Interview: Richard Falk, U.N. Special Rapporteur “on the situation of human rights” in Israeli-occupied Palestinian territories.

Has the case to take Israel to the International Criminal Court (ICC) been strengthened after the events in Gaza?

In an ideal world, Israel should be taken to the International Criminal Court but the problem is that the legal framework of the court makes it very unlikely even if the political will existed because Israel is not a member of the court. The Palestinian Authority has just tried to become a member but whether it qualifies as a state has to be seen. It would be an ideal case for the court to consider, but as a practical possibility that is not a path that would lead anywhere.

There are other paths that would have a little bit more possibility. Spain, as you know, has indicted seven leading Israeli military and political persons. Under the theory of universal jurisdiction, any national court can treat those accused of war crimes in the way pirates were treated under the principle of piracy. It doesn’t matter whether the crimes were not committed on Spanish territory or whether Spanish citizens were victims of the crime. It is enough that these crimes were committed. The Spanish criminal court is an agent of the world community in seeking to achieve some kind of accountability. Here, of course, they have to get personal jurisdiction over the accused individuals, which is unlikely to happen. And Israel and the U.S. have put a lot of pressure on the Spanish government to not follow through with this kind of proceedings.

There was an attempt to prosecute former U.S. Secretary of Defence Donald Rumsfeld in Germany for his role in approving the torture of detained people and there was lots of hard evidence of his involvement in the torture policy. The German prosecutor decided that, politically, he would not use his discretion. Initially, it was because the U.S. was supposed to have the first opportunity to prosecute. When the U.S. failed to prosecute, then it was thought that it was not politically appropriate. This universal jurisdiction is very difficult if the defendant is a powerful country or a friend of a powerful country, as Israel is.

The third path is the U.N. General Assembly. It has the authority, as does the Security Council, to create ad hoc criminal tribunals. This was done in the 1990s by the Security Council when it established the criminal tribunal at The Hague to dealt with former Yugoslavia and later to deal with the Rwanda massacres of 1994. There is a tribunal in Dar es Salaam in Tanzania. In the case of Israel, the Security Council is not available because of the veto of the U.S. The General Assembly could theoretically do this, but whether there is a political will to make such a controversial move is certainly not evident at the moment.

Is it correct to characterise what Israel did in Gaza as “genocide”?

As a legal conclusion, it certainly has a genocidal character. The World Court made it very difficult to establish genocide in the Bosnian case because it said you need written proof of criminal intent. But it is certainly a crime against humanity and a war crime. It is a war of aggression and a crime against peace. This was regarded in the Nuremberg war crime tribunal as a supreme crime.