An Israeli Enters the Action in The Hague

The verdict at The Hague reinforces the conclusion that violation of the laws of war leads to criminal liability even when the issue at hand does not involve a military conflict between states, and even goes one step further and defines these principles as part of international customary law, and not international consensual law.

"On my first day at the court in The Hague, I met a Japanese lawyer who subsequently became a very close friend," recalls attorney Nick Kaufman. "He has never been to Israel, and I doubt he had ever met a Jew before. But this fellow was one of the most outstanding jurists at the international court. And he walks up to me, introduces himself and says to me: `I'm familiar with the Elon Moreh court ruling, but there's one thing I don't understand. What is Gush Emunim?'"

The Japanese lawyer's familiarity with an Israeli court ruling from the 1970s drives home just how relevant Israel is to legal proceedings in international tribunals. Not only through its contribution of important legal precedents such as the verdicts in the trials of Adolf Eichmann and John Demjanjuk, or in the matter of the separation fence, but also through its hands-on involvement. This past Monday, the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague convicted and sentenced to an eight-year prison term Pavle Strugar, a high-ranking commander from Montenegro who commanded the military assault on the Croatian city of Dubrovnik in December 1991, an attack in which two civilians were killed, many were wounded and buildings in the historic Old Town were destroyed.

Kaufman, a distinguished prosecutor in the Jerusalem district State Prosecutor's Office, served in the case as one of the three prosecutors and is the first Israeli jurist to take part in a judicial proceeding in the international court.

Strugar's trial constitutes an important precedent in international criminal law, as it is the first time the court offered a detailed definition of violations of "the laws and customs of war," while focusing on the principle of proportionality in the use of military force.

"This is the first time that an international criminal court is ruling on whether a military commander acted in accordance with the customary law, primarily in relation to crimes against property," says Kaufman. "What attracted the world's attention in the attack on Dubrovnik was the destruction caused to the Old Town, which is defined as a UNESCO World Heritage Site." In the attack, the ancient synagogue in the city was also damaged. Kaufman reports that the court asked the woman who was the caretaker of the synagogue to testify, but she declined.

Two other officers subordinate to Strugar were also tried by the court: Adm. Miodrag Jokic, who commanded the naval force that shelled Dubrovnik, and Capt. Vladimir Kovacevic, nicknamed "Rambo," who gave the orders to fire. Each of the defendants met a different fate: Kovacevic lost his sanity during the fighting, and even before the trial began his attorneys claimed that he was incapable of standing trial. The international tribunal was at a loss as to how to act, as the court's constitution has no provision for this eventuality. Nevertheless, after being held in detention for an extended period, he was released on restrictive conditions and returned to Serbia-Montenegro.

Jokic confessed to the charges in the framework of a plea bargain (which Kaufman helped to draft), and was sentenced to seven years in prison.

Strugar admitted his guilt and asked for a trial, at which Jokic was a witness for the prosecution.

Guideline of proportionality

The verdict confirms the principal of proportionality as a guideline in determination of criminal liability in the case of war crimes, but it also stated that since there were no military targets at all in Dubrovnik, there was no need to explore the balance between use of force and the designated target. The verdict reinforces the conclusion that violation of the laws of war leads to criminal liability even when the issue at hand does not involve a military conflict between states, and even goes one step further and defines these principles as part of international customary law, and not international consensual law - in other words that the states are committed to it even if they have not signed any convention.

Although Kaufman, 36, has lived in Israel for 12 years, he speaks with a strong accent. He was born and raised in England, was active in the Bnei Akiva youth movement, studied law and practiced as a criminal attorney for two years before deciding to immigrate to Israel. Upon his arrival, he considered working at the Ministry of Foreign Affairs, but was told that without army service he had no chance of being accepted. He therefore decided to enlist in the Israel Defense Forces, and for two years served in the Military Advocate General's Office, in the international law division.

The Oslo Accords, which were signed shortly before his arrival, furnished an abundance of work for his department, and Kaufman found himself involved in coordination committees with the Palestinians and the analysis of international documents.

"At the time, I didn't yet know Hebrew, but all of these documents were in English," he says.

Kaufman was frequently summoned to the offices of army generals to advise senior officers on the humanitarian aspect prior to military operations. In some instances, he examined the justification for use of certain types of weaponry and their suitability to the military objective, experience that would later serve him in the international tribunal, as well.

