Call Me Back - with Dan Senor - Diplomatic Avalanche - with Nadav Eyal and Matt Waxman

Episode Date: May 24, 2024

Share on X: https://tinyurl.com/7nwh3c8e Earlier this morning, the International Court of Justice ordered Israel to immediately halt its military operations in Rafah. This comes less than a week after the ICC announced that it is considering arrest warrants against Prime Minister Netanyahu and Defense Minister Gallant, and days after three European countries announced that they will formally recognize a Palestinian State (that doesn’t yet exist!) In this special episode, recorded just minutes after the ICJ announcement, we were joined by Nadav Eyal (journalist with Yediot in Israel) and by Matt Waxman (Columbia Law School professor and former national security legal official in the George W. Bush administration) to unpack each of these developments.

This is supposed to be a clear order. It shouldn't be something that both sides would be able to interpret. And what we're seeing right now is that there is a very powerful interpretation saying that Israel can actually continue its Rafah operation in so far that it does not risk the defense of the protected group that is the Palestinians. For instance, it cannot evacuate all the Palestinians, destroy all structures. But Israel, in any case, is saying that it's only allowing the population to leave so that they won't be hurt. It is 10.40 a.m. on Friday, May 24th in New York City. It is 5.40 p.m. in Israel as we are all now just processing the latest news. We are taping this special episode as a result really just minutes after the ICJ, the International Court of Justice announced that Israel must seize its military operations in Rafah. This comes less than a week after the ICC announced that it is considering arrest warrants against Prime Minister Netanyahu and Defense Minister Gallant and the leaders of Hamas, and days after a handful of European countries

announced that they formally recognize a Palestinian state. I'm joined this morning by Nadav Ayel from Yediot, regular guest on Call Me Back. Later on, we'll be joined by Matt Waxman from Columbia University Law School, who's been on this podcast before. I called them both up, and I was grateful they both called me back to help me unpack each of these developments that are mounting what seems to be like an effort at a full-on diplomatic avalanche for Israel. Hi, Nadav. Hi there, Dan. Nadav, let's start with the ICJ announcement. What was in the announcement and what are the immediate implications for Israel? So as you remember, Dan, South Africa

has brought a case against Israel under the Genocide Convention to the ICJ. And the ICJ is the UN organ, the judicial organ to discuss violations and, of course, conflicts between states that are part of the international community and are signatories to the ICJ. Israel, by the way, is not a signatory to the ICC, as is the United States or India, for instance. But in the case of the ICJ, there is absolutely no doubt that, at least formally, Israel does recognise its judicial sovereignty.

And a few months ago, I was there in The Hague when Israel tried to defend itself against South Africa. Then there were warrants issued by the ICJ, and these warrants said to Israel that it needs to deliver reports as to the condition in Gaza, but none of these warrants said that Israel needs to stop the war or that it needs to stop any specific military activity in that war. But they did discuss the possibility that Israel is, that the Genocide Convention is applicable to what Israel is doing. Now, South Africa has come again in front of the court, now asking immediate action, arguing that under the Convention Against Genocide, Israel is having its operations in the Gaza Strip and specifically in Rafah, and that they need an immediate relief from the court in order to stop Israeli actions there. And I need to underline that this entire discussion is not about war crimes.

It's not about humanitarian assistance as of itself. It's about genocide, right? And everything that the ICJ has done today and has done in the previous decision that it had is under the Convention Against Genocide. And the most important clause in this decision today, in its order today, is the one saying, and I quote, by 13 votes to 2, immediately halt its military offensive and any other action in the Rafah Governat, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part. So, I'll read that again. By 13 votes to 2, Israel should immediately halt its military offensive and any other action in Rafah which may inflict on the Palestinian group, that means the Palestinians, in Gaza conditions of life that

could bring about its physical destruction in whole or in part. Now, this was read by most international press and by Israel as an order to stop the military operation in Rafah, and any other action in or around Gaza that might risk the Palestinians in terms of their destruction, quote-unquote, according to the Genocide Convention. And I should say about that that you can read this sentence in two ways. You can interpret this sentence in two ways. The can interpret this sentence in two ways. The first one is the one that I just presented. It's straight up, stop your operation, Rafah, and stop anything else that you're doing that might destroy the Palestinians.

