1
00:00:03,160 --> 00:00:07,960
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:09,760 --> 00:00:13,560
Speaker 1: It's a case over South Carolina's congressional map that could

3
00:00:13,640 --> 00:00:17,759
Speaker 1: help determine which party controls the House after next year's election,

4
00:00:18,280 --> 00:00:21,919
Speaker 1: and if the Supreme Court arguments were any indication the

5
00:00:22,000 --> 00:00:25,799
Speaker 1: Republicans won. A three judge panel had concluded that for

6
00:00:25,920 --> 00:00:30,880
Speaker 1: South Carolina's first district, GOP lawmakers established a target of

7
00:00:30,960 --> 00:00:36,040
Speaker 1: seventeen percent black voters, shifting thirty thousand African Americans out

8
00:00:36,040 --> 00:00:38,839
Speaker 1: of the district to hit the goal and engaging in

9
00:00:39,080 --> 00:00:43,800
Speaker 1: unconstitutional racial gerrymandering in drawing what is now a Republican

10
00:00:43,840 --> 00:00:47,640
Speaker 1: held district. But today the conservative majority of the Supreme

11
00:00:47,720 --> 00:00:51,919
Speaker 1: Court voice skepticism about that. The Republicans say they were

12
00:00:51,960 --> 00:00:56,200
Speaker 1: motivated by politics, not race, and the Supreme Court ruled

13
00:00:56,200 --> 00:00:59,680
Speaker 1: in twenty nineteen that voting maps can't be challenged and

14
00:00:59,680 --> 00:01:03,520
Speaker 1: fed court as excessively partisan. But a line of cases

15
00:01:03,600 --> 00:01:07,920
Speaker 1: says the Constitution's equal protection clause bars people who draw

16
00:01:07,959 --> 00:01:11,319
Speaker 1: maps from making race the predominant factor. Joining me is

17
00:01:11,319 --> 00:01:16,160
Speaker 1: Bloomberg News Supreme Court reporter Greg Store. An important redistricting

18
00:01:16,240 --> 00:01:18,480
Speaker 1: case came before the Court today.

19
00:01:18,560 --> 00:01:21,679
Speaker 2: Tell us about that, Yeah, this is a case involving

20
00:01:21,800 --> 00:01:26,040
Speaker 2: South Carolina and a lower court, a three judge panel

21
00:01:26,520 --> 00:01:30,240
Speaker 2: said that when South Carolina drew its congressional map, it

22
00:01:30,760 --> 00:01:33,000
Speaker 2: used race more than it should have, engaged in a

23
00:01:33,080 --> 00:01:36,160
Speaker 2: racial jerry mandering. And the evidence that the lower court

24
00:01:36,200 --> 00:01:39,200
Speaker 2: pointed to was that in drawing the first district in

25
00:01:39,240 --> 00:01:42,640
Speaker 2: South Carolina, which is now a Republican health district, first

26
00:01:42,959 --> 00:01:47,560
Speaker 2: map drawers added a number of African American voters, about

27
00:01:47,600 --> 00:01:51,440
Speaker 2: thirty thousand people into the district. And then the lower

28
00:01:51,440 --> 00:01:54,840
Speaker 2: court found because that number of black voters in the

29
00:01:54,920 --> 00:01:59,440
Speaker 2: district might have caused it to go democratic, they moved

30
00:01:59,520 --> 00:02:02,520
Speaker 2: a different thirty thousand voters out of the district. And

31
00:02:02,560 --> 00:02:06,480
Speaker 2: the lower court said that is unconstitutional racial jerry mannering,

32
00:02:06,800 --> 00:02:10,480
Speaker 2: use race too much in that process, and therefore we

33
00:02:10,520 --> 00:02:12,560
Speaker 2: are striking down those congressional districts.

34
00:02:12,960 --> 00:02:15,160
Speaker 1: And so what did you hear from the justices?

35
00:02:15,639 --> 00:02:18,720
Speaker 2: The justices, at least the conservative justices didn't seem to

36
00:02:18,800 --> 00:02:21,600
Speaker 2: be buying that. It was an argument that seemed like

37
00:02:21,639 --> 00:02:26,040
Speaker 2: it might divide the court along ideological lines. And the

38
00:02:26,080 --> 00:02:28,480
Speaker 2: backdrop of this is the court a few years ago

39
00:02:28,560 --> 00:02:32,120
Speaker 2: said that partisan jerry mandering can't be challenged. So it

40
00:02:32,160 --> 00:02:36,080
Speaker 2: would have been perfectly fine for Republicans to say, we're

41
00:02:36,160 --> 00:02:38,880
Speaker 2: drawing the first congressional district this way because we wanted

42
00:02:38,880 --> 00:02:42,080
Speaker 2: to keep it, keep it Republican. And the issue is

43
00:02:42,120 --> 00:02:46,919
Speaker 2: that race and politics overlap so much that sometimes it's

44
00:02:46,919 --> 00:02:50,000
Speaker 2: hard to sort of disentangle them and figure out what's.

45
00:02:49,800 --> 00:02:50,560
Speaker 3: Really going on.

46
00:02:51,120 --> 00:02:55,160
Speaker 2: And the conservative justices suggest that they didn't see clear

47
00:02:55,280 --> 00:02:58,840
Speaker 2: enough evidence that what was going on here was race

48
00:02:59,080 --> 00:03:01,600
Speaker 2: rather than politics, even though they.

49
00:03:01,480 --> 00:03:04,960
Speaker 1: Shifted thirty thousand blacks out of the district.

50
00:03:05,320 --> 00:03:07,160
Speaker 3: Yes, and of course when they did that, they also

51
00:03:07,160 --> 00:03:09,560
Speaker 3: shifted some white voters as well.

52
00:03:09,600 --> 00:03:11,919
Speaker 2: That was one of the points that Justice Kavanaugh made

53
00:03:12,360 --> 00:03:14,600
Speaker 2: over the course of the argument. One of the points

54
00:03:14,639 --> 00:03:17,960
Speaker 2: that both Justice Courses and Chief Justice Roberts pointed to

55
00:03:18,280 --> 00:03:21,640
Speaker 2: was that the challengers to this map didn't come up

56
00:03:21,639 --> 00:03:24,160
Speaker 2: with an alternative that would have let the state meet

57
00:03:24,240 --> 00:03:27,440
Speaker 2: its political goals without using race quite so much. So

58
00:03:27,560 --> 00:03:31,400
Speaker 2: there was some skepticism there as to whether it was

59
00:03:31,440 --> 00:03:34,760
Speaker 2: even possible to draw the kind of map that Republicans

60
00:03:35,080 --> 00:03:38,920
Speaker 2: wanted without having race seem like it played a significant role.

61
00:03:39,240 --> 00:03:42,839
Speaker 1: So it doesn't seem as if the justices are going

62
00:03:42,920 --> 00:03:45,800
Speaker 1: to have a surprise ruling like they did in the

63
00:03:45,840 --> 00:03:49,120
Speaker 1: Alabama case, were they ruled against the map by Republicans,

64
00:03:49,680 --> 00:03:52,320
Speaker 1: So it seems like that was just a one shot deal.

