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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Donald Trump once vowed to take the witness stand in

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Speaker 2: his hush money criminal trial in Manhattan, but his defense

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Speaker 2: case wrapped up this morning without jurors hearing from the

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Speaker 2: former president, although he did speak to reporters outside the courtroom.

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Speaker 1: Case won the case by any standard.

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Speaker 3: Any other judge you want to throw the case out,

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Speaker 3: any other judgy were to.

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Speaker 1: Throw the station out.

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Speaker 2: Judge Wanmerschan sent the jury home for a week, setting

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Speaker 2: closing arguments for next Tuesday, but the attorneys returned to

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Speaker 2: the courtroom in the afternoon to discuss jury instructions, a

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Speaker 2: sort of roadmap meant to help jurors apply the law

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Speaker 2: to the evidence and testimony. It's a standard part of

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Speaker 2: the process that's taken on greater importance because of the

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Speaker 2: unusual nature of the thirty four false records charges against Trump.

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Speaker 2: To make each crime a felony rather than a misdemeanor,

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Speaker 2: jurors must find that Trump intended to commit another crime.

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Speaker 2: Much of the debate centered on how the judge will

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Speaker 2: explain those other alleged crimes, including election law violations and

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Speaker 2: tax crimes. Joining me is Bloomberg Legal reporter David Voriakis,

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Speaker 2: who's covering the trial. David. The second and final defense witness,

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Speaker 2: Robert Costello, was back on the stand. What did the

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Speaker 2: defense hope to get from his testimony?

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Speaker 4: The defense called Robert Costello because they wanted to undermine

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Speaker 4: Michael Cohen as a witness. This has been a big

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Speaker 4: theme of the defense, that Michael Cohen is a liar

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Speaker 4: and can't be trusted, and that he had also lied

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Speaker 4: on the witness stand in this trial as well as

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Speaker 4: in previous testimony under oath, in Congress and in court.

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Speaker 4: What the defense wanted to show was that Cohen could

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Speaker 4: not we trusted when he said that Costello came to

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Speaker 4: him in April of twenty eighteen after the FBI had

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Speaker 4: raided Cohen's house, office, and hotel suite, and that Costello

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Speaker 4: offered a back channel to President Trump. Cohen testified at

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Speaker 4: some length about how Costello tried to offer comfort to

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Speaker 4: Cohen that Trump had his back, and Cohen testified that

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Speaker 4: he believed that that was just so that he would

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Speaker 4: stay in the fold and not cooperate against Trump in

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Speaker 4: the criminal investigation that federal prosecutors were conducting at the

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Speaker 4: time and.

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Speaker 2: What happened on the stand, there was a kerfuffle. I

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Speaker 2: don't know how to describe it.

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Speaker 4: There was a major kerfuffle in court at the end

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Speaker 4: of the day. On Monday, Costello came to this inand

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Speaker 4: late in the day and he began to refute several

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Speaker 4: of the points that Michael Cohen had made in his testimony.

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Speaker 4: He essentially started giving long soliloquies in his answers, which

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Speaker 4: is not proper behavior for a witness. They're supposed to

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Speaker 4: listen to the question and answer the question that's asked

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Speaker 4: and not go off on a long tirade or rancher soliloquy,

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Speaker 4: which is what Costello was doing yesterday. And so the

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Speaker 4: judge disdained a number of objections, and then at some

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Speaker 4: point Costello said, gees when the judge sustained an objection,

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Speaker 4: and the judge said, I'm sorry, and then Costello said stricken,

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Speaker 4: referring to his own remark. And after a couple more questions,

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Speaker 4: Merchants stopped the proceedings and he asked the jury to leave,

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Speaker 4: and he said to Costello, mister Costello, I want to

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Speaker 4: discuss proper decorum in my courtroom. If you don't like

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Speaker 4: my ruling, you don't say ges, and then you don't

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Speaker 4: say strike it, because I'm the only one who can

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Speaker 4: strike testimony in my corporal He also threatened to hold

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Speaker 4: Costello in contempt, and the judge cleared the courtroom, basically

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Speaker 4: removing dozens of journalists for several minutes. They then came

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Speaker 4: back in and saw more subdued Costello finish his testimony.

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Speaker 4: So it was a dramatic moment. It's not entirely clear

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Speaker 4: how it might affect the case, if at all, but

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Speaker 4: it certainly did not help the defense case because they

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Speaker 4: saw Costello as someone who was going to further aroad

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Speaker 4: the credibility of Michael Cohen in the eyes of the jury.

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Speaker 2: So, David, do you know what made the judge clear

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Speaker 2: the courtroom. I've never seen a courtroom cleared.

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Speaker 4: It's not entirely clear. I was in the overflow room

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Speaker 4: and watching by video hookup, and people in the courtroom

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Speaker 4: didn't really understand. Reporters objected, and I believe there was

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Speaker 4: a lawyer who tried to speak up on behalf of

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Speaker 4: the media, but the judge just didn't allow it. It

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Speaker 4: was clear that the judge was quite visibly angry, and

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Speaker 4: he felt that Costello was openly defying him, and so

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Speaker 4: I think he wanted a moment to really let his

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Speaker 4: anger out with Costello not entirely clear why he felt

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Speaker 4: the need to clear the courtroom, but at least it

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Speaker 4: didn't happen for very long.

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Speaker 2: Do you have a transcript of what happened, Well, he

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Speaker 2: cleared the courtroom.

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Speaker 4: I do, and that's when the judge threatened to cite

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Speaker 4: him for contempt. That only went on for brief exchange.

