Israel faces kangaroo court

Following my article in last Friday’s Australian Financial Review on Israeli war crimes in Gaza (and the Zionist lobby’s response on Tuesday), today’s paper publishes a piece by Robert Goot AM SC, a Sydney barrister and President of the Executive Council of Australian Jewry:

Before pronouncing a person guilty of a crime, it is customary in our society to accord the accused a fair trial. Antony Loewenstein, however, is untroubled by such technicalities (“Israel must pay for crimes”, Legal Affairs 30/1/09). Relying solely on a comment made by one habitually anti-Israel UN functionary, and statements by two NGOs and the UN Secretary-General that make noallegations of criminality, Loewenstein rushes in where angels fear to tread and confidently finds Israel guilty of unspecified war crimes in Gaza.

As a general rule in most jurisdictions in advanced countries the reports of non government and international organizations are not of themselves accepted as evidence in support of their own conclusions. For example, in MA v Immigration and Naturalization Service (1990), the US Court of Appeal, Fourth Circuit, warned against relying on pronouncements of non-government investigative bodies, noting “these organizations may have their own agendas and concerns, and their condemnations are virtually omnipresent”.

The Court concluded that reports issued by human rights organizations are an unsuitable basis for issuing judicial condemnations of the conduct of a foreign government. The wisdom of the Courts caution is highlighted by the conflicting conclusions expressed by three different human rights organizations concerning Israel’s alleged use of white phosphorous in Gaza.

Part of the difficulty lies in identifying and interpreting the relevant law. Protocol III of the 1980 UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons prohibits certain uses of air-delivered incendiary weapons. Israel is not a party to Protocol III,and its provisions therefore do not apply, except to the extent that they may reflect customary international law, which is extremely doubtful.

In any event, the Protocols definition of an incendiary weapon expressly excludes illuminants, tracers, smoke or signalling systems and other weapons that are not primarily designed to set fire to objects. Israel says that it used munitions having incendiary effects primarily as illuminants, tracers and smokescreens. These uses are lawful even if, as a subsidiary effect, some civilians suffer burns.

Loewenstein suggests that, as the International Criminal Court lacks jurisdiction, criminal trials could be held by popular courts. How, where and by whom such courts would be constituted and by what authority he does not say.

Nor does he specify which law would apply or how it would be enforced. He also omits to mention that in international law only individuals, not States, may be criminally liable. There can be no criminality without criminal intent.

Loewenstein’s polemic is conspicuous for the lack of any material that would be relevant to this issue. Remarkably, he avoids mentioning that Hamas openly admits that it targets Israeli civilians and uses Palestinian civilians as human shields.

Loewenstein’s lack of specificity on all these critical matters invites the suspicion that a popular court would be distinctly of the kangaroo variety.

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