Last year, Kaufman submitted his candidacy for the position of prosecutor in the International Criminal Tribunal of war crimes in Yugoslavia (ICTY), the same court in which the trial of the Serbian dictator Slobodan Milosevic was held. This is one of the few tribunals set up ad hoc to investigate war crimes in a specific country.

Such tribunals have also been established in the wake of the battles in Rwanda, Sierra Leone and Cambodia, but in Kaufman's opinion the trend that is emerging in the United Nations is to end the mandate to establish ad hoc tribunals, and to reassign these proceedings to the International Criminal Court (ICC).

Even before being accepted as a prosecutor in the court/tribunal, Kaufman asked then attorney general Elyakim Rubinstein and then state prosecutor Edna Arbel for their permission.

"I didn't want to be involved in something that ran against the interests of the State of Israel," he explains. "But I knew that Israel is supportive of the court to which I was accepted. Happily, the attorney general and state prosecutor approved the trip, and Rubinstein even said that if there were an Israeli there, it would put Israel in a positive light."

Kaufman took a leave of absence from the State Prosecutor's Office and went to The Hague for four months. Three prosecutors worked on the Strugar case; the other two were from the U.S. The tribunal comprised three justices. "It was just like appearing before a serious crimes panel in the Jerusalem District Court," says Kaufman.

Unfair prejudice

"There is this impression in Israel that the world of international law, the institutions in The Hague, and especially the International Court of Justice (ICJ), which ruled on the separation fence case, are anti-Zionist, anti-Semitic, and this is simply untrue," says Kaufman. "Despite the response in the world to the trial involving the fence, which took place while I was there, I got the impression from the people who deal with this matter in The Hague that they have great respect for Israel and that our academics, such as Shabtai Rosenne and Yoram Dinstein [experts on international law - Y.Y.] are thought of as leaders in the field."

Israel signed the Rome Convention, which established the International Criminal Court, which convenes in The Hague, but it did not ratify the convention due to its reservations with a section of the by-laws of the court, which defines the transfer of population of the occupying state to occupied territory as a war crime.

Kaufman believes that Israel should not have any problem joining the court. "The Fourth Geneva Convention applies only in a situation of `international conflict' and when this relates to `occupied territory.' As Israel is opposed to these definitions [in its viewpoint, there is no conflict with any other diplomatic entity, and the territory is not occupied since it does not belong to any other state - Y.Y.], what exactly is it afraid of?"

International humanitarian law applies both to international disputes, that is, disputes between two states, and to other conflict situations for which a suitable definition has not yet been found. The term for the latter is "internal conflict," although it would be hard to apply it to the Israeli-Palestinian conflict, for instance. In the Dubrovnik case, the prosecutors were freed from the need to prove that the conflict was between states, and since the attributed crimes had been determined to be violations of customary law, it was enough to prove that the conflict was between parties, not between states.

"An international conflict gives a license to kill, like James Bond," explains Kaufman. "But it was determined that this should be done on the basis of the principle of proportionality, and this was the first time that the principles of proportionality were explored by the prosecution. We examined which types of weapons were used, we looked into the military objectives they tried to achieve, and we asked whether the chosen weapons and the way they were used were compatible on a proportional basis with the military objective."

This wording is very reminiscent of another military affair, which is still being heard in another judicial framework. Israel's High Court of Justice is supposed to rule on a petition that was filed against the decision of former Israel Air Force commander Major General Dan Halutz to drop a one-ton bomb on a residential quarter of Gaza in order to assassinate terror activist Salah Shehadeh. The bomb killed 15 others - innocent Palestinians. Might IDF commanders be exposed to judicial examination of the proportionality of military actions in the International Criminal Court?

"The verdict in the Strugar case deals in extensive detail with the question of command responsibility/liability," says Kaufman. The prosecutor notes that Strugar "was not convicted of giving an order to attack Dubrovnik, but rather the failure to prevent the attack. You have to draw the conclusion according to our reality: Israel is committed to investigate the chain of command in cases where there is a suspicion of war crimes against humanity. For instance, in the shelling of a military target in Lebanon that misses its target, the chain of command in which the operational orders were given should be examined, and punished if need be."

Nevertheless, Kaufman sounds calm. "My experience shows that in terms of maintaining integrity regarding the rules of international law, the IDF implements these rules. The IDF's operational inquiry is a well-developed tool for ascertaining the integrity in the battlefield. I have on several occasions been present at meetings at which I advised commanders on the rules of international law during the planning stage of military operations, and I can say to you [that] Israel takes consideration of, and applies, the rules."