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Speaker 4: A lot of the transcript reflects sort of the chaos

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Speaker 4: of people objecting in the galleries to being ejected in

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Speaker 4: the courtroom's staff trying to clear the gallery.

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Speaker 2: Did the prosecution do a good job of crossing Costello.

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Speaker 4: The prosecution did a very effective job of showing that

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Speaker 4: Costelloose interests seemed to be aligned more with Trump than

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Speaker 4: they were with Michael Cohen. In the spring of twenty eighteen,

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Speaker 4: Cohen's lawyers had argued and Costello had testified that Costello

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Speaker 4: was looking out for Michael Cohen when Michael Cohen was

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Speaker 4: very concerned that he would be prosecuted and he was

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Speaker 4: exploring the possibility of whether he should cooperate or not

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Speaker 4: against Trump. Trump and his supporters were obviously very concerned

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Speaker 4: about that. And Cohen had testified, and the prosecution has

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Speaker 4: argued essentially that Costello was not looking out for Cohen.

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Speaker 4: What he was really looking out for was trying to

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Speaker 4: get information about Cohen and his intentions that would help

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Speaker 4: Trump in his defense. And the prosecution today on cross

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Speaker 4: examination showed a number of emails from Robert Costello that

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Speaker 4: it suggested indeed his interests were Donald Trump.

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Speaker 2: Now, who was the first witness that the defense called.

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Speaker 4: The first witness was a paralegal who works with Todd

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Speaker 4: blanch who's the lead defense lawyer, and he put up

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Speaker 4: a summary chart of phone calls and communications between Michael

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Speaker 4: Cohen and Todd Blant in his law firm. They were

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Speaker 4: trying to show that there were a great many communications.

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Speaker 4: And Costello had also testified that he believed they had

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Speaker 4: an attorney client relationship, which Michael Cohen said they did not.

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Speaker 4: But he never hired Bob Costello and he didn't trust him.

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Speaker 2: I thought they were going to call an expert witness

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Speaker 2: on campaign finance laws.

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Speaker 4: They had talked to the judge at some length yesterday

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Speaker 4: about the ground rules for how they might question an

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Speaker 4: expert witness on campaign finance law, and the judge essentially

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Speaker 4: listened closely to the objections with prosecutors who felt it

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Speaker 4: would be unfair or a defense campaigns finance experts to

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Speaker 4: go into too much detail on the law, and the

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Speaker 4: judge agreed, saying essentially that he's the only one who

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Speaker 4: can tell the jury what the law is when it

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Speaker 4: comes to campaign finance and how it relates to this case.

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Speaker 4: And the judge said he didn't want this to become

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Speaker 4: a so called battle of the experts where the prosecution

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Speaker 4: had to also call their own experts to refute whatever

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Speaker 4: the defense experts said, and so he set some very

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Speaker 4: strict guidelines on what a expert could say. And after

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Speaker 4: considering those strict guidelines, the defense elected not to call

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Speaker 4: their experts.

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Speaker 2: Did the judge instruct Trump about the waiver of his

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Speaker 2: right to testify?

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Speaker 4: Surprisingly, the judge did not do that, and it was

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Speaker 4: very muted and almost anti climactic. Todd Glintch just that

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Speaker 4: your honor, the defense prests. There was no discussion with

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Speaker 4: Trump and that was it. Then the judge shortly after

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Speaker 4: that told the jury that he was dismissing them until

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Speaker 4: next Tuesday, May twenty eight, because there had already been

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Speaker 4: pre arranged days off on Wednesday and Friday of this week,

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Speaker 4: and of course Monday is Memorial Day. So the judge

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Speaker 4: also wanted to have continuity in the closing argument, so

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Speaker 4: I guess he was concerned that they wouldn't be able

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Speaker 4: to get both closing arguments in one day. So he

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Speaker 4: said that it's possible that the closing argument may still

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Speaker 4: over next Tuesday into Wednesday, when he expects that deliberations

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Speaker 4: will beget in the case.

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Speaker 2: Has he set any time limits for the closing arguments?

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Speaker 4: He has not set limits yet. He expressed that he

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Speaker 4: knew that there was a lot to go over and

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Speaker 4: that they would take some time, but he has not

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Speaker 4: set a specific length just yet. I assume that as

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Speaker 4: we get close to the day he will do that.

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Speaker 2: Instructions are critical tell us about the charging conference on

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Speaker 2: Tuesday afternoon.

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Speaker 4: The judge is expecting to work out how they will

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Speaker 4: instruct the jury about applying the law in this case.

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Speaker 4: And what's complicated is how the election law applies to

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Speaker 4: this case. Because the thirty four pulcification of business record

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Speaker 4: counts that Donald Trump's bases are misdemeanors unless they're in

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Speaker 4: furtherance of another crime. And the other crime, prosecutors say

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Speaker 4: is trying to influence the election illegally in twenty sixteen.

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Speaker 4: And so there's a lot of complicated case law on

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Speaker 4: this question, and both sides need to make their best

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Speaker 4: case to the judge, who will then make a decision

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Speaker 4: on how to instruct the jury on the law when

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Speaker 4: it relates to the election in twenty sixteen. I'd also

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Speaker 4: say that I'd imagine if Trump work victed, the jury

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Speaker 4: instruction on election law could be an area of appeal

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Speaker 4: for him.

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Speaker 2: Has the prosecution said whether it's federal election law or

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Speaker 2: state election law that's concerned here.

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Speaker 4: In the filings and in arguments, they've discussed both. That's

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Speaker 4: why I'm going to be watching closely to see what

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Speaker 4: they end up at. I believe in some combination of

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Speaker 4: state and federal law.

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Speaker 2: So there could be a verdict in this case next week.