And the other interpretation, which some of the scholars that I'm speaking with are trying to present, is stop any operations in Rafah and around Gaza that might lead to the destruction of the protected group that is the Palestinians. And the second interpretation isn't saying full stop to all military operations, but just to the actions that might risk the protected group. Now, these scholars that I'm speaking with, Dan, to be frank, are Israelis. I do not think, after reading the entire decision, that this was the intent of the court. Unfortunately, I think that they are saying to Israel, stop immediately your operation in Rafah. And one of the reasons that I think that is because other elements at this decision, there

were four or five other elements. For instance, one of them was that Israel needs to surrender the Rafah crossing that it has captured during this military operation. The Rafah crossing is the one that is on the border between Egypt and between the Gaza Strip. And this is the area from which Hamas managed to get a lot of its weapons, a lot of smuggling was going on. Yeah, this is what we just talked about with Amos Harrell in my last episode, where these 50 tunnels that they've discovered between Egypt, this is where the weapons, this is where the RPG launchers, this is where the equipment and cement and resources for building the tunnel system, this is where everything's been coming through. Israel has to surrender that too? Yeah, and also, and also,

and that's really dangerous for Israel. Israel needs to allow commissions or committees to come and explore the possibility of genocide in Rafah, in other areas of Gaza. And these committees or commissions can come from UN organs. So, for that matter, that could be, I don't know, you know, the UN Human Rights Council, which we, as all of us know, is usually being led by countries like Syria. So, this decision is all around. any way you look at it, you can push different types of interpretations.

But this is really bad news, because this would probably go to the UN Security Council at a certain point, trying to enforce this on Israel. And then the decision would be of the United States. Does it or doesn't it veto the decision? Now, if, I'm jumping to the end with this right now, Dan, if the ICJ would have ordered Israel to stop the war in its entirety, that would have made the White House decision really simple. The White House would have said, look, you know, they're having this. This is their right for self-defense. It's probably the first time in history that someone is being told to stop the entire war, not stop specific actions in that war. It's what the South Africans have

been looking for. This is what Hamas wants. And the White House would say, you know, we're vetoing it when it comes to the UN Security Council. But in this case, the court was specific about Rafah. And it also said, the president of the court said, and we're going to talk about that president because I think it's important and about the country he comes from. But the president said, basically, that they can decide to direct actions that were not asked by the party coming to the court. So they have molded it in a way that they're actually focused at Rafah. And that's really important because the White House has been overly critical about the Israeli intention to penetrate Rafah and to occupy parts of Rafah and to have this military campaign there, arguing that this might lead to a dangerous condition, humanitarily speaking. And now the ICJ comes to this White House and says, yeah, this is going to happen. And we're very worried.

And none of the stuff that we asked Israel to do in our previous sessions has actually happened, at least happened completely. And now we're saying stop Rafah. And now it's a problem, politically speaking, for the Biden administration. And they'll need to make that decision. It's going to be a big decision. And also, if they're going to stop Rafah, of course, they're going to probably halt the negotiations that have just reignited for a new hostage deal. Because then you say to Hamas, which has congratulated the court for this decision, saying, you know, we like this decision,

but it's not enough. You should stop the Israeli operation all across the Gaza Strip because it's genocide. You see, Hamas is saying, this is a great decision by the ICJ, but it's not enough. Right. And it's adopting the principles of this decision. How is the Israeli government responding to these developments? And when I say these developments, I mean, both the news out of the ICJ, but also the European countries recognizing a Palestinian state, which, again, as I said, this sort of avalanche or tsunami or whatever metaphor you want is all

