Speaker 1: On Monday, the prosecutor of the International Criminal Court, Karim Khan,
Speaker 1: released a pretty extraordinary public statement.
Speaker 2: I have reasonable grounds to believe that three senior leaders
Speaker 2: of Hamas yahyasinwah Muhamma Daif and Ishmael Haniah bear criminal
Speaker 2: responsibility for the following international crimes committed on the territory
Speaker 2: of Israel and the State of Palestine from at least
Speaker 2: the seventh of October twenty twenty three.
Speaker 1: He said he was seeking warrants for their arrests and
Speaker 1: for the arrests of Israel's Prime Minister and Defense Minister.
Speaker 2: I can also confirm today that I have reasonable grounds
Speaker 2: to believe, on the basis of evidence collected and examined
Speaker 2: by my office, that Israeli Prime Minister Benjamin Netanyahu and
Speaker 2: Minister of Defense you have got bear criminal responsibility for
Speaker 2: the following international crimes committed on the territory.
Speaker 1: For Hermas, the charges included extermination.
Speaker 2: As a crime against humanity, murder as a crime against
Speaker 2: humanity and as a war crime, and.
Speaker 1: The taking of hostages, rape and torture, in humane acts,
Speaker 1: cruel treatment during captivity, and outrages on personal dignity and
Speaker 1: for Israel The charges include starvation as a method of warfare.
Speaker 2: Wilfully causing great suffering, serious injury to body or health,
Speaker 2: or cruel.
Speaker 1: Treatment, wilful killing or murder.
Speaker 2: And intentionally directing attacks against a civilian population, as well
Speaker 2: as crimes against humanity of extermination and or murder.
Speaker 1: As well as persecution and other inhumane acts.
Speaker 2: Unfortunately, these crimes continue to this day. Should the learned
Speaker 2: judges approve my applications and issue the requested warrants, I
Speaker 2: will work closely with the Registrar of the Court to
Speaker 2: apprehend the named individuals.
Speaker 1: From Schwartz media. I'm Ashlin McGee. This is seven am.
Speaker 1: So how did the ICCs prosecute it come to the
Speaker 1: point of applying for arrest warrants? What happens next? And
Speaker 1: can international laws survive the scrutiny it's now under today.
Speaker 1: Expert in international law and professor at the University of California,
Speaker 1: Davis Chamen Kaidner on the warrants that are now drawing
Speaker 1: attention from around the world. It's Friday, May twenty four
Speaker 1: to begin in I wanted to understand how the ICC
Speaker 1: prosecutor goes about bringing these charges, Like what sort of
Speaker 1: work goes into it, what sort of evidence do they gather,
Speaker 1: how do they work.
Speaker 3: So there have been suggestions in the news for some
Speaker 3: time that the prosecutor was looking very closely at this situation.
Speaker 3: And there are twelve situations currently that the prosecutor is
Speaker 3: actively investigating, and any one of those situations would merit
Speaker 3: further action. And in order to investigate a situation, the
Speaker 3: ICC prosecutor needs to have authority that comes from somewhere,
Speaker 3: and in the case of the International Criminal Court, that
Speaker 3: authority comes from a treaty that one hundred and twenty
Speaker 3: odd countries have signed called the Rome Statute.
Speaker 1: Took place in your hands the room Statutes of the
Speaker 1: International Criminal Court, may it said mankind were in generations to.
Speaker 4: Come thank you.
Speaker 3: And countries that are party to that treaty have basically
Speaker 3: agreed that the International Criminal Court will have jurisdiction over
Speaker 3: certain very serious international crimes committed by their nationals or
Speaker 3: on their territory.
Speaker 5: Six years after it began an initial investigation of Israel's
Speaker 5: actions in the Palestinian territories, the International Criminal Court has
Speaker 5: opened an official inquiry into alleged war crimes.
Speaker 3: And the prosecutor has been investigating alleged crimes committed on
Speaker 3: the territory of Palestine for a number of years now,
Speaker 3: but this is the first we've heard of charges. And
Speaker 3: so also the prosecutor has been interviewing, as I understand it,
Speaker 3: former hostages, hostage families, those who witnessed the events of
Speaker 3: October seventh.
Speaker 2: We have active investigations ondoing in relation to the crimes
Speaker 2: allegedly committed in Israel on the seventh October, and also
Speaker 2: relation to Gaza and the West Bank Canna jurisdictionar back
Speaker 2: to twenty fourteen.
