ISTANBUL 

The initiative to prosecute Israeli soldiers in Brazil should serve as a lesson to all the Western states that lecture the entire world about democracy and human rights and then show their hypocrisy in their measures in relation to Israeli crimes, according to Dr. Luigi Daniele, a senior lecturer at Nottingham Trent University.

In an interview with Anadolu's Strategic Analysis Department, Daniele assessed the significance of universal jurisdiction in the prosecution of war crimes and the vital role domestic courts play in enforcing international law.

Question: In Brazil, legal action was initiated seeking the prosecution of Israeli soldiers under universal jurisdiction for war crimes committed in Gaza. Why is this action significant for international criminal law? How does it highlight the broader reach of international criminal law?

Daniele: What is happening in Brazil is crucial because it's a demonstration of the horizontal effects that international criminal law can have, beyond what happens in the Hague. This is really answering one of the structural features of international criminal law, which is basically complementarity. The International Criminal Court (ICC) is not supposed to adjudicate middle- and low-level perpetrators. Only the most responsible persons; heads of state, heads of the army, heads of government, should be adjudicated in the Hague. Whereas middle- and low-level perpetrators should be adjudicated by all the countries in which they transit, because for these crimes against the international community, as a whole, every domestic jurisdiction should act. It's a well-established principle in international law. So what is happening in Brazil is a demonstration of what should happen all over if domestic jurisdictions take international crimes seriously as they should do.

We should hope that this is just the first step and similar achievements of the Hind Rajab Foundation will hopefully trigger many similar cases in several other countries. Since the spectrum of the potential perpetrators here includes thousands of soldiers, even if the crime suspected is not genocide but war crimes, it is not really a crucial difference for victims because we have learned by now that every single war crime committed in Gaza has been functional to realize an intent to eliminate the Palestinians in Gaza as a group. And therefore these war crimes are just means of execution of a genocidal design. So, even by prosecuting just this first level of perpetration, it's enough to put pressure on Israel to seize or at least attenuate its crimes.

Question: How does Brazil’s approach exemplify universal jurisdiction and underscore the importance of ending impunity?

Daniele: What is happening in Brazil is just a model of what should happen in every domestic jurisdiction. Historically, these crimes, at least since the Second World War, have been accompanied by an obligation to either adjudicate or extradite the suspects. This is the meaning of universal jurisdiction. It means that none of the potential of the suspect perpetrators of these crimes should escape accountability by traveling abroad. This is also crucial to finally dismantle the sense of impunity that has accompanied not only the genocide, but all the previous international crimes that have been committed against the Palestinian people in the previous decades. This indeed became state policy in Israel as if it was a tool of managing the situation. The sense of impunity has been a crucial factor in enabling the genocide, the thousands of war crimes, the crimes against humanity to be committed. Thus removing the sense of impunity is an essential condition, not only to stop the ongoing atrocities, but to open the road for a different future of peace, equality, and justice.

Question: To whom are these penalties and charges applicable?

Daniele: We are talking about middle- and low-level perpetrators, therefore about all the soldiers that have either documented their own crimes by uploading what they were doing in Gaza on their social networks, often with genocidal statements, or soldiers that have been identified by third parties as potentially responsible of international crimes. Given the fact that the Israeli army as a whole has normalized the international crime as if they were routine conduct of hostilities in Gaza, we are talking about a very broad spectrum of potential perpetrators. Possibly thousands of soldiers, traveling all over the world, could be subjected to the same cases.

Question: What kind of evidence could be used to penalize the crimes?

Daniele: This is one of the most well-documented conduct of international crimes in the last decades. Given that by means of dehumanization of the Palestinian population, these soldiers were convinced that they were somehow allowed to treat civilians as less than human beings. So this organizational culture of systematic dehumanization has induced the relevant battalions to actually self-document their own crimes in many occasions. And in many other occasions, there are hundreds of robust reports, satellite images, geo-located episodes that can provide the solid basis and I would say an easy case for prosecutors.

Question: How might Brazil’s action against Israeli soldiers set a precedent for consistent accountability?

Daniele: It is to be hoped that this action in Brazil will finally set a precedent in relation to Israeli soldiers. Actually the precedents in general terms are already there, because this has happened many times for Russian suspects, Syrian suspects, all suspects of international crimes, belonging to parties to conflicts that are substantially considered enemies of Western countries.

The problem is that, applying the law only against enemies deprives the law of its legal standing. However, the same should be done irrespective of the power of the perpetrators' affiliation. This action has not only a function in terms of giving back a little bit of justice to Palestinian victims deprived of any rights, but as also a function in re-establishing fundamental principles of international law and educating foreign policy officials of several states that the law should apply to everyone. Otherwise, it's not law, it is hybrid warfare and we have already enough warfare in our world. We need, rather, legal answers to the tragedies of contemporaneity.

Question: How does Brazil’s move illustrate the responsibility of individual states in enforcing international law?

Daniele: This also shows that it's up to states to implement international law and to respect international legality. We don't always need international institutions to take the first steps. On the contrary, many times the legal activism of states trigger international globalized responses. Therefore, we should never forget that states have the upper hand in enforcing international law. Thus, this initiative by Brazil, which is to be commended, should serve as a lesson to all the Western states that lecture the entire world about democracy and human rights and then show their hypocrisy in their measures in relation to Israeli crimes.

When Western states side with impunity for Israeli perpetrators, they show that their rhetoric about rights and justice are empty and instrumentalized. This is because it's very clear to millions of people all over the world and a simple truth that if you aren't against impunity everywhere, you are not really against impunity. As civil society, academics, and media workers, we should remind this to all our governments.