happening at once. So first of all, Israel needs to immediately understand if it's going to adopt the interpretation I presented at the beginning, Dan, saying, we understand that you're telling us to stop all operations that might risk the Palestinians with destruction. We don't intend to destroy the Palestinians, just Hamas, who's fighting against us. And therefore, we don't have any problem with this decision. So that's one way to go. And some Israeli scholars would have wanted Israel to downplay this and say, this is our interpretation to this decision. It's quite dangerous because the language, if you look at the entire document, is quite different. But what I'm hearing right now from the Israeli government and from various party leaders in Israel is a sense of

moral outcry against the ICJ decision. And what you see is a consensus within the Israeli sphere, from Yair Lapid to Benjamin Netanyahu through Benny Gantz and others. So Yair Lapid is the official leader of the opposition, fierce critic of this government, fierce critic of Benjamin Netanyahu, is trying to replace Netanyahu somewhere, somehow. And even he, he's as strong in his response to this and his criticism of it as Netanyahu is and the right wing ministers in his government. And then, of course, everyone in between, like Benny Gantz. Yeah. And what they're saying is they're attacking the court. They're saying that this is a biased decision. They're saying that this is a biased decision.

They're saying that Israel should not obey the order of the court on the one hand, but some of them, for instance, Yair Lapid, he's the leader of the opposition, would say this is the result of where the Netanyahu government has brought us. But basically, if you ask them, should Israel stop the Rafah operation, it's a war-to-wall consensus in the Israeli political sphere right now that no way. And actually, after this decision, the Israeli Air Force made several attacks in Rafah. One of them is substantial. According to initial reports, a senior officer of Hamas was killed in that specific targeted strike of the Israeli Air Force. And this was done immediately after the decision of the ICJ. This is basically the Israeli defense apparatus saying, business as usual, we're going to go on and fight against

Hamas. And of course, the Israeli far right is having their field day with this, saying we have no hope with the international community. They're biased, they're anti-Semitic, they would want us to simply surrender, says Smotrich, to the terrorists of the Nuhba, and for them to come and murder us in our houses, and therefore we should just disregard this kind of international criticism to begin with. But it's not very different, by the way, from stuff said by other figures in our political sphere. Even figures I spoke to on the left in Israel basically argued that what the ICJ does here could be precedent setting for any future Israeli government, any future prime minister from the

right or the left. So a future prime minister, even if it's not Netanyahu, will have to deal with any number of threats, be it Hamas and Gaza and increasingly radicalized West Bank, Hezbollah in the north and beyond. And this could put enormous constraints on future prime ministers who have to deal with these existential threats. Absolutely. And I think that at the end of the day, the Israelis are waiting to see what the US says. And this makes a sea of difference. You know, that's the difference between a country that doesn't obey the ICJ decision and then gets sanctioned by the UN Security Council and becomes formally a far-right state. And then Israel economy and everything else, it's the worst kind of scenarios.

And a country that can say, we have the backing of the United States and this is a political decision. And I have to tell you, I don't think that we should focus on the identity of the president, the new president of the ICJ too much. And I think we should look at the decision as of itself. But this president, who's a Lebanese citizen who served as the Lebanon ambassador to the UN

for 10 years and has talked about the Israeli occupation, is rather symbolic to the politization of the entire international justice sphere. He is very much identified with ideas that are anti-Israeli or very critical of Israel. And this is a matter of public record. It's not my own story. He's, by the way, married to his wife, a Lebanese journalist, who has talked about the war in Gaza substantially. She has a Twitter account. People can just read what she's saying,

including spreading news that the Israeli defense forces would say are false, are fake news, for instance, about the Nasser mass graves and others. And then you get this kind of decision from the ICJ. And specifically, we didn't get, Dan, a lot of specific evidence coming from Rafak saying that there are evidence of mass killings there or anything that should fall under the Genocide Convention. And a good example for that would be to quote from what Aharon Barak, the Israeli justice, of course, the former president of the Israeli Supreme Court. Chief Justice, yeah. And Aharon Barak is one of the most respected