Speaker 3: We've heard testimonials from people who have been on the
Speaker 3: ground in Gaza. I also think there's a lot of
Speaker 3: possibility of expert analysis of literally how much food is
Speaker 3: going into Gaza and how many people there are in
Speaker 3: Gaza to feed. So, although the statement that we saw
Speaker 3: this week and the expert report that accompanied it don't
Speaker 3: actually chronicle in any detail the evidence that underlies the
Speaker 3: application that's going to be made to the pre trial
Speaker 3: chamber here, we can assume that it includes these sorts
Speaker 3: of testimonies, video evidence, things that in our digital age
Speaker 3: can actually be obtained without physically being on the ground
Speaker 3: in a particular location.
Speaker 1: Can you tell us a little bit more about Karim Khan?
Speaker 3: Who is he?
Speaker 1: What's he like as the ISASA prosecutor.
Speaker 3: Well, we haven't had coffee, but I can tell you
Speaker 3: I am front from a distance. So he's a third
Speaker 3: prosecutor that this court has had, because it is a
Speaker 3: court that has been in existence for about twenty years.
Speaker 4: I believe in international justice.
Speaker 2: It's not just a job, it's something I believe in.
Speaker 3: And his approach certainly does seem to be more public facing.
Speaker 3: I think it's fair to say, at least than his
Speaker 3: immediate predecessor.
Speaker 2: Very often, when I stand up, I don't know what
Speaker 2: I'm going to say. No, no, it comes out for
Speaker 2: better or worse. Of course I try. The duty of
Speaker 2: an advocate is to make points as clearly as possible.
Speaker 3: But from the outside we really never know where the
Speaker 3: prosecutor's focus is unless he tells us, And he made
Speaker 3: clear in his statement that he essentially feels like he
Speaker 3: has put the Israeli leadership on notice. On the Commas side,
Speaker 3: I think, again, the prosecutor is going straight to the top,
Speaker 3: so to speak, and so I think he does certainly
Speaker 3: seem to be strategic about both the way in which
Speaker 3: he is making these announcements. He's also in this case
Speaker 3: been sort of extremely prepared for the criticism that he
Speaker 3: knew he would get. And so certainly all of the
Speaker 3: lawyers working on these cases have been assembling the evidence
Speaker 3: they need, deciding which charges are most suitable in this
Speaker 3: first round of charges to fit the situation and the
Speaker 3: available evidence, such that the prosecutor could proceed on the
Speaker 3: basis at least in his view of confidence in ultimately
Speaker 3: securing a verdict. So now that sort of package of
Speaker 3: evidence goes to what we call a pre trial chamber,
Speaker 3: basically a subgroup of judges of the International Criminal Court
Speaker 3: see whether they agree that there are, again the legal
Speaker 3: standard being reasonable grounds to believe that these crimes have
Speaker 3: been committed.
Speaker 1: So, if the warrants are issued by these three judge panel,
Speaker 1: what does that actually mean, What do they do these warrants?
Speaker 3: Well, the ICC doesn't have a police force, but it
Speaker 3: does have a binding authority under international law that comes
Speaker 3: from this treaty, and under the treaty, states that are
Speaker 3: party to the Rome Statute are obliged to cooperate with
Speaker 3: the Court's requests, including their requests to arrest and surrender
Speaker 3: individuals against whom arrest warrants have been issued. So that
Speaker 3: would mean that Palestine is obliged to arrest and surrender
Speaker 3: the three Palestinian defendants, and that any country to which
Speaker 3: Netanyahu Orgalant travels that is a state party to the
Speaker 3: Rome Statute, which includes many countries in Europe, does not currently.
Speaker 4: Include the United States, would.
Speaker 3: Be obliged to unrest and surrender him as well. Again,
Speaker 3: within the Rome Statute framework, Israel is not a state
Speaker 3: party to the Rome Statute, just as Russia is not
Speaker 3: a state party, and so there's a slightly more plausible
Speaker 3: argument in my view that countries would essentially have to
Speaker 3: choose between their international legal obligation to respect the immunity
Speaker 3: of a sitting head of state from arrest and surrender
Speaker 3: and their obligations under the Rome Statute. But in any event,
Speaker 3: if I were in at Nyahu, I wouldn't want to
Speaker 3: risk that or roll the dice. But I would find
Speaker 3: it very surprising at the end of the day to
Speaker 3: see a panel reject this request. That said, whether or
Speaker 3: not we'd actually see an arrest any of these individuals
Speaker 3: will really depend on which countries they are in and
Speaker 3: the political calculations of those countries in terms of following
Speaker 3: their own statute obligations compared with whatever other political pressures
Speaker 3: they find themselves under.
Speaker 4: And so this is real. It's not going away. The
Speaker 4: ICC is not bound.