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Speaker 2: Thanks so much, David. That's Bloomberg Legal reporter David Voriakis

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Speaker 2: coming up next on the Bloomberg Law Show. What an

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Speaker 2: arrest warrant from the International Criminal Court would mean for

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Speaker 2: net and Yahoo. I'm June Grosso and you're listening to Bloomberg.

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Speaker 2: The chief prosecutor for the International Criminal Court is seeking

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Speaker 2: arrest warrants for Israeli Prime Minister Benjamin Netton Yahoo and

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Speaker 2: TAMAS leader Haya Sinwar for war crimes related to the

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Speaker 2: Israeli military response in God and the Hamas militant group's

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Speaker 2: October seventh attack on Israel. Prosecutor Karim Khan said the

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Speaker 2: charges against dat Yahoo included crimes against humanity.

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Speaker 5: The crimes include starvation of civilians as a method of warfare,

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Speaker 5: wilfully causing great suffering, serious injury to body or health,

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Speaker 5: or cruel treatment, wilfel killing or murder, and intentionally directing

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Speaker 5: attacks against a civilian population.

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Speaker 2: Net Yahoo call the move a moral outrage of historic proportions.

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Speaker 1: He is attacking the one and only Jewish state and

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Speaker 1: trying to handcuff us, preventing us from exercising responsibly through

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Speaker 1: the laws of war. As we obey them and we

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Speaker 1: are subordinate to them. He's saying we're not. He's creating

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Speaker 1: false symmetry, false facts.

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Speaker 2: Joining me is Kate Macintosh, UCLA law professor and director

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Speaker 2: of the Promised Institute for human rights explain the charge

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Speaker 2: thanks for us.

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Speaker 3: The accupations fall into two different categories obviously, so as

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Speaker 3: far as the must leaders are concerned, the focus is

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Speaker 3: of course on the hostage taking and the extermination and

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Speaker 3: murder that was committed on October the seventh, and the

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Speaker 3: treatment of the hostages a rather than mistreatment of the

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Speaker 3: hostages since then, and the prosecutor has characterized those acts

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Speaker 3: as both war crimes and crimes against humanity, which means

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Speaker 3: to say, after the widespread or systematic attack on the

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Speaker 3: civilian population, So those are two different crimes under their

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Speaker 3: own statute. There's war crimes violations of the laws of war,

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Speaker 3: and then crimes against humanity which don't have to be

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Speaker 3: committed in an armed conflict, but which can be. Looking

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Speaker 3: at the charges against Netanyahu and Galants, these fall mainly

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Speaker 3: into two categories. One is crimes around the placing of Gaza,

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Speaker 3: effectively Understegd, so the denial of access to humanitarians distance

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Speaker 3: what he characterizes is starvation of civilians as a method

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Speaker 3: of warfare for the besieging of Gaza. And then the

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Speaker 3: other main crime that they're charged with is intentionally directing

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Speaker 3: attacks against the civilian population, which is a war crime

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Speaker 3: under laws of war. Of course, it's only committed to

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Speaker 3: target military objectives, not to target civilians, and Kareem Kan't

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Speaker 3: is charging Mettagnohu and Gallant with having intentionally attacked civilians.

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Speaker 2: The panel was unanimous. What's the standard? Is the standard

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Speaker 2: reasonable grounds to believe?

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Speaker 3: Yeah, it's a relatively low standard at this point. There

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Speaker 3: are actually three different points during the process of a

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Speaker 3: case where the evidence is tested against an acue. So

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Speaker 3: this is just the first one in order to issue

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Speaker 3: the arrest warrant, and the judges who look at this

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Speaker 3: application have to be satisfied that there are reasonable grounds

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Speaker 3: to believe that the crimes are being committed. Don't test

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Speaker 3: any evidence, and even some of the evidence can be

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Speaker 3: provided in summary. What it really means is that the

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Speaker 3: judges will look at each element of the crime and

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Speaker 3: they'll see whether there is evidentially support of each of

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Speaker 3: those elements. So the finding they're really making is if

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Speaker 3: all of this evidence stands up, then the crime has

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Speaker 3: been committed. So it's a relatively low threshold. I'd be

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Speaker 3: very surprised if the prosecutor fails in this request because

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Speaker 3: I can't imagine that he would have presented an inadequate

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Speaker 3: admission for something so high profile, and he's also asked

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Speaker 3: this panel of experts to kind of confirm that he's

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Speaker 3: on solid ground here. So that, combined with the fact

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Speaker 3: that the test is a fairly low bar, I think,

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Speaker 3: means that we're likely to see the trial chamber granted

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Speaker 3: his request for the arrest warrant.

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Speaker 2: So, just to be clear, the prosecutor at this point

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Speaker 2: is requesting a warrant and then it will go to

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Speaker 2: a court panel to decide whether or not to issue

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Speaker 2: the warrant.

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Speaker 3: Yeah, exactly, it goes to what the iccquells a pre

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Speaker 3: trial chamber. It will be three judges who are put

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Speaker 3: together who consider a range of requests that come up

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Speaker 3: before the trial actually starts, and they will be the

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Speaker 3: ones who will be looking to see if all the

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Speaker 3: elements of the crimes have been substantiated by the material

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Speaker 3: that he's put before them. Just you know, by way

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Speaker 3: of explaining what then goes on to happen with the

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Speaker 3: evidence before the trial happens. There's another procedure, which is

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Speaker 3: the confirmation of the charges, and that is of course

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Speaker 3: still what the trial, but it's a higher standard. At

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Speaker 3: that point, the judges will have to consider again, a

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Speaker 3: pre trial chamber of judges will have to consider whether

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Speaker 3: there are substantial grounds for believing that the crimes have

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Speaker 3: been committed. So we've gone from reasonable grounds up to

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Speaker 3: substantial grounds. And at that point the accused can object,

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Speaker 3: can challenge the evidence, and can present is or her

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Speaker 3: own evidence as well. So it's not a trial, but

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Speaker 3: it is a kind of higher threshold where the evidence

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Speaker 3: is tested to some certain accounts, and if the prosecutor

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Speaker 3: manages to cross that threshold, then the trial can go ahead.

