Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Donald Trump once vowed to take the witness stand in
Speaker 2: his hush money criminal trial in Manhattan, but his defense
Speaker 2: case wrapped up this morning without jurors hearing from the
Speaker 2: former president, although he did speak to reporters outside the courtroom.
Speaker 1: Case won the case by any standard.
Speaker 3: Any other judge you want to throw the case out,
Speaker 3: any other judgy were to.
Speaker 1: Throw the station out.
Speaker 2: Judge Wanmerschan sent the jury home for a week, setting
Speaker 2: closing arguments for next Tuesday, but the attorneys returned to
Speaker 2: the courtroom in the afternoon to discuss jury instructions, a
Speaker 2: sort of roadmap meant to help jurors apply the law
Speaker 2: to the evidence and testimony. It's a standard part of
Speaker 2: the process that's taken on greater importance because of the
Speaker 2: unusual nature of the thirty four false records charges against Trump.
Speaker 2: To make each crime a felony rather than a misdemeanor,
Speaker 2: jurors must find that Trump intended to commit another crime.
Speaker 2: Much of the debate centered on how the judge will
Speaker 2: explain those other alleged crimes, including election law violations and
Speaker 2: tax crimes. Joining me is Bloomberg Legal reporter David Voriakis,
Speaker 2: who's covering the trial. David. The second and final defense witness,
Speaker 2: Robert Costello, was back on the stand. What did the
Speaker 2: defense hope to get from his testimony?
Speaker 4: The defense called Robert Costello because they wanted to undermine
Speaker 4: Michael Cohen as a witness. This has been a big
Speaker 4: theme of the defense, that Michael Cohen is a liar
Speaker 4: and can't be trusted, and that he had also lied
Speaker 4: on the witness stand in this trial as well as
Speaker 4: in previous testimony under oath, in Congress and in court.
Speaker 4: What the defense wanted to show was that Cohen could
Speaker 4: not we trusted when he said that Costello came to
Speaker 4: him in April of twenty eighteen after the FBI had
Speaker 4: raided Cohen's house, office, and hotel suite, and that Costello
Speaker 4: offered a back channel to President Trump. Cohen testified at
Speaker 4: some length about how Costello tried to offer comfort to
Speaker 4: Cohen that Trump had his back, and Cohen testified that
Speaker 4: he believed that that was just so that he would
Speaker 4: stay in the fold and not cooperate against Trump in
Speaker 4: the criminal investigation that federal prosecutors were conducting at the
Speaker 4: time and.
Speaker 2: What happened on the stand, there was a kerfuffle. I
Speaker 2: don't know how to describe it.
Speaker 4: There was a major kerfuffle in court at the end
Speaker 4: of the day. On Monday, Costello came to this inand
Speaker 4: late in the day and he began to refute several
Speaker 4: of the points that Michael Cohen had made in his testimony.
Speaker 4: He essentially started giving long soliloquies in his answers, which
Speaker 4: is not proper behavior for a witness. They're supposed to
Speaker 4: listen to the question and answer the question that's asked
Speaker 4: and not go off on a long tirade or rancher soliloquy,
Speaker 4: which is what Costello was doing yesterday. And so the
Speaker 4: judge disdained a number of objections, and then at some
Speaker 4: point Costello said, gees when the judge sustained an objection,
Speaker 4: and the judge said, I'm sorry, and then Costello said stricken,
Speaker 4: referring to his own remark. And after a couple more questions,
Speaker 4: Merchants stopped the proceedings and he asked the jury to leave,
Speaker 4: and he said to Costello, mister Costello, I want to
Speaker 4: discuss proper decorum in my courtroom. If you don't like
Speaker 4: my ruling, you don't say ges, and then you don't
Speaker 4: say strike it, because I'm the only one who can
Speaker 4: strike testimony in my corporal He also threatened to hold
Speaker 4: Costello in contempt, and the judge cleared the courtroom, basically
Speaker 4: removing dozens of journalists for several minutes. They then came
Speaker 4: back in and saw more subdued Costello finish his testimony.
Speaker 4: So it was a dramatic moment. It's not entirely clear
Speaker 4: how it might affect the case, if at all, but
Speaker 4: it certainly did not help the defense case because they
Speaker 4: saw Costello as someone who was going to further aroad
Speaker 4: the credibility of Michael Cohen in the eyes of the jury.
Speaker 2: So, David, do you know what made the judge clear
Speaker 2: the courtroom. I've never seen a courtroom cleared.
