“It makes no sense to say that Israel and Hamas are put on an equal footing” – L’Express

It makes no sense to say that Israel and Hamas

Will an Israeli leader one day find himself in the dock at the International Criminal Court (ICC)? His prosecutor, Karim Khan, requested on May 20 arrest warrants against Prime Minister Benjamin Netanyahu and his Defense Minister Yoav Gallant, in addition to three others targeting Yahya Sinouar, leader of Hamas in the Gaza Strip. , Mohammed Deïf, head of its armed branch, and Ismaïl Haniyeh, head of the organization’s political office. A “scandalous” decision, according to American President Joe Biden, a fervent support of Israel.

This is not the opinion of Philippe Sands, author of several works on the history of international law, including the “bestseller” Return to Lemberg, on the invention, by two eminent Jewish jurists who lived in the same city as his grandfather, of the terms crimes against humanity and genocide. The Franco-British lawyer believes that the report on which Karim Khan relies is “legally incontestable” and that it is “obvious” that “war crimes” were “committed in Gaza” and, “very certainly also crimes against humanity.

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The Express: The Prosecutor General of the International Criminal Court requested the issuance of arrest warrants against Hamas officials, but also against Israeli Prime Minister Benjamin Netanyahu and his Defense Minister, Yoav Gallant. Is this the first time that such a request has been made against the leaders of a democracy?

Philippe Sands: It’s the first time for a democracy, yes. If an arrest warrant were issued against him, Benjamin Netanyahu would be the third head of state or government to be indicted by the ICC after the Sudanese Omar al-Bashir [en 2009] and Vladimir Putin [en mars 2023]. I think that the attorney general, after indicting the Russian president, had no choice. He could not only indict Hamas leaders for international crimes committed on October 7 and thereafter – killings, sex crimes, hostages. But it is also obvious that crimes were committed in Gaza: war crimes, most certainly also crimes against humanity.

Israel strongly contests this decision, believing that it is being placed on an equal footing with a terrorist organization, Hamas. Is it an error on the part of the Attorney General to request these five arrest warrants simultaneously?

It makes no sense to say that Israel and Hamas have been put on an equal footing. The prosecutor benefited from a legally indisputable report, produced by experts – most of whom I know -, on the basis of publicly known information. Perhaps they also have other elements that we are not aware of. But on the political aspect, we can ask ourselves: was this the time to do it, while the war continues?

And so, was this the moment?

I see the arguments on both sides. I have already said publicly that I believe it was a mistake to indict Putin when he did. According to my theory, this was to avoid the creation of a special court for the crime of aggression [d’un pays par la force d’armée d’un autre], an idea the prosecutor opposes. Not for reasons of principle, but of territory: he does not want a court competing with the ICC. He therefore had to find a way to indict Putin and, in the hierarchy of horrors that he has committed, he chose the deportations of children. An important crime, but not central.

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Karim Khan’s announcement about Netanyahu provoked scandalized reactions from the Americans, the British and the Germans…

But not the French, nor the countries of the South, who are more in favor of these arrest warrants. The Americans and British claim that the ICC has no jurisdiction to try Israeli officials, but the court has already ruled on this issue and affirmed that Palestine is part of the Rome Statute [NDLR : le traité à l’origine de la CPI] and that it therefore had jurisdiction over the territory of Palestine. The United Kingdom, a member of the ICC, must respect its decisions, and its hypocritical reaction amounts to double standards. As far as the Americans are concerned, it’s even more ridiculous. A year ago, the Senate voted 100 to 0 to support the indictment of Vladimir Putin, even though Russia is not a member of the ICC. Saying yes for Russia and no for Israel makes no sense.

But the ICC has not prosecuted, for example, Syrian leader Bashar al-Assad…

The ICC does not have jurisdiction over Bashar al-Assad because Syria is not part of the Rome Statute. She could indict Bashar al-Assad if he had committed a crime in a third country, a member of the ICC.

Can the Israeli authorities still prevent the issuance of these arrest warrants, for example if the Israeli justice system opens a serious investigation into the war in Gaza?

Yes, the prosecutor wrote in his decision that the principle of complementarity was going to play in this case, which means that if Israel begins serious proceedings against Mr. Gallant and Netanyahu, this could come into play. But it is not certain that this will happen. The prosecution in Israel can open an investigation, but it is assumed that there may be an element of political control behind it, a certain dependence.