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Speaker 2: Israel is not a member of the ICC. Let's say

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Speaker 2: the rest warrant is issued, what does it really mean

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Speaker 2: for net Yahoo?

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Speaker 3: I mean the site that Israel is not a member

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Speaker 3: of the icy seed, so it's not relevant to the

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Speaker 3: jurisdiction over Netanyahu, just because the crimes were committed on

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Speaker 3: the territory, well, a territory which is subject to the jurisdiction.

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Speaker 3: So the ICC, as you know, has accepted Palestine as

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Speaker 3: a member state of the ICC. They were very careful

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Speaker 3: to say that they were just deciding in terms of

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Speaker 3: ICC membership and not making any bigger statements about whether

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Speaker 3: there's a state of Palestine, but that means that any

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Speaker 3: acts committed on the territory of a state's party, because

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Speaker 3: the statute is subject to the jurisdiction of course, so

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Speaker 3: any state can delegate its jurisdiction to a court. So

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Speaker 3: that's what Palestine has done. So that's how they are

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Speaker 3: permitted to charge Netanyahu and Land, even though of course

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Speaker 3: their nationality as Israelis would normally place them outside the

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Speaker 3: jurisdiction of the court because Israel isn't part of the

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Speaker 3: system practically though, and I think that's more what you're getting.

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Speaker 3: There is an issue about how the court is going

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Speaker 3: to get their hands on them, right, because I mean,

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Speaker 3: for a start, they are sitting, you know, Prime Minister

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Speaker 3: and Minister of Defense, so they're obviously not going to

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Speaker 3: hand themselves over. Even if Dan was a state party,

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Speaker 3: there'd be an interesting situation there. But most to the point,

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Speaker 3: Israel is not under any obligation to comply with an

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Speaker 3: order of the court. So it's more an issue for

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Speaker 3: travel for Netanyahu and Galant if the arrest warrant is granted,

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Speaker 3: and as I said, I think we can be fairly

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Speaker 3: confident that it will be. That's going to be very

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Speaker 3: interesting because travel to member state of the ITC should

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Speaker 3: mean that that state will arrest them, will execute the warrant.

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Speaker 3: So that could be problematic because.

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Speaker 2: Last year, and I believe we talked at that time

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Speaker 2: Russian President Vladimir Putin the quarter should have warrant for

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Speaker 2: him for Doug short of children, and nothing. Nothing's happened

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Speaker 2: there exactly.

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Speaker 3: So that would be exactly an analogous situation.

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Speaker 2: Yes, let's talk about this internally in Israel and internationally.

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Speaker 2: So as far as Israel goes, has this backfired because

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Speaker 2: it seems as if it's cemented support for net Yao

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Speaker 2: at home, including two members of his cabinet who threatened

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Speaker 2: to resign in recent days if he didn't have a

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Speaker 2: clear post war vision for Gaza. So has it backfired

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Speaker 2: in that sense, at least in Israel.

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Speaker 3: Possibly, It's hard to know, isn't it. I think, you know,

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Speaker 3: it may have done. On the other hand, I suppose

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Speaker 3: that you know, there may also be segments of Israeli

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Speaker 3: society who feel, you know, that it's a stigma that

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Speaker 3: they're very unhappy about, and it might encourage opposition to Netanyahu.

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Speaker 3: I think it's important to remember that that is not

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Speaker 3: a calculation that the ICC prosecutor is supposed to be making.

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Speaker 3: You know, the ICC prosecutor is not meant to be

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Speaker 3: calculating what the political implications of his indictments or his

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Speaker 3: requests for arrestaurant are. He's been given authorization to open

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Speaker 3: an investigation, he's meant to conduct his investigation, and where

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Speaker 3: he finds evidence of crimes committed in the statute, he's

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Speaker 3: supposed to ask request in a restaarrant as he's done. So,

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Speaker 3: the political ramifications are hard to say which way they're going.

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Speaker 3: I mean, I wouldn't be surprised if it creates some

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Speaker 3: kind of solidarity, is well. I think we can all

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Speaker 3: kind of imagine that that is a somewhat natural reaction.

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Speaker 3: But that isn't really something that Kareem Khan should be

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Speaker 3: thinking about internationally.

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Speaker 2: Netanyahu already has a troubled reputation internationally. Does this add

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Speaker 2: a little more of a blemish to his name?

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Speaker 3: Oh for sure. I mean, apart from anything else to

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Speaker 3: any sort of headed state meetings that are held in

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Speaker 3: a state that's parties to the ICC, I mean, they

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Speaker 3: wouldn't really be able to invite Menyah. And so we're

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Speaker 3: talking about pretty much the whole of Europe, Latin America, Africa.

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Speaker 3: You know, there are one hundred and twenty four states parties,

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Speaker 3: so that ICC including some very powerful states on the

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Speaker 3: global stage. So he will already become somewhat of a

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Speaker 3: pariah in those circumstances, because no state, frankly wants to

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Speaker 3: be in the position of having to arrest him and

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Speaker 3: hand him over to the court. So I think they

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Speaker 3: would be very likely to just discourage him from traveling

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Speaker 3: to their territory.

