Green light for ICC war-crimes probe into Israel ‘not antisemitic’
Confirmation by judges of the International Criminal Court (ICC’s) of the court’s jurisdiction over the situation in Israel and Palestine cannot be considered antisemitic, according to legal scholar and author Phillipe Sands.
On Sunday, 28 February, Sands addressed the heated debate over the possibility of the Jewish state facing war-crime suits for actions carried out by the Israeli Defense Forces (IDF).
He explained that while the green light had been given for an investigation to ahead, it wasn’t yet guaranteed that an indictment of either side would be forthcoming.
Early last month, the ICC’s Pre-Trial Chamber ruled 2-1 that the court’s chief prosecutor, Fatou Bensouda, had the jurisdiction to launch an investigation into potential Israeli and Palestinian war crimes on territory over the pre-1967 lines in the West Bank, Gaza, and East Jerusalem. Although the investigation has yet to be undertaken, tempers are flaring, with Israel supporters calling the move politically motivated and antisemitic.
It spurred social-justice organisation Jewish Democratic Initiative and Yachad United Kingdom to co-host Sunday’s event, outlining exactly what the ICC’s decision means.
“The ICC was established in 1998 as the culmination of 50 years of negotiation,” said Sands. “It followed the trials at Nuremburg and Tokyo held after World War II.
“It was established to have jurisdiction over war crimes, crimes against humanity, genocide, and aggression, the last only recently agreed on,” he said. “It operates on the principle of complementarity, used only if national courts didn’t investigate. Its jurisdiction is limited in terms of territory and nationality to states that are party to its statute.”
Israel hasn’t ratified the statute, meaning that it doesn’t attach to Israeli territory. Palestine, however, ratified it in 2015.
Cases can be brought only against living individuals, said Sands, not against governments, states, or corporations.
“To date, the ICC has indicted 30 individuals and addressed 30 cases,” he said. “Every individual has been black and African. On this basis, it has been said that the court is anti-black, and while this isn’t the case, it’s a problem that only one continent has really been brought into the ICC’s scope.”
According to Sands, there are currently nine preliminary inquiries into violations by countries including Colombia, Nigeria, Ukraine, Venezuela, and Bolivia. Thirteen investigations are taking place following preliminary stages in Sudan, Libya, Afghanistan, Bangladesh, and others.
Regarding Israel, the issues on which the ICC must decide at this stage relate to preliminary examination only, Sands said. “After Palestine became a party to the statute in 2015, it referred to the prosecutor the matters taking place in its territory for which it held Israel responsible, primarily in Gaza.”
Bensouda began a preliminary examination to see if anything could be done. In December 2019, the prosecutor concluded that there was reasonable basis to proceed with an investigation.
“She did so in relation to a single question: the scope of territorial jurisdiction of the ICC,” said Sands. “This precondition of exercise of jurisdiction is that the crime occurred in a territory subject to the treaty. She sought conformation that the territory in question comprised the West Bank, East Jerusalem, and Gaza.”
“At this stage, Bensouda is of the belief that there are reasonable grounds to say that war crimes were committed in 2014 in Gaza. This includes the actions of both the IDF and Hamas.”
Regarding the IDF, crimes include intentionally launching disproportionate attacks, wilful killing and causing serious injury, and intentionally directing attacks against objects or persons using emblems of the Geneva Convention. When Hamas and “Palestinian armed groups” are concerned, the crimes include intentional targeting of civilians, using people as shields, wilfully depriving people of their right to trial, and torture or inhuman treatment.
Sands said that within the context of the West Bank, Bensouda also felt there was reason to believe Israel had committed war crimes by transferring Israeli citizens into the West Bank since 2014 and in attacks by the IDF against protestors on the border in 2018.
The request was sent to the ICC and brought before a panel of three judges to decide in the pre-trial chamber. They issued their decision on 6 February.
“It was limited to the question of whether Palestine is a state under article 12 of the ICC statute. The court concluded by majority that Palestine was a state within the meaning of the article, but made clear it had no view on whether it’s a state for other purposes under general international law.”