65
00:03:52,600 --> 00:03:53,560
Speaker 1: The issues are different.

66
00:03:54,440 --> 00:03:57,800
Speaker 2: So two things June. First of all, I can't remember

67
00:03:57,800 --> 00:04:00,200
Speaker 2: if we had a conversation after the Alabama argument, but

68
00:04:00,480 --> 00:04:02,600
Speaker 2: I would have said at the time it seemed like

69
00:04:02,640 --> 00:04:06,240
Speaker 2: they were going to back Republican in that case as well.

70
00:04:06,440 --> 00:04:08,480
Speaker 2: That one turned out to be a surprise. Who knows,

71
00:04:08,520 --> 00:04:10,800
Speaker 2: maybe this one will be a surprise too. The second

72
00:04:10,840 --> 00:04:13,080
Speaker 2: thing to say is these are very different legal issues.

73
00:04:13,240 --> 00:04:15,760
Speaker 2: That was a matter under the Voting Rights Act of

74
00:04:16,200 --> 00:04:20,160
Speaker 2: whether the states should be required to draw a second

75
00:04:20,240 --> 00:04:23,680
Speaker 2: majority black or nearly majority black district.

76
00:04:23,320 --> 00:04:25,920
Speaker 3: There because there were so many black voters.

77
00:04:25,600 --> 00:04:29,120
Speaker 2: Who were so concentrated in a few parts of the state. Here,

78
00:04:29,160 --> 00:04:32,359
Speaker 2: it's not a matter of drawing an additional majority black district.

79
00:04:32,360 --> 00:04:34,840
Speaker 2: This is a separate line of Supreme Court cases where

80
00:04:34,880 --> 00:04:38,320
Speaker 2: they say you just can't use race too much in redistricting.

81
00:04:38,400 --> 00:04:40,279
Speaker 2: It can't be the predominant factor.

82
00:04:40,920 --> 00:04:43,440
Speaker 3: And so the fact that they ruled one way in

83
00:04:43,480 --> 00:04:47,240
Speaker 3: the Alabama case doesn't really, at least as a doctrinal

84
00:04:47,320 --> 00:04:49,600
Speaker 3: matter dictate what they would do in this case.

85
00:04:49,960 --> 00:04:53,400
Speaker 1: Let's turn now greg to a case a Supreme Court

86
00:04:53,440 --> 00:04:57,800
Speaker 1: heard on Tuesday where the Court considered reinstating a nine

87
00:04:57,920 --> 00:05:02,120
Speaker 1: hundred thousand dollars jury verdict won by a fired UBS

88
00:05:02,160 --> 00:05:05,640
Speaker 1: research strategist in a case that could make it easier

89
00:05:05,680 --> 00:05:09,800
Speaker 1: for whistleblowers to win suits claiming retaliation under a federal

90
00:05:09,839 --> 00:05:12,880
Speaker 1: investor protection law. Tell us more about that case.

91
00:05:14,080 --> 00:05:16,440
Speaker 2: This is the case about a man named Trevor Murray

92
00:05:16,480 --> 00:05:20,520
Speaker 2: who worked as a research strategist for UBS in the

93
00:05:20,640 --> 00:05:25,800
Speaker 2: commercial mortgage backed securities market, and he says he was

94
00:05:26,000 --> 00:05:30,719
Speaker 2: fired because he refused to skew his reports to back

95
00:05:31,080 --> 00:05:35,480
Speaker 2: the company's mortgage backed securities trading business. And the question

96
00:05:35,560 --> 00:05:37,960
Speaker 2: that the Supreme Court is basically, what does he have

97
00:05:38,080 --> 00:05:40,800
Speaker 2: to show in order to win his lawsuit? And what

98
00:05:40,839 --> 00:05:44,240
Speaker 2: do other whistleblowers have to show to win lawsuits under

99
00:05:44,240 --> 00:05:46,440
Speaker 2: a law known as Starbin's Oxley Act.

100
00:05:46,880 --> 00:05:51,640
Speaker 1: What were the arguments? Let's start with the arguments for UBS.

101
00:05:51,880 --> 00:05:55,960
Speaker 1: And the lawyer for UBS has a last name we're

102
00:05:56,000 --> 00:05:56,920
Speaker 1: all familiar with.

103
00:05:58,400 --> 00:06:01,560
Speaker 2: Yes, it's Eugene scale Yea. He is the son of

104
00:06:01,600 --> 00:06:05,320
Speaker 2: the late Justice antonin Scalia. This is his first Supreme

105
00:06:05,360 --> 00:06:09,560
Speaker 2: Court argument for obvious reasons. He didn't argue while his

106
00:06:09,600 --> 00:06:13,279
Speaker 2: father was on the court. And he represented UBS, and

107
00:06:13,520 --> 00:06:18,320
Speaker 2: he argued that what Murray has to show is intentional

108
00:06:18,400 --> 00:06:23,040
Speaker 2: discrimination or maybe even intentional retaliation. And he says it's

109
00:06:23,080 --> 00:06:28,039
Speaker 2: because the law says that what is prohibited is discrimination,

110
00:06:28,520 --> 00:06:32,400
Speaker 2: and because of that, that is part of what a

111
00:06:32,480 --> 00:06:35,720
Speaker 2: plaintiff has to show has to convince a jury of.

112
00:06:36,480 --> 00:06:41,360
Speaker 1: And it seemed like several of the justices were confused

113
00:06:41,360 --> 00:06:46,400
Speaker 1: by his argument and said so liberals and conservatives, yeah.

114
00:06:46,200 --> 00:06:49,000
Speaker 2: Yeah, he got a bit of a rough reception, even

115
00:06:49,080 --> 00:06:53,120
Speaker 2: from some of the more conservative justices. So Justice Brett Kavanaf,

116
00:06:53,120 --> 00:06:56,680
Speaker 2: for example, looked at the case and he thought that

117
00:06:56,760 --> 00:07:00,360
Speaker 2: all that was really required was that UBS has to

118
00:07:00,480 --> 00:07:03,800
Speaker 2: argue to the jury that it didn't fire Murray in

119
00:07:03,920 --> 00:07:08,039
Speaker 2: retaliation for his alleged whistle blowing, but that it fired

120
00:07:08,080 --> 00:07:10,000
Speaker 2: him for other reasons than the UBS says it was

121
00:07:10,040 --> 00:07:14,320
Speaker 2: because of overall staffing reductions. And so Justice Kavanaugh asked,

122
00:07:14,360 --> 00:07:17,720
Speaker 2: mister Scalia, didn't that defense get to the jury. And

123
00:07:17,760 --> 00:07:20,880
Speaker 2: there are some other conservatives as well, just as Neil

124
00:07:20,880 --> 00:07:24,280
Speaker 2: Gorsuch said, you know, he didn't see the word retaliation

125
00:07:24,480 --> 00:07:28,560
Speaker 2: in the statute and therefore suggests the plaintiff shouldn't be

126
00:07:28,600 --> 00:07:32,400
Speaker 2: required to explicitly show intentional retaliation was the cause of

127
00:07:32,720 --> 00:07:33,440
Speaker 2: his dismissal.

