Canada stands with Israel, but will it stand against war crimes in Gaza? | Shane Martinez

By Shane Martínez

Law360 Canada (October 13, 2023, 2:52 PM EDT) --
Shane Martinez
Shane Martinez
This December will mark the 25th anniversary of Canada signing the Rome Statute of the International Criminal Court – a treaty that established four international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Canada ratified the Rome Statute shortly thereafter, and also enacted the Crimes Against Humanity and War Crimes Act.

In doing so it became the first country to develop a comprehensive legal framework to give domestic effect to the Rome Statute. This accompanied Canada’s earlier ratification of the Geneva Conventions and their Additional Protocols, which are the basis of international humanitarian law regulating how armed conflict is conducted.

Following last week’s attacks by Hamas, Canadian officials declared that they stand with the Israeli state as it carries out its military response targeting the Gaza Strip. Prime Minister Justin Trudeau and Foreign Affairs Minister Mélanie Joly both made public statements referencing international law and emphasizing the paramount importance of protecting civilian lives. However, as a humanitarian tragedy unfolds in Gaza, Canada’s refusal to call for an immediate ceasefire with a process to see hostages safely released raises questions about whether it is approaching its international legal commitments in a bona fide manner. An examination of Canada’s history of not upholding international law on matters involving Palestine-Israel provides valuable context for answering those questions.

One such matter is the Israeli armed forces’ five-decades-long campaign to demolish tens of thousands of Palestinian properties in the West Bank. Land is often confiscated and repurposed as illegal Israeli settlements, or soldiers set up military outposts after destroying olive trees and seizing control of fresh water sources. Amnesty International and Human Rights Watch have both reported that this has contributed to a system of apartheid for Palestinians living under Israeli military occupation.

In 2022 Michael Lynk, then the UN Special Rapporteur for the situation of human rights in the Palestinian territory occupied since 1967, described the occupation as representing a “deeply discriminatory dual legal and political system that privileges the 700,000 Israeli Jewish settlers living in the 300 illegal Israeli settlements in East Jerusalem and the West Bank.”

The occupation is contrary to article 8(2)(b)(viii) of the Rome Statute, as well as article 49 of the Fourth Geneva Convention, both of which state that an Occupying Power shall not transfer, directly or indirectly, parts of its own civilian population into the territory it occupies. Despite this, and despite the fact that Canada’s own foreign policy acknowledges the illegal nature of such settlements, Canada actively supports their growth through the Canada-Israel Free Trade Agreement and the Canada-Israel Strategic Partnership.

Many of those who were displaced by Israel’s illegal confiscation of Palestinian land now live in the Gaza Strip – an area that measures only 41 kilometres long by six to 12 kilometres wide. It has been under an Israeli blockade for the last 16 years, with former British Prime Minister David Cameron describing it as a “prison camp.”

The Israeli armed forces control the land, sea and air around Gaza, and determine who and what enters and leaves. Many of those living within the Gaza Strip have never known life outside it. This constricting and desperate reality has caused Gaza to become the most densely populated place on earth, with over two million Palestinians living within its borders – half of whom are children. The United Nations estimates that 81 per cent of Gaza’s population is living in poverty, 70 per cent of young adults are unemployed, and 64 per cent of persons living there experience moderate or severe food insecurity.

Since Oct. 8 the Israeli armed forces have carried out hundreds of airstrikes on Gaza. No humanitarian corridor has been provided for civilians to escape. At the time of writing, over 1,417 people within Gaza have been killed – including numerous families and 447 children. Another 6,268 people have been injured, among them more than 1,200 children. Marketplaces, hospitals, schools and refugee camps have all been struck by Israeli missiles. This is contrary to article 8(2)(b)(iv) of the Rome Statute, which states that it is a war crime to intentionally launch an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. Countries around the world have called for a ceasefire, as have Canadian groups such as Independent Jewish Voices, Canadians for Justice and Peace in the Middle East and Oxfam. But Canada, well aware of the mounting death toll, has not denounced Israel’s indiscriminate bombing of the Gaza Strip.

On Oct. 9, Israeli Defence Minister Yoav Gallant announced “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed,” going on to state “We are fighting human animals, and we are acting accordingly.”

In addition to this declaration appearing to be a precursor to genocide, such action is contrary to article 8(2)(b)(xxv) of the Rome Statute, which states that it is a war crime to intentionally starve civilians as a method of warfare by depriving them of objects indispensable to their survival. It is also contrary to article 33 of the Fourth Geneva Convention, which prohibits collective punishment and reprisals against protected persons and their property. The Israeli human rights group B’Tselem has denounced Israel’s actions as war crimes. Yet Canada, in full appreciation of the deadly consequences which will inevitably be suffered by civilians, has once again not voiced any meaningful objection.

Canada’s conduct in relation to Palestine-Israel becomes even more troubling when it comes to transparency and accountability for suspected war crimes. In 2021 the Office of the Prosecutor at the International Criminal Court announced an investigation into possible crimes committed by both Israelis and Palestinians in the West Bank, Gaza and East Jerusalem since June 2014. While Palestinian authorities agreed to co-operate in the investigation, Israel refused and called on Canada and others to halt funding to the International Criminal Court. Canada, along with the United States, subsequently lobbied the Prosecutor’s Office to cease its investigation of suspected Israeli war crimes (the Prosecutor’s Office decided to proceed with the investigation anyhow). Despite Canada's knowledge that Israel has allegedly committed war crimes and attacks directed at civilians, it continues to export arms to Israel – contrary to Article 6 of the United Nations’ Arms Trade Treaty to which Canada is a state party.

When viewed in its totality, Canada’s approach to the situation in Palestine-Israel reflects complacency – if not complicity – with the entirely preventable loss of life that is being suffered there. What the world is witnessing has not occurred in a vacuum. As recently as November 2022 the UN Middle East envoy warned the UN Security Council that “After decades of persistent violence, illegal settlement expansion, dormant negotiations and deepening occupation, the conflict is again reaching a boiling point.”

Canada’s refusal to use its power and influence to uphold the rule of law presents an irreconcilable conflict with its international commitments. It also undermines the long-standing progressive work collaboratively being done by many Palestinians and Israelis to end the occupation and build a just and lasting peace in the region. Continued silence at this dire juncture, when there is a real opportunity to prevent further loss of human life, is something that none of us should stand for.

Shane Martínez is a criminal defence and human rights lawyer at Martínez Law, and an adjunct professor of Prison Law, Policy & Reform at Osgoode Hall Law School. He can be found on Twitter @martinezdefence.

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