ByTheEast: As a legal advocate for political causes, could you clarify who you represent in Palestine?
Gilles Devers: I’m a dedicated supporter of the Palestinian cause. I work with everyone, without exception. Due to logistical reasons, my work primarily revolves around Gaza and the Hamas resistance movement. However, I also engage with various sectors of Palestinian civil society. Currently I am in the process of establishing contacts with the Palestinian Authority (PA) and have cordial relations with several ambassadors. I believe in open dialogue with everyone. When asked for advice, I offer it readily. My approach is similar to that of a doctor: I don’t question whether the people in my waiting room get along with each other.
BTE: In the current climate, the choice of words is crucial. While Western institutions label Hamas as a “terrorist movement”, others refer to it as a “resistance movement”. How would you categorize the Hamas attack on October 7: a “terrorist attack”, a “war crime”, or an “act of war”?
G.D.: The United States labels Hamas as a “terrorist” organization. However, according to the Court of Justice of the European Union (CJEU), this designation holds no legal value in France or Europe, because the procedure in the United States was neither contradictory nor motivated. In spite of this, Hamas has been listed as a “terrorist” organization by the Council of the European Union; the CJEU did not reverse this decision and therefore validated it. But the EU has never officially condemned Hamas as such. From a legal point of view, it is very important.
In my work on the Palestinian case, I primarily bank on international law. The term “terrorism” is absent from the statutes of the International Criminal Court (ICC). Historically, this term has been overused to label political adversaries. When drafting the ICC’s statutes, the international community defined nearly a hundred offenses, but “terrorism” has not been included. Therefore, classifying actions under international law based on political rhetoric or domestic law or morality criteria is not particularly relevant. From the point of view of French law, however, the State prosecutor has the right to open an investigation for terrorism. But again, under international law, this notion does not exist.
Conversely, the “right to resistance” is recognized by the ICC’s statutes and must be exercised within the parameters of international law. However being classified as a “resistant fighter” does not provide a carte blanche to commit any acts; there’s zero debate about this. The boundary is defined by Article 31-d of the Rome Statute which established the ICC. Going by this article, acts of self-defense stand legal scrutiny, especially if it’s the only means for people to ensure their survival. This particular clause, in Article 31-d, has been widely criticized since it could legitimize certain war crimes. Case in point: can bombing buildings housing families or executing civilians at close range be considered as self-defense? These actions constitute material elements of a crime due to the intent to kill. In relation to the October 7, 2023 attack, could this be viewed as self-defense under Article 31-d? Debate on this is ongoing.
“We are in the process of lodging a complaint to the International Criminal Court (ICC) and it will be filed soon. Israel is apprehensive about any mention of the ICC since it knows that international law is effective.”
BTE: In your opinion, could Hamas be condemned for the October 7, 2023 attacks?
G.D.: Those expecting a Hamas trial before the International Criminal Court may be disappointed. The incidents occurred on Israeli territory; hence, Israel will judge these facts. The Israeli state will never agree to transfer its jurisdiction to the ICC. Not only does Israel not recognize the ICC, but it spits on it.
By its February 5, 2021 judgment, the ICC held its jurisdiction over Palestine, recognizing de facto Palestine as a state and therefore, its jurisdiction over Gaza, the West Bank and East Jerusalem. But Israel does not recognize the ICC; the Israeli Attorney General considered the ICC as being anti-Semitic and incompetent, and that the judges do not understand a thing about the Israeli-Palestinian conflict. To answer your question, since the October 7 attacks took place on Israeli territory, it is up to them to judge it. By application of the principle of subsidiarity, these acts will therefore never come before the ICC.
BTE: On the other side, bombings are taking a heavy toll on civilians’ lives in Gaza. What are you going to do at the ICC level?
G.D.: We are in the process of lodging a complaint and it will be filed soon. Israel is apprehensive about any mention of the International Criminal Court since it knows that international law is effective. The United States refuses to sign all treaties – even conventions on children’s rights – because they know that if they respected international law, they could not dominate the world as they do. I am one of those who defend this true international law, and I am not the only jurist in that case.
BTE: Since October 7, intense Israeli shellings have had devastating consequences on the civilian populations of Gaza. How do you proceed to report information from the field for future complaints to the ICC?
G.D.: This is done in two stages. For example, in 2014 after the Israeli operation on Gaza (editor’s note: called “Protective Edge” to destroy Hamas tunnels), we filed a complaint that the Palestinian minister signed while he was under bombardment. It is our job to have relationships allowing us to be in contact with the complainants, at the time when the acts are committed.
