WEBVTT - Arrest warrants for Hamas leaders and Netanyahu: What happens next?

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<v Speaker 1>On Monday, the prosecutor of the International Criminal Court, Karim Khan,

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<v Speaker 1>released a pretty extraordinary public statement.

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<v Speaker 2>I have reasonable grounds to believe that three senior leaders

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<v Speaker 2>of Hamas yahyasinwah Muhamma Daif and Ishmael Haniah bear criminal

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<v Speaker 2>responsibility for the following international crimes committed on the territory

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<v Speaker 2>of Israel and the State of Palestine from at least

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<v Speaker 2>the seventh of October twenty twenty three.

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<v Speaker 1>He said he was seeking warrants for their arrests and

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<v Speaker 1>for the arrests of Israel's Prime Minister and Defense Minister.

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<v Speaker 2>I can also confirm today that I have reasonable grounds

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<v Speaker 2>to believe, on the basis of evidence collected and examined

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<v Speaker 2>by my office, that Israeli Prime Minister Benjamin Netanyahu and

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<v Speaker 2>Minister of Defense you have got bear criminal responsibility for

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<v Speaker 2>the following international crimes committed on the territory.

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<v Speaker 1>For Hermas, the charges included extermination.

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<v Speaker 2>As a crime against humanity, murder as a crime against

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<v Speaker 2>humanity and as a war crime, and.

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<v Speaker 1>The taking of hostages, rape and torture, in humane acts,

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<v Speaker 1>cruel treatment during captivity, and outrages on personal dignity and

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<v Speaker 1>for Israel The charges include starvation as a method of warfare.

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<v Speaker 2>Wilfully causing great suffering, serious injury to body or health,

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<v Speaker 2>or cruel.

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<v Speaker 1>Treatment, wilful killing or murder.

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<v Speaker 2>And intentionally directing attacks against a civilian population, as well

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<v Speaker 2>as crimes against humanity of extermination and or murder.

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<v Speaker 1>As well as persecution and other inhumane acts.

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<v Speaker 2>Unfortunately, these crimes continue to this day. Should the learned

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<v Speaker 2>judges approve my applications and issue the requested warrants, I

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<v Speaker 2>will work closely with the Registrar of the Court to

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<v Speaker 2>apprehend the named individuals.

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<v Speaker 1>From Schwartz media. I'm Ashlin McGee. This is seven am.

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<v Speaker 1>So how did the ICCs prosecute it come to the

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<v Speaker 1>point of applying for arrest warrants? What happens next? And

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<v Speaker 1>can international laws survive the scrutiny it's now under today.

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<v Speaker 1>Expert in international law and professor at the University of California,

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<v Speaker 1>Davis Chamen Kaidner on the warrants that are now drawing

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<v Speaker 1>attention from around the world. It's Friday, May twenty four

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<v Speaker 1>to begin in I wanted to understand how the ICC

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<v Speaker 1>prosecutor goes about bringing these charges, Like what sort of

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<v Speaker 1>work goes into it, what sort of evidence do they gather,

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<v Speaker 1>how do they work.

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<v Speaker 3>So there have been suggestions in the news for some

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<v Speaker 3>time that the prosecutor was looking very closely at this situation.

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<v Speaker 3>And there are twelve situations currently that the prosecutor is

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<v Speaker 3>actively investigating, and any one of those situations would merit

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<v Speaker 3>further action. And in order to investigate a situation, the

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<v Speaker 3>ICC prosecutor needs to have authority that comes from somewhere,

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<v Speaker 3>and in the case of the International Criminal Court, that

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<v Speaker 3>authority comes from a treaty that one hundred and twenty

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<v Speaker 3>odd countries have signed called the Rome Statute.

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<v Speaker 1>Took place in your hands the room Statutes of the

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<v Speaker 1>International Criminal Court, may it said mankind were in generations to.

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<v Speaker 4>Come thank you.

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<v Speaker 3>And countries that are party to that treaty have basically

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<v Speaker 3>agreed that the International Criminal Court will have jurisdiction over

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<v Speaker 3>certain very serious international crimes committed by their nationals or

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<v Speaker 3>on their territory.

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<v Speaker 5>Six years after it began an initial investigation of Israel's

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<v Speaker 5>actions in the Palestinian territories, the International Criminal Court has

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<v Speaker 5>opened an official inquiry into alleged war crimes.