Speaker 4: It's not entirely clear. I was in the overflow room
Speaker 4: and watching by video hookup, and people in the courtroom
Speaker 4: didn't really understand. Reporters objected, and I believe there was
Speaker 4: a lawyer who tried to speak up on behalf of
Speaker 4: the media, but the judge just didn't allow it. It
Speaker 4: was clear that the judge was quite visibly angry, and
Speaker 4: he felt that Costello was openly defying him, and so
Speaker 4: I think he wanted a moment to really let his
Speaker 4: anger out with Costello not entirely clear why he felt
Speaker 4: the need to clear the courtroom, but at least it
Speaker 4: didn't happen for very long.
Speaker 2: Do you have a transcript of what happened, Well, he
Speaker 2: cleared the courtroom.
Speaker 4: I do, and that's when the judge threatened to cite
Speaker 4: him for contempt. That only went on for brief exchange.
Speaker 4: A lot of the transcript reflects sort of the chaos
Speaker 4: of people objecting in the galleries to being ejected in
Speaker 4: the courtroom's staff trying to clear the gallery.
Speaker 2: Did the prosecution do a good job of crossing Costello.
Speaker 4: The prosecution did a very effective job of showing that
Speaker 4: Costelloose interests seemed to be aligned more with Trump than
Speaker 4: they were with Michael Cohen. In the spring of twenty eighteen,
Speaker 4: Cohen's lawyers had argued and Costello had testified that Costello
Speaker 4: was looking out for Michael Cohen when Michael Cohen was
Speaker 4: very concerned that he would be prosecuted and he was
Speaker 4: exploring the possibility of whether he should cooperate or not
Speaker 4: against Trump. Trump and his supporters were obviously very concerned
Speaker 4: about that. And Cohen had testified, and the prosecution has
Speaker 4: argued essentially that Costello was not looking out for Cohen.
Speaker 4: What he was really looking out for was trying to
Speaker 4: get information about Cohen and his intentions that would help
Speaker 4: Trump in his defense. And the prosecution today on cross
Speaker 4: examination showed a number of emails from Robert Costello that
Speaker 4: it suggested indeed his interests were Donald Trump.
Speaker 2: Now, who was the first witness that the defense called.
Speaker 4: The first witness was a paralegal who works with Todd
Speaker 4: blanch who's the lead defense lawyer, and he put up
Speaker 4: a summary chart of phone calls and communications between Michael
Speaker 4: Cohen and Todd Blant in his law firm. They were
Speaker 4: trying to show that there were a great many communications.
Speaker 4: And Costello had also testified that he believed they had
Speaker 4: an attorney client relationship, which Michael Cohen said they did not.
Speaker 4: But he never hired Bob Costello and he didn't trust him.
Speaker 2: I thought they were going to call an expert witness
Speaker 2: on campaign finance laws.
Speaker 4: They had talked to the judge at some length yesterday
Speaker 4: about the ground rules for how they might question an
Speaker 4: expert witness on campaign finance law, and the judge essentially
Speaker 4: listened closely to the objections with prosecutors who felt it
Speaker 4: would be unfair or a defense campaigns finance experts to
Speaker 4: go into too much detail on the law, and the
Speaker 4: judge agreed, saying essentially that he's the only one who
Speaker 4: can tell the jury what the law is when it
Speaker 4: comes to campaign finance and how it relates to this case.
Speaker 4: And the judge said he didn't want this to become
Speaker 4: a so called battle of the experts where the prosecution
Speaker 4: had to also call their own experts to refute whatever
Speaker 4: the defense experts said, and so he set some very
Speaker 4: strict guidelines on what a expert could say. And after
Speaker 4: considering those strict guidelines, the defense elected not to call
Speaker 4: their experts.
Speaker 2: Did the judge instruct Trump about the waiver of his
Speaker 2: right to testify?
Speaker 4: Surprisingly, the judge did not do that, and it was
Speaker 4: very muted and almost anti climactic. Todd Glintch just that
Speaker 4: your honor, the defense prests. There was no discussion with
Speaker 4: Trump and that was it. Then the judge shortly after
Speaker 4: that told the jury that he was dismissing them until
Speaker 4: next Tuesday, May twenty eight, because there had already been
Speaker 4: pre arranged days off on Wednesday and Friday of this week,
Speaker 4: and of course Monday is Memorial Day. So the judge
Speaker 4: also wanted to have continuity in the closing argument, so
Speaker 4: I guess he was concerned that they wouldn't be able
Speaker 4: to get both closing arguments in one day. So he
Speaker 4: said that it's possible that the closing argument may still
Speaker 4: over next Tuesday into Wednesday, when he expects that deliberations
Speaker 4: will beget in the case.