The court also concluded that the scope of jurisdiction applied through the entirety of the territory, including those areas occupied by Israel since 1967, namely Gaza, the West Bank, and East Jerusalem.
Said Sands, “It was decided 2-1 that the prosecutor may proceed to investigate any acts before her that occurred in the territory of Palestine. That’s the extent of the decision that has been taken.”
Branding this move antisemitic or anti-Israel is an unfortunate charge to make, Sands said.
“A court isn’t antisemitic or anti-African but is made up of the individuals who are part of it. The court had a job to do, and I’m quite certain that the three judges went about their decision without any prejudice on either side in relation to the crimes which may or may not have been committed.
“All that has been decided is the scope of possible future investigation. It doesn’t mean there will be any indictments, but an investigation. After an investigation, it will need to go before another panel of judges to get any authority to issue an indictment, and only then will the issue proceed.”
Even then, the ICC won’t have the power to arrest anyone – it depends on the co-operation of the state or entity concerned.
Local rabbis help Rwandan rabbi with first Jewish burial
When one of his congregants passed away last week, Rabbi Chaim Bar Sella of Rwanda turned to local rabbis in South Africa to help him arrange the first Orthodox burial in Kigali.
The late George Frank, 78, made history last week when he became the first Jewish man officially buried in Kigali’s first Jewish cemetery. His wish was to be buried near his late wife in the Rwandan capital where the couple had lived for many years.
His rabbi, Bar Sella, with whom he had forged a meaningful bond in his later years, made sure his wish came true.
“We met soon after my arrival in Rwanda with my wife and son to set up the Chabad Centre in September 2019,” said Bar Sella. “George came to visit Chabad House, and I invited him for Rosh Hashanah. On erev Yom Kippur that year, he laid tefillin for the first time in his life just minutes before the Kol Nidre service. It was very special for everyone there to witness,” he said.
Recalling that moment, he said, “I told George to put on tefillin, and he said to me, ‘What’s that?’ I said, ‘Just do it, and we will talk afterwards, there isn’t time’. That Yom Kippur was significant and touching, it was like his Barmitzvah, like the birthday of his neshoma [soul].”
Since then, Frank and the rabbi became close. “I would visit him on Fridays with challah for Shabbos, and lay tefillin with him,” said Bar Sella.
On Frank’s passing, Bar Sella turned to Chabad of Central Africa, led by Rabbi Shlomo Bentolila in Kinshasa, the Democratic Republic of the Congo for guidance.
“Travel between various African countries is restricted, so Rabbi Bentolila advised me to get in touch with the Chevrah Kadisha in South Africa as the country was still allowing travel to Rwanda, and it would help,” said Bar Sella.
This led him to Rabbi Jonathan Fox of the Chevrah Kadisha in Johannesburg, who put him in touch with the travelling rabbi, Rabbi Moshe Silberhaft, rabbi to the newly established Small Jewish Communities Association, who it was hoped would fly there and assist.
“Rabbi Fox called me about this rabbi needing help arranging a Jewish burial in Kigali. The initial idea was for me to fly out there and assist him, but COVID-19 put an end to that, so I landed up helping him online with all the arrangements,” Silberhaft said.
As far as he is aware, there has never been a Jewish cemetery in Rwanda, and the majority of Jews living there are Israelis whose burials take place back home in Israel following their deaths.
“We did all the planning online,” said Silberhaft, who explained that Bar Sella first needed to secure land from local authorities.
Bar Sella met the manager of the Rusororo Cemetery to explain what was needed. “He was very understanding and respectful, and allocated a separate and large area of land at the cemetery,” he said.
Silberhaft explained how to consecrate the land for Jewish burial.
Bar Sella gathered a minyan of men, and the land was consecrated in a special ceremony according to Silberhaft’s advice.
“I explained the ritual of tahara [washing and purifying the body] and all the specific coffin requirements. His daughter brought with her a special shroud from the London Chevrah Kadisha which was used. I was very encouraged by the rabbi’s positive energy and for reaching out. It was a memorable learning experience for him,” said Silberhaft.
