Prosecuting crimes against humanity

The promulgation of international law addressing crimes against humanity was one of the major legal achievements resulting from World War II. As Robert Jackson, the lead American prosecutor at the Nuremberg trials, put it, the crimes bred by that conflict were “so malignant and so devastating that civilisation cannot tolerate their being ignored, because it cannot survive their being repeated”.

Crimes against humanity include government-initiated or assisted policies or practices resulting in massacre, dehumanisation, unjust imprisonment, extrajudicial punishments, torture, racial/ethnic persecution and other such acts. In reference to the last-cited crime, in 1976 the United Nations General Assembly declared the systematic persecution of one racial group by another (for instance, the practice of apartheid) to be a crime against humanity.

Undermining the law

Given the origins of this body of law, it comes as a shock that there are now a number of countries that would like to weaken, and perhaps even do away with, this category of law. These states claim that terrorism, and the so-called war against it, have changed the international environment so greatly that laws designed to protect us all from crimes against humanity are now tying the hands of those who regard terrorism as the present greatest threat to civilisation.

While this argument may have some headway with certain governments and populations, it is a distortion of facts and a mangling of history. The vast majority of crimes against humanity require a level of organisation and force only found with the state.This fact was brought out during World War II to such a degree that it could no longer be ignored. On the other hand, the crimes of small groups of terrorists may indeed be heinous, but even at their worse, they do not come close, in terms of numbers affected, to the crimes of states. For governments to decry laws attempting to rein in their own major crimes as impediments against their efforts to battle those perpetrating, in comparison, relatively lesser crimes, is more propaganda than truth.

The Israeli contribution

Take for example the state of Israel. The fact that Israel is among those states, perhaps the main state, attempting to do away with the laws protecting us all from crimes against humanity should come as yet another shock. How can a state that loudly proclaims that its reason for being is the protection of all Jews, seek to undermine laws that were, in good part, promulgated in response to the brutal persecution of Jews?

Part of the answer to this question may have to do with the fact that Israel does not represent all Jews, but only those who adhere to the Zionist ideology – the ideology of the Israeli state – and it is with the well-being of these Jews that the state appears most concerned. As for the alleged danger to all Jews (for instance, the resurgence of anti-Semitism), one suspects that Israel’s leaders use this as a pretence to pursue policies and practices relevant only to the state of Israel and its guiding ideology. And these policies and practices happen to consistently contravene the laws proscribing crimes against humanity.

The Israelis are not very secretive about this. Take, for instance, Moshe Yaalon, the present Israeli defence minister and one of those actively working against international law referencing crimes against humanity. At a recent conference entitled “Towards a new law of war”, sponsored by Shurat HaDin (an organisation of Israeli lawyers operating internationally to defend Israeli military and civilian practices which violate international law), Yaalon declared that in any future conflict with Lebanon, Israel “will hurt Lebanese civilians including kids of the family… We did it in the Gaza Strip, we are going to do it in any round of hostilities in the future.” His excuse for this criminal position is that organisations such as Hezbollah and Hamas allegedly hide their soldiers and weapons in densely populated urban areas. However, journalists on the ground have found this to be false. Yaalon also held out the prospect of using nuclear weapons against Iran sometime in the future. The fact that present international law holds such actions to be crimes against humanity is the reason Israel seeks to undermine such law and create a “new law of war”.

Another indicator that Israel will continue to defy this aspect of international law is the recent appointment of Ayelet Shaked as minister of justice in the newly formed government of Binyamin Netanyahu. Shaked has declared that Israel is at war with the entire Palestinian people and therefore they all should be destroyed, “including its elderly and its women, its cities and its villages, its property and its infrastructure”. Shaked is a deceptively innocent-looking woman. Her behaviour, however, calls to mind Oscar Wilde’s The Portrait of Dorian Gray. 

The West gives a green light

Major Western nations seem ready to support Israel in this effort, even though it clearly encourages a new era of state-sponsored barbarism. For instance, the US government has consistently protected Israel’s criminal behaviour from United Nations condemnation by using its veto in the Security Council. The British government has restricted the use of “universal jurisdiction”, an aspect of international law that allows victims of war crimes to initiate prosecution against responsible individuals in any country that is a signatory of the Geneva Conventions. In order to exempt indictable Israelis, the UK has declared that only its director of public prosecutions (always a politically malleable individual), rather than trial judges confronted with strong evidence, can issue universal jurisdiction arrest warrants. The governments of Canada and several European states are attempting to  criminalise the Boycott, Divestment and Sanctions (BDS) movement which seeks to pressure a change in Israeli policies toward Palestinians. And on it goes.

Conclusion

The average citizen is either ignorant of or misinformed about the growing danger to an aspect of international law that protects us all. And that is too bad, because it is the average citizen who will always suffer the most from the commission of crimes against humanity.

Beyond the dangers of ignorance and misinformation, there is the ongoing problem of nationalism. The laws allowing for the prosecution of those who commit crimes against humanity were instituted at a time when most nations were so mindful of the barbarism of World War II that their leaders were willing to let go of a bit of their national sovereignty to create potentially meaningful international law. However, they would not go so far as to create an international police force with truly independent operating powers.

It has been 70 years since the end of World War II and nationalism is as strong as ever, while the memory of its barbaric capabilities has faded – despite isolated reminders offered by the multitude of small wars that come and go almost yearly.

So, we are embedded in a cycle of violence, led astray by our faulty memories and national hatreds. By now we should know better, but we don’t.