Speaker 2: Has he set any time limits for the closing arguments?
Speaker 4: He has not set limits yet. He expressed that he
Speaker 4: knew that there was a lot to go over and
Speaker 4: that they would take some time, but he has not
Speaker 4: set a specific length just yet. I assume that as
Speaker 4: we get close to the day he will do that.
Speaker 2: Instructions are critical tell us about the charging conference on
Speaker 2: Tuesday afternoon.
Speaker 4: The judge is expecting to work out how they will
Speaker 4: instruct the jury about applying the law in this case.
Speaker 4: And what's complicated is how the election law applies to
Speaker 4: this case. Because the thirty four pulcification of business record
Speaker 4: counts that Donald Trump's bases are misdemeanors unless they're in
Speaker 4: furtherance of another crime. And the other crime, prosecutors say
Speaker 4: is trying to influence the election illegally in twenty sixteen.
Speaker 4: And so there's a lot of complicated case law on
Speaker 4: this question, and both sides need to make their best
Speaker 4: case to the judge, who will then make a decision
Speaker 4: on how to instruct the jury on the law when
Speaker 4: it relates to the election in twenty sixteen. I'd also
Speaker 4: say that I'd imagine if Trump work victed, the jury
Speaker 4: instruction on election law could be an area of appeal
Speaker 4: for him.
Speaker 2: Has the prosecution said whether it's federal election law or
Speaker 2: state election law that's concerned here.
Speaker 4: In the filings and in arguments, they've discussed both. That's
Speaker 4: why I'm going to be watching closely to see what
Speaker 4: they end up at. I believe in some combination of
Speaker 4: state and federal law.
Speaker 2: So there could be a verdict in this case next week.
Speaker 2: Thanks so much, David. That's Bloomberg Legal reporter David Voriakis
Speaker 2: coming up next on the Bloomberg Law Show. What an
Speaker 2: arrest warrant from the International Criminal Court would mean for
Speaker 2: net and Yahoo. I'm June Grosso and you're listening to Bloomberg.
Speaker 2: The chief prosecutor for the International Criminal Court is seeking
Speaker 2: arrest warrants for Israeli Prime Minister Benjamin Netton Yahoo and
Speaker 2: TAMAS leader Haya Sinwar for war crimes related to the
Speaker 2: Israeli military response in God and the Hamas militant group's
Speaker 2: October seventh attack on Israel. Prosecutor Karim Khan said the
Speaker 2: charges against dat Yahoo included crimes against humanity.
Speaker 5: The crimes include starvation of civilians as a method of warfare,
Speaker 5: wilfully causing great suffering, serious injury to body or health,
Speaker 5: or cruel treatment, wilfel killing or murder, and intentionally directing
Speaker 5: attacks against a civilian population.
Speaker 2: Net Yahoo call the move a moral outrage of historic proportions.
Speaker 1: He is attacking the one and only Jewish state and
Speaker 1: trying to handcuff us, preventing us from exercising responsibly through
Speaker 1: the laws of war. As we obey them and we
Speaker 1: are subordinate to them. He's saying we're not. He's creating
Speaker 1: false symmetry, false facts.
Speaker 2: Joining me is Kate Macintosh, UCLA law professor and director
Speaker 2: of the Promised Institute for human rights explain the charge
Speaker 2: thanks for us.
Speaker 3: The accupations fall into two different categories obviously, so as
Speaker 3: far as the must leaders are concerned, the focus is
Speaker 3: of course on the hostage taking and the extermination and
Speaker 3: murder that was committed on October the seventh, and the
Speaker 3: treatment of the hostages a rather than mistreatment of the
Speaker 3: hostages since then, and the prosecutor has characterized those acts
Speaker 3: as both war crimes and crimes against humanity, which means
Speaker 3: to say, after the widespread or systematic attack on the
Speaker 3: civilian population, So those are two different crimes under their
Speaker 3: own statute. There's war crimes violations of the laws of war,
Speaker 3: and then crimes against humanity which don't have to be
Speaker 3: committed in an armed conflict, but which can be. Looking
Speaker 3: at the charges against Netanyahu and Galants, these fall mainly
Speaker 3: into two categories. One is crimes around the placing of Gaza,
Speaker 3: effectively Understegd, so the denial of access to humanitarians distance
Speaker 3: what he characterizes is starvation of civilians as a method
Speaker 3: of warfare for the besieging of Gaza. And then the
Speaker 3: other main crime that they're charged with is intentionally directing
Speaker 3: attacks against the civilian population, which is a war crime
Speaker 3: under laws of war. Of course, it's only committed to
Speaker 3: target military objectives, not to target civilians, and Kareem Kan't
Speaker 3: is charging Mettagnohu and Gallant with having intentionally attacked civilians.
