The French judge and essayist Denis Salas directs the magazine Les Cahiers de la Justice and the French Association for the History of Justice. He is the author of numerous works, including Barbie, Touvier, Papon. Memory processes with Jean-Paul Jean (Autrement, 2002) and Le Déni du rape (Michalon, 224 pages, 20 euros).
Whether it is about the Hamas attacks in Israel on October 7th, the colonization of Palestinian territories by the Jewish state or the Israeli bombings on the Gaza Strip: there is an increasing number of lawsuits at the International Criminal Court (ICC) demanding that arrest warrants be issued as quickly as possible . What do you think ?
War crime policy is a delicate art. With a conflict dominating the world scene and the Gaza Strip in particular, International Criminal Court prosecutor Karim Khan is cautious. He gave a speech in Cairo in late October after visiting the Rafah border post [entre l’Egypte et la bande de Gaza]. He traveled to Israel at the end of November. The war tension remains high, he has to wait for the opportune moment to issue arrest warrants and classify the crimes.
Also read the column: Article reserved for our subscribers Karim Khan, ICC prosecutor, on the Israel-Hamas war: “In the midst of violence, in the midst of anger, there are rules of humanity that must not be exceeded »
Prosecutors issued an arrest warrant for Russian President Vladimir Putin after a year of war and fighting raged in Ukraine. How would the situation in the Israeli-Palestinian conflict change?
For Ukraine, the situation is clear: there is an aggressor state and an attacked state. For Israel and Hamas, the acute conflict on a global scale requires additional caution. Without a short- and long-term strategy, the prosecutor cannot use a criminal weapon like the warrant. This requires an acceptance threshold and an appropriateness calculation. Which is dangerous in the face of a “hardened bloc of hatred and crazy demands in which we are all immobile,” as Albert Camus said in his 1956 “Call for a Civil Armistice in Algeria.”
The ICC is also tasked with preventing crimes. Should it therefore abandon this aspect in the case of Israel and Hamas?
The public prosecutor has not yet issued an arrest warrant at this point, but he behaves differently, in the language, in the words. He addressed both parties firmly. The concept of penal policy must be understood in a broader sense. This depends on the context of the statement, the assessment of the facts and the choice of charges. The role of the prosecutor is not that of the judge or the court. A prosecutor operates in a half-judicial, half-political field. He is the guardian of the prison's front door, which he can close or open. The strategic pace of the prosecution is not that of the verdict.
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