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<v Speaker 3>And the prosecutor has been investigating alleged crimes committed on

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<v Speaker 3>the territory of Palestine for a number of years now,

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<v Speaker 3>but this is the first we've heard of charges. And

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<v Speaker 3>so also the prosecutor has been interviewing, as I understand it,

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<v Speaker 3>former hostages, hostage families, those who witnessed the events of

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<v Speaker 3>October seventh.

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<v Speaker 2>We have active investigations ondoing in relation to the crimes

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<v Speaker 2>allegedly committed in Israel on the seventh October, and also

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<v Speaker 2>relation to Gaza and the West Bank Canna jurisdictionar back

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<v Speaker 2>to twenty fourteen.

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<v Speaker 3>We've heard testimonials from people who have been on the

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<v Speaker 3>ground in Gaza. I also think there's a lot of

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<v Speaker 3>possibility of expert analysis of literally how much food is

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<v Speaker 3>going into Gaza and how many people there are in

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<v Speaker 3>Gaza to feed. So, although the statement that we saw

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<v Speaker 3>this week and the expert report that accompanied it don't

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<v Speaker 3>actually chronicle in any detail the evidence that underlies the

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<v Speaker 3>application that's going to be made to the pre trial

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<v Speaker 3>chamber here, we can assume that it includes these sorts

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<v Speaker 3>of testimonies, video evidence, things that in our digital age

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<v Speaker 3>can actually be obtained without physically being on the ground

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<v Speaker 3>in a particular location.

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<v Speaker 1>Can you tell us a little bit more about Karim Khan?

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<v Speaker 3>Who is he?

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<v Speaker 1>What's he like as the ISASA prosecutor.

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<v Speaker 3>Well, we haven't had coffee, but I can tell you

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<v Speaker 3>I am front from a distance. So he's a third

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<v Speaker 3>prosecutor that this court has had, because it is a

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<v Speaker 3>court that has been in existence for about twenty years.

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<v Speaker 4>I believe in international justice.

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<v Speaker 2>It's not just a job, it's something I believe in.

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<v Speaker 3>And his approach certainly does seem to be more public facing.

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<v Speaker 3>I think it's fair to say, at least than his

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<v Speaker 3>immediate predecessor.

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<v Speaker 2>Very often, when I stand up, I don't know what

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<v Speaker 2>I'm going to say. No, no, it comes out for

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<v Speaker 2>better or worse. Of course I try. The duty of

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<v Speaker 2>an advocate is to make points as clearly as possible.

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<v Speaker 3>But from the outside we really never know where the

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<v Speaker 3>prosecutor's focus is unless he tells us, And he made

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<v Speaker 3>clear in his statement that he essentially feels like he

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<v Speaker 3>has put the Israeli leadership on notice. On the Commas side,

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<v Speaker 3>I think, again, the prosecutor is going straight to the top,

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<v Speaker 3>so to speak, and so I think he does certainly

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<v Speaker 3>seem to be strategic about both the way in which

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<v Speaker 3>he is making these announcements. He's also in this case

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<v Speaker 3>been sort of extremely prepared for the criticism that he

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<v Speaker 3>knew he would get. And so certainly all of the

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<v Speaker 3>lawyers working on these cases have been assembling the evidence

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<v Speaker 3>they need, deciding which charges are most suitable in this

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<v Speaker 3>first round of charges to fit the situation and the

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<v Speaker 3>available evidence, such that the prosecutor could proceed on the

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<v Speaker 3>basis at least in his view of confidence in ultimately

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<v Speaker 3>securing a verdict. So now that sort of package of

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<v Speaker 3>evidence goes to what we call a pre trial chamber,

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<v Speaker 3>basically a subgroup of judges of the International Criminal Court

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<v Speaker 3>see whether they agree that there are, again the legal

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<v Speaker 3>standard being reasonable grounds to believe that these crimes have

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<v Speaker 3>been committed.

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<v Speaker 1>So, if the warrants are issued by these three judge panel,

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<v Speaker 1>what does that actually mean, What do they do these warrants?

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<v Speaker 3>Well, the ICC doesn't have a police force, but it

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<v Speaker 3>does have a binding authority under international law that comes

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<v Speaker 3>from this treaty, and under the treaty, states that are

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<v Speaker 3>party to the Rome Statute are obliged to cooperate with

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<v Speaker 3>the Court's requests, including their requests to arrest and surrender

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<v Speaker 3>individuals against whom arrest warrants have been issued. So that

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<v Speaker 3>would mean that Palestine is obliged to arrest and surrender

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<v Speaker 3>the three Palestinian defendants, and that any country to which

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<v Speaker 3>Netanyahu Orgalant travels that is a state party to the

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<v Speaker 3>Rome Statute, which includes many countries in Europe, does not currently.

