ICC decision breaches its own foundational principles, says former minister

Irwin Cotler, a prominent human rights advocate and former Canadian justice minister, discussed in an interview with The Media Line this week assassination threats against him from the Iranian regime, the International Criminal Court’s (ICC) actions against Israeli leaders, including Prime Minister Benjamin Netanyahu, and the broader implications for international justice and democracy.

In May, The Media Line interviewed Cotler about the challenges Israel faces on the international stage, including allegations of war crimes, the ICC’s actions, and the global rise in antisemitism, which Cotler described as a threat not only to Jews but to democracies worldwide.

A year under threat: The Iranian regime’s targeting of Cotler

Cotler began by revealing the profound personal impact on him and his family of being targeted by the Iranian regime. In November 2023, upon returning from Washington, DC, he and his wife were met by Canadian law enforcement at Montreal’s Trudeau Airport.

“I was told then, to use their words, that there was credible evidence of ‘an imminent and lethal threat,’” Cotler recounted. “From then on, I had 24-7 protection, which included armored cars outside my house” and “security people accompanying me on any encounter that I was engaged in, whether I went to a medical appointment or whether I went to a family gathering.”

For over a year, Cotler lived under constant surveillance and security measures, a reality he initially kept private. The situation became public following a detailed front-page report by The Globe and Mail, which prompted both houses of the Canadian Parliament to unanimously condemn the Iranian regime’s assassination threats and express support for Cotler’s advocacy work.

“In a rather divisive Parliament, which we have in Canada … to get a unanimous resolution of both houses of Parliament is highly unusual,” Cotler noted. “I hope that sends a message … to the Iranian regime that their culture of impunity will not persist, that they will be held accountable, but equally to the Iranian people, that we stand in solidarity with them.”

The roots of Iran’s hostility: Cotler’s advocacy against the regime

Cotler attributed the Iranian regime’s animosity toward him to his decadeslong, outspoken criticism of their actions.

“I recall that the 21st century began with, on January 3, 2000, the supreme leader of Iran saying … there can be no resolution to the Arab-Israeli conflict without the annihilation of the Jewish state,” Cotler stated. “This open and public call for genocide is a standalone violation of the Genocide Convention.”

He emphasized that such rhetoric constitutes incitement to genocide, a punishable offense under international law, irrespective of subsequent actions. Cotler has consistently called for holding the Iranian leadership accountable for what he describes as a “sevenfold threat”:

Nuclear ambitions: Iran’s pursuit of nuclear weapons capability.

Ballistic missile development: Enhancement of missile technology that could deliver nuclear payloads.

Sponsorship of terrorism: Being the leading state sponsor of international terrorism.

Regional hegemony: Exerting influence through proxy groups like Hezbollah, Hamas, and the Houthis.

Transnational repression: Engaging in international assassination plots and suppression of dissidents abroad.

Cybersecurity threats: Conducting cyberattacks and disinformation campaigns, and

Massive domestic repression: Systematic violations of human rights within Iran.

“My advocacy has always been … pro-Iranian, pro-the Iranian people,” Cotler emphasized. “It has been against the Iranian regime, which I feel is betraying its own heritage, its own values, and its own people.”

Cotler has been instrumental in advocating for the designation of Iran’s Islamic Revolutionary Guard Corps as a terrorist organization—a move Canada adopted six months ago after years of his lobbying efforts.

Transnational repression: A global threat

Cotler asserted that Iran’s targeting of him is part of a broader pattern of transnational repression executed by authoritarian regimes.

“This is a larger phenomenon than myself,” he said. “It’s a looking glass into the need to combat the Iranian regime’s culture of criminality and impunity, and to support more the Iranian people, who are the targets of massive domestic repression.”

He cited the cases of Masih Alinejad, an Iranian American journalist and women’s rights advocate who faced assassination attempts, and former US National Security Adviser John Bolton, who was targeted by Iranian operatives. Cotler called for a unified international response to counter such threats.

“I’ve recommended to the Canadian government that they establish a separate department and agency to deal with the phenomenon of transnational repression and assassination,” he revealed. “It needs to be prioritized on the agenda, and we need to set aside the necessary resources and manpower for that purpose.”

