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Israel Has Enjoyed Decades of Legal Impunity. Could the War on Gaza Finally Change That?

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We speak with two experts in international criminal law about the long history of Palestinians attempting to seek justice in global institutions and the “very grave crimes” for which Israel is being prosecuted regarding the country’s ongoing assault and siege of Gaza. Chantal Meloni, an international criminal lawyer who represents victims in Palestine before the International Criminal Court, lays out the history of cases brought before the ICC regarding Israel’s siege and collective punishment of Palestinians being denied justice for more than 14 years. “The fact that there was no accountability for the last decades of occupation and crimes related to the occupation has created a sense of impunity,” says Reed Brody, a war crimes prosecutor, who reports this new assault on Gaza has forced ICC chief prosecutor Karim Khan to confront Israel. “Will this be followed up by real action for the first time?”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!,, The War and Peace Report. I’m Amy Goodman, with Nermeen Shaikh.

As Israel rejects the United Nations Security Council resolution calling for urgent and extended humanitarian pauses in Gaza, we’re continuing to look at growing efforts to hold Israel legally accountable for war crimes in Gaza.

Joining us from Berlin, Germany, is Chantal Meloni. She is an international criminal lawyer, international criminal law professor at the University of Milan in Italy. She’s also senior legal adviser for international crimes accountability with the European Center for Constitutional and Human Rights in Berlin. She also consults with the Palestinian Centre for Human Rights and represents victims in Palestine before the International Criminal Court. She’s the author of the book Is There a Court for Gaza? Her new piece for Justice in Conflict is headlined “The War in Gaza: International Law Is Nothing If It Is Not Applied.”

And with us in France is Reed Brody, longtime human rights attorney, war crimes prosecutor. Brody has been involved in several major war crimes cases, including against Chile’s former dictator Augusto Pinochet, Haiti’s Jean-Claude “Baby Doc” Duvalier and the former Chadian dictator Hissène Habré. He’s author of To Catch a Dictator: The Pursuit and Trial of Hissène Habré. And he’s the son of a Hungarian Holocaust survivor. Reed’s recent piece for The Nation is headlined “Gaza — Where Is the Law?”

Chantal Meloni, let’s begin with you. Where is the law? We are trying to reach a man you and Reed have worked closely with in Gaza, Raji Sourani, who lived in northern Gaza. His home was bombed, now forced to live in Khan Younis. And now parts of Khan Younis have been covered with leaflets saying that those who are there must move further south.

CHANTAL MELONI: Yes, indeed. Well, first of all, thank you very much for having me with you today.

I think that what we have witnessed in the past weeks, it’s literally the commission on each and every international crime that you may find listed under the Rome Statute of the International Criminal Court. And I was listening very carefully to what my colleague Katie Gallagher just said before, their very, very important legal action in the U.S. And, of course, as she started to talk about the fact that Gaza is under blockade since 16 years, so I think we need to go back. We need to go back to 2007, and we need to go back to the first efforts that have been done already in 2009 to basically bring these violations and possible grave crimes to the jurisdiction of the International Criminal Court. So, let’s just remember that it was already in January 2009 that the Palestinian Authority, so to say, knocked on the door of the International Criminal Court, lodging an Article 15(3), so, in a doc, acceptance of the jurisdiction of the ICC, in order to have these grave crimes that had already been committed during the Operation Cast Lead investigated and possibly prosecuted in The Hague.

And I want to remember, really, the conclusions that already the U.N. fact-finding mission on the Gaza Strip, the so-called Goldstone Report, after the name of Richard Goldstone, the famous South African judge, had reached in 2009, meaning that the closure of the Gaza Strip that had been imposed continuously since 2007 was unlawful, collective punishment of the civilian population of Gaza and a possible crime against humanity. The conclusions were in the sense of the commission of the crime of persecution, a very grave crime against humanity, exactly because there was this disproportionate, collective punishment on an entire population, 2 million people of Gaza, with the declared purpose by the Israeli authorities to try to break their support to Hamas, and therefore diminish, basically, their possibility, apparently, to commit anything that could be harmful for Israel. And already at that time, the fact-finding mission concluded that the series of acts that deprived the Palestinians in Gaza of their basic needs of subsistence, employment, housing, water, as well as, of course, their freedom of movement, amounted to collective punishment and possible crime against humanity.

So, what we have seen after that is a very long and protracted now denial of justice, because while we are talking — it is 14 years later — we are still in a phase where we don’t see any concrete steps in The Hague, at the ICC. The investigation is now formally open since 2021, but we have not seen any warrant of arrest nor any concrete action.

NERMEEN SHAIKH: And, Chantal, could you talk more about this issue of what the — Israel’s claim that they will take actions to make sure that Hamas does not pose a threat to Israel in any form? I just want to read a statement, because, of course, what we hear again and again in light of Hamas’s attack on oOctober 7th is that Israel has the right to self-defense. And I just want to read a statement that U.N. special rapporteur on the Occupied Palestinian Territories, Francesca Albanese, recently made. She says that Israel cannot, quote, “claim the right of self-defense against a threat that emanates from the territory that it occupies, from a territory that is kept under belligerent occupation.” So, if you could explain that and what the distinction is between two things, the fact that it is a territory that is occupied by Israel and, second, that Hamas is, of course, not a state? It is a nonstate actor that is considered by Israel, the U.S., the U.K. to be a terrorist organization. So what law applies in that case?