Speaker 2: The panel was unanimous. What's the standard? Is the standard
Speaker 2: reasonable grounds to believe?
Speaker 3: Yeah, it's a relatively low standard at this point. There
Speaker 3: are actually three different points during the process of a
Speaker 3: case where the evidence is tested against an acue. So
Speaker 3: this is just the first one in order to issue
Speaker 3: the arrest warrant, and the judges who look at this
Speaker 3: application have to be satisfied that there are reasonable grounds
Speaker 3: to believe that the crimes are being committed. Don't test
Speaker 3: any evidence, and even some of the evidence can be
Speaker 3: provided in summary. What it really means is that the
Speaker 3: judges will look at each element of the crime and
Speaker 3: they'll see whether there is evidentially support of each of
Speaker 3: those elements. So the finding they're really making is if
Speaker 3: all of this evidence stands up, then the crime has
Speaker 3: been committed. So it's a relatively low threshold. I'd be
Speaker 3: very surprised if the prosecutor fails in this request because
Speaker 3: I can't imagine that he would have presented an inadequate
Speaker 3: admission for something so high profile, and he's also asked
Speaker 3: this panel of experts to kind of confirm that he's
Speaker 3: on solid ground here. So that, combined with the fact
Speaker 3: that the test is a fairly low bar, I think,
Speaker 3: means that we're likely to see the trial chamber granted
Speaker 3: his request for the arrest warrant.
Speaker 2: So, just to be clear, the prosecutor at this point
Speaker 2: is requesting a warrant and then it will go to
Speaker 2: a court panel to decide whether or not to issue
Speaker 2: the warrant.
Speaker 3: Yeah, exactly, it goes to what the iccquells a pre
Speaker 3: trial chamber. It will be three judges who are put
Speaker 3: together who consider a range of requests that come up
Speaker 3: before the trial actually starts, and they will be the
Speaker 3: ones who will be looking to see if all the
Speaker 3: elements of the crimes have been substantiated by the material
Speaker 3: that he's put before them. Just you know, by way
Speaker 3: of explaining what then goes on to happen with the
Speaker 3: evidence before the trial happens. There's another procedure, which is
Speaker 3: the confirmation of the charges, and that is of course
Speaker 3: still what the trial, but it's a higher standard. At
Speaker 3: that point, the judges will have to consider again, a
Speaker 3: pre trial chamber of judges will have to consider whether
Speaker 3: there are substantial grounds for believing that the crimes have
Speaker 3: been committed. So we've gone from reasonable grounds up to
Speaker 3: substantial grounds. And at that point the accused can object,
Speaker 3: can challenge the evidence, and can present is or her
Speaker 3: own evidence as well. So it's not a trial, but
Speaker 3: it is a kind of higher threshold where the evidence
Speaker 3: is tested to some certain accounts, and if the prosecutor
Speaker 3: manages to cross that threshold, then the trial can go ahead.
Speaker 2: Israel is not a member of the ICC. Let's say
Speaker 2: the rest warrant is issued, what does it really mean
Speaker 2: for net Yahoo?
Speaker 3: I mean the site that Israel is not a member
Speaker 3: of the icy seed, so it's not relevant to the
Speaker 3: jurisdiction over Netanyahu, just because the crimes were committed on
Speaker 3: the territory, well, a territory which is subject to the jurisdiction.
Speaker 3: So the ICC, as you know, has accepted Palestine as
Speaker 3: a member state of the ICC. They were very careful
Speaker 3: to say that they were just deciding in terms of
Speaker 3: ICC membership and not making any bigger statements about whether
Speaker 3: there's a state of Palestine, but that means that any
Speaker 3: acts committed on the territory of a state's party, because
Speaker 3: the statute is subject to the jurisdiction of course, so
Speaker 3: any state can delegate its jurisdiction to a court. So
Speaker 3: that's what Palestine has done. So that's how they are
Speaker 3: permitted to charge Netanyahu and Land, even though of course
Speaker 3: their nationality as Israelis would normally place them outside the
Speaker 3: jurisdiction of the court because Israel isn't part of the
Speaker 3: system practically though, and I think that's more what you're getting.