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The term genocide is used by pro-Palestinian protesters to describe the situation in the Gaza Strip. Do you share this analysis?

Having argued in several cases of this type, I can say that it is very, very hard to prove genocide in international law, since it is necessary to prove the exclusive or quasi-exclusive intention to commit it. The ICC prosecutor seems to think so too, both for the events of October 7 and for those that have taken place since: he does not mention the term genocide. Between the lines, it is reasonable to read a message sent by the prosecutor to the International Court of Justice, which is also in The Hague: the International Criminal Court has jurisdiction over war crimes, crimes against humanity and genocide. He said yes to war crimes, yes to crimes against humanity, nothing on genocide.

Can this message be heard in the pro-Palestinian camp, which uses the term genocide regularly?

In my opinion, there is no hierarchy between war crimes, crimes against humanity and genocide. Whatever term is used to describe what is happening in Gaza, it is an international crime. Let’s not have a competition of horrors! Crimes are taking place in Gaza, we must be very clear. The question remains that of their name.

In the wars in Ukraine and Gaza, the term genocide is mentioned by all sides. Is this word overused currently?

The crime of genocide inflames passions in a completely different way from all other crimes. Whether on the former Yugoslavia, Rwanda, etc. All the victims ask the prosecutor to take charge of the genocide. Victims are not satisfied with the terms war crimes or crimes against humanity. I wonder: what is this hierarchy for? In my opinion, this is neither valid nor useful. I know from my own work that this poses enormous problems: in the former Yugoslavia, Bosnia managed to obtain a judgment affirming the genocide against the Bosnians, while Croatia failed to prove the same thing, “only “war crimes and crimes against humanity. This creates significant tension between Bosniaks and Croats.

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These denominations were created in a very particular moment, in June-July 1945, during which there was no reflection on the relationships between the three crimes. Nowadays, they are likely to create a lot of problems. The crime of genocide is capable of generating the acts that the term was invented to avoid: it reinforces the idea of ​​groups against groups, and that is why passions are inflamed by this term. We need a reflection on the usefulness of this concept and its relationship with other concepts of international law.

With the wars in Ukraine and Gaza, is international justice at a turning point?

I am half French, half English. The British love irony, the French less so. But there is a certain irony on this question: at the moment when there is an implosion of political institutions, States throw themselves towards legal institutions. It is clear that our political institutions cannot manage events, so states will look elsewhere for the means to obtain results. As soon as there is a reduction in the role of politics, the role of law increases. It’s fascinating. And that puts judges in a terrible situation.

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The same phenomenon emerges with climate change: we are at an impasse at the political level, so an advisory opinion is requested before the Tribunal for the Law of the Sea. On May 21, the latter gave a first opinion on the legal consequences of the change climate in the area of ​​the law of the sea. Where political institutions are bankrupt, people and states find other institutions to open the door.

Is international justice equipped for these missions?

Absolutely not. It’s too much. We cannot ask international judges to act where countries cannot do so through legislative channels. Judges find themselves in an impossible situation: they are asked to rule in a context where there is no clarity in the rules and no consensus in the political domain. It is not the function of an international judge to legislate.

Can this explain why international justice has been so attacked by states, especially Western ones, in recent days?

This hypocrisy is fascinating. The reactions of President Biden and the British government only serve to show support for the Israelis. But they are strongly criticized at home, because there is obviously a double standard between their position vis-à-vis Russia and their position vis-à-vis Israel.

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You are counsel for the Palestinian Authority before the International Court of Justice, on the question of the Israeli occupation in the West Bank. Have the events of October 7 and the war changed your case?

The Court will give its advisory opinion in the coming weeks, in June or July. This procedure on Palestinian self-determination was initiated at the request of the United Nations General Assembly. This is a much more important case, on the main principles, than the one brought by South Africa before the ICJ: the judges will sit on the question of Palestinian territory, legality or illegality of the Israeli occupation, which will really have consequences. It is in this context that [le 22 mai] Spain, Ireland and Norway have announced that they recognize the State of Palestine. This movement is very clearly linked to the February hearing before the ICJ, which shows the eternal link between politics and law.

We have to look at the long term, but the current period is fascinating for international law. It is not the great success of international law or the bankruptcy of international law: it is a step forward, a step backward, a step aside. A new world was created in 1945, and it will take 300 years to bring order to it. We are still in the Middle Ages of international law.