by Toby Cadman
One could be forgiven for believing that the protection of civil liberties and fundamental freedoms, and the obligation upon a state to protect and adhere to those rights without prejudice, would be uniform. One could also be forgiven for believing that the treatment of a citizen on the right hand side of the road would be the same as that of the treatment of a citizen on the left hand side of the road. One could be forgiven for naively believing that all are equal before the law.
However, the way in which Israel treats its own nationals as compared to the way in which it treats Palestinians, comes as a stark reminder that there is no equality. It also comes as a stark reminder that without universal condemnation by the international community, and specifically the United States, this disparity in treatment will never change.
There will of course be those who do not accept that there is a double standard, or seek to justify that double standard on the basis that Israel is simply seeking to defend its borders, and its people. There are examples however, that cannot be justified.
Following the brutal murder of Mohammed Abu Khdeir, and the demonstrations that followed, the boy's cousin, Tariq Abu Khdeir, aged 15, was arrested by members of the Israeli Defence Force (IDF). During that arrest he was brutally beaten. Video evidence released would tend to demonstrate just how violently he was beaten during the arrest.
Regrettably, Tariq's arrest and treatment is not an isolated incident. What is unusual, however, is the course of events following his arrest.
Tariq is Palestinian-American. Having been arrested and brutally assaulted, he was locked in the police station for hours, without access to medical treatment or a lawyer. Tariq demanded that he be granted consular access and speak to a representative at the US Embassy. Upon doing so, and upon there being mention of the fact that he held a US passport, he was then taken to hospital for treatment. Photographs of his swollen and bruised face bear testimony to the manner in which he had been treated.
The US State Department was quoted as saying how it was "profoundly disturbed" by the video. Tariq was then released on bail, although he was required to pay for his release and is now under house arrest. Tariq's mother has vowed to bring criminal proceedings against the IDF officers.
The Israeli Justice Ministry has now confirmed that the government's legal adviser will investigate the video showing the assault.
It is telling, that upon learning that the young man was a citizen of the US, Israel's most staunch supporter that the attitude towards him changed dramatically. It is this that is unusual. It is this that smacks of a double standard.
The double standard is apparent to both countries. Israel, upon realising that the young man was a US citizen, suddenly released him on bail, and that the US upon realising that the young man was one of its own, publicly condemned the treatment, and no doubt diplomatically sought his release.
How many times have we seen videos of children being detained, being beaten, and in recent cases, being shot dead by the Israeli security services, and yet there is no condemnation or "profound feelings" emanating from the US. How many times do others complain of the treatment of those arrested by the Israeli security services, and yet Israel does not change the way in which they are treated. Let us not forget that Israel is the only country on the planet that arrests, detains and puts minors through the traumatic experience of a military trial.
It is precisely this failure to condemn on each and every occasion that allows Israel to continue to act with such impunity. Without such international condemnation, Israel's position is legitimised and evidently, nothing will change. It is fortunate that Tariq is a US citizen. It is clear that the blue passport bearing the famous crest of an eagle has saved him from further beatings, arbitrary detention and possibly a military trial.
Looking to the Israeli response, it is clear that it is the right one. A prompt statement of condemnation and commitment for a full and proper investigation to be followed by arrests of the alleged perpetrators.
Rules and exceptions
We have now seen the arrests of those suspected of murdering Mohammed Abu Khdeir and expect to see those responsible stand trial and face the full extent of the law if convicted. However, while the efforts are to be applauded it would have received greater support if the response was the rule rather than the exception.
An individual's fundamental freedoms and civil rights should be upheld no matter from which side of the road they hail and all should rightly condemn any infringement of those rights. The US cannot seek to cherry-pick simply because the detainee was one of their own. The treatment was deplorable, it was unlawful, and was quite rightly condemned. However, the treatment of the hundreds that have been arrested over recent weeks should also be condemned by the US, and the treatment of some of those detainees must be properly investigated, otherwise, Israel will continue to act with its air of impunity.
There is a need for a wholesale change in attitude, particularly from the US, and to a significant extent, by the other permanent members of the UN Security Council. The practice of walking on egg shells whenever the issue concerns Israel, must stop. If Israel acts in breach of international law, it should be criticised like any other state. Above all, the international community must not allow double standards where the colour of one's passport determines the level of protection.
It is accepted that Israel does face very real risks of terror attacks by certain groups, and such attacks must be condemned in the strongest terms. As Israel cannot hide behind a cloak of victimisation, neither can its aggressors. It is quite clear that the threat of insurgency does not give them the right to treat all Palestinians, and in particular Palestinian children, as second-class citizens.
International law is being breached with increasing regularity. Israel is not acting in accordance with its obligations under those international treaties to which it is a signatory, and notably, many of those treaties promulgated at the end of World War II. Such violations must be condemned in the strongest possible terms, and action taken on each and every occasion.
It is often said, but perhaps never so starkly, that to tolerate is to encourage.
Toby Cadman is an international criminal law specialist. He is a barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.
A version of this article was first published by Al-Jazeera
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