'Arrest warrants for Israel's leaders will boost antisemites,' says Canada's ex-justice minister

• Published date: 13 May 2024
• Author: FELICE FRIEDSON/THE MEDIA LINE
• Publication title: Jerusalem Post, The: Web Edition Articles (Israel)

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These challenges test its fortitude both domestically and internationally as the events following October 7 have cast the Jewish state's actions—which include allegations of war crimes—into the spotlight, where they are dissected and debated across the world stage.

Allegations of war crimes raise significant questions about Israel's handling of its strategy concerning the International Criminal Court (ICC) and potential actions it could take against the Jewish state.

Speaking to The Media Line, respected human rights and international law authority Professor Irwin Cotler shared insights into the potential disruptions these actions might cause.

Cotler notes that the ICC situation reflects broader international dynamics, including what he calls "a laundering of antisemitism." He argues that while Israel, like any nation, should be accountable for human rights violations, it is unfairly singled out for selective indictment.

International law, he emphasizes, is applied to Israel unevenly. This practice may not only undermine the principle of equitable treatment under international law but could also disproportionately skew public perception and policy against Israel.

"It can be very disruptive if, in fact, arrest warrants would be issued against the Israeli leadership," he said, highlighting the emotional and legal turmoil such actions would generate, particularly for the families of hostages. "If you have arrest warrants against Hamas and arrest warrants against Israel, then you create this false moral equivalence."

This equivalence, according to Cotler, obscures critical distinctions such as the aggressor versus the target and the difference between a democratic state and what he described as a "genocidal antisemitic statelet." Cotler noted that the "arrest warrants will only serve to incentivize that anti-Semitism" while retroactively legitimating it.

In response to a question from The Media Line over criticism that Israel receives over targeted killings, Cotler clarified that targeted killings, within certain parameters, do not inherently violate international norms and that they "are themselves understood … [as] methods of last resort."

"[It's] our means, really, of a form of law enforcement where no other option is available in order to combat the horrific international terrorism and all that that implies. There are frameworks and responsibilities that are involved. You can't indiscriminately engage in targeted killings."

Cotler delved into the nuances of how arrest warrants from the ICC are issued and their potential impact, especially when they could be served without prior notice to figures like Israeli Prime Minister Netanyahu. He clarified the nature of these legal processes: "The implications there, I believe they will, it'll become public. It's not something that stays hidden. It's like in any criminal investigation for a period that may not yet be known."

Regardless, the former Canadian minister of justice spoke highly of Special Prosecutor Kareem Khan, reflecting on his long-standing acquaintance with him and his principled approach to legal matters, indicating a trust in Khan's judgment and his understanding of what is best for the court.

He referenced Khan's agreement with Venezuela, which serves as a precedent for how the ICC might handle situations with other nations. This arrangement, according to Cotler, demonstrates the ICC's willingness to work cooperatively with nations that show a commitment to justice and governance, suggesting a similar potential pathway for Israel given its strong democratic foundations and independent judiciary.

While discussing the focus on accountability, Cotler emphasized the necessity of legal and moral consistency: "The indictments against Hamas are important," he asserted. "In these matters, one has to, in fact, document the atrocities one has to hold. It's a matter of pursuing justice for victims and holding the violators accountable. That's what international law is all about."

"It's a moral imperative of the first order and a legal imperative," Cotler says. People don't understand that every day the hostages are in detention under Hamas "is a standing crime against humanity."

Cotler asserted that the court is fundamentally one of last resort, tasked with addressing severe violations such as war crimes, crimes against humanity, and genocide, to which he noted Hamas had been culpably linked. "They [Hamas] have been involved in a standing incitement to hate and genocide," he explained.

"And what people don't realize is that's a stand-alone breach of the Genocide Convention, whether or not atrocities follow. So that means since 1988, they've been in breach of international law, in breach of the Genocide Convention, and not held accountable."

