Friday, December 01, 2006

Protecting a war criminal

Lieutenant General Moshe Ya'alon (ret) is a former Chief of Staff of the Israeli Defence Forces. He is also a war criminal, responsible for setting policies which displayed a callous disregard for the lives of Palestinian civilians - for example in the bombing of the home of Hamas official Salah Shehada in 2002, in which 13 civilians (as well as Shehada and one of his aides) were killed. Ya'alon was in New Zealand last week on a fundraising trip (an outrage in itself - we should not be allowing war criminals into the country), when some enterprising person had a judge issue an arrest warrant for him under the Geneva Conventions Act 1958, which allows universal jurisdiction for grave breaches of the Geneva Conventions. But rather than seeing Ya'alon dragged into court and made to face justice for his crimes, the government quashed the warrant. He has since fled the country.

I am deeply ashamed by this. New Zealand is supposed to be a staunch advocate of international law and human rights, but when push comes to shove and there is some chance of actually having to enforce that law (something we agreed to do when we signed it), we back off to avoid an international incident. The message we are sending is loud and clear and one of hypocrisy: that war crimes are committed only by our enemies, and we will look the other way when the victims are Muslim.


We also have certain standards of criminal procedure in this country, among which are the guarentees that people will not face arrest without just cause or prosecution without the existence of sufficient evidence to establish a prima facie case.

The Attorney-General has an obligation to uphold the law, and to prevent the abuse of the criminal justice system to pursue charges against people. On official advice he has determined that the 'evidence' used in the laying of the information was insufficient to meet the standard of having established a prima facie test so he stayed the prosecution. Ya'alon may be a war criminal, however our courts shouldn't be used to prosecute him if there is insuffient admissible evidence to gain a conviction.

Posted by Graeme Edgeler : 12/01/2006 12:17:00 PM

I have mixed feeling on this. On the one hand, I fully support the need to make those responsible accountable and to bring home to the Israeli government that their apartheid policies their militarised democracy make them a pariah to the world community. On the other hand, knowing the power the Israeli lobby has in the USA (lets face it, Israel sets the U.S. policy agenda in the Middle East) and knowing the lengths of extra-territorial ruthlessness, lawlessness and violence the Israeli government is capapble of, I am glad he is just gone and we don't have the threat of Zionist lunatics doing God knows what to N.Z.

But the real question I want answered is what in God's name was the Jewish Community thinking when it invited this man here? Are they so divorced from reality, so lacking in doubt, so convinced in their own righteous victimhood, that they cannot understand that the wind is now blowing in another direction when it comes to international opinion about Israel and its policies towards the Palestinians?

A good friend of mine was watching some bigoted Zionist defender of Israel on telly the other week and he rolled his and joked to me "If they were as fucking full of themselves as this dude is back in the 30's no wonder they gassed them all." A bad taste joke, but indicitive of the way people are losing patience with the wider Jewish communities' unthinking support for Israel.

Posted by Sanctuary : 12/01/2006 12:36:00 PM

Graeme: Indeed we do. And it is worth noting that a judge had examined that evidence and found that it was sufficient to justify an arrest. And they seem to have given it far more consideration than the Attorney-General did.

As one of the lawyers involved pointed out on National Radio this morning, we issue arrest warrants routinely on far less. This was a political quashing, pure and simple.

Posted by Idiot/Savant : 12/01/2006 12:39:00 PM

I don't know who this "Jewish community" represents anyway. I've got Jewish heritage, and I think we should bang the bastard up for a long time!

I do think that this and the Fiji coup news have something in common. One thing that would deter people like Bananarama is if his actions had consequences - like not being able to set foot in NZ without risking jail.

Posted by Rich : 12/01/2006 01:01:00 PM

Hamas official? Try commander of the military wing of Hamas (source) .

Hamas' miliatary (ie terrorist) wing operates in the midst of Palestinian civilian areas, which also breaches the Geneva Convention.

what in God's name was the Jewish Community thinking when it invited this man here?

The Jewish community isn't monolithic, any more than any other ethnic community in New Zealand. Ya'alon wanted to visit because he was already going to be in Australia. He invited himself, as far as I can tell.

Personally the communication I received was "a retired general is coming to visit and you have the opportunity to talk to him."

Posted by stephen : 12/01/2006 01:22:00 PM

Oh yes, don't you mean "alleged war criminal"? Your usual scrupulosity is strangely absent whenever Israel comes up, I/S.

Posted by stephen : 12/01/2006 01:24:00 PM

Thanks for the link I/S, that was fascinating.

I'd note that we do issue arrest warrants for far less, but in this case it seems the arrest warrant was issued because of the existence of criminal proceedings. If there is no basis for criminal proceedings (i.e. no prima facie case) then there is no basis for an arrest warrant.