128
00:07:34,040 --> 00:07:39,679
Speaker 1: So it's intentional retaliation because to me, retaliation implies intent.

129
00:07:40,200 --> 00:07:42,440
Speaker 2: It does. Let me back up just a little, and

130
00:07:42,480 --> 00:07:45,600
Speaker 2: maybe this will help explain things. One thing both sides

131
00:07:45,640 --> 00:07:49,239
Speaker 2: agree on is that the law kind of separately, that's

132
00:07:49,320 --> 00:07:52,520
Speaker 2: up a burden shifting system. And what that means is

133
00:07:53,080 --> 00:07:56,960
Speaker 2: a plaintiff first has to show that his or her

134
00:07:57,040 --> 00:08:02,040
Speaker 2: whistle blowing was a contributing factor in being fired or

135
00:08:02,080 --> 00:08:04,920
Speaker 2: something like that, and if they can do that, then

136
00:08:04,960 --> 00:08:09,320
Speaker 2: it's up to the employer to show that by clear

137
00:08:09,320 --> 00:08:11,680
Speaker 2: and convincing evidence, that they would have taken the same

138
00:08:11,760 --> 00:08:14,840
Speaker 2: action even if it weren't for the whistle blowing. And

139
00:08:14,880 --> 00:08:16,800
Speaker 2: so that's sort of a system that is set up

140
00:08:16,920 --> 00:08:20,520
Speaker 2: that some justices said that's actually a way of kind

141
00:08:20,520 --> 00:08:23,520
Speaker 2: of figuring out whether this was intentional or not. That

142
00:08:23,880 --> 00:08:26,640
Speaker 2: if an employer can't show that there was some other

143
00:08:26,720 --> 00:08:29,680
Speaker 2: reason that they would have fired the employee for, then

144
00:08:29,680 --> 00:08:33,720
Speaker 2: that suggests that it was intentional, it was done for

145
00:08:33,760 --> 00:08:36,559
Speaker 2: the reason of retaliation, and that it was intentional.

146
00:08:36,880 --> 00:08:40,720
Speaker 1: So what was the argument on behalf of the whistle blower?

147
00:08:41,120 --> 00:08:44,120
Speaker 2: So the argument we have the whistleblower was basically that

148
00:08:44,120 --> 00:08:47,920
Speaker 2: that burden shifting is all that is required under the law,

149
00:08:48,400 --> 00:08:51,839
Speaker 2: and that if an employer is not able to show

150
00:08:51,880 --> 00:08:54,440
Speaker 2: that it would have taken the action even without the

151
00:08:54,440 --> 00:08:59,480
Speaker 2: whistle blowing, then the employer is liable that that essentially

152
00:08:59,640 --> 00:09:03,840
Speaker 2: is a showing that they did intentionally retaliate. And what

153
00:09:03,880 --> 00:09:06,719
Speaker 2: they were saying is, we don't have to show, kind

154
00:09:06,760 --> 00:09:11,040
Speaker 2: of as a whole separate line of argument, somehow get

155
00:09:11,120 --> 00:09:14,720
Speaker 2: inside the minds of an employer and show this is

156
00:09:14,760 --> 00:09:18,160
Speaker 2: what they were thinking when they made this decision. It's

157
00:09:18,280 --> 00:09:20,880
Speaker 2: enough that if they can't show that there was some

158
00:09:21,000 --> 00:09:23,880
Speaker 2: other reason, if that happens, that's enough and we should

159
00:09:23,880 --> 00:09:24,400
Speaker 2: win our case.

160
00:09:24,640 --> 00:09:26,920
Speaker 1: Did the Biden administration take a position.

161
00:09:27,679 --> 00:09:30,800
Speaker 2: The Biden administration did weigh in in this case. They

162
00:09:30,800 --> 00:09:33,360
Speaker 2: were on the side of the whistleblower.

163
00:09:33,679 --> 00:09:36,760
Speaker 1: This was an appeal from the Second Circuit. Is the

164
00:09:36,800 --> 00:09:40,200
Speaker 1: Second Circuit the only circuit that's ruled this way?

165
00:09:40,880 --> 00:09:43,640
Speaker 2: I believe it's the only circuit that has ruled this way.

166
00:09:43,679 --> 00:09:46,640
Speaker 2: There are other circuits that have ruled the other way.

167
00:09:47,040 --> 00:09:49,520
Speaker 2: In other words, they have said that you don't have

168
00:09:49,600 --> 00:09:53,720
Speaker 2: to show intentional retaliation to win your suit. That's actually

169
00:09:53,760 --> 00:09:56,200
Speaker 2: the reason, most likely the Supreme Court agreed to take

170
00:09:56,280 --> 00:09:59,200
Speaker 2: up this case to clear up that lower court disagreement.

171
00:10:00,080 --> 00:10:02,720
Speaker 1: Course it didn't want to get into the particulars of

172
00:10:02,760 --> 00:10:07,480
Speaker 1: the statute, which he saw us complicating the Justice's task.

173
00:10:07,559 --> 00:10:10,720
Speaker 1: But some of the other justices seem to disagree with that.

174
00:10:11,080 --> 00:10:14,040
Speaker 2: So Trevor Murray is asking the Supreme Court to reinstate

175
00:10:14,080 --> 00:10:18,160
Speaker 2: a jury that he wanted. Justice Gorsuch was suggesting a

176
00:10:18,280 --> 00:10:23,000
Speaker 2: ruling favoring mister Murray, but short of that, he was suggesting,

177
00:10:23,760 --> 00:10:26,480
Speaker 2: we just say the Second Circuit was wrong to say

178
00:10:26,760 --> 00:10:30,720
Speaker 2: that there's a requirement of intentional retaliation because the word

179
00:10:30,760 --> 00:10:34,480
Speaker 2: retaliation isn't in the statute. We just say the Second

180
00:10:34,520 --> 00:10:37,599
Speaker 2: Circuit was wrong to insist on that, and then we

181
00:10:37,760 --> 00:10:39,640
Speaker 2: kick it back to the Second Circuit and let it

182
00:10:39,720 --> 00:10:42,520
Speaker 2: figure out what to do next. And some of the

183
00:10:42,520 --> 00:10:45,400
Speaker 2: other justices and some of the advocates suggest that that

184
00:10:45,440 --> 00:10:48,360
Speaker 2: would leave open an awful lot of questions about what

185
00:10:48,520 --> 00:10:51,840
Speaker 2: exactly is required under this law, and that would eventually

186
00:10:52,000 --> 00:10:53,880
Speaker 2: lead to another Supreme Court case.

