Internationally renowned human rights lawyer and researcher Reed Brody has spent his life shining light on gross injustices and violations of human rights while pursuing justice for the victims and punishment for the perpetrators. His report Contra Terror in Nicaragua on the US – sponsored contras’ crimes was among the evidence presented in the landmark case Nicaragua v. United States at the International Court of Justice in 1986. He led efforts to achieve accountability of state leaders, including Augusto Pinochet, who perpetrated the most heinous crimes. He authored numerous investigative reports on human rights violations in Tibet, Abu Ghraib, Haiti, Gambia … In his book To Catch a Dictator: The Pursuit and Trial of Hissène Habré he describes how a former dictator of Chad was brought to justice. He talks about why the genocide in Gaza and continuing Russian aggression in Ukraine present a pivotal moment for the international justice system.
Kristina Božič: Many worry that with the Israeli and American disregard of international law and its institutions, especially the interim orders issued by the International Court of Justice, we are witnessing the withering of the international rule of law. You have used international law, especially universal jurisdiction principle to achieve justice and hold responsible the perpetrators. How do you regard the present moment?
Reed Brody: I think we might be at a turning point in international law. The rules and institutions that were created largely by the West are for the first time used to promote justice for the victims of the West. We have seen a historic turning point in efforts to hold accountable the Israeli government’s leaders for their crimes.
For over half a century the instruments especially of the international criminal justice have been used to address crimes of the defeated adversaries of the West in Tokyo and Nürnberg, of powerless outcasts, when it came to African warlords, or of opponents of the West, like Vladimir Putin and Slobodan Milošević.
International Court of Justice and International Criminal Court are very different institutions. ICJ came of age with the Nicaraguan case against the USA, in which I was involved, but the present developments are testing the universality of the law and its institutions, the universal commitment to follow the so called rules-based international order. The events on the ground in Gaza and Ukraine can be seen as a complete rejection of this rules-based order. But international institutions are responding and everyone has to give an answer: which side are they on? Are they on the side of the law? Or on the side of the powerful? The final outcome remains unclear.
The rejection by the USA of the ICC prosecutor’s arrest warrants has been forceful. Reports on the attempts by Israel to subvert the ICC are now public. And there has been a very strong response from 93 state parties of the ICC to defend the integrity of the Court. One of my law professors Louis Henkin famously said: “Almost all nations observe almost all principles of the international law and their obligations almost all the time.” The principles and obligations they do not observe are often the ones that count the most. The recent developments are putting international law and the so-called rules-based order to the test.
Also Palestinian legal expert Shahd Hammouri says it is now for the international law to show if it can change and truly serve everybody, not just the powers that created it. Israel describes what is happening as law-fare and equates those who demand respect of international law with terrorists. Many, on the other hand, believe that Israel, as well as Russia, have already lost by obviously violating international law.
They have certainly lost – they have lost the legitimacy. Obviously they have not lost the wars as the suffering of the Ukrainian people and the Palestinian people, particularly in Gaza continues.
I try to be, as Raji Sourani says, a strategic optimist. To be hopeful in my analysis. We have no right to have no hope. Because if we do not have hope, then there is no hope. I remember sitting with Raji Sourani in the Hague in December 2020. We were at a public meeting with the ICC prosecutor Fatou Bensouda. It was before she decided to open the investigation about Palestine. Raji looked her in the eyes and asked her to let the Palestinian people know that they can trust the law and that violence is not the only answer.
I believe that. I believe in the law. However, it is faith that is tested. Palestinian people in Gaza are massacred. No decision or ruling from the Hague seems to have modified Israeli conduct. But Israel’s legitimacy, the legitimacy of its actions has been undermined worldwide.
Double standards are everywhere; in the West, Russia, South Africa … The law, however, is there to hold everybody to the same standard.
You have mentioned Raji Sourani, who is now preparing a file to submit to the ICJ, adding to the individual cases the Palestinian Centre for Human Rights from Gaza has presented to the ICC. Do you work together?
Not really. We are in contact, we talked the other day but at the moment I am not collaborating with Raji on any particular case.