Speaker 3: There is an issue about how the court is going
Speaker 3: to get their hands on them, right, because I mean,
Speaker 3: for a start, they are sitting, you know, Prime Minister
Speaker 3: and Minister of Defense, so they're obviously not going to
Speaker 3: hand themselves over. Even if Dan was a state party,
Speaker 3: there'd be an interesting situation there. But most to the point,
Speaker 3: Israel is not under any obligation to comply with an
Speaker 3: order of the court. So it's more an issue for
Speaker 3: travel for Netanyahu and Galant if the arrest warrant is granted,
Speaker 3: and as I said, I think we can be fairly
Speaker 3: confident that it will be. That's going to be very
Speaker 3: interesting because travel to member state of the ITC should
Speaker 3: mean that that state will arrest them, will execute the warrant.
Speaker 3: So that could be problematic because.
Speaker 2: Last year, and I believe we talked at that time
Speaker 2: Russian President Vladimir Putin the quarter should have warrant for
Speaker 2: him for Doug short of children, and nothing. Nothing's happened
Speaker 2: there exactly.
Speaker 3: So that would be exactly an analogous situation.
Speaker 2: Yes, let's talk about this internally in Israel and internationally.
Speaker 2: So as far as Israel goes, has this backfired because
Speaker 2: it seems as if it's cemented support for net Yao
Speaker 2: at home, including two members of his cabinet who threatened
Speaker 2: to resign in recent days if he didn't have a
Speaker 2: clear post war vision for Gaza. So has it backfired
Speaker 2: in that sense, at least in Israel.
Speaker 3: Possibly, It's hard to know, isn't it. I think, you know,
Speaker 3: it may have done. On the other hand, I suppose
Speaker 3: that you know, there may also be segments of Israeli
Speaker 3: society who feel, you know, that it's a stigma that
Speaker 3: they're very unhappy about, and it might encourage opposition to Netanyahu.
Speaker 3: I think it's important to remember that that is not
Speaker 3: a calculation that the ICC prosecutor is supposed to be making.
Speaker 3: You know, the ICC prosecutor is not meant to be
Speaker 3: calculating what the political implications of his indictments or his
Speaker 3: requests for arrestaurant are. He's been given authorization to open
Speaker 3: an investigation, he's meant to conduct his investigation, and where
Speaker 3: he finds evidence of crimes committed in the statute, he's
Speaker 3: supposed to ask request in a restaarrant as he's done. So,
Speaker 3: the political ramifications are hard to say which way they're going.
Speaker 3: I mean, I wouldn't be surprised if it creates some
Speaker 3: kind of solidarity, is well. I think we can all
Speaker 3: kind of imagine that that is a somewhat natural reaction.
Speaker 3: But that isn't really something that Kareem Khan should be
Speaker 3: thinking about internationally.
Speaker 2: Netanyahu already has a troubled reputation internationally. Does this add
Speaker 2: a little more of a blemish to his name?
Speaker 3: Oh for sure. I mean, apart from anything else to
Speaker 3: any sort of headed state meetings that are held in
Speaker 3: a state that's parties to the ICC, I mean, they
Speaker 3: wouldn't really be able to invite Menyah. And so we're
Speaker 3: talking about pretty much the whole of Europe, Latin America, Africa.
Speaker 3: You know, there are one hundred and twenty four states parties,
Speaker 3: so that ICC including some very powerful states on the
Speaker 3: global stage. So he will already become somewhat of a
Speaker 3: pariah in those circumstances, because no state, frankly wants to
Speaker 3: be in the position of having to arrest him and
Speaker 3: hand him over to the court. So I think they
Speaker 3: would be very likely to just discourage him from traveling
Speaker 3: to their territory.
Speaker 2: What are the powers of the International Criminal Court.
Speaker 3: In terms of sort of outside its own walls. The
Speaker 3: powers are entirely dependent on other states. So it doesn't,
Speaker 3: of course have some kind of international police force so
Speaker 3: that it can send out to arrest people. It can't
Speaker 3: enforce its orders.
Speaker 4: It is a.
Speaker 3: Creation of states. So the states that have signed up
Speaker 3: to its statute, the states that run the court, I
Speaker 3: mean the members states that the International Criminal Court meet
Speaker 3: every year in December in either New York or the
Speaker 3: Hague to discuss how to run the court. There, of
Speaker 3: course don't interfere with the legal proceeds and the work
Speaker 3: of the judges and the prosecutor. But they decided you know,
Speaker 3: how much money to give it, they can amend the
Speaker 3: statute and so on. So those are the states who
Speaker 3: are also responsible for enforcing the orders of the court.
