Washington Report on Middle East Affairs, May-June 2009, page 59

Human Rights

Why Israel Will Probably Not Face Criminal Charges

ASKED BY the Washington Report if Israel will be held accountable for its crimes in Gaza, attorney Noura Erakat responded, “Chances are very, very slim, unfortunately. In Israel, you can’t bring a lawsuit because of a 2002 amendment by the Knesset to the Civil Torts Liability Act that rescinded the ability for Palestinians to bring suits in Israeli courts.” In addition, she added, “You can’t bring a case in the United States because it is going to be precluded by the political question doctrine and Foreign Sovereign Immunities Act.”

Erakat was personally involved in the filing of lawsuits against Avi Dichter, the former head of Israel’s General Security Services, and Moshe Ya’alon, former head of Israel’s Intelligence Branch and former chief-of-staff of the Israel Defense Forces (see March 2006 Washington Report, p. 21). Both cases were thrown out, she explained, “for the political implications and not [as] a matter of legal question.”

In order to bring a case in an international criminal tribunal, the United Nations would have to create that court pursuant to its Chapter 7 powers and, Erakat reminded the audience, “The U.S. would have to refrain from vetoing it.” Since 1976 the U.S. has vetoed 42 resolutions that have criticized Israel.

“The International Criminal Court should be a venue, except that Israel never ratified the Rome statute in 2002, and the court itself will only take cases from states, and now the question is whether or not Palestine is a state,” she explained. “So the only way to hold Israel legally accountable is through universal jurisdiction in European courts. We will support their efforts by sending them our findings, but that is a hit or miss. In 2005, Doron Almog [former commander of Israeli forces in Gaza] landed in London, but because [he was notified] of an arrest warrant, he stayed on the plane and went straight back to Israel.”

—Elaine Pasquini