187
00:10:54,280 --> 00:10:59,520
Speaker 1: So This is important because this is an element in

188
00:11:00,240 --> 00:11:03,160
Speaker 1: whistleblower suits under the Sarbinez Oxley Act.

189
00:11:03,679 --> 00:11:06,160
Speaker 2: It is and employees are filed up words of seven

190
00:11:06,240 --> 00:11:09,360
Speaker 2: hundred and fifty claims with the Labor Department over the

191
00:11:09,400 --> 00:11:12,960
Speaker 2: past six years or so, so a significant number of

192
00:11:13,040 --> 00:11:16,600
Speaker 2: cases and all of them sort of by definition, are

193
00:11:16,640 --> 00:11:18,320
Speaker 2: affecting publicly traded companies.

194
00:11:18,559 --> 00:11:22,040
Speaker 1: And was this a two hour argument? So an hour

195
00:11:22,160 --> 00:11:25,160
Speaker 1: longer than necessary or your scheduled?

196
00:11:25,800 --> 00:11:28,280
Speaker 2: It lasted about an hour and a half, which is

197
00:11:28,320 --> 00:11:31,160
Speaker 2: about par for the course of these days. They schedule

198
00:11:31,440 --> 00:11:34,760
Speaker 2: an hour for an argument. But what ends up happening

199
00:11:34,920 --> 00:11:37,120
Speaker 2: is that there's even at the end of the lawyers

200
00:11:37,440 --> 00:11:40,320
Speaker 2: a lot of time, there's an additional period where they

201
00:11:40,360 --> 00:11:43,320
Speaker 2: go justice by justice to ask additional questions.

202
00:11:43,840 --> 00:11:46,640
Speaker 1: A COVID left over. Remember the days when they stuck

203
00:11:46,720 --> 00:11:49,480
Speaker 1: to that hour and those lights went on and it

204
00:11:49,559 --> 00:11:52,760
Speaker 1: meant business. So there is disagreement, I take it over

205
00:11:52,960 --> 00:11:55,760
Speaker 1: where the court should land exactly. But did it appear

206
00:11:55,800 --> 00:11:58,280
Speaker 1: like there were a majority of justices that were in

207
00:11:58,360 --> 00:12:02,080
Speaker 1: favor of you know, it can get easier for whistleblowers.

208
00:12:02,520 --> 00:12:05,280
Speaker 2: It did seem like there was a majority of justices

209
00:12:05,640 --> 00:12:09,319
Speaker 2: at least for the narrow ruling that Justice Gorsich was suggesting.

210
00:12:09,880 --> 00:12:12,960
Speaker 2: There wasn't a whole lot of support for the second

211
00:12:12,960 --> 00:12:18,440
Speaker 2: Circuit ruling and UBS's arguments in support of it. It's

212
00:12:18,440 --> 00:12:21,200
Speaker 2: not one hundred percent clear, but that seemed like the

213
00:12:21,280 --> 00:12:24,080
Speaker 2: leaning of the court was to give the employee at

214
00:12:24,160 --> 00:12:25,319
Speaker 2: least a partial victory.

215
00:12:25,600 --> 00:12:28,920
Speaker 1: And I have to ask, did Eugene Scalia do a

216
00:12:29,000 --> 00:12:31,840
Speaker 1: textual argument in honor of his father?

217
00:12:33,960 --> 00:12:37,680
Speaker 2: Everybody does a textual argument nowadays, in large part because

218
00:12:37,679 --> 00:12:40,120
Speaker 2: of his father and the influence that he had.

219
00:12:40,440 --> 00:12:43,800
Speaker 1: Justice Scalia certainly left his mark on the court. Thanks

220
00:12:43,800 --> 00:12:47,640
Speaker 1: so much, Greg. That's Bloomberg New Supreme Court reporter Greg's store.

221
00:12:48,080 --> 00:12:49,160
Speaker 4: Israel is a war.

222
00:12:50,120 --> 00:12:51,240
Speaker 1: We didn't want this war.

223
00:12:52,160 --> 00:12:54,480
Speaker 4: It was forced upon us in the most brutal and

224
00:12:54,559 --> 00:12:59,040
Speaker 4: savage way. But though Israel didn't start this war, Israel

225
00:12:59,200 --> 00:12:59,920
Speaker 4: will finish it.

226
00:13:00,600 --> 00:13:05,800
Speaker 1: Israeli Prime Minister Benjamin Netanyahu promised punishing retaliation for the

227
00:13:05,880 --> 00:13:10,280
Speaker 1: shocking attack by Hamas on Saturday, where militants stormed into

228
00:13:10,320 --> 00:13:14,439
Speaker 1: border communities and massacred hundreds of Israelis in their homes,

229
00:13:14,480 --> 00:13:18,160
Speaker 1: on the streets and at an outdoor music festival, taking

230
00:13:18,200 --> 00:13:21,840
Speaker 1: more than one hundred people hostage, including women, children, and

231
00:13:21,880 --> 00:13:26,079
Speaker 1: the elderly. So far, Israel has unleashed intense air strikes

232
00:13:26,120 --> 00:13:29,760
Speaker 1: in Gaza, flattening entire city blocks, and has cut off

233
00:13:29,920 --> 00:13:34,439
Speaker 1: essentials like food, fuel, and electricity, while Hamas militants in

234
00:13:34,559 --> 00:13:38,000
Speaker 1: Gaza continue to fire rockets at Israel. My guest is

235
00:13:38,080 --> 00:13:41,920
Speaker 1: international law expert Mary Ellen O'Connor, a professor at Notre

236
00:13:41,960 --> 00:13:47,240
Speaker 1: Dame Law School. The Hamas attack, the deliberate targeting of civilians,

237
00:13:47,520 --> 00:13:52,600
Speaker 1: hundreds massacred, taking hostages are those actions war crimes that

238
00:13:52,960 --> 00:13:55,040
Speaker 1: can be prosecuted June.

239
00:13:55,120 --> 00:13:57,680
Speaker 4: Let's start with a preliminary question of whether they even

240
00:13:57,720 --> 00:14:00,960
Speaker 4: had the right to resort to this kind of major

241
00:14:01,080 --> 00:14:06,360
Speaker 4: armed violence. It is a hotly contested question. I take

242
00:14:06,559 --> 00:14:13,280
Speaker 4: a more progressive view and understand new scholarship and new research,

243
00:14:13,320 --> 00:14:17,720
Speaker 4: including my own, suggests that people living under long term

244
00:14:17,960 --> 00:14:22,120
Speaker 4: occupation must use nonviolent resistance, so that from the get

245
00:14:22,200 --> 00:14:25,440
Speaker 4: go there was no right to resort to this military force.

246
00:14:26,040 --> 00:14:30,880
Speaker 4: But even if Hamas or other Palestinians have the right

247
00:14:30,960 --> 00:14:34,800
Speaker 4: to take up arms to try to remove Israelis from

248
00:14:35,480 --> 00:14:40,080
Speaker 4: their territory, there's another principle at stake here, and it

249
00:14:40,120 --> 00:14:43,680
Speaker 4: really applies to both sides in this terrible conflict. And

250
00:14:43,720 --> 00:14:46,920
Speaker 4: that's called the principle of necessity, and it applies to

251
00:14:46,960 --> 00:14:50,600
Speaker 4: any decision to resort to major armed violence of the coiner.