Posted by Graeme Edgeler : 12/01/2006 01:25:00 PM

The message I got from the radio was that the warrant was issued on the basis of a couple of hefty folders of material that the judge took a weekend over and more was in the offing. So a response based on a couple of hours' review looks suss, either on the AG or SG's part.

But that is, as it were, to accept the views of the prosecution blindly.

Anyhow, in realpolitik terms can't see little old us actually excercising universal jusidiction for war crimes, but we did sign a piece of paper saying we would, and apparently that we would actively seek such cases, so dropping the possibility of one seems a bit of a letdown.

But I spose if we weren't going to really prosecute, we may as well stop now as later.

Posted by Lyndon : 12/01/2006 02:30:00 PM

Graeme, as it's obvious you're the most qualified and competent in the house, if you had a minute I think we'd all thank you for sharing a more detailed opinion...

What do you think about this? Has our legal process been scrupulously followed?

My impression from the interviews was that the district court judge DID think a prima facie case for criminal proceedings was there, hence the arrest warrant was issued.

If the case wasn't there, as the AG asserts (on barely-considered advice), does this mean that the district court judge has made an error?

Do judges get, I don't know, their pay docked, or sent for extra training, when they make mistakes like this?

It seems (admittedly from a non-trained perspective) that IF (a) Crown Law was able to ascertain so easily (in 110 minutes) that the evidence provided, and all potential evidence yet to come, was insufficient for prosecution, and
(b) they were able to determine this with such confidence that they stayed an arrest warrant, in the full knowledge that the person would leave the country and thus be unavailable for later arrest,
(c) the district court judge must have been massively incompetent to make such a heinous error in the first place.

Either that, or this is political interference in legal processes of a disgusting degree.

So, in your opinion, would you say (a) the judge must be massively incompetent, or (b) a politician used his power to ignore our legal system, or (c) some other innocent explanation.

Let's have a vote! If you say (c) please elaborate...

Posted by Anonymous : 12/01/2006 03:22:00 PM

Monkey - the Attorney-General and judges of the district court play different roles in the justice system, so it's not a question of the A-G interfering in proper process, just playing his (different) part.

I don't know the detail of this case, but on balance Crown Law would be considered to have a better understanding of the law than District Court judges.

The District Court rarely does law, mostly it does facts on settled law, when you get arguments seeking to advance the law you will often have to go to the High Court to get any traction (an example would be the Hopkinson flag-burning case, the same argument that succeeded in the High Court was run and rejected in the Ditrict Court).

The urgency with which the Crown Law Office treated this matter, and their involvement at all will be because of the political sensitivity, but this isn't really a decision that will have been taken by Michael Cullen. The concern as I see it in this case is not that Crown Law was involved, but that they were so quick about it.

I'd note that somewhere around 30-40% of appeals from the District Court are successful. It's not massive incompetence, judges generally work from precedent and in this case there wasn't any.

Posted by Graeme Edgeler : 12/01/2006 05:05:00 PM

Sanctuary, if any friend of mine had said something like that last week I'd have been calling them "a former friend" from that time onwards. However evil the Israeli oppression of the Palestinian people is, there is no excuse for people who justify genocide.

Posted by Anonymous : 12/01/2006 07:50:00 PM

Shehadeh violated international laws, conventions by placing himself as a combatant among civilians - a strong Palestinian & Hizbullah traditional practice that has been condemned even by Human Rights Watch.
The cruel and ruthless carrying out of rocket and other terror attacks against Israel (including weapons smuggling) from within dense Palestinian civilian areas and family homes causes not only risk and ultimate pain to their own Palestinian people but raises a moral dilemma for Israel who is forced, against its will, to choose between saving the lives of its own people and sparing risk to Palestinian civilians at the cost of Israel civilian loss.

Posted by Anonymous : 12/01/2006 09:27:00 PM

Sanctuary was right - it was a bad taste joke. But Sanctuary and his mate are inadvertantly in the same class as people who demand that Muslims denounce every outrage committed by their co-religionists. The wider Jewish community has a range of opinions about Israel, and none of them are unthinking.

Something I do want to point out is that I/S and most of the commenters here are far, far too quick to equate the IDF with the Israeli government, the Israeli government with the Israeli people, and the Israeli people with Jews in general. There is a substantial peace movement in Israel and a healthy critical discourse in its media which you would never know to read what some people write. That peace movement of course was bigger before the second intifada and the accompanying wave of suicide bombs...

But that's too deep and too boring for the media sources we have easy access to (although for crying out loud, you could read Haaretz in English every now and then and remind yourself it's a national paper representing a real constituency). And you should also remind yourself that Israel has a light handed censorship regime that allows critical reportage, whereas in the Palestinian Authority area and Jordan and Syria and Egypt critical reporters find their reporting ability severely curtailed, sometimes permanently - which skews the news that you see.