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<v Speaker 4>Include the United States, would.

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<v Speaker 3>Be obliged to unrest and surrender him as well. Again,

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<v Speaker 3>within the Rome Statute framework, Israel is not a state

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<v Speaker 3>party to the Rome Statute, just as Russia is not

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<v Speaker 3>a state party, and so there's a slightly more plausible

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<v Speaker 3>argument in my view that countries would essentially have to

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<v Speaker 3>choose between their international legal obligation to respect the immunity

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<v Speaker 3>of a sitting head of state from arrest and surrender

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<v Speaker 3>and their obligations under the Rome Statute. But in any event,

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<v Speaker 3>if I were in at Nyahu, I wouldn't want to

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<v Speaker 3>risk that or roll the dice. But I would find

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<v Speaker 3>it very surprising at the end of the day to

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<v Speaker 3>see a panel reject this request. That said, whether or

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<v Speaker 3>not we'd actually see an arrest any of these individuals

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<v Speaker 3>will really depend on which countries they are in and

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<v Speaker 3>the political calculations of those countries in terms of following

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<v Speaker 3>their own statute obligations compared with whatever other political pressures

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<v Speaker 3>they find themselves under.

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<v Speaker 4>And so this is real. It's not going away. The

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<v Speaker 4>ICC is not bound.

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<v Speaker 3>By any of these political considerations or diplomatic considerations, and

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<v Speaker 3>so is moving forward.

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<v Speaker 1>After the break. What happens if a country refuses to

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<v Speaker 1>arrest these lateness charged with war crimes? Schamann since the

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<v Speaker 1>ICC prosecutor's announcement earlier this week, took me through the

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<v Speaker 1>kinds of reactions we've heard from those names.

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<v Speaker 3>Well again, as a member of the public, I've heard

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<v Speaker 3>and seen probably what.

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<v Speaker 4>You have to seek.

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<v Speaker 6>Arrest warrants against the democratically elected leaders of Israel is

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<v Speaker 6>a moral outrage of historic proportions. It will cast an

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<v Speaker 6>everlasting mark of shame on the international Court.

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<v Speaker 3>What I've been more interested in, because it seems to

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<v Speaker 3>me that the reactions of the defendants are fairly predictable,

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<v Speaker 3>is actually to see the reactions of others. Right. So

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<v Speaker 3>one thing we saw, of course I'm sitting here in

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<v Speaker 3>the United States, was really an immediate rebuke from President Biden.

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<v Speaker 7>Reject the ICC's application for rest warrants against his Wielan

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<v Speaker 7>leading one of these warrants may imply there's no equivalence

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<v Speaker 7>between Israel and Hamas.

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<v Speaker 3>It's a little bit more surprising to me perhaps that

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<v Speaker 3>we also saw a very strong rebuke from the Secretary

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<v Speaker 3>of State. Of course, Blincoln and Biden are part of

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<v Speaker 3>the same administration, but this is also an administration that

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<v Speaker 3>has engaged with the ICC, and that was very supportive

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<v Speaker 3>of the ICC's investigation and actions with respect to Russian

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<v Speaker 3>crimes in Ukraine, and that has supported other past investigations

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<v Speaker 3>and prosecutions. The other piece of this right is that

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<v Speaker 3>we are seeing in both the Ukraine situation and the

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<v Speaker 3>Palestine situation the issuance of warrants while armed conflict is continuing,

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<v Speaker 3>and there really is, to my mind, this question of

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<v Speaker 3>whether or not they're playing a constructive role and whether

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<v Speaker 3>or not the many pieces and considerations that go into

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<v Speaker 3>things like negotiations to secure the release of the hostages,

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<v Speaker 3>or secure a cease fire, or to more effectively deconflict,

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<v Speaker 3>the provision of humanitarian aid, or to get United Nations

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<v Speaker 3>teams into monitor what is coming in on trucks into Gaza,

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<v Speaker 3>rather than having the Israeli army performing that role. I mean,

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<v Speaker 3>all of these things involve very complex negotiation, and so

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<v Speaker 3>to have a criminal process running in parallel to that

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<v Speaker 3>just is another wildcard.