252
00:14:50,680 --> 00:14:54,720
Speaker 4: Seeing here, if a party has no reasonable chance of

253
00:14:54,760 --> 00:14:58,880
Speaker 4: succeeding and using military force, then every death they cause,

254
00:14:59,160 --> 00:15:04,280
Speaker 4: even of their opponents soldiers troops, will be unlawful. You

255
00:15:04,400 --> 00:15:08,440
Speaker 4: can't kill people in a vain effort. And let's face it,

256
00:15:08,520 --> 00:15:12,080
Speaker 4: after all these decades, what Hamas was trying to do

257
00:15:12,400 --> 00:15:16,000
Speaker 4: had nothing to do with accomplishing a legitimate military objective

258
00:15:16,240 --> 00:15:19,720
Speaker 4: of removing Israelis from Gaza. They knew they had no

259
00:15:20,120 --> 00:15:23,720
Speaker 4: chance of accomplishing that, so what were they doing. I'm

260
00:15:23,880 --> 00:15:28,080
Speaker 4: with those who believe Hamas's efforts were nothing more than terrorism,

261
00:15:28,640 --> 00:15:33,520
Speaker 4: the infliction of terrible violence for the purpose of trying

262
00:15:33,560 --> 00:15:37,720
Speaker 4: to get political concessions. It may not have even been that,

263
00:15:37,840 --> 00:15:42,920
Speaker 4: because Hamas has tried that particular tactic terrorist tactics clearly

264
00:15:42,920 --> 00:15:46,560
Speaker 4: criminal actions for so long with no result. So was

265
00:15:46,600 --> 00:15:50,560
Speaker 4: it just a mass suicide attempt by truly desperate people.

266
00:15:51,000 --> 00:15:54,240
Speaker 4: At any rate, even if there was some legal basis

267
00:15:54,400 --> 00:15:59,160
Speaker 4: for Hamas taking action, it is never ever legitimate it

268
00:15:59,200 --> 00:16:03,760
Speaker 4: is an absolute ambition to target civilians, those not taking

269
00:16:03,800 --> 00:16:06,920
Speaker 4: direct part in hostilities, those who are not members of

270
00:16:07,000 --> 00:16:11,680
Speaker 4: the Israeli armed forces, and hostages. Even worse, to take

271
00:16:11,760 --> 00:16:14,240
Speaker 4: people and to bargain for them, and to use them

272
00:16:14,240 --> 00:16:17,960
Speaker 4: as bargaining chips, terrifying them in children. This is beyond

273
00:16:18,000 --> 00:16:20,800
Speaker 4: the pale. And then, of course, I assume your next

274
00:16:20,840 --> 00:16:23,080
Speaker 4: question will be what about Israel's response.

275
00:16:23,680 --> 00:16:28,200
Speaker 1: Yes, so Israeli Prime Minister of Benjamin Yahoo declared war

276
00:16:28,800 --> 00:16:31,760
Speaker 1: and said he had ordered the israel Defense forces to

277
00:16:31,800 --> 00:16:35,160
Speaker 1: prepare for a mass offensive against Hamas, and they've started

278
00:16:35,200 --> 00:16:36,280
Speaker 1: with these airstrikes.

279
00:16:36,960 --> 00:16:40,480
Speaker 4: So jessics Hamas, in my view, had no legal right

280
00:16:40,560 --> 00:16:44,320
Speaker 4: to resort to this kind of armed, significant armed violence

281
00:16:44,920 --> 00:16:49,720
Speaker 4: against Israeli's The Israeli government also has clear limits on

282
00:16:50,080 --> 00:16:53,360
Speaker 4: its right to respond even to this kind of major

283
00:16:53,480 --> 00:16:57,200
Speaker 4: terrorist violence. Of course, every state has the right to

284
00:16:57,280 --> 00:17:01,440
Speaker 4: take all defensive measures on their own tares, territory or

285
00:17:01,600 --> 00:17:06,080
Speaker 4: in defense of their own communities, their own civilian populations

286
00:17:06,320 --> 00:17:12,359
Speaker 4: living peacefully, They may take defensive measures. There's a huge

287
00:17:12,400 --> 00:17:20,520
Speaker 4: difference between defending, protecting, preventing incoming violence, and offensively responding,

288
00:17:21,040 --> 00:17:24,479
Speaker 4: especially in a situation like that of Gaza. This is

289
00:17:24,520 --> 00:17:27,919
Speaker 4: not an area where you can easily defeat, as on

290
00:17:28,040 --> 00:17:33,400
Speaker 4: an old fashioned battlefield, a formation of enemy military combatants.

291
00:17:33,720 --> 00:17:36,800
Speaker 4: We just don't have that situation. We have a heavily populated,

292
00:17:37,119 --> 00:17:40,439
Speaker 4: densely populated, a group of people who had nothing to

293
00:17:40,520 --> 00:17:44,200
Speaker 4: do with what Hamas has carried out or very tangential

294
00:17:45,000 --> 00:17:48,720
Speaker 4: just as israelis civilians cannot be the target of violence,

295
00:17:49,160 --> 00:17:52,840
Speaker 4: nor can the Palestinians who are not participating in the

296
00:17:52,880 --> 00:17:56,800
Speaker 4: Hamas armed action. It is very questionable whether this kind

297
00:17:56,800 --> 00:18:00,479
Speaker 4: of major military offensive on the territory of another people

298
00:18:00,680 --> 00:18:04,600
Speaker 4: is first lawful, but second that same rule, that same

299
00:18:04,680 --> 00:18:09,200
Speaker 4: principle of necessity, which would prevent Palestinians from trying to

300
00:18:09,280 --> 00:18:13,720
Speaker 4: use military force to take back Palestinian territory. Israel has

301
00:18:13,840 --> 00:18:16,520
Speaker 4: tried this kind of tactic again and again, and it

302
00:18:16,560 --> 00:18:20,280
Speaker 4: has not worked to defend Israel to create security. We

303
00:18:20,560 --> 00:18:24,320
Speaker 4: just see an escalation to this current tragic moment. Israel,

304
00:18:24,520 --> 00:18:28,280
Speaker 4: under the principle of necessity, needs to try other means.

305
00:18:28,600 --> 00:18:32,000
Speaker 4: It needs to work cooperatively in law enforcement. It needs

306
00:18:32,080 --> 00:18:37,800
Speaker 4: to finally address the roots of ongoing violence, among other things.

307
00:18:37,880 --> 00:18:43,400
Speaker 1: Israel might say, well, the Palestinians are launching rockets into Israel,

308
00:18:43,600 --> 00:18:47,480
Speaker 1: so why don't we have the right to launch rockets

309
00:18:47,720 --> 00:18:48,360
Speaker 1: at Gaza?

