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Can a Watered-Down Motion Really Make a Difference? On Accountability for War Crimes in Israel-Palestine, the Answer is Yes

While Canada’s House of Commons won’t recognize Palestinian statehood it has reversed direction on the role of the International Court of Justice and the International Criminal Court

By: /
22 April, 2024
The International Criminal Court (ICC) headquarters in The Hague, the Netherlands. Image: Wikimedia Commons Justfix.
Mark Kersten
By: Mark Kersten
Assistant Professor in Criminal Justice and Criminology

The recent debate around the NDP motion on the Israel-Palestine situation in the House of Commons has focused on whether Canada would unilaterally recognize Palestine as a state. Among other things, the NDP motion called on the government to “demand an immediate ceasefire and the release of all hostages; suspend trade in military goods and technology with Israel and increase efforts to stop the illegal trade of arms, including to Hamas; ban extremist settlers from Canada; and recognize the State of Palestine as a step towards a two-state solution.”

Ultimately, the Liberals fought – successfully – for a watered-down motion that upholds the status quo on Palestinian statehood and to “work with international partners to actively pursue the goal of a comprehensive, just and lasting peace in the Middle East, including towards the establishment of the state of Palestine as part of a negotiated two state solution, and maintain Canada’s position that Israel has a right to exist in peace and security with its neighbours.”

Overlooked amidst the emphasis on immediate recognition of Palestinian statehood, and its complete removal from the NDP motion, was a clause addressing the commission of international crimes committed by Hamas and Israeli forces. The final text of the motion called  on Canada to “support the prosecution of all crimes and violations of international law committed in the region” and to “support the work of the International Court of Justice and the International Criminal Court.” 

In this article, the focus is on Canada’s position on the International Criminal Court (ICC) whose aim it is to investigate and, where warranted, prosecute and hold to account individuals charged with four core international crimes: genocide, war crimes, crimes against humanity and the crime of aggression. Canada is a member-state of the ICC, and so too is the State of Palestine. The ICC therefore has jurisdiction over the situation in Palestine and staff have been investigating atrocities committed there since 2021.

It has now been confirmed by sources involved in the negotiations over the motion as well as by Stephen Brown, CEO of the National Council of Canadian Muslims, that the Liberals sought to kibosh any mention of support for the ICC’s work in Palestine. 

Against the backdrop of an ever-growing trove of credible allegations of war crimes, crimes against humanity, and genocidal acts by Hamas and Israeli forces, the government’s reluctance to support the ICC has been staggering. But it also fits a pattern: neither Conservative nor Liberal governments have ever supported the ICC (or the International Court of Justice) when it comes to Palestine because it does not recognize Palestine as a state, unlike many other countries. 

But now the Liberal government has officially said it supports the work of both in Palestine. In the wake of the motion’s passage Foreign Minister Melanie Joly announced that Canada is committed to its contents: “This is clearly the intent of this government, to make sure that we follow what is written in this motion. And that is why we’ve worked very hard to make sure that we could get to a text where we could abide by it.”

This is a potential game changer. It represents the first time ever that a Canadian government has expressed support for any accountability process for war crimes, crimes against humanity, and genocide committed in Palestine and Israel. Before the motion passed, Canadian governments of both Conservative and Liberal stripes, as mentioned, had opposed every single independent, impartial, and international effort to investigate and prosecute international crimes carried out in Palestine and Israel. 

The question that remains is: what will “support the work” of the ICC and the “prosecution of all crimes” mean?

The first and most obvious step the government should take is to immediately express its unequivocal support for the ICC’s ongoing investigation into the horrific allegations of atrocities committed by Hamas, the Israeli military, and those peddling in settler violence in the West Bank. A visit by Joly or other ministers to the ICC’s headquarters in The Hague to reiterate Canada’s newfound support for the Court’s work in Israel and Palestine would be a good way to demonstrate such backing.

In order to recognize the ICC’s investigation into the situation in Palestine, it is not necessary for Canada to recognize Palestine as a state. Neither Spain nor Belgium – both firm Canadian allies – currently recognize Palestine as a state but both have actively expressed support for the Court’s role in Palestine. Last November, for example, Belgium provided 5 million Euros for the ICC’s investigation into war crimes in Palestine and Israel.

Canada should likewise work with its allies to offer support to the Court’s investigation. One only need look at the support given to the ICC for its probe into war crimes committed in Ukraine to get a sense of what that might look like: following Russia’s 2022 invasion, Canada seconded RCMP officers to support the Court’s investigation and also donated $1 million to the ICC.

Beyond The Hague, Canada can also open its own structural investigation into alleged war crimes committed in Palestine and Israel. Again, it has done just that in the context of Ukraine, collecting evidence of atrocities committed and interviewing Ukrainians who escaped the violence to come to Canada about what they witnessed.

With the government’s creation of a special programme, albeit very limited, to help Gazans with Canadian family members to come to Canada, law enforcement agencies also have an opportunity to replicate what they did with arriving Ukrainians: interview arriving Gazans who have witnessed atrocities committed by Hamas and Israeli forces. The evidence collected could then be used in Canada to prosecute any alleged perpetrators who arrive in the country or be sent to other states or organizations who are conducting their own prosecutions.

Even if the ICC succeeds in prosecuting the perpetrators of atrocities in the Israel-Palestine situation, it will only be able to hold a small handful to account. That’s the nature of a Court that has multiple investigations on the go at any time. Canada should therefore work with its allies to explore the creation of an additional court to prosecute war crimes, crimes against humanity and genocidal acts committed because of the Israel-Palestine situation.

As I have argued elsewhere, such a court could be ‘hybrid’ in nature, bringing together both Palestinian and Israeli lawyers and judges, alongside their international colleagues. What a remarkable sight it would be to see Palestinian and Israeli lawyers working together towards justice!

Accountability for international crimes won’t solve the war in Gaza or bring peace to the Middle East. But the lack of accountability over decades has only fueled more violence, more terror, and more atrocities. Justice can offer an ‘off-ramp’ for those who might otherwise turn their shame and despair into hate and revenge. 

In testimony I provided to the House of Commons’ Standing Committee on Foreign Affairs, I informed Members of Parliament that those who look to Canada – victims of atrocities, diplomats, staff in international organizations, human rights advocates, and others – want leadership that supports and reinforces a consistent rules-based system.  They expect Canada, and rightly so, to lead on international accountability efforts but wonder why it is unwilling or unable to do so.

As it stands right now, the Canadian government has a vital role to play in offering a better, more just future for Palestinian and Israeli victims and survivors of international crimes.

Don’t believe me? Read the motion they just accepted.

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