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Speaker 2: What are the powers of the International Criminal Court.

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Speaker 3: In terms of sort of outside its own walls. The

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Speaker 3: powers are entirely dependent on other states. So it doesn't,

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Speaker 3: of course have some kind of international police force so

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Speaker 3: that it can send out to arrest people. It can't

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Speaker 3: enforce its orders.

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Speaker 4: It is a.

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Speaker 3: Creation of states. So the states that have signed up

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Speaker 3: to its statute, the states that run the court, I

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Speaker 3: mean the members states that the International Criminal Court meet

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Speaker 3: every year in December in either New York or the

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Speaker 3: Hague to discuss how to run the court. There, of

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Speaker 3: course don't interfere with the legal proceeds and the work

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Speaker 3: of the judges and the prosecutor. But they decided you know,

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Speaker 3: how much money to give it, they can amend the

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Speaker 3: statute and so on. So those are the states who

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Speaker 3: are also responsible for enforcing the orders of the court.

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Speaker 3: So that's why a state in whose territory any of that,

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Speaker 3: you know, either the Hamas or the Israeli indicities arrived,

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Speaker 3: would be bound to execute that order. I mean, if

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Speaker 3: it's granted the arrestaurant and hand them over to the court,

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Speaker 3: because the court itself doesn't have any enforcements independent of

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Speaker 3: the states.

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Speaker 2: What was the last leader that they've prosecuted, actually, you know,

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Speaker 2: held a trial for well.

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Speaker 3: The last sitting There is a precedence of having prosecuted

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Speaker 3: a sitting head of state which did not go well,

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Speaker 3: and that was the ken Yata in Kenya. I mean

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Speaker 3: that prosecution ended essentially, you know, very poorly, and what

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Speaker 3: became clear was that it was almost impossible. I mean,

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Speaker 3: it was an unsuccessful prosecution. It became clear that it

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Speaker 3: was almost impossible to prosecute or to effectively investigate a

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Speaker 3: sitting head of state in the country. So there were

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Speaker 3: all sorts of allegations of witness intimidation. I believe some

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Speaker 3: of those were established. If I'm not miss speaking, I

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Speaker 3: think one witness died in very mysterious circumstances and the

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Speaker 3: case was eventually dropped. So I mean that was really

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Speaker 3: a case of prosecuting a leader that came up against

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Speaker 3: real politique and realizing that when somebody is still wielding

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Speaker 3: the power of the state, it's extremely difficult for something

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Speaker 3: like the International Criminal Court, which, as I said, relies

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Speaker 3: on states for enforcement of its orders, than to work

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Speaker 3: effectively to carry out its mandates.

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Speaker 2: Coming up next on the Bloomberg Launch Show, I'll continue

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Speaker 2: this conversation with UCLA law professor Kate McIntosh, and we'll

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Speaker 2: talk about President Joe Biden's response to the ICC seeking

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Speaker 2: an arrest warrant for net and Yahoo.

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Speaker 3: True allegations against Israel made by the International Court of Justice.

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Speaker 4: What's happening is not genocide.

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Speaker 2: To reject that, President Joe Biden has defended Israel and

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Speaker 2: railed against the International Criminal Courts prosecutor who's seeking arrest

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Speaker 2: warrants for Israeli Prime Minister Benjamin Netanyahu on war crimes charges.

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Speaker 2: Prosecutor Kareem Khan is also seeking an arrest warrant against

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Speaker 2: the Hamas leader on war crimes charges and Biden said

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Speaker 2: that whatever this prosecutor might imply, there's no equivalence none,

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Speaker 2: between Israel and Hamas, and he refused to agree with

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Speaker 2: any notion that the war in Gaza is genocide. I've

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Speaker 2: been talking to Kate McIntosh, a professor at UCLA Law

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Speaker 2: School and director of the Promise Institute for Human Rights.

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Speaker 2: Actually the objection from Biden, part of it was equating

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Speaker 2: Israel's actions and Hamas's action, And I mean, is it

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Speaker 2: wise It seems like, you know, it's Solomon's splitting the base.

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Speaker 3: I think it was his only option. Actually, I don't

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Speaker 3: think he could possibly have proceeded against only one party here.

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Speaker 3: I mean, in a way, the law that he's applying

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Speaker 3: does parties to a conflict on as somewhat equal fitting.

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Speaker 3: So the laws of war are not concerned with the

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Speaker 3: reason for fighting. So any of the justifications that either

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Speaker 3: side has, whether it's the occupation and the impression of

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Speaker 3: Palestinians or you know, the existential threat coming from her

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Speaker 3: math and the hostage taking, those are completely irrelevant in

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Speaker 3: assessing whether the laws of war have been followed. The

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Speaker 3: international humanitarian law, the laws of war Geneva Conventions are

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Speaker 3: about the rules once you're in a conflict, and at

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Speaker 3: that point, a state or you know, the groups are

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Speaker 3: seen only as either state or non state actors. There's

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Speaker 3: no characterization of good or bad or terrorist or whatever,

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Speaker 3: and you know, rules applied to both. And what the

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Speaker 3: prosecutor has done is he's applied those rules to the

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Speaker 3: facts that he's found violating by side, which I think

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Speaker 3: we could anticipate would have been the case for what

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Speaker 3: we've all covered in the news. So in a way,

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Speaker 3: the framework he's working with it does apply to all sides,

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Speaker 3: and it almost does put them not on an equal footing,

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Speaker 3: but it makes irrelevant their motivations for fighting, the historical contexts,

439
00:26:17,720 --> 00:26:20,000
Speaker 3: whether they see themselves as on taking part in a

440
00:26:20,240 --> 00:26:23,159
Speaker 3: just war, whether they're a state actor or non state actor.