Personal sacrifices: Life under constant surveillance

The threats have profoundly altered Cotler’s daily life, restricting his personal freedoms and impacting his family.

“I have security 24-7. I no longer have any freedom of movement because I must be accompanied in whatever I do,” he explained. “It’s made a major change in our life.”

He shared a poignant anecdote involving his granddaughter, who, upon seeing the security presence, innocently asked: “Ima [Mom], tell me the truth. I’ll still love Saba [Grandpa]. I’ll still love him. ... What crime did he commit?”

Cotler also expressed disappointment over missing significant personal events due to security concerns, such as his 60th law school reunion at McGill University.

“I was very much looking forward to it. … But then my security people got word … that there was apparently evidence of an imminent and lethal assassination attempt within the next 48 hours,” he said. “Of course, I could not go to my law school reunion.”

The ICC and Israel: Scrutinizing Karim Khan’s Actions

A significant portion of the discussion focused on the International Criminal Court’s actions against Israeli leaders, specifically Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. Cotler was critical of ICC Prosecutor Karim Khan’s approach.

“I believe that he has gone about this in a wrong way,” Cotler asserted. “The special prosecutor should be called out for the manner in which … he has not adhered to his own principle of cooperation.”

Cotler elaborated on his attempts to facilitate dialogue between Khan and the Israeli leadership.“At the request of the special prosecutor, Karim Khan, and with the cooperation of the prime minister of Israel, I helped facilitate meetings between them,” he explained. “Well, on the very day that the ICC’s team was supposed to come to Israel … Karim Khan, the special prosecutor, peremptorily cancelled that visit and on the same day held a press conference … calling for arrest warrants against both Netanyahu and Gallant, along with Hamas leaders.”

Cotler viewed this move as a breach of the ICC’s foundational principles.

“To me, that was a breach of his own principle of cooperation, let alone also the principle of complementarity,” he emphasized.

Cotler added that when he heard Khan was going to issue arrest warrants against Netanyahu and Gallant, he told the ICC prosecutor, “If you do that, the effect will be to incentivize … antisemitism as well.”

Double standards and legal principles

Cotler accused Khan of applying double standards, contrasting the ICC’s leniency toward Venezuela's Nicolás Maduro with its aggressive stance on Israel: “Previously he [Khan] had visited with the Venezuelan dictator Maduro. … He agreed not to institute arrest warrants with respect to the Venezuelan dictator … but yet he called for arrest warrants against the prime minister and defense minister of a fellow democracy.”

“You can’t go ahead and give the Venezuelan dictatorship a waiver from an arrest warrant because you said you cooperated with them, and then call for an arrest warrant against a democracy when they have been willing to cooperate and you have not cooperated with them,” Cotler argued.

He underscored the importance of the principle of complementarity, which holds that the ICC should defer to a country’s own judicial processes if they are robust and independent.

“I have taken the view that Israel always had to use the very words of the prosecutor, Karim Khan himself, ‘a robust and independent judiciary,’ and that should be sufficient for purposes of combating an ICC warrant,” he stated.

The need for an independent commission of inquiry

Cotler has strongly advocated for Israel to establish an independent state commission of inquiry to investigate any alleged misconduct, which he believes would strengthen Israel’s position against the ICC's charges. He revealed that he has directly communicated this recommendation to Prime Minister Netanyahu and former Defense Minister Yoav Gallant.

"Well, I have conveyed that to the prime minister before," Cotler stated. "I've said that I believe that there should be an independent commission of inquiry. I'm just reaffirming now what I've said before and have conveyed to him."

When asked if there was any chance the arrest warrants could be revoked, Cotler expressed optimism. "I do believe that it can be pushed back," he affirmed. "I recommended directly to the prime minister and to … Yoav Gallant, at the time the defense minister. … The defense minister was responsive to this, but I believe that Israel should have and still should establish an independent state commission of inquiry."

He explained that such a commission would demonstrate Israel's commitment to investigating any allegations internally, thereby reinforcing the principle of complementarity. "That would allow the prosecutor to clearly state that Israel is undertaking its own independent investigation," he explained. "Under the principle of complementarity, the ICC should not substitute its judgment for that of an independent judiciary and an independent legal process."