310
00:18:49,160 --> 00:18:49,360
Speaker 3: Right?

311
00:18:49,880 --> 00:18:53,360
Speaker 4: We never say in the law that because somebody has

312
00:18:53,600 --> 00:18:56,040
Speaker 4: committed a criminal action, we have a right of a

313
00:18:56,080 --> 00:18:59,600
Speaker 4: criminal response. That's just not how the law works. It

314
00:18:59,600 --> 00:19:04,720
Speaker 4: can't work that way. When criminals carry out criminal actions,

315
00:19:05,320 --> 00:19:08,639
Speaker 4: we respond with law enforcement. And the great thing about

316
00:19:08,680 --> 00:19:14,040
Speaker 4: our ancient principles prohibiting resort to military force, demanding respect

317
00:19:14,040 --> 00:19:17,840
Speaker 4: for the principle of necessity and proportionality and distinction. All

318
00:19:17,960 --> 00:19:22,520
Speaker 4: these ancient principles have been honed over time to be effective.

319
00:19:23,080 --> 00:19:26,440
Speaker 4: And those who comply with the law in how they

320
00:19:26,480 --> 00:19:30,800
Speaker 4: respond to criminal and other kinds of violent action military action,

321
00:19:31,520 --> 00:19:34,280
Speaker 4: they are the ones who succeed. If you follow the

322
00:19:34,320 --> 00:19:38,280
Speaker 4: strict rule, you will succeed. So we know this exactly.

323
00:19:38,280 --> 00:19:43,000
Speaker 4: An example of Palestinians and israelis Hamas has been shooting

324
00:19:43,080 --> 00:19:48,200
Speaker 4: rockets into southern Israel for decades. Israel has not found

325
00:19:48,200 --> 00:19:51,960
Speaker 4: a way effectively to stop them because Israel is not

326
00:19:52,040 --> 00:19:55,359
Speaker 4: following the path of the law, and it has constantly

327
00:19:55,400 --> 00:19:58,480
Speaker 4: tried with more and more force. Yes, if the devastation

328
00:19:58,640 --> 00:20:01,399
Speaker 4: could lead to a law and violence for a while,

329
00:20:01,920 --> 00:20:05,760
Speaker 4: but the seeds of the next tragedy I'm so fearful

330
00:20:05,760 --> 00:20:09,000
Speaker 4: are being planted when there is an alternative, and that

331
00:20:09,119 --> 00:20:12,760
Speaker 4: is to strictly follow the rule of law, enhance defenses

332
00:20:13,119 --> 00:20:17,520
Speaker 4: for Israeli communities, make sure that all Hamas fighters who

333
00:20:17,560 --> 00:20:20,920
Speaker 4: may still be in those communities are removed.

334
00:20:21,240 --> 00:20:21,440
Speaker 2: Now.

335
00:20:21,520 --> 00:20:25,320
Speaker 4: This is something Israel can do right now. It can

336
00:20:25,520 --> 00:20:29,840
Speaker 4: use careful law enforcement methods, the kinds of methods that

337
00:20:29,880 --> 00:20:34,880
Speaker 4: the US has perfected in rescuing hostages who are being

338
00:20:34,880 --> 00:20:38,639
Speaker 4: held by armed militant groups. The US has done so successfully,

339
00:20:38,680 --> 00:20:43,119
Speaker 4: for example in Somalia, with no loss of US military

340
00:20:43,160 --> 00:20:46,440
Speaker 4: lives or the lives of hostages. That is what Israel

341
00:20:46,480 --> 00:20:48,919
Speaker 4: should be planning right now. It would be such a

342
00:20:48,960 --> 00:20:52,480
Speaker 4: major victory for Israel to bring its one hundred plus

343
00:20:52,520 --> 00:20:55,520
Speaker 4: people safely out of the hands of these militants.

344
00:20:56,000 --> 00:20:58,439
Speaker 1: Coming up next on the Bloomberg Law Show, I'll continue

345
00:20:58,480 --> 00:21:01,760
Speaker 1: this conversation with yes Or Mary Ellen O'Connor of Notre

346
00:21:01,840 --> 00:21:05,119
Speaker 1: Dame Law School and we'll talk about the international law

347
00:21:05,320 --> 00:21:08,520
Speaker 1: involving the rescue of hostages. I've been talking to Notre

348
00:21:08,600 --> 00:21:12,720
Speaker 1: Dame Law School professor Mary Ellen O'Connor about international law

349
00:21:12,840 --> 00:21:16,919
Speaker 1: regarding the deadly conflict between Israel and Hamas. Hamas is

350
00:21:16,920 --> 00:21:22,000
Speaker 1: holding hostages, including women, children, and elderly people, and no

351
00:21:22,000 --> 00:21:24,560
Speaker 1: one knows where they're being held. Does Israel have the

352
00:21:24,680 --> 00:21:28,280
Speaker 1: right under international law to go into Gaza to rescue

353
00:21:28,280 --> 00:21:28,959
Speaker 1: the hostages.

354
00:21:30,000 --> 00:21:35,560
Speaker 4: Yes. Absolutely, Israel can take means to military means. Law

355
00:21:35,600 --> 00:21:40,040
Speaker 4: enforcement means are really the better message to rescue any

356
00:21:40,240 --> 00:21:44,240
Speaker 4: of its nationals that are being held. That absolutely is right.

357
00:21:44,640 --> 00:21:48,480
Speaker 4: There's an old, old principle of rescue of nationals being permissible.

358
00:21:48,560 --> 00:21:52,960
Speaker 4: This is often carried out with using your military forces

359
00:21:53,359 --> 00:21:58,919
Speaker 4: because they have this kind of clandestine foreign territory experience.

360
00:21:59,320 --> 00:22:02,240
Speaker 4: We used commit and force when we carry out this

361
00:22:02,320 --> 00:22:06,800
Speaker 4: brilliant rescue operation in Somalia some years ago. That is

362
00:22:07,200 --> 00:22:10,720
Speaker 4: definitely there's no doubt in my mind about that. There's

363
00:22:10,720 --> 00:22:13,119
Speaker 4: some debate about what the legal theory is. Some people

364
00:22:13,400 --> 00:22:16,760
Speaker 4: say it's self defense under Article fifty one or the

365
00:22:16,840 --> 00:22:20,360
Speaker 4: UN Charter. I think there's no basis for that. Rescue

366
00:22:20,359 --> 00:22:24,480
Speaker 4: of nationals is a countermeasure. It is the right to

367
00:22:25,359 --> 00:22:28,680
Speaker 4: violate a state's sovereign territory for the express and limited

368
00:22:28,680 --> 00:22:32,400
Speaker 4: purpose of bringing your people out alive, and you can

369
00:22:32,560 --> 00:22:39,360
Speaker 4: use limited armed force to protect the mission and succeed

370
00:22:39,560 --> 00:22:42,439
Speaker 4: in bringing people out, just as police would do in

371
00:22:42,480 --> 00:22:47,200
Speaker 4: a hostage lockdown situation in the US, so that no doubt.