You have won an important universal jurisdiction case in Switzerland against a Gambian former interior minister Ousman Sonko. However, this venue has been closing with European states introducing political veto for the cases that pursue political leaders suspected of committing international crimes. What role could universal jurisdiction play in regard to Israel’s destruction of Gaza? We have seen it successfully used in Germany in cases of international crimes in Ukraine and Syria.
Another case I was deeply involved in based on universal jurisdiction is the prosecution and conviction of the former president of Chad in Senegal. He is the only former head of state prosecuted under the universal jurisdiction.
Unfortunately, the universal jurisdiction has been subject to the same double standards as the rest of the international justice. I have been involved in two most expansive lawsuits based on universal jurisdiction in Belgium and Spain. At the time they were the only countries where proceedings could begin under universal jurisdiction without the accused present, asking for their extradition later on. In both jurisdictions the law was great. It worked for Rwandans accused of genocide but once cases were filed against Ariel Sharon and George Bush senior, the law collapsed. I was in Belgium when Donald Rumsfeld came and said, if Nato leaders were afraid to come because of arrest warrants, then Nato should be moved elsewhere. Soon, the law was drastically curtailed. Similarly happened in Spain. Spanish law on universal jurisdiction was very effective to prosecute people from Argentina, Chile, El Salvador … Then cases were filed regarding actions by Israel, China, the USA and the law got changed and collapsed.
The same thing happened in England after the case against Tzipi Livni. All these national laws on universal jurisdiction were scaled back. Similarly, Germany, which has a wonderful record of prosecuting universal jurisdiction cases, refused to take action, when cases were filed against officials from the Bush administration for crimes of torture of Muslim detainees and separately, against the interior minister of Uzbekistan.
Political calculations have unfortunately, contaminated universal jurisdiction as much as they contaminate the rest of the international justice system.
What paths to justice do you see currently viable? We are talking about violations of the Convention on the Prevention and Punishment of the Crime of Genocide that stipulates duties of states to act to prevent genocide – do national public prosecutors offices have a duty to act? Does it make sense for individuals or organizations to file requests for public prosecutors’ offices to act?
It depends on the national legal system. In some countries, like the USA, the executive branch has the monopoly to initiate criminal justice procedures. In most civil law systems victims or sometimes NGOs can initiate procedures. Many countries have introduced the mentioned filter of an approval for the universal jurisdiction cases. The aim was to prevent politically challenging cases that could effect foreign relations. Countries want control over their judicial diplomacy. Therefore, in Belgium, Spain, France and other countries the proceedings start only after the approval of the government or state prosecutors.
Most cases of universal jurisdiction, including the Pinochet case, were the result of the possibility that victims can bring the case directly before a judge. Chilean victims were allowed to go directly to judge Baltasar Garzón in Spain without passing through a governmental filter. This made the Pinochet case possible. The same was true for the cases in Senegal and in Belgium against Chad’s president Hissène Habré. There was no political filter to prevent the uncomfortable case to get to an independent judge.
I understand why governments do not like universal jurisdiction cases. Ministers worry how they can negotiate with countries whose leaders are sued in their countries’ courts. Independent judiciary turns out to be a hard-to-grasp concept. So the reflex to set up a political filter is understandable. However, it leads to a situation where only inoffensive cases are prosecuted while cases that cry out for a prosecution are not dealt with neither internationally or nationally.
You have written of little possibility that the ICC arrest warrants against Benjamin Netanyahu or Vladimir Putin bring them to the Hague. How can the system of justice nonetheless be supported to overcome political calculations?
Yes, I do not see Putin or Netanyahu being handcuffed anytime soon. However, these crimes have no statue of limitations, so they will remain wanted men for as long as the cases remain open. So far, the actions of international and national courts have solidified the consensus that Israel’s actions are criminal. That might not have been the purpose but it is an important effect. Many countries, especially in Europe, have and will have a hard time balancing their reflexive political support for Israel with the objective actions of the internationally legitimate institutions they have embraced.