The deceased, who was born in France in 1943, spent many years in various African countries for work. His four children live in the United Kingdom, and three of them were present when he was finally laid to rest last Wednesday in the presence of a minyan and several congregants and locals.
“It was my first time doing something like this, and it was a very moving ceremony. I’m grateful for Rabbi Silberhaft’s help, and I’m pleased that my friend George was buried according to Jewish tradition,” Bar Sella said.
Rabbi Bar Sella, his wife Dina, and their son, Shneur, arrived in Rwanda in 2019, and set up the first synagogue in the country served by a permanent rabbi.
In the past, yeshiva students have made visits to Rwanda to run occasional Jewish events as part of Chabad’s Roving Rabbis programme.
Bar Sella said that the Chabad centre served Jewish humanitarian workers and visiting businesspeople, many of whom were Israeli, and tourists coming to see the famous gorillas.
“Rwanda is a great place. It’s safe, and you can walk in the streets anytime, day or night. It’s clean, with no pollution. We don’t use plastic here – it’s a green country. Our community usually gets its meat from Johannesburg and chickens from Israel. During COVID-19, it has been difficult. But I’m pleased to say now there is a special little place reserved for Jewish burials in Rwanda.”
The great British botch-up of justice against Nazis
Only one Nazi war criminal was ever tried and convicted in Britain. In fact, most Nazi war criminals and collaborators who hid in the United Kingdom (UK) were left alone by authorities and allowed to enjoy peace and safety for the rest of their lives.
That’s according to Phillip Rubenstein, who served as the director of the All-Party Parliamentary War Crimes Group in the UK in the 1980s.
This organisation campaigned successfully to change the law to enable the prosecution of Nazi war criminals living in the UK. Rubenstein shared his experiences in a lecture delivered to the Lockdown University run by Wendy Fisher. The lecture was screened in South Africa through the Rabbi Cyril Harris Community Centre.
Rubenstein reminded the audience that, after the war, the experience of the Holocaust was mostly shrouded in silence for decades afterwards, and little action was taken against perpetrators.
For example, between 1945 and 1985, there were seven requests for extradition of Nazi war criminals living in the UK, and none of them were honoured – the British government using technicalities as an excuse.
In the 1970s, interest in the Shoah began to increase, and “one of the manifestations was that Western governments started to wake up to the fact that they were harbouring Nazi war criminals usually unbeknown to them”.
In October 1986, the Simon Wiesenthal Center in Los Angeles compiled a list of 17 individuals which it claimed were Nazi war criminals living in the UK, and sent it to then British Prime Minister Margaret Thatcher.
The government didn’t respond in the first few weeks, but the centre also contacted some members of parliament. A group of MPs from across party lines decided to form a group to “push, prod, ask questions, and find out what the British government proposed to do about the list”.
In the interim, the media got hold of the list through a separate leak, and began its own investigation, exposing the fact that there were Nazi criminals in the UK. Moreover, the Soviets also handed over another 34 names in this regard to the British government.
By now, media attention ensured there was a public outcry, but for weeks, the government still didn’t respond. “The issue had turned into a ‘hot potato’. No one wanted to deal with it, and it was being passed from pillar to post,” notes Rubenstein.
Eventually, it was given to then-Home Secretary Douglas Hurd, with whom the group immediately asked for a meeting.
“So, we sat down in front of him, and he said it was a case of good news/bad news. ‘We have looked at the list, and we have found that of the 17 individuals who are on here, six of them, we can confirm, are still alive and well and living in the UK,’ Hurd said. ‘The bad news is there is absolutely nothing that can be done because we don’t have any law which says that if you commit a crime – even murder, mass murder, or genocide – outside of this country before you were a UK subject, you can be prosecuted for it.’ That was how the meeting ended.”
The government then set up an independent inquiry, with Rubenstein quipping that the motivation seemed to be that “the inquiry takes so long to sit and pontificate and report that by the time it’s reported, everyone would have moved on”.
In the interim, Rubenstein’s group launched a research project led by historian David Cesarani to determine how Nazi criminals got to the UK in the first place.