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<v Speaker 1>Let's pick up on something in the international reactions that

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<v Speaker 1>we've heard, which is this line we've heard from Biden

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<v Speaker 1>and others about the false equivalents. Help me understand a

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<v Speaker 1>little bit. Why do you think the ICC decided to

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<v Speaker 1>seek these arrest warrants for both the Hamas leaders at

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<v Speaker 1>the same time as the Israeli politicians. What was that about?

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<v Speaker 1>What was the motivation for doing it at the same time.

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<v Speaker 3>Oh, it seems to me that if Kahan was going

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<v Speaker 3>to seek warrants, he had to do it with respect

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<v Speaker 3>to both sides of this conflict. In other words, had

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<v Speaker 3>he only sought warrants against Commas leaders, there would have

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<v Speaker 3>been an outpouring of criticism, continuing criticism that the ICC

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<v Speaker 3>has faced for years, suggesting that it's only prosecuting individuals

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<v Speaker 3>from the global South, that it's essentially a tool of imperialism.

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<v Speaker 3>And moreover, is Palestine that has been really pushing the

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<v Speaker 3>agenda in the ICC by joining the statute, by inviting

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<v Speaker 3>the prosecutor to investigate alleged crimes in the West Bank,

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<v Speaker 3>East Jerusalem and Gaza.

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<v Speaker 4>At the same time, it's also clear that.

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<v Speaker 3>If one looks at what's going on in Gaza now,

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<v Speaker 3>although certainly the attacks of October seventh didn't happen in

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<v Speaker 3>a vacuum, the extraordinarily systematic and a comprehensive attempt to

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<v Speaker 3>and I think the terms of news is eradicate Hamas

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<v Speaker 3>right from the Gaza strip has been something unlike anything

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<v Speaker 3>we've seen, you know, in recent decades. And I think

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<v Speaker 3>it would have been again just just politically very difficult

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<v Speaker 3>for the prosecutor to bring charges only against Israeli's given that,

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<v Speaker 3>unlike the situation in Russia, you know, there was a

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<v Speaker 3>really devastated attack on Israeli territory targeting civilians, involving sexual

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<v Speaker 3>violence that is being documented and for which the prosecutor

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<v Speaker 3>has said he may well bring charges. The continued unlawful

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<v Speaker 3>the tension of hostages, sexual violence against hostages, which does

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<v Speaker 3>figure into the current set of allegations. And so I

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<v Speaker 3>think one can question the decision to bring this application

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<v Speaker 3>in public at this juncture. But if it was going

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<v Speaker 3>to be brought, I think the expectation absolutely was that

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<v Speaker 3>individuals on both sides of the conflict would be named.

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<v Speaker 1>If we assume for a moment that warrants do get

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<v Speaker 1>issued in Israeli is already calling for countries like Australia

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<v Speaker 1>to boycott the warrants. Can countries actually do that is

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<v Speaker 1>any precedent for ignoring ICC warrants.

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<v Speaker 3>The notion that a country might have essentially mutually conflicting

0:15:57.200 --> 0:16:01.480
<v Speaker 3>legal obligations and certainly sort of make political interests when

0:16:01.520 --> 0:16:05.000
<v Speaker 3>it comes to complying with its obligations is something that's

0:16:05.040 --> 0:16:08.480
<v Speaker 3>not unusual at all in international law. To my mind,

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<v Speaker 3>if we want the International Criminal Court to be effective,

0:16:12.120 --> 0:16:17.960
<v Speaker 3>if countries support the attempt to prosecute people like Vladimir Putin,

0:16:18.760 --> 0:16:19.960
<v Speaker 3>you cannot pick and choose.

0:16:20.320 --> 0:16:21.720
<v Speaker 4>You can't have it both ways.

0:16:21.920 --> 0:16:24.760
<v Speaker 3>And I think that's also something that US decision makers

0:16:24.760 --> 0:16:27.800
<v Speaker 3>are grappling with again. The United States has never joined

0:16:27.840 --> 0:16:31.880
<v Speaker 3>the Rome Statute, it's never indicated any intention to do so,

0:16:32.440 --> 0:16:35.600
<v Speaker 3>but it has cooperated with a number of investigations, and

0:16:35.680 --> 0:16:39.040
<v Speaker 3>it has supported a number of investigations, and you can't

0:16:39.080 --> 0:16:42.200
<v Speaker 3>only support those that are in your national interests.