441
00:26:23,240 --> 00:26:25,280
Speaker 3: It just looks at these are the rules, and how

442
00:26:25,280 --> 00:26:27,480
Speaker 3: have they been violated, And if he were to apply

443
00:26:27,560 --> 00:26:29,600
Speaker 3: those onnly to one party, I think it would be

444
00:26:30,160 --> 00:26:33,800
Speaker 3: you know, it would be totally unacceptable and look extremely biased.

445
00:26:34,440 --> 00:26:38,760
Speaker 2: Back in twenty twenty, when Trump was president, he authorized

446
00:26:38,840 --> 00:26:44,040
Speaker 2: economic and travel sanctions on the ICC prosecutor and another

447
00:26:44,080 --> 00:26:47,720
Speaker 2: senior prosecutor because they were looking into possible war crimes.

448
00:26:47,760 --> 00:26:50,800
Speaker 2: In Afghanistan. Has it always been an uphill battle for

449
00:26:50,880 --> 00:26:51,560
Speaker 2: the ICC?

450
00:26:54,040 --> 00:26:57,119
Speaker 3: Why where the US is concerned. I mean, yeah, that

451
00:26:57,320 --> 00:27:00,719
Speaker 3: was We were also shocked when that happened. And then

452
00:27:01,280 --> 00:27:04,280
Speaker 3: some of President Biden's rhetoric has seems to be almost

453
00:27:04,320 --> 00:27:08,240
Speaker 3: going in the same direction, which is perhaps a bit disappointing. Listen,

454
00:27:08,280 --> 00:27:10,840
Speaker 3: the ICC is never going to make people happy. There's

455
00:27:10,960 --> 00:27:13,960
Speaker 3: less of a fust when the ICC is prosecuting somebody

456
00:27:14,000 --> 00:27:17,680
Speaker 3: from the Democratic Republic of Congo because the individuals in

457
00:27:17,720 --> 00:27:20,800
Speaker 3: the Democratic Republic of Congo do not have the powerful

458
00:27:20,880 --> 00:27:24,800
Speaker 3: friends that Benjamin Metignau does. But you know it's never

459
00:27:24,880 --> 00:27:27,679
Speaker 3: going to be I mean, it's an enforcement activity. To

460
00:27:27,800 --> 00:27:30,919
Speaker 3: arrest some of from an international crime is clearly going

461
00:27:30,960 --> 00:27:33,480
Speaker 3: to make ripples, and I think that, you know, the

462
00:27:33,520 --> 00:27:35,679
Speaker 3: prosecutor has to be prepared for that.

463
00:27:36,480 --> 00:27:39,480
Speaker 2: Nenyell, who has been compared to a phoenix rising from

464
00:27:39,560 --> 00:27:43,199
Speaker 2: the ashes, nothing seems to affect him. He keeps on

465
00:27:43,320 --> 00:27:46,159
Speaker 2: going and going. Will this be any different do you think?

466
00:27:46,880 --> 00:27:50,199
Speaker 2: I mean, he's been doing interview after interview defending his

467
00:27:50,359 --> 00:27:53,919
Speaker 2: actions and equating an attack on him as an attack

468
00:27:53,960 --> 00:27:54,560
Speaker 2: on Israel.

469
00:27:54,920 --> 00:27:57,359
Speaker 3: Who knows It's very hard to say. I think it

470
00:27:57,520 --> 00:28:00,439
Speaker 3: is going to affect his international standing. I don't know

471
00:28:00,480 --> 00:28:02,800
Speaker 3: how it's going to play out domestically. I mean what

472
00:28:02,840 --> 00:28:06,840
Speaker 3: we saw in the cases Slabodan Melosovitch for example, so

473
00:28:06,960 --> 00:28:10,400
Speaker 3: another Leadia that was indicted for international crimes. It's time

474
00:28:10,480 --> 00:28:13,879
Speaker 3: not by the international Criminal Court, but by the Yugoslavia

475
00:28:14,040 --> 00:28:18,000
Speaker 3: War Crimes Tribunal. He was indicted. I think that probably

476
00:28:18,040 --> 00:28:21,959
Speaker 3: facilitated his removal from power, and then he was handed

477
00:28:22,000 --> 00:28:26,720
Speaker 3: over eventually to the tribunal. So we have also that precedence.

478
00:28:26,880 --> 00:28:29,320
Speaker 3: As I said, who knows how it's going to play

479
00:28:29,320 --> 00:28:33,040
Speaker 3: out for Vanetan Yahoo, Yeah, I mean how's it going

480
00:28:33,080 --> 00:28:35,920
Speaker 3: to play out for Putin? I think there's some similarities there,

481
00:28:35,920 --> 00:28:39,719
Speaker 3: and they're both strong leaders, seem to be clinging to power.

482
00:28:40,720 --> 00:28:42,720
Speaker 3: You know, it's hard to tell. Of course, in Israel

483
00:28:42,720 --> 00:28:45,040
Speaker 3: it's a lot easier to understand the opposition because of

484
00:28:45,080 --> 00:28:47,160
Speaker 3: the democratic nature of the country, and we've seen the

485
00:28:47,160 --> 00:28:50,880
Speaker 3: demonstrations and we could read the repress. That isn't the

486
00:28:50,880 --> 00:28:54,160
Speaker 3: case in Russia. But I would say the situation for

487
00:28:54,440 --> 00:28:56,960
Speaker 3: both of those leaders will become more tricky when they're

488
00:28:57,000 --> 00:28:57,680
Speaker 3: no longer head.