372
00:22:47,520 --> 00:22:50,040
Speaker 4: And then the other end of the spectrum I think

373
00:22:50,160 --> 00:22:55,800
Speaker 4: is equally clear. Bombing a population, a civilian population packed

374
00:22:55,840 --> 00:22:59,960
Speaker 4: into this tight area of Gaza cannot be permitted under

375
00:23:00,080 --> 00:23:02,520
Speaker 4: or international law. There's no right to resort to that

376
00:23:02,640 --> 00:23:06,240
Speaker 4: kind of level of force under the laws on resort

377
00:23:06,280 --> 00:23:09,960
Speaker 4: to force. And it's a clear violation of the Inbello

378
00:23:10,080 --> 00:23:13,480
Speaker 4: rules because you cannot make a distinction between fighters and

379
00:23:13,560 --> 00:23:17,600
Speaker 4: non fighters. So what about the interim between sending some

380
00:23:17,640 --> 00:23:22,359
Speaker 4: forces for the clear purpose of rescue and bombing indiscriminately.

381
00:23:22,600 --> 00:23:28,480
Speaker 4: The middle level is more difficult to judge. Even if

382
00:23:28,520 --> 00:23:31,280
Speaker 4: Israel could make out the claim that they were sending

383
00:23:31,359 --> 00:23:36,280
Speaker 4: military forces, highly trained, focused only on Hamas fighters and

384
00:23:36,400 --> 00:23:39,920
Speaker 4: rooting them out of the populated area of Gaza, those

385
00:23:39,960 --> 00:23:43,320
Speaker 4: are all very big ists. Even if they could succeed

386
00:23:43,359 --> 00:23:46,080
Speaker 4: in doing that, I do not believe the principle of

387
00:23:46,119 --> 00:23:49,760
Speaker 4: necessity will be met. Given this is the fifth Gaza war.

388
00:23:50,080 --> 00:23:53,000
Speaker 4: The past four did not succeed. They just brought us

389
00:23:53,040 --> 00:23:56,679
Speaker 4: to this current crisis. The way to succeed now is

390
00:23:57,080 --> 00:24:02,480
Speaker 4: rescue hostages, protect your people at home, begin the hard,

391
00:24:02,680 --> 00:24:07,240
Speaker 4: hard work of creating a situation where we never again

392
00:24:07,359 --> 00:24:10,199
Speaker 4: have this kind of violence. And the only way to

393
00:24:10,240 --> 00:24:13,919
Speaker 4: do that is to use nonviolent measures. There's a huge

394
00:24:14,160 --> 00:24:17,239
Speaker 4: toolbox that will lead to a better outcome, but it

395
00:24:17,280 --> 00:24:21,679
Speaker 4: really takes statesmanship, it really takes humanity now on both sides.

396
00:24:22,359 --> 00:24:25,040
Speaker 1: I mean, do you really think that that's possible. You

397
00:24:25,160 --> 00:24:31,280
Speaker 1: have decades of hostility between the Palestinians and the Israelis.

398
00:24:31,640 --> 00:24:32,879
Speaker 1: What would change that now?

399
00:24:33,320 --> 00:24:36,600
Speaker 4: Well, I think one thing that should be changing things

400
00:24:36,680 --> 00:24:40,560
Speaker 4: now is Russia's invasion of Ukraine. We've come to the

401
00:24:40,600 --> 00:24:43,760
Speaker 4: point where we have this dramatic example of a country

402
00:24:43,800 --> 00:24:47,240
Speaker 4: that has completely dismissed any of this law we're talking

403
00:24:47,240 --> 00:24:51,399
Speaker 4: about with absolute disregard. We've got to get this law back.

404
00:24:51,600 --> 00:24:55,240
Speaker 4: We are creating such a lawless world with weak governance.

405
00:24:55,920 --> 00:25:02,760
Speaker 4: We're heading into this unending spiral of violence with strong men, authoritarians.

406
00:25:03,359 --> 00:25:05,439
Speaker 4: The whole world has an interest in putting a stop

407
00:25:05,480 --> 00:25:09,719
Speaker 4: to that. The situation between the Israelis and Palestinians is

408
00:25:09,800 --> 00:25:12,520
Speaker 4: so much more complicated, and it needs a much more

409
00:25:12,600 --> 00:25:16,520
Speaker 4: nuanced and complicated answer. But we can start with if

410
00:25:16,520 --> 00:25:19,840
Speaker 4: we're interested in defending the prohibition on the use of

411
00:25:19,920 --> 00:25:22,520
Speaker 4: force for Ukraine, we've got to be interested in that

412
00:25:22,600 --> 00:25:27,480
Speaker 4: between Israelis and Palestinians and apply it now. The United

413
00:25:27,520 --> 00:25:31,080
Speaker 4: States has a huge role to play. President Biden made

414
00:25:31,200 --> 00:25:36,800
Speaker 4: clear that the United States condemns what Hamas did. He however,

415
00:25:36,920 --> 00:25:40,960
Speaker 4: also emphasized the need for democracies to stand by the

416
00:25:41,040 --> 00:25:44,560
Speaker 4: rule of law. And that's exactly what I'm talking about.

417
00:25:44,680 --> 00:25:47,480
Speaker 4: So if people like President Biden, the leaders of the

418
00:25:47,480 --> 00:25:51,480
Speaker 4: European Union countries around the world who are so heartbroken

419
00:25:51,920 --> 00:25:55,919
Speaker 4: at this loss of life, need to close ranks, stand

420
00:25:56,000 --> 00:26:01,800
Speaker 4: tall and insist to both Palestinians and Israeli that war

421
00:26:01,960 --> 00:26:06,120
Speaker 4: and violence is just never going to bring the flourishing

422
00:26:06,440 --> 00:26:09,919
Speaker 4: communities that they both want. It really comes down so

423
00:26:10,119 --> 00:26:13,639
Speaker 4: often to this lack of governance. Israel can make a

424
00:26:13,840 --> 00:26:18,960
Speaker 4: huge impact on the terrible state of governance in the

425
00:26:19,040 --> 00:26:22,960
Speaker 4: occupied Palestinian territories that has led to Hamas being in

426
00:26:23,000 --> 00:26:27,280
Speaker 4: a position where they could organize weapons and bring people together.

427
00:26:28,240 --> 00:26:32,520
Speaker 4: Israel can be part of a true multilateral effort to

428
00:26:32,680 --> 00:26:37,560
Speaker 4: help Palestinians create the governance institutions that will respond, but

429
00:26:37,680 --> 00:26:42,000
Speaker 4: it requires generosity in economics and commitment to the rule

430
00:26:42,040 --> 00:26:45,879
Speaker 4: of law in so many other ways. It's a difficult time.