The majority of the Nazi criminals found in the UK were Baltic nationals from Estonia, Latvia, or Lithuania, or from Poland or the Ukraine. Indeed, researchers discovered that they had been some of the estimated 30 000 local officials who had collaborated with the Nazis einsatzgruppen, the troops given the task of murdering mostly Jews, as well as Roma and dissidents once an army invasion was successful.
In 1944, when the tide began to turn in the war, many collaborators pretended to have been innocent civilians or part of the Polish Free Forces to be eligible as “displaced people”.
After the war, a “displaced person” would be able to get food and shelter on one condition: that they were not a Nazi war criminal or collaborator. Every army involved in bringing displaced people over was required to ensure this criterion was met. “Most of the armies applied poor perfunctory screening; probably the worst offenders were the British army which hardly screened anyone.”
The only time on record when anyone was refused by the British was when a group of seven Latvians, still in their Waffen-SS uniforms, applied.
In fact, recalled, Rubenstein, researchers came across one incident when a relief worker came upon 20 Baltic nationals in a displaced-persons camp who all had the same scar under their left armpit. “She discovered the reason why they all had that scar there was that they all had an SS tattoo there and they’d all had their tattoos removed. When she mentioned this to her superior officer, she was told to get on with it, shut up, and do her job.”
“Why were the British and others so uncaring about this issue?” mused Rubenstein.
There was some element of influence from the Cold War whereby anyone who was anti-Bolshevist was seen as welcome, but Britain’s attitude stemmed mostly from a much more practical place.
“As a result of the depletion of men during the war, there was a critical labour shortage.” The government was therefore carefully selecting displaced people based on who best could fill in this gap.
Jumping ahead to February 1989, the government’s war crimes inquiry then finally released its report. In its conclusions, it declared that following investigations, “to take no action would be to taint the United Kingdom with the slur of being a haven for Nazi war criminals”.
The report called for the prosecution of a number of the cases of alleged Nazi war criminals living in the UK, and for criminal law to be changed in order to do so.
However, the parliamentary process met some open antisemitism. It was only through the intervention of Thatcher that the Bill allowing such prosecution was eventually passed in 1991.
After this, a metropolitan police force specialist unit was set up. Over the next eight years, it investigated almost 400 suspects. In all that time, there was only one trial: that of Belorussian born, retired British Rail ticket collector Anthony Sawoniuk, who in 1999, was found guilty of the mass murder of Jews. Three months after his trial, the police unit closed down.
Rubenstein reflected on a comment that Labour MP Llin Golding made after being asked on a previous occasion if getting the Bill passed wasn’t a waste of time.
He quoted her response: “This Bill may not lead to a single prosecution of a single Nazi war criminal living here. But at least it might give them bitter fear that one day soon, someone will knock on their door and make them answer for the suffering they inflicted.”
Birthday twinning project brings light to dark times
They experienced unthinkable tragedy, but Bat-Galim Shaer and her husband Ofir continue to live with optimism and a desire to make the world a little brighter by connecting Jews from around the world.
Their son, Gil-ad, was one of the three Israeli boys kidnapped and murdered in the summer of 2014. Their organisation, Sonshine – Brightening the World in Their Memory, was founded to celebrate his life and legacy, and as a way to bring people across the world together in spite of so many divisions.
“When my son was kidnapped and murdered six and a half years ago, we felt a huge embrace from Jews around the world,” says Bat-Galim. “The inner strength that we found during the 18 days of searching for the boys, as a nation and as individuals, and the optimistic attitude that we chose [to have] after learning the boys’ fate, forced us to return to daily life and offer support to all Jews wherever it’s needed.”
Before the pandemic, Bat-Galim travelled around the world, realising the unity and connection she felt at the time of her family’s tragedy was something she found wherever she went. “It was meaningful. We realised that when we speak of am Yisrael, we are speaking of people that aren’t only in Israel, but Jews around the globe, whose hearts are here. We wanted to maintain that connection.”
Bat-Galim has a surprising South African link. She was born in Middleburg, Mpumalanga, where her father was the rabbi of the community for six years. The family returned to Israel when she was four, so her memories of South Africa are hazy. “But my parents loved that period of their lives, and they always told us lots of stories about the community, which was very meaningful for them,” she says.