489
00:28:57,640 --> 00:29:01,320
Speaker 2: To stick and tell us about the international Court of

490
00:29:01,640 --> 00:29:07,440
Speaker 2: Justice where South Africa is making a genocide case against Israel.

491
00:29:07,960 --> 00:29:11,040
Speaker 3: The International Court of Justice, the World Court in the Ague,

492
00:29:11,080 --> 00:29:14,880
Speaker 3: so the non criminal court. So South Africa brought the

493
00:29:14,960 --> 00:29:19,800
Speaker 3: complaints against Israel under the Genocide Convention. So that's the

494
00:29:19,880 --> 00:29:22,960
Speaker 3: International Court of Justice that operates. You can imagine it

495
00:29:23,040 --> 00:29:25,440
Speaker 3: much more like a sort of civil proceedings in the

496
00:29:25,520 --> 00:29:28,000
Speaker 3: domestic court. So it's more like a country suing in

497
00:29:28,040 --> 00:29:31,640
Speaker 3: other countries. It's not an independent authority, you know, telling

498
00:29:31,640 --> 00:29:32,560
Speaker 3: anybody that they've.

499
00:29:32,360 --> 00:29:33,000
Speaker 4: Broken the law.

500
00:29:33,680 --> 00:29:37,240
Speaker 3: It's about dispute between states. So it can be all

501
00:29:37,280 --> 00:29:39,400
Speaker 3: sorts of things. It can be a border dispute or

502
00:29:39,440 --> 00:29:41,920
Speaker 3: you know, you've damned my river and I haven't got

503
00:29:41,920 --> 00:29:45,000
Speaker 3: the same water supplier it used to have. But it

504
00:29:45,040 --> 00:29:47,160
Speaker 3: also has jurisdiction, you know, it can look at all

505
00:29:47,200 --> 00:29:50,800
Speaker 3: international rules. And what South Africa said essentially to the

506
00:29:50,840 --> 00:29:54,040
Speaker 3: court was, you know, we're all parties for the Genofide Convention.

507
00:29:54,280 --> 00:29:56,680
Speaker 3: Israel as a party. Of course, South Africa is a party,

508
00:29:56,960 --> 00:30:00,480
Speaker 3: and Israel has broken its commitment under the Genofied Convention

509
00:30:01,120 --> 00:30:04,400
Speaker 3: not to commit genericize and so as I'm party to

510
00:30:04,440 --> 00:30:06,680
Speaker 3: the Genofie Convention, and as we all have an interest

511
00:30:06,720 --> 00:30:09,920
Speaker 3: in genocide not being committed. I'm going to complain about it,

512
00:30:10,160 --> 00:30:12,680
Speaker 3: and what I'm going to ask you to do International

513
00:30:12,680 --> 00:30:16,240
Speaker 3: Court of Justice is to tell Israel to stop committing genocide.

514
00:30:16,320 --> 00:30:18,720
Speaker 3: So the court, it was an emergency hearing, so it

515
00:30:18,760 --> 00:30:22,080
Speaker 3: happened very fast. Usually proceedings at that court are extremely

516
00:30:22,120 --> 00:30:24,600
Speaker 3: slow to you, but this is a preliminary and what

517
00:30:25,000 --> 00:30:27,800
Speaker 3: called the provisional measures hearing a bit like an injunction

518
00:30:28,280 --> 00:30:31,480
Speaker 3: in a domestic court, so it went fast. South Africa

519
00:30:31,560 --> 00:30:35,640
Speaker 3: presented its case to the court. What that meant was

520
00:30:35,680 --> 00:30:39,360
Speaker 3: it gave it an opportunity to recite, you know, the

521
00:30:39,480 --> 00:30:44,520
Speaker 3: horrific information that had been coming out, particularly UN bodies.

522
00:30:44,520 --> 00:30:47,720
Speaker 3: I think they only cited United Nations sources. They were

523
00:30:47,800 --> 00:30:50,960
Speaker 3: very careful in their you know what information they used,

524
00:30:50,960 --> 00:30:53,520
Speaker 3: but it gave them the opportunity to recite all this

525
00:30:53,720 --> 00:30:58,240
Speaker 3: horrific evidence about the suffering of people in Gaza in

526
00:30:58,280 --> 00:31:02,520
Speaker 3: this very hallowed, if demed international body in front of

527
00:31:02,640 --> 00:31:05,080
Speaker 3: all the judges of the International crook Justice, which I

528
00:31:05,080 --> 00:31:09,400
Speaker 3: think was already a very important symbolic set and then

529
00:31:09,520 --> 00:31:13,080
Speaker 3: the judges basically said you know it again. It was

530
00:31:13,080 --> 00:31:16,200
Speaker 3: a provisional ruling. So They didn't say genocide as being committed.

531
00:31:16,200 --> 00:31:18,520
Speaker 3: They were actually being asked to decide that that that

532
00:31:18,720 --> 00:31:22,440
Speaker 3: stage the case is now ongoing. But they were asked

533
00:31:22,920 --> 00:31:26,480
Speaker 3: to see whether there was a plausible case essentially that

534
00:31:26,520 --> 00:31:28,960
Speaker 3: genociders being committed. It's a little bit more complicated. It's

535
00:31:28,960 --> 00:31:32,600
Speaker 3: actually a plausible case that the rights of South Africa,

536
00:31:32,680 --> 00:31:36,160
Speaker 3: you know, to have genocide not committed was being violated.

537
00:31:36,320 --> 00:31:39,160
Speaker 3: But anyway, it's been sort of translated slightly through easily

538
00:31:39,200 --> 00:31:42,480
Speaker 3: into saying that it was plausible that genocide was being committed.