Coming back to the case in point: where's the skepticism I see applied to Israel on this blog every time when it comes to statements from Palestinian sources?
I mean, naturally as leftists you want to side with the underdog. So after 1948 for a while the Left sided with Israel, as the underdogs surrounded by hostile Arab nations. Then as the plight of the Palestians became know, the left position changed in the other direction. But as thinking human beings, can you refrain from automatically thinking that everything emanating from Israel is wrong and bad, while all things sourced from Palestinians are correct? Because it's just more complicated than that.

Why does I/S have to note that Ya'alon "fled" like a guilty party? I'm betting he took his scheduled flight out. Why does he say "He is a war criminal" without noting Shehada's role as Hamas commander? Because I/S already knows who's right and who's wrong and doesn't need to be troubled with nuance.

Posted by stephen : 12/01/2006 09:43:00 PM

"If they were as fucking full of themselves as this dude is back in the 30's no wonder they gassed them all."

A bad taste joke???

I have met more distasteful NZers than you can imagine, so therefore feel a bit of gassing wouldnt go amiss, starting with your friend.

This just highlights the double standard that is maintained in Christian influenced western societies, with the homogenizing of jew, israel and zionist to one complete entitiy, and any opportunity is exploited to highlight and punish human fallibility in the jew, above and beyond that similarly extended to other groups. I find I/S, and the 'left' in general does this often, with little or no regard for the situation in Israel. In light of the hypocrisy often demonstrated, I have given up expecting an objective view on matters pertaining to Israel/Palestine, and it is one of the main reasons I no longer consider myself 'left'. I used to think a belief in the true equality of humans was a characteristic of the left.

Posted by Anonymous : 12/01/2006 10:10:00 PM

Nice posts from Graeme and Stephen. (And it's not just "alleged war criminal", the "calllous disregard" stuff is also properly "alleged" I'd bet - I've worked through Human Rights Watch reports on Lebanon and they consistently claim to be able to read "callous disregard" off bombing behavior, which is simply impossible: you have to know the information sets of the bombers in order to draw such conclusions).

I hope Cullen or someone from Crown Law will, however, see fit to explain their reasoning a little more clearly, i.e., how exactly they were able to conclude so quickly that there was no hope of success in the case, or, perhaps even to give some more general guidance about standards and procedures for this sort of thing.

Grabbing guests in your country is quite extraordinary, and I'm haunted by the thought of every nut-job with web access being able to string together a not-easily-assessable dossier against almost any vaguely controversial military commander or civilian leader anywhere. So now any such nutjob can have a visitor detained indefinitely, create an international incident (or not, which causes an incident with the other side etc! Great, every nutjob can put us right in the middle of god knows what - something that used to be the prerogative of whole peoples through their representatives)...and if you *ever* head off any of this you're immediately accused of politically interfering as Cullen has been!

What a heady, idealistic mess! Some general position will have to be staked out I think... Should be fun for someone at Crown Law to think it through, right? And this is the sort of issue that's important to the brainy end of Labour's base, Cullen should be motivated (I can't believe how much ground that guy has to cover!).

Posted by Anonymous : 12/02/2006 01:02:00 AM

I/S: we shouldn't let an alleged war criminal, not convicted of any crime, into the country, but we should give asylum to a convicted supporter of terrorists? Ahmed Zaoui was accused of worse than this man, and he was convicted of supporting terrorists in Europe.

Posted by Anonymous : 12/02/2006 01:08:00 AM

Oh dear. So now we have 'jokes' inferring that the jews deserved it mingled in with various denunciations of racism and stereotyping. You comment, Sanctuary, is so fucking disgusting that I don't know how you can look youtself in the mirror. Your 'friend' may have said it, but you're the one who posted it here in support of whatever point you were making. I doubt even Idiot would find such overt bigotry palatable - though I may of course be mistaken. You really are fucked in the head, to unload such trash on a public forum aren't you?

Posted by Anonymous : 12/02/2006 12:39:00 PM

I am a Jew and a recent immigrant to this country and I have to express my astonishment at this appalling and bigoted comment of Sanctuary. There is rampant anti-Semitism linked with anti-Zionism in Europe and of course the Muslim countries but the one country I never expected to find it was in New Zealand. I'm afraid I have to put the mindset of this blogger, in the same category as that of the very sick minds of the Islamic militants you find in the ranks of Hamas and Hizbollah who train children to hate and kill and who use civilians as shields in their campaign to destroy a country and all her people.

Posted by Anonymous : 12/02/2006 07:46:00 PM