October 5, 2009

By Ted Belman

According to Wikipedia

The International Criminal Court (ICC or ICCt)[1] is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression).[2][3]

The court came into being on 1 July 2002 — the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force[4] —

As of September 2009[update], 109 states are members of the Court.[..] However, a number of states, including China, India, Russia and the United States, are critical of the court and have not joined.[citation needed]

This Court provides for most of the usual protections afforded to the accused including the right to be considered innocent until proven guilty beyond a reasonable doubt. So good, so far. It also has no jurisdiction, if the courts of the country in which the accused resides, hold responsible hearings on the accusations.

In general ICC applies the rules set out in the Geneva Conventions for the protection of “protected persons.” To be a “protected person” in occupied territory you must be a resident in a country that is a signatory to the Convention (not “Palestine”) and the alleged crime must take place in the land of a High Contracting Party (not Gaza). So at the moment I fail to understand how what has been concluded by Goldstone, can be a crime at all.

It will surprise you to learn What the Geneva Protocols Really Say- 2003

There have been many accusations that Israel has committed war crimes and massacres in fighting the Palestinians, up to and including charges of ethnic cleansing and genocide. But these accusations do not hold up according to the Geneva Protocols, even with regard to the operations in Jenin, and the targeted killings.

The “Geneva Protocol” in question is the “Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.” This lays down the “law” for situations where an army finds itself fighting non-conventional forces that themselves operate from within civilian areas: The Fourth Geneva Convention goes into great and elaborate detail about how to assign fault when military activities take place in civilian areas. Those who are actually fighting the war are not considered “protected persons.” Only civilians are granted the status of “protected persons” whose rights cannot be violated with impunity.

The Fourth Geneva Convention convicts Hamas, the Jenin terrorists, Al Aqsa, Islamic Jihad, and Fatah, and all of the other terrorist groups that hide among civilian populations, in one sentence: This sentence makes up the entirety of Part 3, Article 1, Section 28.

It reads: “The presence of a protected person may not be used to render certain points or areas immune from military operations.”

This sentence appears in the Fourth Geneva Convention precisely to deal with situations like the ones the Israelis faced.

Here’s how: Israel is at war with Hamas and Palestinian militant organizations wreaking terrorist havoc. Hamas and al-Aqksa, et al are at war with Israel. But instead of separating themselves from the general population in military camps and wearing uniforms, as required by international law, Hamas members and other Palestinian terrorists try to use civilians – the “protected persons” mentioned in 3:1:28 – as living camouflage. To prevent such a thing from happening, international law explicitly gives Israel the right to conduct military operations against military targets under these circumstances.

Again, let’s check out that 3:1:28 sentence: “The presence of a protected person may not be used to render certain points or areas immune from military operations.” There were plenty of “protected persons” in Jenin (and applicable to other areas). The Palestinian terrorists wanted it that way: they choose to live in their camps with their families and hundreds of others around them so that they would serve as human shields, knowing that the Israeli army is reluctant to attack those areas like the Russians did in Grozny.

And because the terrorists do set up in civilian areas, they are wholly responsible for what happens to their “protected persons” – that is, the civilian population where they hide out.

That’s what the very next sentence of the Fourth Geneva Convention says: “the party to the conflict in whose hand protected persons may be, is responsible for the treatment accorded to them by its agents.”

Let’s translate: The “party to the conflict” here is Hamas, Islamic Jihad, al-Aqska, etc. Because they choose to live in and fight from a civilian setting, the “protected persons” are deemed to be “in his [their] hands.” And since they are in the terrorists”, these terrorists “is[are] responsible for the treatment accorded to them.”

This is mainstream thinking about Geneva Convention issues, by noted legal scholars. The Palestinians fight from within civilian areas- therefore civilians – who knowingly support and give aid to the terrorists- lose any and all immunity from Geneva Convention rights – and that would include human shields. Israel is therefore in no violation according to the Geneva Conventions – whereas the Palestinians, if they had been signatories- would have no rights of protection, since in Jenin, and in other places where there is conflict, they have abrogated those rights to which they are claiming that Israel is violating.

I solicited two independent legal opinions on what the rules of war were prior to Operation Cast Lead and included them in my article Bomb Gaza before invading. Please read the entire article.

Now the Goldstone Commission was supposed to be on a fact finding mission. It had no authority to conclude Israel was guilty of war crimes, yet it did. Even the ICC considers you innocent until proven guilty.