jurists in the world today, constitutionally speaking, and he's going to The Hague all the time. Every time that there is a decision like that, he's more than 80 years old, very sharp. I've spoken with him before he appeared in the first event. So Aaron Barak is saying that unlike with other decisions of the court, South Africa didn't bring the evidence needed to make this decision of ordering a country with its own sovereignty to stop a military operation. There is absolutely no clarity as to the facts that could lead you to this kind of decision. And this is what the Israeli justice is saying. And he was

supported along this process with a justice from Uganda, actually, that has also supported the Israeli case to begin with. I would just add, Barak and Netanyahu and Netanyahu's government have been at odds with one another over most of 2023, over the judicial reform efforts, and they have been fierce critics, directly or indirectly, of one another. So the idea that, again, this just reminds one that this particular crisis is a national crisis. It's not an intra-Israeli political crisis. You have someone like Barak, who, again, has been very much at odds with Netanyahu, still claiming that these developments are totally outrageous. Absolutely.

And I think that to an extent, it brings this question, like we saw with the ICC request for arrest warrants against Galant and Netanyahu, to what extent Israel and the United States for that matter can expect a fair day in the international court or in the international organs of the United Nations. Now, having said that, there is no doubt that the Israelis have given enough rhetoric as weapon for anyone who would want to argue that Israel is committing genocide in Gaza. So if you just look at the rhetoric of ministers in the Israeli government, it's very difficult to explain to, you know, these international justice organs of the UN

that a minister in the Israeli government actually has no influence, usually, on the direction of the IDF in the Gaza Strip. And it's very difficult to explain expressions like, destroy every Amalek, or expressions like, we're going to stop everything flowing into the Gaza Strip, including food, including electricity. This is a quote, for instance, from the defense minister, Yoav Galant, at the time. And one of the things that has happened in Israel is that politicians in Israel have been so quick to threaten and to actually talk to their own base that was enraged by the October 7 attacks. And they talked out of that, I would say, political sentiment and not strategically speaking.

And Israel has not done that in previous wars. So after saying, you know, that the ICJ is not neutral and that international justice is not like the justice system that you would expect in your own country, after saying this, that the president of this court is from a country that is fighting against Israel in these days. Lebanon has allowed Hezbollah to launch attacks, and Hezbollah has attacked Israel on October 8th, and this is the president of the court who just handed this decision. After I'm saying all this, I should also say that this is a huge blow to the Netanyahu government, that this is the result of policies, to an extent, made by this government and rhetoric that was again and again blown by ministers in the government

and sometimes other officials. And this was something that people within the Israeli justice sphere, but also the foreign office and many other places in Israeli society where warning will lead to an international legal action against Israel. So, one of your jobs in a war, and you know that very well, is not only take care of this operation in Rafah or a targeted capture of a Hamas official, but also make sure that you operate within the legal framework of the international community, unjust as you may see it, and also have the support of your allies in that war. This is really the basics of fighting a war, not in the 21st century, but in the 20th century. This is the basics of anyone who has read

Winston Churchill, for that matter. And in that regard, if you look at, you know, the way that the White House has been talking about Israel at the beginning and now, and I'm not downplaying its political considerations, Michigan and all the rest. And if you look at what's happening in Western Europe, and if you look at the ICJ and the ICC, and you also look at the formal remarks made by Israel, and the day after, all the stuff that we've been talking about, Dan, yeah, you said at the beginning that Israel is experiencing sort of a vortex that is sucking up its legitimacy, or something of the sort, an avalanche. And this goes against its war effort. This decision is indeed something that makes Hamas very happy.

