Italian Cuno Tarfusser (Merano, 1954) He served as a judge at the International Criminal Court (ICC) for 10 years, from 2009 to 2019, which led him to experience many of the frustrations that come with working with international law; loss. We interviewed him at a critical moment in Israel’s war against Gaza, with a variety of voices questioning what international justice could do to provide some relief to victims and punish those responsible for war crimes committed during the conflict.
From a legal perspective, how serious is the current blockade, which is a siege of an area where access to water, food and medicine is also blocked?
War also has rules. It is international humanitarian law (IHL), or jus in bello, that governs how hostilities are conducted. International humanitarian law is violated when children, women, elderly and non-combatants are involved. Stain.
How does this square with Israel’s right to self-defense?
Israel’s right to defense can only be military; There cannot be a blanket, indiscriminate and disproportionate defense. As is often the case in wars, it is not possible to have a minimum rate for one hundred kills.
Do you see signs of war crimes in the conflict between Israel and Gaza?
All kinds. Of course, war crimes are committed. What I mentioned before: The Geneva Conventions clearly distinguish who can be a military target and who cannot. Civilians on both sides cannot be targets.
Some accuse Israeli officials of committing genocide.
No no and no. People talk about genocide too easily, and that’s a mistake. Genocide is the intention to destroy a population for religious, ethnic, sexual reasons, among others. Moreover, it is extremely difficult to prove this.
Which international courts can intervene, investigate and adjudicate these crimes, without mentioning genocide, but all other war crimes?
Only the International Criminal Court (ICC) or local courts, i.e. Israeli or Palestinian courts. In fact, the ICC exists to prosecute individuals belonging to states that are unwilling or unable to prosecute such crimes.
But Israel, for example, has not ratified the Rome Statute establishing the ICC.
Yes, so is Palestine, but it recognized its own jurisdiction a few years ago. This situation is similar to that of Ukraine, which has not ratified the ICC but recognizes its jurisdiction. This means that the ICC has jurisdiction over crimes committed by Palestinians in Israel, as well as crimes committed by Israelis in Palestine.
The ICC called for an investigation. What times are we talking about to reach the final hearing?
This is difficult to talk about because the ICC has limited staff and resources, and a large investigation has already been opened into Russia’s war in Ukraine. Moreover, it is extremely difficult to collect evidence about the war right now. [entre Israel y Gaza] in progress.
Can politics intervene?
You can of course intervene to expedite or hinder any investigation. This is done by taking resources away from the ICC. We will have to see what happens at the end of November, at the beginning of December, when the meeting of the Member States of the Charter will be held. [de Roma]He is the person who decides on the court’s budget. Another difficulty is the execution of arrest warrants because the court does not have this authority. [razón por la que sólo podría ejecutar una eventual orden de detención las autoridades de Estados firmantes si la persona acusada viaja a esos países].
Could Israeli Prime Minister Benjamin Netanyahu ever sit at the podium?
Difficult. Because I just told you, you can’t sue people who aren’t physically present. This is a court that does not provide for trials in absentia.
Is this war a new test for international law?
Yes definitely. When the ICC was founded, it was quite futuristic and new, but with the contradictory development of humanity, it turned out to be a very weak organization. Today the ICC is not up to the task. I lived the 90s closely and there was a decline compared to that period. The 90s were years of openness, internationalization, solidarity and the search for synergy between States. Now we went back. And this worries me very much.