Speaker 3: So that's why a state in whose territory any of that,
Speaker 3: you know, either the Hamas or the Israeli indicities arrived,
Speaker 3: would be bound to execute that order. I mean, if
Speaker 3: it's granted the arrestaurant and hand them over to the court,
Speaker 3: because the court itself doesn't have any enforcements independent of
Speaker 3: the states.
Speaker 2: What was the last leader that they've prosecuted, actually, you know,
Speaker 2: held a trial for well.
Speaker 3: The last sitting There is a precedence of having prosecuted
Speaker 3: a sitting head of state which did not go well,
Speaker 3: and that was the ken Yata in Kenya. I mean
Speaker 3: that prosecution ended essentially, you know, very poorly, and what
Speaker 3: became clear was that it was almost impossible. I mean,
Speaker 3: it was an unsuccessful prosecution. It became clear that it
Speaker 3: was almost impossible to prosecute or to effectively investigate a
Speaker 3: sitting head of state in the country. So there were
Speaker 3: all sorts of allegations of witness intimidation. I believe some
Speaker 3: of those were established. If I'm not miss speaking, I
Speaker 3: think one witness died in very mysterious circumstances and the
Speaker 3: case was eventually dropped. So I mean that was really
Speaker 3: a case of prosecuting a leader that came up against
Speaker 3: real politique and realizing that when somebody is still wielding
Speaker 3: the power of the state, it's extremely difficult for something
Speaker 3: like the International Criminal Court, which, as I said, relies
Speaker 3: on states for enforcement of its orders, than to work
Speaker 3: effectively to carry out its mandates.
Speaker 2: Coming up next on the Bloomberg Launch Show, I'll continue
Speaker 2: this conversation with UCLA law professor Kate McIntosh, and we'll
Speaker 2: talk about President Joe Biden's response to the ICC seeking
Speaker 2: an arrest warrant for net and Yahoo.
Speaker 3: True allegations against Israel made by the International Court of Justice.
Speaker 4: What's happening is not genocide.
Speaker 2: To reject that, President Joe Biden has defended Israel and
Speaker 2: railed against the International Criminal Courts prosecutor who's seeking arrest
Speaker 2: warrants for Israeli Prime Minister Benjamin Netanyahu on war crimes charges.
Speaker 2: Prosecutor Kareem Khan is also seeking an arrest warrant against
Speaker 2: the Hamas leader on war crimes charges and Biden said
Speaker 2: that whatever this prosecutor might imply, there's no equivalence none,
Speaker 2: between Israel and Hamas, and he refused to agree with
Speaker 2: any notion that the war in Gaza is genocide. I've
Speaker 2: been talking to Kate McIntosh, a professor at UCLA Law
Speaker 2: School and director of the Promise Institute for Human Rights.
Speaker 2: Actually the objection from Biden, part of it was equating
Speaker 2: Israel's actions and Hamas's action, And I mean, is it
Speaker 2: wise It seems like, you know, it's Solomon's splitting the base.
Speaker 3: I think it was his only option. Actually, I don't
Speaker 3: think he could possibly have proceeded against only one party here.
Speaker 3: I mean, in a way, the law that he's applying
Speaker 3: does parties to a conflict on as somewhat equal fitting.
Speaker 3: So the laws of war are not concerned with the
Speaker 3: reason for fighting. So any of the justifications that either
Speaker 3: side has, whether it's the occupation and the impression of
Speaker 3: Palestinians or you know, the existential threat coming from her
Speaker 3: math and the hostage taking, those are completely irrelevant in
Speaker 3: assessing whether the laws of war have been followed. The
Speaker 3: international humanitarian law, the laws of war Geneva Conventions are
Speaker 3: about the rules once you're in a conflict, and at
Speaker 3: that point, a state or you know, the groups are
Speaker 3: seen only as either state or non state actors. There's
Speaker 3: no characterization of good or bad or terrorist or whatever,
Speaker 3: and you know, rules applied to both. And what the
Speaker 3: prosecutor has done is he's applied those rules to the
Speaker 3: facts that he's found violating by side, which I think
Speaker 3: we could anticipate would have been the case for what
Speaker 3: we've all covered in the news. So in a way,
Speaker 3: the framework he's working with it does apply to all sides,
Speaker 3: and it almost does put them not on an equal footing,
Speaker 3: but it makes irrelevant their motivations for fighting, the historical contexts,
Speaker 3: whether they see themselves as on taking part in a
Speaker 3: just war, whether they're a state actor or non state actor.