Now, her organisation has launched a project that aims to increase this connection in a simple, light-hearted, and meaningful way by matching Jews who share a birthday, encouraging them to wish each other well on their special day, and continue their conversations throughout the year.
“There are about 14 million Jews in the world today, only half of whom live in Israel. In recent years, the bond between Israel and the Jews in the diaspora has been weakening. The coronavirus pandemic has increased the importance of the connection between us. Strengthening the bond between Israel and the Jews of the world is one of the significant challenges facing the Jewish people in the 21st century,” she says.
“The initiative, called Happy Birthday Two You, is one of those projects. It’s our hope that this global, digital initiative can bring about welcome change and create surprising connections. The idea came about when we launched a competition with 50 other organisations asking people to come up with ideas for projects that can strengthen the bond between Jews in Israel and the diaspora. There were about 700 entries, and this idea was thought of by someone in Canada, someone in America, and someone in Israel.”
They decided to go with it, and the results have been exciting. “It was launched on 3 January 2021, and we already have 1 600 people registered. With everyone sitting at home, people are really looking for connection.”
Taking part is easy. The website, mazeltov.world, is available in a variety of languages. You just enter your email address, followed by prompts to enter your name, surname, and date of birth. The system then scans its database for your “birthday buddy”, and you get an email introducing you to each other. Then it’s up to you to build your connection to this stranger who shares your Hebrew birth date. The email addresses are stored by the project and aren’t exposed to outsiders. If you wish to share your personal details, you can do so as part of a secure correspondence.
The more people who join, the more “birthday buddies” there will be, so it’s worth taking a minute to sign up and then see who you connect with and what you have in common.
Bat-Galim says that the time since the loss of her son has been “hard and complicated”.
“We try to get strength from our five amazing daughters, and we have one beautiful granddaughter who is three years old. We try to look at what we have with a “cup half full” [attitude]. We don’t ignore the pain, we feel it, and we miss Gil-ad. But we choose to live and be positive. And yes, I’ve ‘fallen down a lot’. You have to work at it. But a project like this makes me so happy.”
Happy Birthday Two You isn’t the only initiative by her organisation to bring a little brightness into the world. For example, just before Purim [before the pandemic], volunteers distribute mishloach manot to travellers leaving Ben Gurion Airport. They literally and symbolically spread joy in the world.
“Students from religious and secular schools enthusiastically work together preparing thousands of baskets. In the past two years, packages were delivered to more than 80 countries, reaching a total of several thousand people. Jews living abroad were excited to receive the gifts, and felt connected to Jews living in Israel,” says Bat-Galim.
Meanwhile, through the Sweet Heart project, hundreds of thousands of people all over the world mark Gil-ad’s Hebrew birthday, the 19th of Tevet (which usually falls in January), with one of his favourite hobbies: cooking and baking. People share recipes, prepare food, and bring treats to people they don’t know.
The Shaer family created the Facebook group Sweet Gilad and the Instagram account @sweetgilad, where anyone can upload and view video clips from this project. It has led to religious and secular youngsters working together to deliver delicacies to nursing homes; families bringing food to soldiers; and students baking and bringing confectionaries to hospitals to cheer up patients.
“This project has a tremendous number of participants in Israel and abroad. Especially on Gil-ad’s birthday we choose to increase optimism and joy for what we have and to help others.”
Prior to the pandemic, a musical event called Shiru Achim featured performances by professional musicians from across the religious spectrum. “It emphasises what unites us rather than what divides us and encourages hope through a genuine connection with music,” says Bat-Galim. The first event had more than 5 000 participants.
There are a number of other initiatives that spread joy, love, and light in simple but meaningful ways. Bat-Galim has also written a book which has just been released in English on Amazon, called Expecting My Child. “It’s a hard story, but also optimistic. It’s about the good deeds of am Yisrael during those tough days. It makes me feel proud to be a Jew,” she says.
- Visit https://mazeltov.world/En to find your birthday buddy.
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