This is how it starts. Palestinians and anti-Occupation activists scream bloody murder for years about Israeli war crimes. The world mumbles under its breath: “Yeah sure.” Israel finally crosses a red line with two brutal wars massacring civilians in Gaza and Lebanon. An eminent international jurist writes a voluminous report for a United Nations committee documenting said war crimes. Israel begins to take notice and mounts its own counter-attack. A chief prosecutor for the International Criminal Court announces he is considering filing charges against a specific IDF officer.
Perhaps the prosecutor will file such charges. Perhaps the officer will be served with a summons. Perhaps he will refuse to submit to the ICC’s jurisdiction. Or perhaps nothing will come of this particular case. But make no mistake. Lt. Col. David Benjamin , citizen of Israel and South Africa may be the first investigated or even charged. But he will not be the last. In fact, he will be the first of many.
The first case may go far or nowhere. Israel will scream bloody murder. It will refuse jurisdiction. It will claim a double standard. It will claim moral hypocrisy. Many Israeli supporters will bridle with indignation. But as time goes on more and more such cases will be brought. The ice will be broken and moral dam will burst. Israeli officers will face justice. They will go to jail. Their faces will be plastered across the world (and Israeli) press. Finally, the opprobrium of the rest of the world may sink into to the typical Israel’s obdurate consciousness. It may not happen this year or even next. But it will happen.
And when it does, Israel’s standing will fall ever so slightly. Along with increasing successes of the BDS movement and other anti-Occupation activism, Israel’s impunity will end. It will be made to pay a price. And at some point the pain will become so intense it will register for the average Israeli. And along may come Israel’s DeKlerk who realizes the entire regime is liable to collapse unless Israel reaches an accord. Bibi is certainly not that DeKlerk and nothing good can come from him. I’m afraid Israel will have to suffer much more before it understands that its Bibis do not have the answers. But eventually I’m convinced that Israelis will be able to be pragmatic and see a new political paradigm is needed. And there may be one wise enough to become the Israeli DeKlerk.
Many observers are likening this wider world awakening to Israel’s impunity regarding war crimes to the development of the anti-apartheid movement in South Africa. This is certainly an apt historical analogy.
But in terms of a legal analogy, I’m also reminded about the history of tobacco industry liability lawsuits. A decade or two ago you’d hear every so often of a plaintiff filing suit against one of the tobacco companies. Invariably the suits would be thrown out of court. But some time later, you’d hear that a plaintiff actually succeeded in bringing the case to trial even though a jury refused to find the tobacco company negligent. Then came the state attorneys general lawsuit against Big Tobacco and the hundreds of millions of dollar settlement. Then the CEOs of Big Tobacco lied before Congress claiming their product was not addictive. Recently, the federal government proposed regulating tobacco the same as other products. Finally, tobacco will banned or so tightly regulated that it will be much harder for people to become addicted.
Ideas like tobacco liability and Israeli war crimes are tough to swallow at first. But due to the blunders of an industry and a nation and egregious violations of law and common decency by both, taboos and barriers begin slowly to break down. What once was unthinkable becomes thinkable and even commonly accepted. It will happen, im yirtzeh ha-Shem.
Here’s some more background on the Benjamin case
The ICC began looking into Benjamin’s case after receiving material from pro-Palestinian organizations in South Africa. The material included a transcript of an interview Benjamin gave to the web site Bloomberg.com, in which the officer recounted his involvement in legal consultations with the IDF ahead of army operations.
“We were intimately involved in planning,” Benjamin said, including “authorizing the targets that could be struck, war materiel – everything passed by us.”
Benjamin served for many years as legal adviser to the GOC Southern Command, and later headed the Military Advocate General’s department on international law.
In August, he visited South Africa to attend a conference organized by the local Jewish community on international law during wartime, with special reference to the Gaza war. Benjamin later described the trip as a “personal hasbara [public diplomacy] trip.”
The pro-Palestinian organizations promptly asked South African state prosecutors to open an investigation into suspicions that Benjamin had committed war crimes in Gaza. To avoid a potential confrontation with local authorities, Benjamin left South Africa several days earlier than he had planned.
At the conference, Benjamin rejected claims that the IDF committed war crimes in Gaza, as well as demands that Israel’s wartime conduct be subject to an external investigation.
Dennis Davis – a South African district court judge and international law lecturer at the University of Cape Town, who directed the conference – said he firmly opposed the remarks delivered by Benjamin, who was once his law student. Davis added that were Benjamin still his student, he would “fail him.”
I find it a delicious irony that Benjamin is the chief Israeli military legal “scholar” used by Alan Dershowitz in his pro-Israel screed film, The Case for Israel: Democracy’s Outpost (I kid you not–that’s the subtitle). This is hoisting Benjamin, the IDF and Dershowitz on their own petard. I only wish Der Dersh would volunteer to serve as an IDF lawyer in the next shande-war Israel prosecutes against one of its neighbors. If he takes responsibility for approving the IDF’s choice of targets like Benjamin did, then maybe he could be prosecuted too. Though unfortunately, the U.S. has not yet ratified the UN treaty and isn’t subject to the ICC. Alas.