CHANTAL MELONI: Yes, exactly. It is very important to understand what is the law, the legal framework that applies to this, because Gaza is still part of the Occupied Palestinian Territory, and Israel, regardless of the disengagement — so, the occupation changed its form in the Gaza Strip since 2006, but it didn’t change substance, meaning that Israel is still exercising effective control on the Gaza Strip and its entire population by different means, not anymore with boots on the ground, but rather through controlling its borders, its aerial space, its sea and, of course, also the civilian life. We have to remember that even, you know, the civilian registries in Gaza are still basically kept by the Israeli authorities. And as you know, of course, no one gets in and out of Gaza. Not even the U.N. functionaries, not even international experts comes into Gaza if Israel do not allow this from happening. So this is why not the Palestinians, but also international bodies, the ICRC, the U.N., have considered, and also the International Criminal Court, that Gaza is still occupied territory. This means that Israel bears very specific duties and responsibilities with regard to the civilian population of Gaza. Not only they should not harm them, they should actually protect them. So, what we are witnessing in these weeks, but, honestly, what we have witnessed in particular since 2007 on, it’s a violation, grave violations of international humanitarian law, also taking into account the very strong duty that is placed on Israel as occupying power.

With regard to the specific question you were making, you were asking me about whether Israel can rely or not on self-defense with regard to Gaza and with regard to Hamas — not being, Hamas, a state, but a armed group that is considered to be a terrorist group internationally. So, I don’t think, honestly, that this is the most important legal point to be disentangled. It is a very complex legal point, but it is only — if you want, it is only relevant if we want to discuss whether Israel’s reaction to the grave crimes committed by Hamas on the 7th of October is an action of aggression or not. The point is that regardless of what we think in this regard — and I personally think that what Francesca Albanese, the U.N. special rapporteur, is arguing is absolutely reasonable and can be the line to be followed. But regardless of whether we agree with her and with other scholars on this point, the issue is that the response — so, what Israel is doing after the 7th of October in Gaza — is in grave violations of international humanitarian law, meaning the law, the rules that regulate war, the armed conflict. And so, this is, for me, the most important point to make. Regardless of the legitimacy or not of the intervention, we are witness these very grave crimes that can be analyzed under the lenses of war crimes, of crimes against humanity or, as we heard from Katie Gallagher and the CCR, genocide.

NERMEEN SHAIKH: Reed Brody, I’d like to bring you into the conversation. You wrote this piece for The Nation called “Gaza — Where Is the Law?” If you could lay out the argument you make in that piece and the background that you give about the role, in particular, of the International Criminal Court in the past in prosecuting, or not prosecuting, crimes that Israel was accused of?

REED BRODY: Sure. I mean, as Chantal was saying, every attempt by Palestinians, by Raji and others, to use the International Criminal Court and other institutions of international justice to hold Israeli officials legally accountable has been sidelined or delegitimized as lawfare. I mean, as Chantal has said, the ICC really subjected the Palestinian complaints to this obstacle course over 15 years, to the point that in all of that time there has been no — no charges have ever been brought. And this includes the things that — I mean, the decades of Israeli occupation, the collective punishment, the apartheid, the war crimes that were — the illegal settlements. Settlements are illegal under international law, to bring your people into an occupied territory.

And they have been given the “go slow” treatment. First it was the question of whether they were a state. The first prosecutor kicked the ball — spent three years looking at it and kicked the ball down the road. Fatou Bensouda, the second prosecutor, spent five years conducting a preliminary examination before assuring that there were grounds to believe that both Israel and Palestinians had committed crimes, including the settlements, including war crimes, and then she left it to the current prosecutor, Karim Khan. When the invasion — when the Russian— compare this to the Russian— so, 15 years of no action. You compare this to the Russian invasion of Ukraine. Right after the Russian invasion, as the war crimes started to mount, the International Criminal Court and most of the Western justice systems did what they were supposed to do. Immediately Karim Khan went to Ukraine, talked about it as a crime scene, raised an enormous amount of money for the ICC’s investigation, and has already, in fact, issued an arrest warrant against Vladimir Putin for the transfer of Ukrainian children. Compare that then to Palestine, where none of this has happened.

Now, we did see — and I think this is important — last week, the prosecutor, Karim Khan, who has been, you know, criticized for not doing anything, for not moving, went finally to the Rafah crossing. He followed it up with a very powerful speech from Cairo in which he spoke about the crimes that were — or, he spoke about the allegations on both sides. He spoke very bluntly, in a way, to the Israeli authorities. He reminded them that the conduct of the conflict has to respect the laws of war, the distinction between civilian population and military objects, proportionality, precaution. I think, as we can talk about — I mean, I think these are not being honored. But it was very clear to Israel that mosques, that churches, that houses, that hospitals have a protected status, and that it is the — that the burden is on the, as he put it, those who fire the gun or the rocket or the missile to show that they’ve lost their protective status.

