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Israel must pay for crimes

By Antony Loewenstein - posted Monday, 9 February 2009

Israel’s war against Gaza has left the blockaded strip in ruins. The president of the French section of Medecins Sans Frontieres, Marie-Pierre Allie, wrote recently that her organisation had “been present during armed conflicts for nearly four decades” but “it is difficult to recall a comparable slaughter of civilians in so little time”.

The United Nations (UN) has been scathing in its denunciations: Richard Falk, the UN’s special rapporteur on human rights in the occupied Palestinian territories, described the sealing of Gaza to ensure nobody could leave, including civilians, as a “distinct, new and sinister war crime”. UN Secretary-General Ban Ki-moon, after visiting shelled UN-run buildings and schools in Gaza, demanded action. “It is an outrageous and totally unacceptable attack on the United Nations,” he said.

More than 1,300 Palestinians were killed (compared with 13 Israelis), thousands were injured and entire residential blocks were demolished. The Jewish state defended its actions by claiming that the illegal rockets fired by Hamas into Israel justified its use of overwhelming force against the 1.5 million inhabitants of Gaza. Outgoing Prime Minister Ehud Olmert said at the weekend that “the terrorist organisations and Hamas were mistaken in thinking that Israel would reconcile itself to [rocket] fire and not respond”. Defence Minister and candidate for forthcoming elections, Ehud Barak, said that the Israeli Defence Forces were the “most moral army in the world”.


The vast majority of global human rights groups disagree and claim that war crimes were committed during the conflict, including the use of white phosphorus in residential areas. The extensive use of white phosphorus in Gaza’s densely populated neighbourhoods, despite evidence of its indiscriminate effects and its toll on civilians, was a war crime, according to Amnesty International.

The furious debate will soon move from the rhetorical to the practical. European courts are likely to be the key battleground for forthcoming investigations of crimes against Palestinian civilians. This is how it should be. The Jewish state, like any other nation, should be held to account for its actions.

A successful war crimes prosecution would prove to citizens around the world that Western leaders are held to the same standard as leaders of developing countries.

The International Criminal Court Prosecutor in The Hague has said that it lacks jurisdiction to investigate possible war crimes because neither Israel (nor the United States) is among the 108 countries that have signed the Rome Statute creating the court. However, a former judge at the International Criminal Tribunal for the former Yugoslavia, Fouad Riad, said one alternative may be “popular tribunal”. Such a body could expose war crimes to the world, tarnishing a person’s reputation in history.

In the absence of international justice for Western state atrocities - is the global legal system designed to prosecute only certain kinds of crimes, such as those committed by African despots? Popular tribunals are a valuable way of bringing the powerful to account. History will judge them accordingly.

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First published in the Australian Financial Review on January 30, 2009.

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About the Author

Antony Loewenstein is a freelance journalist, author and blogger. He has written for the Sydney Morning Herald, Haaretz, The Guardian, Washington Post, Znet, Counterpunch and many other publications. He contributed a major chapter in the 2004 best seller, Not Happy, John!. He is author of the best-selling book My Israel Question, released in August 2006 by Melbourne University Publishing and re-published in 2009 in an updated edition. The book was short-listed for the 2007 NSW Premier's Literary Award. His 2008 book is The Blogging Revolution on the internet in repressive regimes. His website is at and he can be contacted at

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