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<v Speaker 1>It is a pretty big tiss for the International Criminal Court,

0:16:45.400 --> 0:16:47.400
<v Speaker 1>isn't it Can it stand up to this kind of

0:16:47.560 --> 0:16:49.280
<v Speaker 1>pressure and scrutiny, do you think?

0:16:49.440 --> 0:16:52.840
<v Speaker 3>Well, con certainly things you can't and has said as much.

0:16:53.440 --> 0:16:53.640
<v Speaker 2>You know.

0:16:53.760 --> 0:16:58.680
<v Speaker 3>It's a court that depends on member state cooperation and funding.

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<v Speaker 3>But it is also a court that, in recent years,

0:17:02.920 --> 0:17:07.760
<v Speaker 3>again I think, has been under tremendous pressure from many

0:17:07.880 --> 0:17:13.000
<v Speaker 3>of its constituents to show that it is not meeting

0:17:13.080 --> 0:17:20.760
<v Speaker 3>out selective justice on the basis of political interest. It

0:17:20.800 --> 0:17:27.199
<v Speaker 3>will be a test really of countries, Western countries, I'll

0:17:27.280 --> 0:17:29.679
<v Speaker 3>use that word, although of course this terminology is fraught,

0:17:30.280 --> 0:17:33.600
<v Speaker 3>because it is one thing to say that we don't

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<v Speaker 3>think some Western countries have said that Israel has shown

0:17:36.359 --> 0:17:39.320
<v Speaker 3>genocidal intent. We think they have some crazy people in

0:17:39.359 --> 0:17:43.840
<v Speaker 3>their cabinet who are saying despicable things, but they are

0:17:44.000 --> 0:17:48.000
<v Speaker 3>acting in self defense against this terrible attack of October seventh.

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<v Speaker 3>It's quite another to say that international law accepts the

0:17:54.359 --> 0:17:58.720
<v Speaker 3>degree of civilian destruction and suffering that we have been

0:17:58.760 --> 0:18:02.919
<v Speaker 3>seeing in Gaza. But if we continue to instrumentalize this

0:18:03.000 --> 0:18:05.080
<v Speaker 3>idea of war crimes and who should be accountable who

0:18:05.080 --> 0:18:09.200
<v Speaker 3>should not be accountable, then I think Western leaders will

0:18:09.480 --> 0:18:13.879
<v Speaker 3>greatly lose all credibility in condemning and using the language

0:18:13.920 --> 0:18:17.600
<v Speaker 3>of international law to condemn actions by other countries.

0:18:21.240 --> 0:18:23.760
<v Speaker 1>Chaman, thanks so much for your time today and thank

0:18:23.800 --> 0:18:39.960
<v Speaker 1>you for having me. Also in the news today, Australians

0:18:39.960 --> 0:18:43.240
<v Speaker 1>stranded in New Caledonia are still waiting for more evacuation

0:18:43.400 --> 0:18:46.440
<v Speaker 1>flights amid a week of riots after no Australian flights

0:18:46.440 --> 0:18:49.560
<v Speaker 1>who are able to depart yesterday. The unrest in New

0:18:49.560 --> 0:18:53.720
<v Speaker 1>Caledonia was sparked by constitutional changes supported by the French

0:18:53.720 --> 0:18:57.760
<v Speaker 1>government in Paris which would give non indigenous residents voting rights,

0:18:57.960 --> 0:19:01.200
<v Speaker 1>potentially thinking any hope of a few referendum on full

0:19:01.240 --> 0:19:06.680
<v Speaker 1>independence succeeding and Federal Environment Minister Tanya Plibersex fell victim

0:19:06.760 --> 0:19:09.359
<v Speaker 1>to a technical error on Sky News yesterday with a

0:19:09.480 --> 0:19:14.200
<v Speaker 1>microphone going live to air without her knowledge. Plybisx microphone

0:19:14.240 --> 0:19:17.359
<v Speaker 1>went live while a Sky News host was interviewing Coalition

0:19:17.520 --> 0:19:21.159
<v Speaker 1>Senator James Patterson, with viewers hearing plibers X saying the

0:19:21.200 --> 0:19:26.800
<v Speaker 1>phrase quote don't say anything horrible about James Patterson. Seven

0:19:26.840 --> 0:19:29.560
<v Speaker 1>Am is a daily show from Schwartz Media and The

0:19:29.640 --> 0:19:34.000
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<v Speaker 1>We'll see you again on Monday