Speaker 3: It just looks at these are the rules, and how
Speaker 3: have they been violated, And if he were to apply
Speaker 3: those onnly to one party, I think it would be
Speaker 3: you know, it would be totally unacceptable and look extremely biased.
Speaker 2: Back in twenty twenty, when Trump was president, he authorized
Speaker 2: economic and travel sanctions on the ICC prosecutor and another
Speaker 2: senior prosecutor because they were looking into possible war crimes.
Speaker 2: In Afghanistan. Has it always been an uphill battle for
Speaker 2: the ICC?
Speaker 3: Why where the US is concerned. I mean, yeah, that
Speaker 3: was We were also shocked when that happened. And then
Speaker 3: some of President Biden's rhetoric has seems to be almost
Speaker 3: going in the same direction, which is perhaps a bit disappointing. Listen,
Speaker 3: the ICC is never going to make people happy. There's
Speaker 3: less of a fust when the ICC is prosecuting somebody
Speaker 3: from the Democratic Republic of Congo because the individuals in
Speaker 3: the Democratic Republic of Congo do not have the powerful
Speaker 3: friends that Benjamin Metignau does. But you know it's never
Speaker 3: going to be I mean, it's an enforcement activity. To
Speaker 3: arrest some of from an international crime is clearly going
Speaker 3: to make ripples, and I think that, you know, the
Speaker 3: prosecutor has to be prepared for that.
Speaker 2: Nenyell, who has been compared to a phoenix rising from
Speaker 2: the ashes, nothing seems to affect him. He keeps on
Speaker 2: going and going. Will this be any different do you think?
Speaker 2: I mean, he's been doing interview after interview defending his
Speaker 2: actions and equating an attack on him as an attack
Speaker 2: on Israel.
Speaker 3: Who knows It's very hard to say. I think it
Speaker 3: is going to affect his international standing. I don't know
Speaker 3: how it's going to play out domestically. I mean what
Speaker 3: we saw in the cases Slabodan Melosovitch for example, so
Speaker 3: another Leadia that was indicted for international crimes. It's time
Speaker 3: not by the international Criminal Court, but by the Yugoslavia
Speaker 3: War Crimes Tribunal. He was indicted. I think that probably
Speaker 3: facilitated his removal from power, and then he was handed
Speaker 3: over eventually to the tribunal. So we have also that precedence.
Speaker 3: As I said, who knows how it's going to play
Speaker 3: out for Vanetan Yahoo, Yeah, I mean how's it going
Speaker 3: to play out for Putin? I think there's some similarities there,
Speaker 3: and they're both strong leaders, seem to be clinging to power.
Speaker 3: You know, it's hard to tell. Of course, in Israel
Speaker 3: it's a lot easier to understand the opposition because of
Speaker 3: the democratic nature of the country, and we've seen the
Speaker 3: demonstrations and we could read the repress. That isn't the
Speaker 3: case in Russia. But I would say the situation for
Speaker 3: both of those leaders will become more tricky when they're
Speaker 3: no longer head.
Speaker 2: To stick and tell us about the international Court of
Speaker 2: Justice where South Africa is making a genocide case against Israel.
Speaker 3: The International Court of Justice, the World Court in the Ague,
Speaker 3: so the non criminal court. So South Africa brought the
Speaker 3: complaints against Israel under the Genocide Convention. So that's the
Speaker 3: International Court of Justice that operates. You can imagine it
Speaker 3: much more like a sort of civil proceedings in the
Speaker 3: domestic court. So it's more like a country suing in
Speaker 3: other countries. It's not an independent authority, you know, telling
Speaker 3: anybody that they've.
Speaker 4: Broken the law.
Speaker 3: It's about dispute between states. So it can be all
Speaker 3: sorts of things. It can be a border dispute or
Speaker 3: you know, you've damned my river and I haven't got
Speaker 3: the same water supplier it used to have. But it
Speaker 3: also has jurisdiction, you know, it can look at all
Speaker 3: international rules. And what South Africa said essentially to the
Speaker 3: court was, you know, we're all parties for the Genofide Convention.
Speaker 3: Israel as a party. Of course, South Africa is a party,
Speaker 3: and Israel has broken its commitment under the Genofied Convention
Speaker 3: not to commit genericize and so as I'm party to
Speaker 3: the Genofie Convention, and as we all have an interest
Speaker 3: in genocide not being committed. I'm going to complain about it,
Speaker 3: and what I'm going to ask you to do International
Speaker 3: Court of Justice is to tell Israel to stop committing genocide.