Yes. I think, though, that the forces that are gathering around Israel now, diplomatically, would be occurring whether or not Galant said what he said right after October 7th, or whatever Smoltrich and Ben-Gvir has said. I mean, I think it's fair to say that these statements can be a pretext for action that various players in the international community wanted to take in some form or another and probably would have found a way to take them. The real problem isn't the rhetoric. The real problem is that Israel is fighting back. I think that we could have done much better. Let's put it this way. So we're not

going to decide this. If you're asking me, is there real anti-Semitism? Is the world stage biased against Israel? Is there a problem with the fact that Jews are fighting back? You'll find an ally with me. But the way that Israel has conducted itself is truly very far away from anything wise. You know, if the U.S., when it invades Iraq at the beginning of the 2000s, thinks that it needs to tell a story, to have a narrative that will be positive for the Iraqi people, and the U.S. is the world's only superpower at that point, and Israel invades Gaza, it doesn't have a narrative for the day after. It doesn't have any positive narrative to begin with, while being asked by the United States

to have that. Or if the White House and the President of the United States is asking you to deliver flour. But we had in the US, not to digress, we could do a whole episode on lessons of Iraq. But I was just with General Mattis last week, James Mattis, and he reminded me how the Abu Ghraib scandal suddenly became a platform for the international community to rail at the U.S. policy gone awry. As though what happened at Abu Ghraib was representative of overall U.S. policy and overall U.S. war strategy. But either way, none of it led to a serious effort to try to stop Americans from prosecuting their war. And what we're watching right now is an effort, a serious coordinated effort to try to get Israelis from prosecuting this defensive war that they are fighting. And so I take your point that there are Israeli politicians who are sloppy and at times highly irresponsible. But I don't think it changes the trajectory that the international

community has been on with regard to this war. But maybe that's a debate for another time. I do want to talk about your column in Yediot, in your most recent column, which you describe this entire diplomatic mess, obviously this, the recognition of a Palestinian state by three European countries. How would you describe where Israel was, the trajectory Israel was kind of before, on, or immediately after October 7th, relative to where it is now, in terms of its diplomatic position globally? So in October 8, Israel enjoyed a legitimacy from almost every nation in the world that isn't part of the Iranian-Russian, to an extent Chinese, axis to defend itself against Hamas and basically to replace the regime in the Gaza Strip.

This was a support for war. And you saw that not only from the United States and from remarks made by President Biden, of course, by Republicans in the United States, but also you saw this from almost all of Europe, all of Europe, from Ukraine to France, Italy, Spain, wherever you... And also other countries, there was an understanding to where Israel is at and that it cannot live side by side with a regime that is genocidal and has just tried to ethnically cleanse the southern areas of Israel and surprise it with this kind of massive

attack, invasion, actually. And today, Israel is on the verge of being a far-right state. The only country that's really supportive of Israel and is important is, of course, the United States. That's not new. You know, we have seen this in different wars. But what is new is that Israelis are suffering from boycott, academic boycotts, to the extent that people are not managing to publish in Nature, because no one will read an article by an Israeli. And that's a specific story I just heard this week about a specific

Israeli scholar. They get their invites to international conferences, again, academic, being revoked. You're on the verge of a weapons embargo coming from Western Europe. You're trying to talk with the White House about destroying the regiments of Hamas in Rafah. It took the White House months to actually acknowledge that this is going to happen. Yigya Sinwar, at the beginning of the war, agreed quite quickly for a hostage deal because he wanted to halt, at least, you know, for a few weeks, the idea of advance. Today, he's not agreeing because he understands that someone else is going to stop this war for him and that someone else could be sitting in the White House. It can be the voter in Michigan or in Wisconsin, or it can be the ICJ.