Speaker 3: By any of these political considerations or diplomatic considerations, and
Speaker 3: so is moving forward.
Speaker 1: After the break. What happens if a country refuses to
Speaker 1: arrest these lateness charged with war crimes? Schamann since the
Speaker 1: ICC prosecutor's announcement earlier this week, took me through the
Speaker 1: kinds of reactions we've heard from those names.
Speaker 3: Well again, as a member of the public, I've heard
Speaker 3: and seen probably what.
Speaker 4: You have to seek.
Speaker 6: Arrest warrants against the democratically elected leaders of Israel is
Speaker 6: a moral outrage of historic proportions. It will cast an
Speaker 6: everlasting mark of shame on the international Court.
Speaker 3: What I've been more interested in, because it seems to
Speaker 3: me that the reactions of the defendants are fairly predictable,
Speaker 3: is actually to see the reactions of others. Right. So
Speaker 3: one thing we saw, of course I'm sitting here in
Speaker 3: the United States, was really an immediate rebuke from President Biden.
Speaker 7: Reject the ICC's application for rest warrants against his Wielan
Speaker 7: leading one of these warrants may imply there's no equivalence
Speaker 7: between Israel and Hamas.
Speaker 3: It's a little bit more surprising to me perhaps that
Speaker 3: we also saw a very strong rebuke from the Secretary
Speaker 3: of State. Of course, Blincoln and Biden are part of
Speaker 3: the same administration, but this is also an administration that
Speaker 3: has engaged with the ICC, and that was very supportive
Speaker 3: of the ICC's investigation and actions with respect to Russian
Speaker 3: crimes in Ukraine, and that has supported other past investigations
Speaker 3: and prosecutions. The other piece of this right is that
Speaker 3: we are seeing in both the Ukraine situation and the
Speaker 3: Palestine situation the issuance of warrants while armed conflict is continuing,
Speaker 3: and there really is, to my mind, this question of
Speaker 3: whether or not they're playing a constructive role and whether
Speaker 3: or not the many pieces and considerations that go into
Speaker 3: things like negotiations to secure the release of the hostages,
Speaker 3: or secure a cease fire, or to more effectively deconflict,
Speaker 3: the provision of humanitarian aid, or to get United Nations
Speaker 3: teams into monitor what is coming in on trucks into Gaza,
Speaker 3: rather than having the Israeli army performing that role. I mean,
Speaker 3: all of these things involve very complex negotiation, and so
Speaker 3: to have a criminal process running in parallel to that
Speaker 3: just is another wildcard.
Speaker 1: Let's pick up on something in the international reactions that
Speaker 1: we've heard, which is this line we've heard from Biden
Speaker 1: and others about the false equivalents. Help me understand a
Speaker 1: little bit. Why do you think the ICC decided to
Speaker 1: seek these arrest warrants for both the Hamas leaders at
Speaker 1: the same time as the Israeli politicians. What was that about?
Speaker 1: What was the motivation for doing it at the same time.
Speaker 3: Oh, it seems to me that if Kahan was going
Speaker 3: to seek warrants, he had to do it with respect
Speaker 3: to both sides of this conflict. In other words, had
Speaker 3: he only sought warrants against Commas leaders, there would have
Speaker 3: been an outpouring of criticism, continuing criticism that the ICC
Speaker 3: has faced for years, suggesting that it's only prosecuting individuals
Speaker 3: from the global South, that it's essentially a tool of imperialism.
Speaker 3: And moreover, is Palestine that has been really pushing the
Speaker 3: agenda in the ICC by joining the statute, by inviting
Speaker 3: the prosecutor to investigate alleged crimes in the West Bank,
Speaker 3: East Jerusalem and Gaza.
Speaker 4: At the same time, it's also clear that.
Speaker 3: If one looks at what's going on in Gaza now,
Speaker 3: although certainly the attacks of October seventh didn't happen in
Speaker 3: a vacuum, the extraordinarily systematic and a comprehensive attempt to
Speaker 3: and I think the terms of news is eradicate Hamas
Speaker 3: right from the Gaza strip has been something unlike anything
Speaker 3: we've seen, you know, in recent decades. And I think
Speaker 3: it would have been again just just politically very difficult
Speaker 3: for the prosecutor to bring charges only against Israeli's given that,
Speaker 3: unlike the situation in Russia, you know, there was a
Speaker 3: really devastated attack on Israeli territory targeting civilians, involving sexual
Speaker 3: violence that is being documented and for which the prosecutor
Speaker 3: has said he may well bring charges. The continued unlawful
Speaker 3: the tension of hostages, sexual violence against hostages, which does
Speaker 3: figure into the current set of allegations. And so I
Speaker 3: think one can question the decision to bring this application
Speaker 3: in public at this juncture. But if it was going
Speaker 3: to be brought, I think the expectation absolutely was that
Speaker 3: individuals on both sides of the conflict would be named.
