Holding Israel Accountable for War Crimes

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Israel's reaction to the passage of Resolution 1860 calling for an immediate ceasefire was to dismiss it as an unworkable piece of paper.

Prime Minister Ehud Olmert said since the "terrorist organizations" would not honor it, then why should Israel. Consequently, he and other senior cabinet ministers said they would simply ignore it.

The position taken by Israel was a clear violation of their responsibilities as a member of the world body.

"All members pledge to uphold the charter of the UN and to abide by Security Council resolutions," said Prof. Bisharat.

"However, this resolution was not taken under Chapter Seven of the charter which is the chapter under which enforcement actions -- including the use of force -- are authorized. So Israel can ignore the resolution with impunity."

In fairness, the professor added, Hamas too scorned the resolution, maintaining that its perspective was never heard.

Given the ferocity of the Israeli campaign in Gaza and the extraordinarily high proportion of civilians killed and injured, some governments have begun to call for legal action against Israel for war crimes and crimes against humanity.

Prof. Bisharat outlined two possible courses of action to hold Israel legally accountable for its violations of international law in Gaza.

"One is to form a special international criminal tribunal under the authority of the UN General Assembly to create subsidiary organs under Article 22.

"This would be unprecedented. All special tribunals in the past -- for Rwanda and the former Yugoslavia for example -- have been established by the Security Council."

Prof. Bisharat said the unusual move of seeking a tribunal without UNSC approval is being taken because of the omnipresent threat of a US veto.

"The other course is to refer the matter to the International Court of Justice for an advisory opinion, similar to what was done in respect of Israel's 'separation wall' built by Israel in the occupied territories.

"My sense is that many people internationally, and to an extent in the US, are finally shocked enough at Israel's behavior that real action will be taken," he said.

But, the professor added, it will be a political battle within the General Assembly and no one can precisely predict its outcome.

A good start, according to Boyle, would be to have Israel suspended from the United Nations.

"The UN General Assembly can vote to suspend Israel from all participation in the activities of the UNGA, as well as affiliated agencies, organizations, institutions and other activities," he said, "And this would not be subject to a US veto."

He pointed out that similar measures were taken against the apartheid regime in South Africa and the rump Yugoslavia -- which at the time was being accused of genocide.

"Both of these cases, apartheid and genocide apply to Israel," Boyle said, "and you can quote me on that."

As a condition for its admission into the United Nations, Boyle explained in a recent legal article, Israel formally agreed to accept General Assembly Resolution 181 (II) (1947) (partition/Jerusalem trusteeship) and General Assembly Resolution 194 (III) (Palestinian right of return).

"Israel has repudiated both these resolutions (among other things) and consequently has violated its conditions for admission to UN membership," Boyle wrote.

Prof. Bisharat agrees that, in theory at least, it would be possible to have Israel suspended from the United Nations.

"It is theoretically possible, but highly unlikely," he said, "There are few nations that would brook the wrath of the US that would surely follow any such action."

Boyle has previously offered his services to the government in Iran if they wished to pursue legal action against Israel, and said he is pleased that Tehran -- along with Malaysia and other countries -- appear to be taking his suggestions seriously.

Sometimes described as being a little on the "fringe" or eccentric, Boyle had a sharp response to critics.

"I am the same eccentric person who single-handed won two World Court orders for Bosnia and Herzegovina against the genocidal rump Yugoslavia to cease and desist from committing all acts of genocide against the Bosnians. The first and only time a feat like that has been accomplished in the history of the court," he said.

"And I can do the same for Iran, or anyone else, on behalf of the Palestinians against Israel."