So they understand that as bad as the humanitarian situation gets, then it gets better for Hamas in terms of stopping this war. And you're also seeing some very troubling signs with the moderate alliance in the Middle East. For instance, the Egyptians and the Jordanians that are suffering heavy criticism from home. So the Hothajil is stuck. Israel, its leaders are fighting not to get an ICC warrants for their arrest. If these warrants are issued, Dan, the Prime Minister of Israel will not be able to travel to the United

Kingdom or to Germany or to most countries in Western Europe and definitely most countries around the world. And the ICJ has just ordered under the convention of genocide to halt a specific operation in Rafah, or at least try to limit it to a great degree, even if you take the interpretation I presented at the beginning that Israel might adopt. So what we are seeing is really terrible for the Israelis. And this is not me saying this. I just published a poll. It was done by the Reichman University, by an institute there, the Institute for Liberty, not known for its lefty kind of position. And this poll is saying that about 40% of the Israelis think that Hamas has won the war, and the number of Israelis

that think that the IDF has won the war is about 10%. Now, all the rest say, to be honest and fair about this, that the jury is still out, which I think is where I would have voted at this poll. I don't know how this is going to end, but this gives you an idea about the sentiment of Israelis right now. There are four times more Israelis that think that Hamas idea about the sentiment of Israelis right now. There are four times more Israelis that think that Hamas has won the war than Israelis that think that the IDF is winning the war. And the IDF has destroyed most of Hamas regiments in the Gaza Strip. So how could it be? And the answer is that the problem is not with the IDF.

The IDF has not lost battles to Hamas. It has not sank into Gaza. It has not suffered huge blows in Gaza from Hamas. The problem is with the political wing of this war. It is not being fought by this government. And everybody knows this, including ministers from the Likud and the right wing that I've been speaking with since the beginning of the war. Everybody understands that we're in a problem there,

and it's not because the IDF and its commanders messed it up. It might happen, but it's basically because of the way that the government has been conducting itself since October 7. And this, by the way, has various implications and levels, including how civilian they are taking care of the North and the South. And we're not going to go into this. But this is a kind of an Israeli sensation

that this is not going well. I do want to just spend a moment on what I keep referring to, Norway, Ireland, and Spain announcing the recognition of a Palestinian state. Just briefly, what on earth does that mean? Like, I've never seen sovereign governments recognize a state, a new state,

without knowing what the boundaries are. And it's not even clear that the Palestinians recognize this state that's being granted to them or an attempt to grant the state by these three European countries. Like this seems totally unprecedented and actually meaningless in terms of its ability to implement upon it. So first of all, I need to say something about the historic drama of that press conference by Ireland and Spain and Norway, there are, before that announcement, 130 countries around the world that recognize Palestine as a state. So, this is just, you know, three more countries, and they said it's historic, maybe because they think that this world is Eurocentric. They might be right. But it's not historic in the sense that many countries actually recognize

Palestine. And it's not about countries. The ICC recognize Palestine as a state. And that's the reason that Palestine has brought a case against us at the ICC. Or to be exact, what the Palestinians are saying is that the Israelis have invaded their land. Therefore, the ICC has jurisdiction on the offenses of Israel, although Israel is not a party to the ICC Rome Convention to begin with. So you have here international bodies that have recognized Palestine as a state, including UN organs. You have 130 countries before Spain and Norway and Ireland, and now you have these three countries. But I don't want to downplay the importance. The importance is that these are important countries in Western Europe,

and that might lead to other countries to recognize this state. And as to borders, you know, when the United States recognized Israel, when President Truman made that decision, nobody knew what were going to be the borders of Israel. So there was the partition plan accepted by the UN in 1947 with some borders. But at the end of the day, these were not the borders that Ben-Gurion actually had at the end of the war. And that was for the benefit of Israel because no Palestinian state was actually formed because the Palestinians refused the partition plan. So it's another blow to Israel to which it responded with being really angry with Ireland and Spain, and saying it might even close its embassy in Dublin. And Dan, frankly, if you're asking me

what's my problem with these policies, is this is exactly this. This is like, you know, a child just screaming, saying, I'm going to close down my embassy in Dublin. I don't think the Irish actually care too much about that. And if they would have, they would have not made that statement. Now, of course, this is because of their own politics. They have their voters. They have public opinions against Israel. They want to do something symbolic for the Palestinians. And now my remark is to that, is that nothing good has come to this region or to the Palestinians, and I know I'm an Israeli saying that, or to Israel by this recognition.

