Italian jurist Cuno Tarfusser, born in Merano in 1954, served as a judge on the International Criminal Court (ICC) for a decade, from 2009 to 2019. His tenure brought him face to face with many of the frictions that accompany international law. We spoke with him at a pivotal moment in Israel’s war against Gaza, a moment when a chorus of voices questions what international justice can achieve for victims and for those responsible for alleged war crimes during the conflict.
From a legal standpoint, how serious is the current blockade that resembles a siege, restricting access to water, food, and medicine?
War, he explains, is governed by rules. International humanitarian law, or jus in bello, sets out how hostilities should be conducted. Violations occur when civilians—children, women, the elderly, and non-combatants—are targeted or harmed. The use of force must be constrained by these norms, and such constraints should be respected even amid conflict.
How does this align with Israel’s right to self-defense?
Self-defense is a legitimacy framework limited to military action. It cannot justify blanket, indiscriminate, or disproportionate measures. In most wars, the reality is that a precise, universally proportional standard cannot be guaranteed for every act of retaliation or casualty.
Do you observe signs of war crimes in the Israel-Gaza conflict?
War crimes of various kinds are possible in such a context. The Geneva Conventions distinguish clearly between legitimate military targets and protected civilians. Civilians on both sides must be shielded from attack, and non-combatants should never be treated as targets.
Some critics have labeled Israeli leaders as genocidal.
That term is rarely accurate and should be used with extreme caution. Genocide requires an intent to destroy a population based on ethnicity, religion, or other protected characteristics, and proving such intent is exceptionally difficult.
Which international courts can intervene, investigate, and adjudicate these crimes without invoking genocide but addressing all other war crimes?
The primary venue is the International Criminal Court (ICC), alongside national courts—whether Israeli, Palestinian, or others—where appropriate. The ICC exists to prosecute individuals from states that are unwilling or unable to pursue accountability for these crimes.
It’s true that Israel has not ratified the Rome Statute establishing the ICC, correct?
Yes, Israel has not ratified it, and Palestine has recognized its jurisdiction in recent years. The situation mirrors a dynamic seen in Ukraine, which does not ratify the ICC treaty yet accepts its jurisdiction. This arrangement means the ICC can address crimes committed by Palestinians in Israel and by Israelis in Palestine, under the right conditions.
The ICC called for an investigation. What time frame is realistic for a final hearing?
That timing is hard to pin down. The ICC operates with limited staff and resources, while major investigations, such as those into Russia’s war in Ukraine, are already underway. Gathering admissible evidence amid ongoing hostilities adds to the challenge. The status of the Israel-Gaza inquiry is still developing as events unfold.
Could politics get in the way?
Political maneuvering can influence the pace and scope of investigations. Shifts in resources and support at the member-state level can accelerate or hinder a case. The upcoming gatherings of state parties and budget decisions will shape outcomes. The court’s ability to enforce arrest warrants is limited, and its authority does not extend to making arrests itself.
Is it conceivable that Israeli Prime Minister Benjamin Netanyahu would appear in court?
That would be unlikely. Trials in absentia are not part of the ICC’s procedures when the accused is not present in a member state. The court requires the defendant’s appearance for a definitive ruling on the charges.
Is this conflict a new test for international law?
Definitely. When the ICC was founded, it appeared futuristic, but the unfolding trajectory of humanity has revealed gaps and weaknesses. Today the ICC struggles to meet the moment. The optimism of the 1990s—openness, international cooperation, solidarity—has given way to a more cautious, fragmented landscape, which is a concern for those who hoped for stronger collective accountability.
Notes: This interview reflects the realities of prosecutorial limits, state cooperation, and the evolving authority of international courts in ongoing conflicts. The discussion highlights the delicate balance between defending legitimate security concerns and protecting civilians under international law, a balance that remains fragile in times of war. [Citation: ICC proceedings and public statements, 2024]