Prosecuting Israel sets dangerous precedent

The countries that changed their national laws did so not because they suddenly

became pro-Israel, but because they realized that lawfare was indeed undermining

their own interests.

First, they could hardly play an important role in

the “peace process” if no Israeli official would enter them for fear of being

arrested. That had increasingly become the case, since lawfare practitioners

targeted all Israelis indiscriminately: Last year, they even sought a British warrant against Europe’s

favorite Israeli, former foreign minister Tzipi Livni. And for whatever reason,

involvement in the peace process matters greatly to the European Union: A study done by Finnish

Foreign Minister Alex Stubb this fall found that while EU foreign ministers had

devoted only one meeting over the past four years to China, a rising foreign

policy power, they discussed “the Middle East peace process” 12 separate times

in 2009 and the first part of 2010 alone.

Second, they couldn’t be

important players in any international arena if American officials refused to

enter them. That’s why Belgium, which seemed untroubled by anti-Israel cases,

moved quickly to change its law after lawfare enthusiasts, emboldened by initial

successes against Israel, sought warrants against senior American officials for alleged war crimes in

Iraq.

In contrast, Europe continues to facilitate lawfare in the

International Criminal Court. Most EU countries abstained in both the UN Human

Rights Council and the General Assembly votes on the Goldstone Report, which

urged an ICC indictment against Israel for “war crimes” in Gaza; a few even

voted for it. Last year, Germany even asked the US not to

block UN Security Council action on Goldstone unless Israel froze settlement

construction (Washington declined). Nor has Europe protested the ICC’s consideration of a

Palestinian Authority request to be treated as a state for the purpose of

joining the court and filing war-crimes charges against Israel, though this

amounts to retroactively amending the treaty (which doesn’t allow non-state

parties) without existing signatories’ consent.

Yet all the same

arguments hold against ICC prosecutions. First, an ICC warrant against Israeli

officials would preclude them from visiting Europe, which is treaty-bound to

enforce it. But more importantly, as the Belgium precedent shows, success

against Israel would embolden lawfare practitioners to pursue other countries,

America would obviously be first: As the country most actively engaged in

counterterrorist warfare, it has increasingly adopted Israeli tactics. For

instance, its drone strikes on suspected terrorists, whose legality Washington

recently defended in the UN, are identical to the Israeli

“targeted killings” that human rights organizations have repeatedly denounced as

“extrajudicial executions.” Indeed, a Spanish court seriously considered

indicting top Israeli officials and army officers over one such killing, of

Hamas mastermind Saleh Shehadeh in 2002; the case was dropped only because

Spain amended the universal jurisdiction law under which it was

filed.

Similarly, The New York Times reported

last month that

American forces “have been systematically destroying” hundreds of houses and

farm buildings in Afghanistan’s Kandahar region, because the Taliban had

booby-trapped so many that searching them “was often too dangerous.” Israel did

the same thing in its war in Gaza two years ago, for the same reason: Hamas had

systematically booby-trapped hundreds of homes,

schools and other buildings. And human rights organizations, followed by the

Goldstone Report, deemed it a war crime, accusing Israel of wantonly destroying

property in a deliberate effort to target civilians.

But many European

countries also have troops in Afghanistan, and they would be next in line. Last

year, for instance, a German officer ordered an air strike in Afghanistan that

killed as many as 142 people, mainly civilians, due to faulty intelligence. That

dwarfs the 14 other people (also mainly civilians) killed in the Shehadeh

strike, similarly due to faulty intelligence, or the 13 killed at the Ibrahim

al-Maqadmah Mosque during the Gaza war, for which Goldstone wants Israel indicted in the ICC (Israel says the mosque wasn’t

hit intentionally).

Moreover, like Israel, Germany deemed criminal or

disciplinary action against the officer unwarranted – opening the way for the

ICC, which can only pursue cases that national governments don’t prosecute. Yet

two months after this deadly strike, Berlin urged Washington not to block

Security Council action on Goldstone if Israel didn’t freeze settlement

construction – apparently oblivious to the dangerous precedent a

Goldstone-inspired ICC case against Israel could set for itself.

The

problem is that most European countries still believe ICC prosecutions could be

confined to Israel: that nobody would ever lump them together with the loathed

Jewish state. But ultimately, lawfare enthusiasts won’t distinguish between

“evil” Israel and “good” Europe any more than they distinguish between extremist

settlers and Tzipi Livni. They are simply smart enough to realize that it’s

easier to set a precedent by prosecuting an unpopular country first. Then, once

the precedent is set, they will gleefully use it against everyone.

The writer is a journalist and commentator.