Cotler was questioned about how different Israeli actions in response to the events of October 7 might have altered subsequent international perceptions. He noted that Israel operates within a limited timeframe to present its stance effectively, not only militarily but in a broader sense, adding, "At that moment, the narrative was understood in terms of Israel having been under assault. At that moment, that's when Israel's response time was able to be understood by the international community."

"I know that, even then, there were those who were denying it, etc.," he continued. "But I mean, there was that window frame. But I think when it's gone on now for over six months, then you've had not only an attrition in the understanding of Israel's case, but you've had an inversion of the narrative."

Discussing the "day after" the war ends, Cotler expressed fears that while military operations might cease, challenges such as the misuse of international legal institutions and the surge in antisemitism would persist.

The "global explosion of antisemitism," he said, was not just a threat to Jews but to all democracies. "It's an assault on our common humanity. It's a standing injustice. And to use that proverbial statement … while it begins with Jews, it doesn't end with Jews."

Cotler noted that ensuring the safety of Jews is intertwined with safeguarding our democracies, a concept he termed "human security" during his tenure as Canada's justice minister and attorney general.

He criticized the lack of moral and intellectual leadership against campus antisemitism, starting from the university presidents. Academics, he said, while "very comfortable in libraries," are often uncomfortable in exercising moral and intellectual leadership.

Asked about Canada's public position regarding the war and its affects, he said he thought it should have been more unequivocal. "There have been statements made by the government that have been important, and that have been condemnatory of antisemitism," he said. However, "we need to go beyond words, we need to go into action."

"Because what is happening on the campuses, in the streets, in the public square, represent at this point, you know, not only menacing, threatening, intimidating behavior, but threats to human security," Cotler said. "And therefore, the government has got to be clear and unequivocal in its action in the protection of national security."

He argued that academic freedom and freedom of speech have limits: "There is no academic freedom to engage in outright discrimination. There is no freedom of speech that comprehends … incitement, menacing, harassment, etc. of Jewish students and others."

Cotler called for responsible leadership at universities and in government, advocating for a comprehensive approach that involves all levels of society and government.

Finally, Cotler addressed threats to himself that emerged immediately after October 7. Law enforcement agencies in Canada told him the threat to his life was "imminent and lethal" and put him 24-hour police protection, which was unprecedented before October 7.

The full transcript of Professor Cotler's interview with The Media Line follows, including a personal story about his involvement in the Israel-Egypt peace negotiations, and how that led to him meeting his wife:

TML: The Oslo Freedom Forum called Irwin Cotler Freedom's Counsel. His CV reads like a catalogue of awards and recognition available within the realm of human rights. His client list includes Natan Sharansky and Nelson Mandela.

His public service portfolio includes service as minister of justice and attorney general of Canada, plus years as a leading parliamentarian. Minister Irwin Cotler is the international chair of the Raoul Wallenberg Centre for Human Rights. And he still had time to act as the informal go-between between Israeli Prime Minister Menachem Begin and Egyptian President Anwar Sadat, a relationship that led to the Camp David Accords in 1979.

Israel is reeling. Its famed resilience being tested on multiple fronts, not merely geographic, but deeply emotional challenges following the October 7 massacre and the myriad of ensuing matters. For a number of years, the International Criminal Court appears poised to move against Israel or prominent Israelis over conduct of the war triggered by the mass killing.

Professor Irwin Cotler, pleasure to have you here at The Media Line news agency.

Irwin Cotler: Pleasure to be here.

TML: After years of building Israel's relations with the international community, the Jewish state is rapidly becoming a pariah state, accused of war crimes against humanity. In hindsight, did Israel handle the issue of the International Criminal Court well?

Irwin Cotler: Well, it's not only in Israel's hands, it's the international dynamics that you've mentioned. As somebody who was present in the World Conference Against Racism and Hate in Durban in 2001 as a member of the Canadian delegation, I was witness then to the emergence of what has become a process of delegitimization, demonization and double standards, as Sharansky has called it, but has metastasized over the last 22 years. So...