Speaker 3: So the court, it was an emergency hearing, so it
Speaker 3: happened very fast. Usually proceedings at that court are extremely
Speaker 3: slow to you, but this is a preliminary and what
Speaker 3: called the provisional measures hearing a bit like an injunction
Speaker 3: in a domestic court, so it went fast. South Africa
Speaker 3: presented its case to the court. What that meant was
Speaker 3: it gave it an opportunity to recite, you know, the
Speaker 3: horrific information that had been coming out, particularly UN bodies.
Speaker 3: I think they only cited United Nations sources. They were
Speaker 3: very careful in their you know what information they used,
Speaker 3: but it gave them the opportunity to recite all this
Speaker 3: horrific evidence about the suffering of people in Gaza in
Speaker 3: this very hallowed, if demed international body in front of
Speaker 3: all the judges of the International crook Justice, which I
Speaker 3: think was already a very important symbolic set and then
Speaker 3: the judges basically said you know it again. It was
Speaker 3: a provisional ruling. So They didn't say genocide as being committed.
Speaker 3: They were actually being asked to decide that that that
Speaker 3: stage the case is now ongoing. But they were asked
Speaker 3: to see whether there was a plausible case essentially that
Speaker 3: genociders being committed. It's a little bit more complicated. It's
Speaker 3: actually a plausible case that the rights of South Africa,
Speaker 3: you know, to have genocide not committed was being violated.
Speaker 3: But anyway, it's been sort of translated slightly through easily
Speaker 3: into saying that it was plausible that genocide was being committed.
Speaker 3: It wasn't quite that, but anyway, they said that that
Speaker 3: threshold had been met, and so they did make an order,
Speaker 3: you know, and they did note the evidence that had
Speaker 3: been put before them about humanitarian existence and targeting civilians
Speaker 3: and so on, and so they just they said to Israel,
Speaker 3: you know, please not only do not commit genericide, but
Speaker 3: stop any incitement to genocide, because some of the materials
Speaker 3: South Africa had put before the court were these statements
Speaker 3: about human animals and you know, these sort of genocide
Speaker 3: sounding statements that different individuals in the government and military
Speaker 3: had made. So they said to Israel, you know, you're
Speaker 3: obliged under the Convention not to commit genocide, to make
Speaker 3: sure nobody under your control does so, and to stop
Speaker 3: incitement to genocide, and also you have to allow humanitarian
Speaker 3: assistance through the Palestinians. So they made that order. The
Speaker 3: International Court made that order to the State of Israel.
Speaker 3: That wasn't singling out the individuals that the International Criminal
Speaker 3: Court has singled out. That was looking at the whole
Speaker 3: state apparatus and telling them to respect their obligations under
Speaker 3: the Genocide Convention.
Speaker 2: Essentially, as far as the I see, they can't try
Speaker 2: and yahoo in abstantia, can they?
Speaker 3: They can't. No, they can't.
Speaker 2: Do you have any final thoughts as an international lawyer.
Speaker 3: As an international lawyer and international criminal lawyer, this is
Speaker 3: quite unremarkable. I mean, it looks solid. It looks like
Speaker 3: he's obviously been doing the investigation. He even mentioned in
Speaker 3: the press release what kind of materials he submitted that
Speaker 3: he talks about interviews as witnesses, but he also talks
Speaker 3: about you know, photiographic evidence and satellite photos and expert
Speaker 3: witnesses and so on. He seems to have taken the
Speaker 3: crimes that seemed most obvious there would be the easiest
Speaker 3: to establish, which makes sense because he wants to, you know,
Speaker 3: he wants a conviction. I think the denial of humanitaring assistance,
Speaker 3: the whole starvation issue, which were readly about boristorically, as
Speaker 3: well as the targeting civilians make sense. I think the
Speaker 3: crimes that her Mass has been charged with around the
Speaker 3: hostage taking also makes sense. So it's caused a big
Speaker 3: political storm, but really from a purely legal point of view,
Speaker 3: it looks pretty reasonable.
Speaker 2: Thanks so much for your time, Kate. That's Kate McIntosh,
Speaker 2: a professor at UCLA Law School and director of the
Speaker 2: Promise Institute for Human Rights. And that's it for this
Speaker 2: edition of Bloomberg Law Podcast. Remember you can always get
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Speaker 2: slash podcast, slash Law. I'm June Grosso and this is
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