In December after the meeting of state parties of the ICC many doubted the prosecutor would cross “the red line” and bring upon the court the wreath of the USA. However, the relentless onslaught by the Israeli army, the growing international consensus on the criminality of Israeli actions and the decisions by the ICJ in the case initiated by South Africa made it untenable for the ICC prosecutor not to act.
In this way the institutions of international justice are mutually reinforcing. We see the law speak up. The question is, what effect will it have. But in the medium term the effect on the perceptions about the situation in the Middle East will be big.
You have mentioned the South African case at the ICJ against the Israeli violations of the Genocide Convention. Many countries have expressed support; some have joined it, last Spain, with Ireland and Belgium also among the EU states planning to join. Some governments claim that joining the proceedings would prolong the case and that South Africa has not officially requested states to join. On the other hand we see draft legislation in the USA targeting South Africa with sanctions because they are pursuing justice. What are the duties of states and what kind of support can help strengthen a just international legal system?
There is no need to choose just one action. Spain will not be a party of the South African case at the ICJ; Palestine will be intervening as a directly effected party, while other states, including Spain, are intervening with their own interpretations of the Genocide Convention, not necessarily directly supporting the claim that Israeli actions amount to genocide.
But now it should be all hands on deck to support international law and to support the institutions that have been created. This includes opening up national courts to universal jurisdiction cases, it includes helping to document crimes. The access to Ukraine is different than to Gaza. However, after Russian invasion of Ukraine dozens of countries rushed their experts there to help document the crimes. There were initiatives to create special courts to deal with Russian aggression, states opened criminal investigations under their jurisdictions. All these possibilities remain. In addition to supporting the ICJ and the ICC.
Despite calls for arms embargo against Israel, trade is continuing, with Israel reaching record arms sales last year. How important are embargos that include transport of Israeli arms over states’ territories? And how real is the future liability of states for abetting and helping genocide unfold?
People and states should stop selling arms to Israel. At this point it is clear that the arms are used to commit mass crimes. At the very least countries, primarily the USA, should refrain from and leverage the blank checks they grant Israel.
The decision by the ICJ in the case brought by Nicaragua against Germany regarding arms trade did not include provisional measures, however, the ICJ reminded all states of their international obligations regarding the transfer of arms to countries in an armed conflict to avoid these arms being used to violate Geneva and Genocide Conventions. Therefore, it is clear – any country that participates in providing Israel with offensive weapons that are used to commit war crimes against Palestinians is complicit in these war crimes.
Are lawsuits – like the one we have seen in the Netherlands – to stop governments selling arms and participating in war crimes good examples of how law can and should be used?
Yes. We have also seen a case in the USA brought under the Genocide Convention by the Centre for Constitutional Rights.
Which despite the telling ruling by judge Jeffrey White did not succeed?
Yes. The US courts have a doctrine of deferring foreign policy issues to political branches and the judge reluctantly decided he could not rule on the case. I have as well come up against this doctrine. However, people should use the possible ways and tools.
This is the moment when everybody should stand up for the rule of law. People should file cases. It is not law-fare to uphold the law. When countries are powerful they do not have an inherent need nor do they feel the pressure to respect and uphold the rule of law. If you are the biggest and strongest kid on the schoolyard, you prefer the law of the mighty to the might of the rule of law. But that is not how justice can be and is achieved. This is the reason why the US and other major powers have not ratified the Rome Statue of the ICC. Sadly the rulers of these countries do not see the rule of law as the best way to protect their interests.
Ilan Pappe has recently during a presentation of his latest book, Lobbying for Zionism on Both Sides of the Atlantic expressed hope – adding that for him hope is the end of Israel and a free Palestine from the river to the sea. He is a historian, you are a human rights expert, a lawyer. What do hope and just future present to you?
I wish everyone could live together. And I am looking forward towards a world where we do not have to punish people for committing crimes like these because they do not commit these kinds of crimes. I am a democrat and through my work in international justice I have tried to honour victims and help them tell their stories and find justice. I look towards a future when leaders simply can no longer commit these kinds of crimes.
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