Speaker 1: If we assume for a moment that warrants do get
Speaker 1: issued in Israeli is already calling for countries like Australia
Speaker 1: to boycott the warrants. Can countries actually do that is
Speaker 1: any precedent for ignoring ICC warrants.
Speaker 3: The notion that a country might have essentially mutually conflicting
Speaker 3: legal obligations and certainly sort of make political interests when
Speaker 3: it comes to complying with its obligations is something that's
Speaker 3: not unusual at all in international law. To my mind,
Speaker 3: if we want the International Criminal Court to be effective,
Speaker 3: if countries support the attempt to prosecute people like Vladimir Putin,
Speaker 3: you cannot pick and choose.
Speaker 4: You can't have it both ways.
Speaker 3: And I think that's also something that US decision makers
Speaker 3: are grappling with again. The United States has never joined
Speaker 3: the Rome Statute, it's never indicated any intention to do so,
Speaker 3: but it has cooperated with a number of investigations, and
Speaker 3: it has supported a number of investigations, and you can't
Speaker 3: only support those that are in your national interests.
Speaker 1: It is a pretty big tiss for the International Criminal Court,
Speaker 1: isn't it Can it stand up to this kind of
Speaker 1: pressure and scrutiny, do you think?
Speaker 3: Well, con certainly things you can't and has said as much.
Speaker 2: You know.
Speaker 3: It's a court that depends on member state cooperation and funding.
Speaker 3: But it is also a court that, in recent years,
Speaker 3: again I think, has been under tremendous pressure from many
Speaker 3: of its constituents to show that it is not meeting
Speaker 3: out selective justice on the basis of political interest. It
Speaker 3: will be a test really of countries, Western countries, I'll
Speaker 3: use that word, although of course this terminology is fraught,
Speaker 3: because it is one thing to say that we don't
Speaker 3: think some Western countries have said that Israel has shown
Speaker 3: genocidal intent. We think they have some crazy people in
Speaker 3: their cabinet who are saying despicable things, but they are
Speaker 3: acting in self defense against this terrible attack of October seventh.
Speaker 3: It's quite another to say that international law accepts the
Speaker 3: degree of civilian destruction and suffering that we have been
Speaker 3: seeing in Gaza. But if we continue to instrumentalize this
Speaker 3: idea of war crimes and who should be accountable who
Speaker 3: should not be accountable, then I think Western leaders will
Speaker 3: greatly lose all credibility in condemning and using the language
Speaker 3: of international law to condemn actions by other countries.
Speaker 1: Chaman, thanks so much for your time today and thank
Speaker 1: you for having me. Also in the news today, Australians
Speaker 1: stranded in New Caledonia are still waiting for more evacuation
Speaker 1: flights amid a week of riots after no Australian flights
Speaker 1: who are able to depart yesterday. The unrest in New
Speaker 1: Caledonia was sparked by constitutional changes supported by the French
Speaker 1: government in Paris which would give non indigenous residents voting rights,
Speaker 1: potentially thinking any hope of a few referendum on full
Speaker 1: independence succeeding and Federal Environment Minister Tanya Plibersex fell victim
Speaker 1: to a technical error on Sky News yesterday with a
Speaker 1: microphone going live to air without her knowledge. Plybisx microphone
Speaker 1: went live while a Sky News host was interviewing Coalition
Speaker 1: Senator James Patterson, with viewers hearing plibers X saying the
Speaker 1: phrase quote don't say anything horrible about James Patterson. Seven
Speaker 1: Am is a daily show from Schwartz Media and The
Speaker 1: Saturday Paper. It's produced by Kara Jensen. McKinnon, Shane Anderson
Speaker 1: and Zalton Fecho. Our senior producer is Chris Dengate. Our
Speaker 1: technical producer is Atticus Bastow. Our editor is Scott Mitchell.
Speaker 1: Sarah McVie is our head of audio, and Eric Jensen
Speaker 1: is our editor in chief. Mixing by Andy Elston, Travis
Speaker 1: Evans and Atticus Bastow. Our theme music is by Ned
Speaker 1: Beckley and Josh Hoagan of Envelope Bordeo. I'm Achelin McGee.
Speaker 1: This is seven AM. Thanks for your company this week.
Speaker 1: We'll see you again on Monday