The laws of war, as encoded in the Geneva Conventions and related treaties, are pretty straightforward. Few would disagree with the catalogue of excesses, cruelties and atrocities they outlaw, especially those that victimize civilians.
And the International Criminal Court, which judges whether individuals have violated those laws, is a pretty straightforward body, staffed with well-regarded and generally conservative judges who have issued a short list of warrants against such figures as former Sudanese dictator Omar al-Bashir and current Russian President Vladimir Putin for specific alleged war crimes.
Reaction to the ICC prosecutor’s May 20 request for warrants against three Hamas leaders, Israeli Prime Minister Benjamin Netanyahu and his Defence Minister Yoav Gallant, however, was far from straightforward. No more so than in Canada, a founder and decades-long supporter of the ICC.
Initially, Prime Minister Justin Trudeau said that while he supported the court’s independence, he was troubled by “the sense of an equivalency between the democratically elected leaders of Israel and the bloodthirsty terrorists that lead up Hamas,” echoing the words of U.S. President Joe Biden. On Monday, Irwin Cotler, who as Liberal justice minister helped create the court and made Canada a member of it, blasted the ICC’s British prosecutor in a Times of Israel interview for ignoring its founding principle of complementarity – that is, that a country with an independent judiciary, such as Israel, should be allowed to prosecute the alleged war crimes itself unless it “is unwilling or unable genuinely to carry out the investigation or prosecution.”
While it is quite valid to question the usefulness of international law during active wars, or to suggest that such charges may hamper a negotiated solution, that wasn’t their criticism. In fact, none of the accusations made by the prominent Liberals hold up to scrutiny.
You don’t find any “equivalency” between Israel and Hamas in the prosecutor’s request for warrants (it’s up to the ICC’s panel of judges to decide whether those warrants will be issued). The bulk of the document and most of its charges concern atrocities committed by Hamas: extermination, murder, hostage-taking, torture, cruelty to captives, “outrages upon personal dignity” and rape, not just during the Oct. 7 assault but “ongoing.”
The proposed Israeli charges are narrowly limited to the issue of humanitarian aid – specifically, the effects of their orders to deprive Palestinians of food, medicine and other necessities of life, sometimes violently, and “starvation of civilians as a method of warfare.” This is apparently based on Mr. Gallant’s Oct. 9 announcement – “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed. We are fighting human animals, and we are acting accordingly” – and Mr. Netanyahu’s repeated rejection of urgent requests by the United States and other parties to end that policy.
Mr. Cotler’s criticism would be valid if Israel showed any sign of using its courts to investigate these war-crime allegations. As the legal scholar Oona Hathaway noted in an essay last week, Israel could still prevent any ICC prosecution simply by launching its own court case. But, as she points out, Mr. Netanyahu is “extremely unlikely to agree to a domestic investigation,” because his principal mission before Oct. 7 was to try to disempower and manipulate Israel’s courts in order to dodge the domestic corruption charges he faces, and to remain in office to take advantage of prime ministerial immunity from prosecution.
Those criticisms might apply to the International Court of Justice, an unrelated United Nations court that prosecutes claims against entire countries. Because the ICJ does not have the jurisdiction to prosecute Hamas’s war crimes, its Dec. 29 case against Israel, brought by South Africa, does indeed appear unbalanced – and by jumping to a generalized a priori charge of genocide, it lost some credibility (its case is likely to take years to reach a verdict).
However, Canada seemed to change its messaging around the international charges this week. The government, like many citizens, appears to have been shocked back to its senses by the horrifying images of families burned alive in the Israeli bombing of the Rafah tent displacement camp – part of a military strategy Mr. Netanyahu had been repeatedly warned against.
Bob Rae, Canada’s ambassador to the United Nations, issued a social-media statement on Monday that echoed and amplified that of Foreign Minister Mélanie Joly, and presumably the whole government: “Release the hostages. Legal accountability in which the work of ICC and ICJ is respected. Ceasefire on all sides. Build up capacity of Palestinian authority. Insist on security for all. Two states, Israel and Palestine, exercising their right to self determination and security.”
Those have long been the official positions of Canada and most democracies. Even ardent supporters of Israel, and Israelis themselves, should recognize that the ICC is doing everyone a favour by investigating the grotesque missteps of leaders. At this point, hardly anyone believes that Mr. Netanyahu should remain immune from prosecution – except the man himself.