cite his death as evidence of what they say were war crimes committed by Israel in three weeks of fighting.

But outside groups have concluded that Israel was not the only side at fault. Over eight years, Hamas and other militants fired thousand of rockets into civilian areas, killing several Israelis and traumatizing many others.

"Let's not allow this to be simply allegations of war crimes committed by Israel. There were crimes we believe were committed by the Palestinian side that need to be investigated and prosecuted as well,'' says Richard Dicker, director of the international justice program of Human Rights Watch. "Justice for these kind of crimes we believe is an essential component of a lasting peace.''

But if both sides eventually are held accountable, if the Awajas and other victims are compensated for their losses, it will be the result of a significant shift in the way the world prosecutes crimes of war.

The most famous war crimes trials were those that started in 1946, a year after World War II ended, when the United States and its allies prosecuted Nazi leaders in Nuremberg and their Japanese counterparts in Tokyo.

The horrors of that global conflict led to the 1949 Geneva Conventions, four international treaties that set the standards for the protection and treatment of civilians in war zones.

Then nothing much happened.

"For 45 years after the end of World War II there were no international prosecutions and very few if any domestic prosecutions for war crimes,'' says Dicker, whose New York-based organization has monitored human rights abuses since the 1970s.

It was not until 1993 that the United Nations created a tribunal to investigate alleged war crimes and genocide in the territory of the former Yugoslavia. That was followed a year later by a tribunal to judge those responsible for massacring an estimated 800,000 people in Rwanda.

And because both tribunals were limited geographically, impetus grew for a court with broad jurisdiction — hence the International Criminal Court, created by treaty in 2002.

The result: "The nature of war crimes prosecutions has changed in a very, very dramatic way,'' Dicker says. "We're in a whole new area of war crime investigations and prosecutions, not because the relevant treaties didn't exist — they did — but what's changed is the enforcement in the form of international tribunals and courts that have been created over the last 15 years.''

As the Yugoslav and Rwandan tribunals continue their work, the International Criminal Court has opened investigations involving five other countries including Sudan (Darfur) and Kenya. The Hague-based court is currently trying a rebel leader from the Democratic Republic of the Congo on charges he used child soldiers.

But the court has a major limitation: It does not have jurisdiction unless the alleged crime was committed on the territory of, or by a citizen of, a country that ratified the treaty. And among the countries that have balked at ratification is Israel, concerned that the court could be used to advance a political and anti-Israel agenda.

Palestinians are trying to get around that obstacle. In their efforts to see Israel prosecuted for civilian deaths in Gaza, they are using a loophole that permits even states that haven't ratified the treaty to ask the court to investigate crimes allegedly committed on their soil.

The challenge will be convincing the court's chief prosecutor, Luis Moreno Ocampa, that Gaza is a de facto state.

"It's very complicated," Moreno-Ocampo acknowledged. "It may take a long time but I will make a decision according to law.''

There's another line of attack in prosecuting war crimes — trying the accused in national courts on the premise that all countries have a duty to stop crimes against humanity.

Israel itself invoked the principle of "universal jurisdiction'' when Mossad agents grabbed notorious Nazi war criminal Adolf Eichmann in Argentina in 1960 and flew him to Israel to stand trial. He was convicted and executed two years later.

More recently, Palestinians have taken their allegations against Israel to national courts, including those in Belgium and Spain. In 2009, a British magistrate issued an arrest warrant for Tzipi Livni, Israel's former foreign affairs minister, for her involvement in the Gaza offensive.

But Britain this year toughened its laws for bringing war crime charges in its courts after Israel strongly protested the Livni warrant and then-Prime Minister Gordon Brown voiced concern that activists were abusing the system. Other countries have also backed away from legal action against Israeli officials.

"The reality is that universal jurisdiction had sort of a glorious dawn at the beginning of the decade,'' says Tom Parker, policy director for counterterrorism and human rights at Amnesty International. "But countries have kind of retreated from the political implications of having those kinds of laws on the books. It goes back to just how difficult these issues are for governments once they find themselves pitched into them.''

Israel insists that it operated in accordance with international law in Gaza and that it thoroughly investigated allegations of crimes committed by its troops. In October, an Israeli military court convicted two soldiers for using a Palestinian child as a human shield in Gaza.

Israel says "a number'' of other officers and soldiers have been indicted, including a staff sergeant accused of deliberately killing a Palestinian who was waving a white flag.

Palestinians say the investigations are often perfunctory and done by officials of the very same military that is accused of the crimes.

"Generally, I can assure you they are not fair investigations,'' says Khalil Shahin of the Palestinian Center for Human Rights in Gaza City.

Among the many cases the center has asked Israel to investigate is that of the Awajas.

Kamal Awaja was a radio announcer for the Palestinian Authority, which ran Gaza until Hamas seized control in 2007. He stills gets a monthly salary from the P.A. but says it is not enough to rebuild his house.

So for nearly two years, the Awajas have been living in three tents swarming with flies. Electricity is so intermittent that 14-year-old Umsyat often does her homework by a battery-powered light. Water comes from a garden hose. The only toilet is shared with another large family.

At the entrance of the squalid compound is a large banner with color photos of Ibrahim. Conditions were so dangerous after Israel's ground invasion that his body lay on the street for four days before his parents could retrieve it. They say it was full of bullet holes.

The human rights center said it has received no word as to whether Israel will investigate. But Israel has defended its destruction of Gazan homes, claiming that many were sheltering militants who fired at Israeli soldiers. The Awajas say there were no fighters in or even near their house.

The human rights center wants Israel to compensate the family for their losses. If it doesn't, the center could try to have the case prosecuted in another nation's courts or even in the International Criminal Court.

Should the court's prosecutor decide to go forward, however, "it should be an investigation directed not only at the state of Israel and the IDF (Israel Defense Forces) but also directed against Hamas and its killing of Israeli citizens through the indiscriminate use of rockets,'' says Dicker of Human Rights Watch. "Those are real war crimes, too, no ifs, ands and buts about it.''

Susan Taylor Martin can be contacted at

war and crimes 11/20/10 [Last modified: Saturday, November 20, 2010 3:30am]
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