DERSHOWITZ: UNIVERSAL JURISDICTION

Double Standard Watch: The hypocrisy of 'universal jurisdiction'

Posted by Alan M. Dershowitz

Last week, an attempt was made to get an arrest warrant issued for Israeli Defense Minister Ehud Barak - the former dovish prime minister who offered the Palestinians a state on all of the Gaza Strip, 95% of the West Bank and a capital in East Jerusalem - when he set foot in Great Britain. (The attempt failed on grounds of diplomatic immunity because he was an official visitor.) And now Moshe Ya'alon, an Israeli government minister and former Army chief of staff, was forced to cancel a trip he was scheduled to make in London on behalf of a charity, for fear that he, too, could face an arrest warrant.

The charges against these two distinguished public officials is that they committed war crimes against Palestinian terrorists and civilians. Ya'alon was accused in connection with the 2002 targeted killing of Salah Shehadeh, a notorious terrorist who was responsible for the deaths of hundreds of Israeli civilians and was planning the murders of hundreds of more. As a result of faulty intelligence the rocket that killed Shehadeh also killed several civilians who were nearby, including members of his own family. Barak is being accused of war crimes in connection with Israel's recent military effort to stop rockets from being fired at its civilians from the Gaza Strip.

The British government and British prosecutors have not supported the calls for the arrest of Barak and Yaalon. Those demanding the arrest of these Israelis are hard-left political activists seeking to invoke so-called "universal jurisdiction" against those they consider guilty of war crimes and genocide. They have absolutely zero interest in human rights, the laws of war, or in preventing genocide. Indeed, many of them supported the Cambodian genocide and have refused to condemn the Rwanda and Darfur genocides. They would never dream of demanding the arrest of Hamas murderers who target Israeli schoolchildren for suicide bombings or rocket attacks. They are willfully misusing these concepts - human rights, universal jurisdiction - to serve their anti-Israel and anti-Western ideology. What they are doing undercuts the neutrality and value of these protections.

If they were at all interested in human rights they would be going after the worst first - those who murder innocent civilians as part of a campaign of ethnic cleansing or genocide. But they are interested in Israel and Israel alone. That's why they demand boycotts and divestment only from the Jewish state and not from real human rights violators. Indeed, most of them would fervently reject to sanctions against Iran, North Korea, Libya, Venezuela, China, Zimbabwe, Syria or Saudi Arabia.

It is disgraceful that Israeli leaders cannot walk the streets of London safely, while Hamas and Hizbullah leaders are honored and celebrated. The time has come for Israel to confront this issue directly and to take legal action to prevent radical Israel-haters from misusing decent laws to achieve indecent results. Just imagine what a trial would look like, if it were conducted fairly and objectively. The Israelis would be able to prove that their campaign of targeted assassinations of terrorists has worked effectively to reduce terrorism against Israeli citizens and others.

Israel has inadvertently killed some civilians, but the ratio of deaths has been reduced to 1 civilian for every 28 terrorists. This is the best ratio achieved by any country in the world that is fighting asymmetrical warfare against terrorists who hide behind civilians. It is far better than the ratio achieved by Great Britain and the United States in Iraq or Afghanistan, where both nations employ targeted killings of terrorist leaders. Recall that it was Great Britain that implemented a policy during WWII of targeting civilians in cities such as Dresden and that it was the United States that implemented the same policy in its firebombing of Tokyo. Indeed, it is fair to say that no country in modern history has ever been more protective of enemy civilians than Israel has been during its 75 year fight against terrorism.

As Richard Kemp put it during the Gaza War:

[F]rom my knowledge of the IDF and from the extent to which I have been following the current operation, I don't think there has ever been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF is doing today in Gaza.

Hamas, the enemy they have been fighting, has been trained extensively by Iran and by Hizbullah, to fight among the people, to use the civilian population in Gaza as a human shield... Hamas factor in the uses of the population as a major part of their defensive plan. So even though as I say, Israel, the IDF, has taken enormous steps... to reduce civilian casualties, it is impossible, it is impossible to stop that happening when the enemy has been using civilians as human shields."

Recall that before Israel went into the Gaza Strip, nearly 10,000 rockets had been fired at its civilians from behind human shields. No nation is obliged, under international law, to accept the risks of catastrophic outcomes from these anti-personnel rockets.

So let there be a legal proceeding - a fair one in an objective forum - in which Israel's policies are tested against those of other countries. The result would be that Ehud Barak and Moshe Ya'alon could hold their heads up high and walk through the streets of any western city in the full knowledge that what they have done meets and indeed exceeds every standard of international law applicable to their conduct.