You know, recognizing Palestine did nothing to advance national self-determination for the Palestinians. And the chances that Palestine will become a real state and will supply its people with security and a chance for peace, and we could live together, something that most reasonable people in the world still think is the best solution, kind of two-state solution, at some point, including Prime Minister Netanyahu, during most of his career as Prime Minister.

So unilaterally recognising the Palestinian rights, this is really good, maybe, for your public polls in Ireland or in Spain. And of course, it gives an air of drama and, you know, a sense of a pro-victim, radical approach to international relations, and we don't care about the US and Israel. But it does nothing good for the region besides saying what? Yeah, Hamas attacked Israel. It opened a war on October 7th. And now it gets this reward of having recognition in Palestinian statehood.

And then Palestinians are incentivized to follow the cue made by Hamas. And that is a cue of violence, mass violence against Israel and mass murder as much as you can. Then if Israel responds, they get some kind of political gain. I just don't think it's a good idea to go down that route. And you know what? Who else thinks exactly this? The entire political sphere in the United States,

including, at least now, the White House says just about the same. Republicans, absolutely. At the US, they get that. But in Western Europe, it's a different story. And of course, they have their political calculations else, we have, as you mentioned, Nadav, we have the request for arrest warrants by the ICC prosecutor. Matt, thanks for joining. Thanks for having me back. Yeah. Well, thanks for calling me back, as we like to say here. And Matt and Nadav, you are, I introduced the two of you to one another. I think you're both familiar with one another. So Matt, just before we dive into this, can you just a very quick primer, like very quick,

what is the ICC? How does it differ from the ICJ? And how are the two connected? And then we'll move on from there. Sure, Dan. So the ICC is often confused with the ICJ. Not only do they have similar initials, but they both sit in the Hague in the Netherlands. So there's a lot of confusion between the two. One way of thinking about the distinction is the ICJ that Nadav spoke of mostly hears cases between states, right? State A versus State B, Mexico versus the United States, South Africa versus Israel. The ICC, the International Criminal Court, hears criminal cases against individuals, right? It's the ICC charging not

Russia, but charging Vladimir Putin. We're here charging Bibi Netanyahu or Defense Minister Gallant or top Hamas leaders. So the court was established in the early 2000s to prosecute war crimes, crimes against humanity and genocide. There are now about 120 states that are party to it, notably not Israel, not the United States, China, India, or Russia, just as some examples. That's what it is. But let me just mention two caveats because they're important when we're talking about the charges against Israel. One is that the ICC is only supposed to consider the is required to defer to national justice systems, that it's a court of last resort that's only supposed to step in if the domestic legal system at issue lacks credible accountability. Okay. So what exactly just happened at the ICC? Like what, what exactly are these charges?

Right. So at this stage, we have a request from the prosecutor, Karim Khan, to the court for arrest warrants against five individuals, two Israeli leaders, three Hamas leaders. It's not an arrest warrant yet. It's a request, an application for an arrest warrant that then goes to a panel of ICC judges who then decide whether to issue that arrest warrant. They decide whether there is sufficient evidence, a sufficient legal case has been made out. Now, we don't know exactly what the allegations are. The prosecutor has only announced them in very, very general terms, but we know basically what they are. And the charges against the Israeli officials, really the core of them is an allegation that they have engaged in a systematic effort to deliberately starve and cause mass suffering of the civilian population in Gaza. This is somehow an Israeli

government strategy of collective punishment. And then on the Hamas side, it's allegations of hostage-taking, mass killing, torture, rape, and some other war crimes. What evidence does the prosecutor have to support this allegation? Well, we don't really know yet. We can surmise based on the ICJ proceedings that Nadav summarized so well, as well as the kinds of things that the prosecutor has spoken about publicly, the kind of advice that he's received. I would say that it is likely a combination of observations that the population in Gaza is suffering, which no doubt is true. I mean, we can come back and talk about Huber's fault and whether there are legal restrictions that are being crossed there. No doubt there's heartbreaking suffering going on in Gaza. And probably the prosecutor is combining those observations from afar, those observations from afar with statements by Israeli political leaders. These are statements dating back probably

