Either High Court, or House of Lords
The High Court has refrained from ruling on a petition regarding the legality of Israel's policy of targeted assassinations.
The farce of General (res.) Dan Almog's escape from London this week to avoid arrest for interrogation for war crimes should not have surprised anyone. Anyone involved in law who is familiar with the methods of international criminal justice knows that the incidents of Israel Defense Forces officers fleeing Europe to elude arrest will increase in the near future. In Israel, a decision was made not to investigate war crimes; war criminals have not been prosecuted; no questions were asked as to what was permitted and what forbidden in occupied territory; and a lot of war crimes were indeed perpetrated.
All this could and should have been prevented by the only system of rule that is not elected and is not subject to public pressure (or at least should not be) - the justice system. In shirking its responsibility, the Israeli justice system transferred the obligation to act to foreign justice systems. In fearing rulings on the legality of IDF actions in the territories, the Israeli justice system abandoned IDF officers and soldiers to international criminal justice.
Thus did the High Court of Justice rule last week in a petition filed by the Yesh Gvul peace movement and five authors and poets, asking the court to order an investigation into the assassination of Saleh Shehadeh - one of the incidents in which Almog is a suspect in London. In order to eliminate Shehadeh, the Israeli Air Force dropped a bomb weighing one ton on the al-Daraj neighborhood of Gaza City, killing 15 and wounding over 150. The IAF commander at the time, now Chief of Staff Dan Halutz, said that he lost no sleep over that operation. The petition, however, lay in the court's file room for almost two years before being granted a hearing date.
Now, when the petitioners have finally managed to get a hearing set, the panel of justices, headed by Supreme Court Vice President Mishael Cheshin, decided not to hold the hearing, but rather to combine the case with a petition by the Public Committee Against Torture in Israel, filed in January 2002 against the liquidation policy. The court, however, is not moving toward a ruling on that petition, either. Hearings on the petition against the liquidations were suspended in February, three and a half years after the original filing.
So what's going on here? There were two petitions, one requesting that the policy of execution without trial, officially being implemented by the state, is illegal, and another asking for the investigation of an incident of mass killing from a bomb dropped by an IAF fighter jet onto a densely populated residential area. In both cases the court has been avoiding a ruling for years.
And that's not all. At the outbreak of the al-Aqsa intifada, former judge advocate general Major General Menahem Finkelstein decided on a policy whereby Military Police Investigations would not look into the killing of Palestinian civilians, apart from exceptional cases. Finkelstein's successor adopted this non-investigation policy, and the High Court has refrained for over two years from ruling on a petition regarding the legality of such a policy. There is no investigation, no legal debate and no ruling on whether all this is legal.
Unlike common crimes, war crimes are international crimes. This means that when the law enforcement authorities in the home country of the suspect prove they are incapable or uninterested in investigating and judging those responsible, international law obligates all other countries to investigate them and try them if there is enough evidence. If not Israel, then England. If not the High Court, then the House of Lords.
As long as the chief military prosecutor and Israeli justices do not understand that a proper investigation of events that raise suspicions that war crimes may have taken place, and exacting justice on those responsible, is not only the moral thing to do but rather the right thing to do from a patriotic standpoint, then more and more IDF officers will have to spend their vacations in the Golan Heights and Eilat.
The writer is an expert in international human rights law and represents the petitioners in the first two petitions mentioned in the article.