The International Criminal Court (ICC) has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former defence minister Yoav Gallant for alleged war crimes and crimes against humanity. Prime Minister Justin Trudeau said Canada will abide by the ICC’s decision, stating that, “We stand up for international law, and we will abide by all the regulations and rulings of the international courts.”
Those are inconsistent statements. In this instance, standing up for international law means refusing to respect these warrants.
For one, respecting the warrants flies in the face of Canadian sovereignty. Canada does not recognize Palestine as a state. The ICC does. It is on this basis that the ICC claims to have jurisdiction over this case.
That ICC recognition cannot usurp or change Canada’s non-recognition. The ability to recognize other states belongs to Canada as a sovereign state. By respecting these warrants, Canada is abdicating its sovereign power to choose for itself which entities it does and does not recognize as a state.
Canada can, of course, abdicate powers it has, if it so chooses. Yet the fact remains that under international law, Canada does not have to recognize Palestine as a state. The ICC cannot take away that power. Consequently, Canada does not have to respect these warrants.
The arrest warrants also violate a founding statute of the ICC, which asserts that its jurisdiction “shall be complementary to national criminal jurisdictions.” The ICC has no jurisdiction over crimes committed in countries with national courts that are capable of prosecuting them.
Israel is a country subject to the rule of law, where anyone, including the prime minister and minister of defence, can be prosecuted for war crimes and crimes against humanity, regardless of whether the alleged crimes took place inside or outside Israel.
The international law doctrine of command responsibility means that Netanyahu and Gallant could be responsible for crimes committed by Israeli forces, even if they did not directly order the commission of those crimes.
Yet the Israeli legal system is equal to or better than the legal system of any other country in dealing with this sort of issue. Accordingly, the ICC has no role to play. When the ICC disrespects its own statutes, Canada does more for international law by respecting the ICC statute than by respecting wrongful ICC rulings.
Respecting these warrants means that if Netanyahu or Gallant ever set foot here, Canada would arrest them and turn them over to the ICC for prosecution. Canada should do the opposite. We should invite both of them to come here to discuss how to achieve peace between Israel and its neighbours.
Committing to respect the warrants marginalizes any Canadian contribution to peace between Israel and its neighbours, a result that’s hardly consistent with respect for international law.
Finally, the evidence on which the arrest warrants are based is a fantasy. Netanyahu and Gallant have led Israeli efforts to combat Hamas for its genocidal October 7 attack on Israel. Yet Hamas’s criminality extends far beyond those events. It encompasses all that happened afterwards. Hamas has done everything in its power to perpetuate Palestinian suffering so it can blame Israel for the ensuing humanitarian crisis.
Hamas has done this through the October 7 attack, which inevitably prompted a response from Israel, the placement and use of tunnels in civilian locations, the use of Palestinians as human shields, urging Palestinians to ignore Israel’s warnings, blocking civilians from fleeing Israeli attacks, placing arms, rockets and planning centres in or near civilian areas, diverting food aid, refusing to wear military uniforms and calling for martyrdom.
The ICC has been duped by this murderous propaganda exercise. Canada should not join in on this blindness to the crimes of Hamas.
The Government of Canada should reverse its stance on the ICC arrest warrants issued against Netanyahu and Gallant. Its efforts should be directed towards peace in the Middle East, rather than joining in on anti-Zionist delegitimization efforts against Israel — efforts that only serve to exacerbate the conflict.
National Post
David Matas is an international human rights lawyer based in Winnipeg and senior honorary counsel to B’nai Brith Canada.