539
00:31:42,520 --> 00:31:45,000
Speaker 3: It wasn't quite that, but anyway, they said that that

540
00:31:45,160 --> 00:31:47,840
Speaker 3: threshold had been met, and so they did make an order,

541
00:31:48,040 --> 00:31:50,560
Speaker 3: you know, and they did note the evidence that had

542
00:31:50,600 --> 00:31:54,320
Speaker 3: been put before them about humanitarian existence and targeting civilians

543
00:31:54,360 --> 00:31:57,120
Speaker 3: and so on, and so they just they said to Israel,

544
00:31:57,400 --> 00:32:00,280
Speaker 3: you know, please not only do not commit genericide, but

545
00:32:00,360 --> 00:32:04,080
Speaker 3: stop any incitement to genocide, because some of the materials

546
00:32:04,080 --> 00:32:06,880
Speaker 3: South Africa had put before the court were these statements

547
00:32:06,960 --> 00:32:10,200
Speaker 3: about human animals and you know, these sort of genocide

548
00:32:10,240 --> 00:32:13,400
Speaker 3: sounding statements that different individuals in the government and military

549
00:32:13,440 --> 00:32:16,360
Speaker 3: had made. So they said to Israel, you know, you're

550
00:32:16,400 --> 00:32:19,320
Speaker 3: obliged under the Convention not to commit genocide, to make

551
00:32:19,320 --> 00:32:22,280
Speaker 3: sure nobody under your control does so, and to stop

552
00:32:22,360 --> 00:32:25,360
Speaker 3: incitement to genocide, and also you have to allow humanitarian

553
00:32:25,400 --> 00:32:28,520
Speaker 3: assistance through the Palestinians. So they made that order. The

554
00:32:28,600 --> 00:32:31,640
Speaker 3: International Court made that order to the State of Israel.

555
00:32:31,880 --> 00:32:36,120
Speaker 3: That wasn't singling out the individuals that the International Criminal

556
00:32:36,120 --> 00:32:38,160
Speaker 3: Court has singled out. That was looking at the whole

557
00:32:38,200 --> 00:32:41,680
Speaker 3: state apparatus and telling them to respect their obligations under

558
00:32:41,720 --> 00:32:42,680
Speaker 3: the Genocide Convention.

559
00:32:42,880 --> 00:32:47,240
Speaker 2: Essentially, as far as the I see, they can't try

560
00:32:47,840 --> 00:32:49,480
Speaker 2: and yahoo in abstantia, can they?

561
00:32:50,920 --> 00:32:52,440
Speaker 3: They can't. No, they can't.

562
00:32:53,240 --> 00:32:57,480
Speaker 2: Do you have any final thoughts as an international lawyer.

563
00:32:57,600 --> 00:33:00,920
Speaker 3: As an international lawyer and international criminal lawyer, this is

564
00:33:01,040 --> 00:33:03,840
Speaker 3: quite unremarkable. I mean, it looks solid. It looks like

565
00:33:04,120 --> 00:33:06,920
Speaker 3: he's obviously been doing the investigation. He even mentioned in

566
00:33:06,960 --> 00:33:10,480
Speaker 3: the press release what kind of materials he submitted that

567
00:33:10,600 --> 00:33:13,240
Speaker 3: he talks about interviews as witnesses, but he also talks

568
00:33:13,280 --> 00:33:17,560
Speaker 3: about you know, photiographic evidence and satellite photos and expert

569
00:33:17,640 --> 00:33:20,240
Speaker 3: witnesses and so on. He seems to have taken the

570
00:33:20,320 --> 00:33:24,160
Speaker 3: crimes that seemed most obvious there would be the easiest

571
00:33:24,160 --> 00:33:27,160
Speaker 3: to establish, which makes sense because he wants to, you know,

572
00:33:27,200 --> 00:33:30,680
Speaker 3: he wants a conviction. I think the denial of humanitaring assistance,

573
00:33:30,720 --> 00:33:34,720
Speaker 3: the whole starvation issue, which were readly about boristorically, as

574
00:33:34,720 --> 00:33:37,760
Speaker 3: well as the targeting civilians make sense. I think the

575
00:33:37,800 --> 00:33:40,000
Speaker 3: crimes that her Mass has been charged with around the

576
00:33:40,000 --> 00:33:44,160
Speaker 3: hostage taking also makes sense. So it's caused a big

577
00:33:44,200 --> 00:33:48,000
Speaker 3: political storm, but really from a purely legal point of view,

578
00:33:48,040 --> 00:33:49,480
Speaker 3: it looks pretty reasonable.

579
00:33:49,840 --> 00:33:52,760
Speaker 2: Thanks so much for your time, Kate. That's Kate McIntosh,

580
00:33:52,800 --> 00:33:55,760
Speaker 2: a professor at UCLA Law School and director of the

581
00:33:55,760 --> 00:33:59,480
Speaker 2: Promise Institute for Human Rights. And that's it for this

582
00:33:59,600 --> 00:34:02,880
Speaker 2: edition of Bloomberg Law Podcast. Remember you can always get

583
00:34:02,920 --> 00:34:05,640
Speaker 2: the latest legal news by subscribing and listening to the

584
00:34:05,680 --> 00:34:09,720
Speaker 2: show on Apple Podcasts, Spotify, and at Bloomberg dot com,

585
00:34:09,719 --> 00:34:14,000
Speaker 2: slash podcast, slash Law. I'm June Grosso and this is

586
00:34:14,040 --> 00:34:14,640
Speaker 2: Bloomberg