Cotler noted significant public support within Israel for such a commission. "The last polling I saw showed a dramatic support for that amongst the Israeli public. Over 70% were in favor of such an independent state commission of inquiry, only 8% against," he shared.

Implications for Benjamin Netanyahu

Cotler expressed concern that the ICC’s actions could have serious repercussions for Netanyahu and other Israeli officials, potentially restricting their international travel.

“The community of democracies … have said, with the exception of Germany … that they would abide by the decision [to arrest Israeli leaders],” he said. “I believe that … there are sufficient grounds, both with respect to the evidence and with respect to the law, for a democracy … to say that while it has been a founding member of the ICC … it can refuse to institute the arrest warrant.”

He criticized the ICC’s alleged moral equivalence between Israel and Hamas.

“The United States has called what the ICC has done as outrageous, given as well the false moral equivalence that has been created between a democracy like Israel … and not only a terrorist organization, but a genocidal antisemitic terrorist organization like Hamas,” Cotler remarked.

Challenges with ICC jurisdiction

Addressing the question of the ICC’s jurisdiction over Israel, which is not a member state, Cotler explained the complexities involved.

“We filed a brief with the ICC saying that they had no jurisdiction because Israel was not a state party and Palestine was not yet a state,” he recounted. “However … Palestine was admitted as a state party to the ICC. … The ICC, in a majority judgment, did say that it had a jurisdiction.”

Despite disagreeing with this decision, Cotler acknowledged that the ICC’s stance complicates the legal landscape.

“We have strong enough arguments … to call on both the ICC to reverse its decision, the special prosecutor to withdraw the arrest warrants,” he asserted.

Reactions from global leaders and the way forward

Cotler discussed the responses from international leaders, including US President Joe Biden and former President Donald Trump, who have criticized the ICC’s actions. While Trump suggested imposing sanctions on Karim Khan, Cotler advised against such measures.

“I’m not in favor of sanctioning the ICC,” he stated. “I prefer the route of calling out the decisions as being outrageous, which they are, but not of imposing sanctions.”

He emphasized the importance of addressing the issue through legal and diplomatic channels, maintaining the integrity of international justice systems.

Canada’s position and Prime Minister Trudeau

Cotler addressed concerns about Canadian Prime Minister Justin Trudeau’s stance, as Canada is a founding member of the ICC and may be obligated to enforce arrest warrants.

“I believe that we can independently say why we would not honor an arrest warrant,” Cotler said. “I hope to be meeting with him shortly and to convey that personally to him.”

He suggested that Canada’s legal framework provides grounds to refuse compliance with the ICC warrants, especially given the circumstances.

A call to defend democratic values

Throughout the interview, Cotler stressed the critical need for democracies to stand united against authoritarian regimes and uphold the principles of justice.

“This must serve as a wake-up call … for the community of democracies,” he urged. “We need to have the other G7 countries [take action].”

He criticized actions like Australia’s refusal to allow former Israeli Justice Minister Ayelet Shaked to enter the country for a security conference.

“I thought that was shocking. … Punishing the leaders of that democracy without any basis whatsoever,” Cotler remarked. “That’s the only way I can characterize what the Australian government did.”

Finding hope amid challenges

Despite the grave issues discussed, Cotler concluded on a hopeful note, expressing faith in the eventual triumph of justice and democratic values.

“I’m a strong believer in what Martin Luther King said, that in the end of the day, the arc of history will bend towards justice,” he reflected. “While we are going through difficult times, I do believe that at the end of the day, the arc of history will bend towards justice.”

When asked about what he misses most due to the security constraints, Cotler shared: “I just miss the freedom that my family could have to live a normal life with freedom of movement. … I would love to be able to go back to the normal movement of any citizen in any democracy.”

He also expressed gratitude for the support he has received: “I’m very encouraged by the strong support of both houses of the Canadian Parliament … and the very, very strong support that I’ve gotten from the Iranian people themselves.”

“In the end, justice will prevail,” Cotler affirmed.