• Up until now, there has been a lot of pressure on the International Criminal Court from the US ‘not to go too far on Israel,’ Hungarian-American lawyer Reed Brody tells Anadolu
• ICC’s double standards can be seen in how it deals with ‘enemies like Russia’ or outcasts like African countries, as opposed to ‘not just Israel but with powerful Western interests,’ says Brody
• The fact that Israel is responding to a Hamas attack ‘does not change the equation for Israeli military action,’ according to human rights lawyer

ISTANBUL

After years of impunity for all sorts of excesses, including possible crimes against humanity, policies that rights groups have described as apartheid and building illegal settlements in violation of international laws, a veteran war crime prosecutor has expressed hope that there could now be some sort of accountability for Israel’s actions against Palestinians.

“If other countries raise the importance of this, I think there finally could be some room for accountability in the Israel-Palestine conflict,” Reed Brody, a Hungarian-American human rights lawyer, told Anadolu in a video interview.

Among other cases, Brody has been involved in the prosecutions of Chile’s former President Augusto Pinochet and Chad’s former leader Hissene Habre, and his repertoire of legal work has earned him the nickname of “The Dictator Hunter.”

He is now pinning hopes for Israel’s accountability on the growing pressure from several countries, as well as the position taken by Karim Khan, the current prosecutor of the International Criminal Court (ICC).

Brody cited Khan’s charged speech after a recent visit to the Rafah border crossing in Egypt, where he “was very direct to both Hamas and to Israeli authorities.”

He pointed out that Khan told “Israeli authorities that any attack that was liable to kill civilians had to comply with the principles of international law, the principles of proportionality of distinction, of proportionality and precaution.”

Khan’s message, according to Brody, was that “you just can’t go in and attack hospitals and schools,” and that the burden is on Israel to show that these were “proper targets.”

“No prosecutor has ever spoken to Israel so bluntly. The question now is whether Khan will take action to follow up his strong words. Will he move on the charges of apartheid and illegal settlements that have been on his desk for years?” said Brody.

It has taken these “terrible tragedies and crimes” for us to get to this point, but “hopefully there will now be a road to some accountability,” he added.

Pressure and protection for Israel

The human rights lawyer pointed out that the ICC has been facing a lot of pressure from the US, which is not even “a party to the ICC,” to “not go too far on Israel.”

“In 2009, following Israel’s Operation Cast Lead, which led to 1,400 Gazans being killed, the Palestinian Authority submitted a declaration accepting the court’s jurisdiction,” said Brody.

He said the first ICC first prosecutor, Luis Moreno Ocampo, could have opened an investigation and left it to the judges to decide whether or not the Palestinian Authority could proceed before the ICC.

“But under strong pressure from the US, who’s not even a party to the ICC, he spent three years considering the question before basically saying that it was for the UN to decide. Then the UN decided that Palestine was a state and that it could go before the ICC,” Brody explained.

He said the administration of ex-US President Donald Trump imposed sanctions on ICC prosecutor Fatou Bensouda for her probe into American crimes in Afghanistan and to defer ICC action on Palestine.

Even when President Joe Biden’s administration lifted those sanctions, Secretary of State Antony Blinken “was very clear in reiterating America’s longstanding objection to the court’s efforts to assert jurisdiction over personnel of non-state parties like the US and Israel,” he said.

“So, there’s been a lot of pressure from one side. And I feel like up until now, prosecutors have considered it very dangerous for … the ICC to move on Israel,” he added.

Stressing the need to “break these decades of impunity” for Israel, Brody said almost every attempt to “use the institutions of international justice, including the ICC, to hold Israeli officials legally accountable for alleged crimes over the past several decades has been sidelined or delegitimized as lawfare.”

He said complaints filed in Europe against Israeli leaders on the basis of universal jurisdiction have not only been thrown out, but in some instances, the laws themselves, as in Spain, Belgium and the UK, were curtailed “so that such cases could not be brought to the ICC in the future.”

Brody pointed out that Palestinians worked for 15 years to submit complaints to the ICC against Israel before a formal investigation was finally opened in 2021.

“As many UN rapporteurs have said, these decades of inactivity by the ICC and other institutions have created a sense of impunity, and that Israel could act with impunity,” he said.

ICC’s ‘double standard’

The war crimes prosecutor said the ICC has been very active when it comes to “outcasts or to enemies like (Russian President) Vladimir Putin,” emphasizing that there has been a “double standard.”

“That, unfortunately, does leave the impression that there is a double standard. And we have seen throughout in institutions of international justice that they are much more effective when dealing with enemies like Russia or outcasts like African countries, than with not just Israel but with powerful Western interests in general,” said Brody.

When Russia invaded Ukraine, ICC prosecutor Khan made multiple visits to the country and opened the largest investigation in the court’s history, raising “unprecedented amounts of extra-budgetary money and staff from Western countries,” he added.

“I don’t think in history there had been as energetic and as coordinated and as massive a justice response, not just from the ICC but from jurisdictions around the world to the Russian aggression in Ukraine,” he said.

Quoting his friend Raji Sourani, head of the Palestinian Center for Human Rights, Brody said that while the Palestinian lawyer supported the energetic response of the ICC on Ukraine, he lamented that there was “no similar response to the decades of crimes of Israeli occupation, that no similar attempt was made to raise money to fund the Palestine investigation, that the prosecutor never spoke about the occupied territories and the settlements being a crime scene.”

Self-defense argument

Regarding the question of acting in self-defense, Brody said no matter how Israel frames its military action it is still required to abide by the laws of war.

“Collective punishment is still a war crime. Attacks have to meet the principles of distinction, proportionality and precaution,” he said.

“So, the fact they’re responding to Hamas’ cruel and criminal attack does not change the equation for Israeli military action.”

As for the actual prosecution of war crimes and Israeli actions, Brody emphasized that there are a lot of things that have to be taken into consideration, which makes any sort of progress a slow process.

“One can look at this from the outside and say, given the glaring disproportionality, given the millions of people who are being displaced and affected, that it certainly looks like there is a policy and that war crimes are being committed, that collective punishment is being inflicted,” he explained.

“But I think you need to, if you’re going to be taken seriously, look at as much as possible and get evidence.”

Regarding the increasing talk about a “genocide,” he pointed out that “there are a lot of statements by Israeli leaders dehumanizing Palestinians, talking about Palestinians in general as opposed to just Hamas, that could be used as evidence.”

“But I think, no serious prosecutor who needs to present and sustain a case is going to act as quickly as people would want, as victims would want.”