Will this be followed up by real action for the first time? I mean, as many people have pointed out, the fact that there was no accountability for the last decades of occupation and crimes related to the occupation has created a sense of impunity. Is that sense of — you know, are we going to finally deal with that sense of impunity?

AMY GOODMAN: On Wednesday, Israel’s Deputy U.N. Ambassador Jonathan Miller claimed Israel always adheres to international law. This is what he said.

JONATHAN MILLER: Hamas is solely responsibility for the humanitarian situation in Gaza, and they weaponized it to prevent Israel from defending itself. Israel does not need a resolution to remind us to adhere to international law. Israel always adheres to international law.

AMY GOODMAN: So, that’s Israel’s Deputy U.N. Ambassador Jonathan Miller. Reed, if you could respond to that and also talk about investigation of Hamas for war crimes?

REED BRODY: Sure. I mean, you know, the core principles, as everyone should know, regarding the laws of war is the protection of civilians. Military operations can’t be directed at civilians. And that’s expressed through the principle of distinction. You have to make a distinction between civilian objects and military objects. Even — and this is, you know, like in the hospital case — even where you say that there is a military objective there, the leaders still have to act with proportionality. They cannot just go and, you know, attack civilians in a way that is disproportionate. And one can argue about what “disproportionate” means. Under the law, it’s where the — that an action is expected to cause incidental loss of civilian life, injury to civilians, that is excessive in relation to the military advantage that’s anticipated. It’s very hard to see, as we look at this conflict today, the 10,000 people who have been killed, 4,600 children, how these things are considered proportionate. I think Israel has a heavy burden to bear here to show in any way that these actions fit within the laws of the war.

You brought up Hamas’s crimes. And I think we all believe that Hamas on October 7th committed very serious war crimes, probably crimes against humanity. These do not — just as the decades of crimes under Israeli occupation do not justify Hamas committing crimes against civilians, committing war crimes, those crimes by Hamas cannot in any way justify further war crimes and many of the actions that are being taken — undertaken by the Israeli armed forces today.

AMY GOODMAN: And finally, Reed, you are the son of a Holocaust survivor, a Hungarian forced laborer. Can you talk about what this means to you? You’re in France. You live in Barcelona, Spain. The issue of increased antisemitism and then also the equation of the criticizing of the Israeli state with antisemitism?

REED BRODY: Well, those are a lot of questions to unpack. It’s very difficult — I mean, I was with Chantal, actually, in Germany last week, where it’s very, very difficult to criticize the conduct of Israel, where the line is very thin. And as somebody who’s spent half my life in Europe, I’m also aware of how prevalent antisemitism is and how much and how careful we have to be not to allow criticisms of Israel to spill over antisemitism, and to be ruthless when we hear antisemitism.

You know, I come to my positions as an international lawyer, as a Jew, as a son of a Holocaust survivor. I don’t think that these things can be conducted in my name, certainly. Obviously, in America and around the world, there are many Jews who have stood up and talked about “Not in our name.” In Europe, it’s quite — I have to say, in Spain, where I live, there are a lot fewer, and it’s quite a big deal. But next week there’s a rally in Paris by Jews who are against what Israel is doing.

I think more and more this is becoming — I mean, this is a question of humanity. One Holocaust does not justify another. This is an — what happened to my father’s generation, to my father, to members of my family was a genocide. But just like war crimes don’t justify other war crimes, there’s an asymmetrism between what happened with the Jews and what is happening today. And I don’t think we can invoke the Holocaust, we can invoke what happened to our parents, to allow Israel to commit war crimes today.

NERMEEN SHAIKH: And, Chantal, finally, we just have one minute, but if you could say whether the fact that Hamas has taken over 200 hostages, 240 Israeli hostages, into Gaza — what effect that has, what impact, whether there’s any allowance or what international law says can be done in the event of a hostage-taking on this scale in terms of the return of the hostages?

CHANTAL MELONI: I mean, if I understand correctly your question, of course, also what Hamas did with regard to the hostage-taking from Israel, Israeli civilians, can amount to war crimes, is a violation of the rules of international humanitarian law. And it will follow — it follows, potentially, under the jurisdiction of the [inaudible] what we really [inaudible]. And I think we will see an acceleration in the investigations for the International Criminal [inaudible] are so dramatic. And I’m sure that the prosecutor will analyze 360 degrees the responsibilities, meaning both the Israeli authorities and the Palestinian armed groups. But what we really urgently need is accountability and to break this circle of impunity, which fosters violence and has been already for too long denounced in this way as one of the triggers of the violence and brutality that we are witnessing today.

AMY GOODMAN: Chantal Meloni, we want to thank you so much for being with us, international criminal lawyer, consulted with the Palestinian Centre for Human Rights and represents victims in Palestine before the International Criminal Court, and Reed Brody, human rights attorney and war crimes prosecutor, son of a Hungarian Holocaust survivor.

When we come back, we’ll be joined by the niece of Israeli Prime Minister Benjamin Netanyahu. She’s calling for an immediate ceasefire in Gaza. Back in 20 seconds.

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