431
00:26:45,960 --> 00:26:49,840
Speaker 4: But Israelis themselves are struggling with good governance and commitment

432
00:26:49,880 --> 00:26:52,720
Speaker 4: to the rule of law as they look at policies

433
00:26:52,760 --> 00:26:57,520
Speaker 4: to weaken their own exemplary judicial system. So two levels

434
00:26:57,600 --> 00:27:01,639
Speaker 4: have to work here. We need to start suspecting globally

435
00:27:02,240 --> 00:27:05,240
Speaker 4: the prohibition on the use of force, restricting force to

436
00:27:05,320 --> 00:27:09,160
Speaker 4: true situations that Ukraine is in of needing to use

437
00:27:09,200 --> 00:27:12,280
Speaker 4: force in self defense. This is a message that has

438
00:27:12,320 --> 00:27:15,280
Speaker 4: to go out to China, to India, to South Africa.

439
00:27:15,840 --> 00:27:21,200
Speaker 4: Everyone should be supporting Ukraine and in Israel Palestine. Everyone

440
00:27:21,240 --> 00:27:23,760
Speaker 4: needs to be supporting the rule of law and understanding

441
00:27:23,760 --> 00:27:27,199
Speaker 4: what it requires in this situation. It will not be

442
00:27:27,280 --> 00:27:30,040
Speaker 4: easy in the next days and weeks, but I would

443
00:27:30,160 --> 00:27:33,280
Speaker 4: just reiterate we have a solution in the law and

444
00:27:33,320 --> 00:27:35,560
Speaker 4: that's what needs to be observed.

445
00:27:35,800 --> 00:27:40,760
Speaker 1: So talking about defensive measures, Israel has stopped the entry

446
00:27:40,800 --> 00:27:45,080
Speaker 1: of food, water, fuel and medicine into Gaza. Is that

447
00:27:45,160 --> 00:27:49,720
Speaker 1: a defensive measure that's considered legal under international law?

448
00:27:49,800 --> 00:27:53,520
Speaker 4: Just as with the high aerial bombing or using military

449
00:27:53,520 --> 00:27:59,240
Speaker 4: planes to bomb. It is absolutely forbidden to cut off food, fuel,

450
00:27:59,440 --> 00:28:04,000
Speaker 4: medicine and water to a civilian population. That is a

451
00:28:04,040 --> 00:28:07,560
Speaker 4: black letter rule in the law of armed conflict. When

452
00:28:07,720 --> 00:28:11,199
Speaker 4: armed conflict is ongoing as it is here now because

453
00:28:11,240 --> 00:28:14,320
Speaker 4: of mutual violations of the principle on resort to force

454
00:28:14,359 --> 00:28:18,159
Speaker 4: and the principle of necessity, then the rules i'm the

455
00:28:18,200 --> 00:28:23,119
Speaker 4: conduct of armed conflict takeover. The clear principle is never

456
00:28:23,200 --> 00:28:27,320
Speaker 4: to deny food, fuel, water, and medicine to a civilian population.

457
00:28:28,119 --> 00:28:31,680
Speaker 1: Do you know if there's any effort by the Red

458
00:28:31,760 --> 00:28:36,119
Speaker 1: Cross or the World Health Organization to get food and

459
00:28:36,200 --> 00:28:37,080
Speaker 1: medicine in there.

460
00:28:37,640 --> 00:28:41,280
Speaker 4: I assume that one of the goals of Secretary Blincoln,

461
00:28:41,360 --> 00:28:46,880
Speaker 4: who's in Israel right now, is to discuss exactly that point.

462
00:28:47,160 --> 00:28:49,080
Speaker 4: There may be a lot of debate on some of

463
00:28:49,240 --> 00:28:52,640
Speaker 4: the international law you and I've been discussing. I've never

464
00:28:52,720 --> 00:28:57,280
Speaker 4: heard a contrary view to the requirement to allow these

465
00:28:57,320 --> 00:29:01,400
Speaker 4: necessities of life to reach a civilian population. So the

466
00:29:01,440 --> 00:29:05,120
Speaker 4: International Committee, the Red Cross, definitely, they always work quietly

467
00:29:05,200 --> 00:29:08,200
Speaker 4: behind the scenes diplomatically, but this would have been one

468
00:29:08,200 --> 00:29:09,960
Speaker 4: of their foremost messages.

469
00:29:10,440 --> 00:29:14,560
Speaker 1: And when this conflict is over is there any accountability

470
00:29:14,840 --> 00:29:18,240
Speaker 1: for things that were done in violation of international law?

471
00:29:18,640 --> 00:29:19,080
Speaker 3: June.

472
00:29:19,360 --> 00:29:22,440
Speaker 4: We speak so much about accountability. There's been a major

473
00:29:22,480 --> 00:29:26,160
Speaker 4: effort by international lawyers to construct an international criminal court,

474
00:29:26,480 --> 00:29:30,120
Speaker 4: and all during the tragedy of Russia's invasion of Ukraine,

475
00:29:30,120 --> 00:29:33,640
Speaker 4: there's been discussion of accountability. We focus so much on

476
00:29:33,680 --> 00:29:37,200
Speaker 4: accountability and how difficult it is and how problematic we

477
00:29:37,320 --> 00:29:40,400
Speaker 4: fail to say in the first instance, these tragedies could

478
00:29:40,400 --> 00:29:43,880
Speaker 4: have been prevented if we'd focused on the prohibition on

479
00:29:44,000 --> 00:29:47,959
Speaker 4: resort to force. That's where I put my focus really,

480
00:29:48,200 --> 00:29:51,560
Speaker 4: the construction of international courts, the attempts to hold these trials.

481
00:29:51,800 --> 00:29:55,120
Speaker 4: All we're seeing is that it's had no positive impact

482
00:29:55,360 --> 00:29:59,080
Speaker 4: on prevention. I don't work on those topics for that

483
00:29:59,240 --> 00:30:04,440
Speaker 4: very reason. I work on disseminating information on respect for

484
00:30:04,480 --> 00:30:09,320
Speaker 4: the principle of necessity, proportionality, and the use of non violence.

485
00:30:09,640 --> 00:30:12,400
Speaker 1: Thanks for being on the show. That's Professor Mary Ellen

486
00:30:12,440 --> 00:30:15,640
Speaker 1: O'Connell of Notre Dame Law School, and that's it for

487
00:30:15,680 --> 00:30:18,280
Speaker 1: this edition of The Bloomberg Law Show. Remember you can

488
00:30:18,360 --> 00:30:21,600
Speaker 1: always get the latest legal news on our Bloomberg Law podcast.

489
00:30:21,880 --> 00:30:24,880
Speaker 1: You can find them on Apple Podcasts, Spotify and at

490
00:30:25,040 --> 00:30:30,080
Speaker 1: www dot bloomberg dot com. Slash podcast Slash Law, and

491
00:30:30,160 --> 00:30:33,160
Speaker 1: remember to tune into The Bloomberg Law Show every weeknight

492
00:30:33,320 --> 00:30:36,760
Speaker 1: at ten pm Wall Street Time. I'm June Grosso and

493
00:30:36,800 --> 00:30:38,280
Speaker 1: you're listening to Bloomberg