Cowardice and hypocrisy were present in equal measure when Attorney General Michael Cullen two weeks ago quashed attempts to bring alleged Israeli war criminal Mosche Ya’alon to justice.
Cullen ordered the abandonment of the arrest warrant issued against Ya’alon by Auckland District Court Judge Avinash Deobhakta earlier in the week. The judge had spent the weekend reviewing a substantial body of evidence presented for Ya’alon’s arrest and in his ruling on the Monday found there were “good and sufficient reasons” for the New Zealand police to arrest him.
However the police referred the warrant to the Crown Law office and within an hour of them receiving the court documents Cullen found time on his travels in Timaru to cancel the warrant.
So why the fuss about a retired head of the Israeli Defence Force?
In 1996 Ya’alon was identified as the person behind the shelling of the United Nations compound at Qana in Southern Lebanon in which more than 100 civilians were killed. He was dubbed the “Butcher of Qana”. In the ensuing investigation the UN found the Israeli military had violated international law.
Then in 2002 Ya’alon was identified as the person responsible for directing the bombing of the densely populated Al Daraj neighbourhood of Gaza City to assassinate Hamas commander Salah Shehadeh. 15 were killed and 150 injured. Seven died in Mr Ra’ed Mattar’s household when his house was completely destroyed. Mr Mattar is a war crimes complainant against Ya’alon.
The arrest warrant was issued after the judge found a prima facie case was established of a grave breach of the Fourth Geneva Convention 1949, which is a criminal offence in New Zealand under the Geneva Conventions Act 1958 and International Crimes and International Criminal Court Act 2000.
The war crimes covered by these New Zealand laws include “wilfully causing great suffering, or serious injury to the body or health and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”. Also covered are situations involving “launching an attack in the knowledge that attack will cause incidental loss of life or injury to civilians or damage to civilian object or widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”
Under these laws war crimes can be tried and punished in New Zealand under New Zealand laws even if they took place in another country and neither the perpetrators nor victims are New Zealand citizens. This is critical because war criminals more often than not escape justice in their own countries. The Mattar family have attempted to get justice via the Israeli courts but as our District Court judge pointed out, these attempts have been either exhausted or frustrated.
And as our Ministry of Foreign Affairs and Trade points out –
“The prosecution of accused persons, whether that occurs at the national or international level, will help to put an end to impunity for international crimes. The prevention of such crimes is in the interests of international peace and security, which benefits all states”
But these strong words melt into meaninglessness when the perpetrators of terrorism and war crimes are well-armed nations such as Israel backed by powerful friends such as the United States. Cullen wimped out and has left New Zealand morally and legally diminished.
If war crimes are to be effectively prosecuted and deterred then courts and governments around the world must be vigilant and respond to appeals from the victims by issuing proceedings against these criminals. In this case we can be proud that our district court rose to the challenge but our government has demeaned us all.
The Mattar family and countless other victims of war crimes deserved better than Cullen scribbling franticly to bypass our commitments under the Geneva Convention.
The government likes to talk about us being “players on the world stage” and “responsible global citizens” with a “first-class record on human rights”. I’d like to see Cullen try to explain what those fine words actually mean to the remaining members of the Mattar family as they carried the bodies of their children from the wreckage of their home.
The message from New Zealand which reverberated around the world, to both the perpetrators of war crimes and their victims, is shameful. Cullen has yet to provide more than a few dismissive comments to explain why our courts could not be trusted to try Mosche Ya’alon.
It was a Spanish court which first issued warrants for the arrest of Augusto Pinochet, the Chilean military dictator notorious for the murder squads which rampaged the country after his CIA backed coup in 1972.
Why couldn’t New Zealand have been the country which had the political courage to stand up for the Palestinian victims of Israeli war crimes?