The registration of this complaint had a lot of impact because it led Palestine to ratify the Rome Statute of the ICC on January 1, 2015. In his statement, President Mahmoud Abbas validated our complaint and traced it back to as of June 13, 2014. When crimes are being committed, we must therefore “feel” the judicial moment.
There is also investigative work, which is time consuming. Currently in Gaza, we have a team of six people on this task; given the daily bombings, their work is hampered and is very challenging. Our investigative work is financed by the Palestinian administration and it also helps us prepare our cases. For example, after the 2018 Great March of Return demonstrations – which for me was a priority case –, their work allowed us to send 3,000 complete cases to the International Criminal Court. And believe me, these cases are very well compiled, as well as if they were done in France, with sketches, testimonies, medical documents or autopsy reports when necessary. I am thinking, among others, of a family who agreed to an exhumation in order to recover a bullet. We work in Gaza as in Paris.
“Legally speaking, the two-state solution died with the Oslo Accords. The Palestinian people are sovereign, they have the right to self-determination because they were the first on the land of Palestine.”
BTE: The preliminary examination of the complaint filed in 2014 took more than four years. Is this slowness normal or due to political obstruction?
G.D.: In fact, it was not until 2018 that the Palestinian Authority (PA) was able to make what is called a “referral”, that is to say “file a complaint” in due form. Initially, PA had ratified the treaty, which did not mean going to the prosecutor. But it was a major step since Palestine signed as a state. At the ICC, Palestine is therefore recognized as a state in its own right, alongside 120 other states which sit with it. Beyond international law, this had a very strong political meaning, even if the Palestinians did not use this argument much.
BTE: Politically speaking, where does the two-state solution stand?
G.D.: To me, legally speaking, this solution died with the Oslo Accords in 1993. The Palestinian people are sovereign, they have the right to self-determination because they were the first on the land of Palestine. Israel was created in 1948 as a continuation of the State of Palestine. At the time, Israel made a declaration saying that they were successors to the State of Palestine in its new territory, recognizing that Palestine pre-existed.
The Palestinian people got marginalized in 1948, but resisted through armed struggle with attacks similar other examples, such as the Barbès metro in Paris by the Resistance fighter Pierre Georges in 1941 or the Milk Bar by the National Liberation Front (NLF) in Algiers in 1956. All these facts were described as “terrorist” in their time. But with hindsight, History characterizes them differently.
These violent acts allowed the Palestinians – who were eliminated from any UN declaration after 1948 – to reappear at the turn of the 1970s until the General Assembly recognized the sovereignty of the Palestinian people over their land, with the right to self-determination in 1974 (editor’s note: Security Council resolution 242). Once the Palestinian people were restored to this dimension, they were in a position to negotiate.
But with the Oslo Accords, the Palestinians gave up the rule of international law. The entire legal regime of the liberation movement was diluted into an impossible process: the Palestinian Authority became an unidentified legal object which depended entirely on a bilateral agreement – and only bilateral – with a state which constantly acts against it, and above all who presented itself as successor. The Oslo Accords were a regression, their basis was completely flawed.
The Oslo process meant that the Palestinians left the international law framework, they broke with what they had managed to gain. This bilateral agreement meant nothing, and has since placed them in legal and economic dependence such that they are completely assisted by European countries and the United States. This dependence is terrible: if funding no longer comes from Europe or the United States, the pay of Palestinian civil servants stops. How to be independent in these conditions? Today, Palestinian diplomacy is at an impasse.
“What are we going to do with the lives of 12 million Palestinians? These people certainly have the right to live on their land.”
BTE: What can we expect from the international community today? From the United States or Europe?
G.D.: Last week, when U.S. Secretary of State Anthony Blinken came to the Middle East, he did not want to go to Ramallah, he instead summoned Mahmoud Abbas to Amman (Jordan) and gave him a hard time. Ironically, while the United States presents itself as the defenders of freedom in the world while refusing to sign certain international legal treaties, and does not recognize the authority of the ICC!
We need to know what Washington and Brussels have in mind for the future of the 12 million Palestinians. International law recognizes their right to self-determination. What are we going to do with the lives of 12 million Palestinians? These people certainly have the right to live on their land. Can we undo, cancel and not recognize the annexation of East Jerusalem and that of West Bank settlements? Do we still have a thinking brain in European and French diplomacy? To me, that’s the real question.