to the beginning of the war when, for example, Defense Minister Gallant said, we're going to institute a complete siege. So Dan, we don't yet know what the evidence is. We have some general descriptions of the crimes from the prosecutor. We also know what he has said publicly before. We also have some idea of the kind of advice that he's received from other experts who have been studying the situation. My best guess is that the evidence will consist of observations of widespread civilian suffering in Gaza, which no doubt is happening. I mean, we all see it. There is a debate to be had about who bears responsibility for that. And I want to come to that in a moment. No doubt there is suffering. And what's critical in international criminal law is that there's, as in a lot of domestic criminal law, there's an intent requirement, a mental state requirement. And my guess is that in order to try to paint a picture of Israeli officials deliberately causing starvation, deliberately causing mass suffering, the prosecutor will string together

a set of comments by senior officials dating back to the beginning of the war, for example, when Defense Minister Gallant said, we're going to institute a complete siege of Gaza. Nothing is going to come, nothing is going to get in or out. Probably also comments by, similar comments by Prime Minister Netanyahu, as well as some of the more extreme ministers within the cabinet. But since then, the fact that Israel can point to hundreds of thousands of tons of food coming in and population or as much of the civilian population as it could from Rafah to other parts of Gaza so it can conduct its military operation in Gaza, which you thought actually was a very good fact for Israel, the way he laid it out. these things. And the international community recognizes that Israel is doing all these things. The Biden administration certainly recognizes, it has been quite explicit that Israel has been going to all these lengths. Doesn't that, isn't that contrary to the evidence that may be used against Israel? It's totally contrary. And if we turn to the specific charges or the general charges, since that's all we know at this point, I think the prosecutor is just flat wrong. With regard to the charge of systematic and deliberate killing,

the prosecutor hasn't done the necessary fact-finding, and the charge just is not consistent with any of the efforts that Israel has been taking since the beginning of the war to move civilians, to warn civilians, to avoid certain targets. Now, could or should Israel have shown greater restraint in some operations so far? Maybe, though that's very easy to say in hindsight and from afar. But that's not a case of systematic and deliberate killing of the sort that would merit criminal charges. As for the charge or allegation of deliberate starvation, there I think the case is even worse, right? It's just impossible to square that with the facts of Israel's allowing hundreds of thousands

of tons of supplies into Gaza, facilitating airdrops, creating humanitarian corridors, repairing water systems. Again, even if one thinks that Israel hasn't done enough, and maybe we're talking about extremely difficult security environments here, it's ludicrous to say that those facts add up to a conclusion that Israel is engaged in a campaign of deliberate starvation. I'd also make two other points. One is to refer to something I mentioned earlier, which is the International Criminal Court is required to defer to domestic legal systems. And we're talking here in the case of Israel about a democracy, a rule of law system with very robust processes for enforcing, for complying, ensuring compliance with the law of armed conflict, the laws of war. Now, are those systems perfect? No, no democracy

is perfect. But it seems very clear to me that in a case like this, at the very, very least, the prosecutor was obligated, is obligated to defer to that domestic legal system. Is there any precedent, Matt, on that particular point for political, democratically elected political leaders of a sovereign state being subjected to these kinds of charges and these kinds of warrants or potentially these kinds of warrants, is there any precedent for it when a democracy has a well-recognized judicial system that not only has the capacity to deal with excesses in war, but actually has an ongoing history of the courts in Israel dealing with Israeli government officials, Israeli military personnel for engaging in what are sometimes

characterized as excesses of war? No, there's no precedent here. And I think what we have also, just for context, is a prosecutor at the ICC who is very ambitious and also very capable and experienced. And I think he is looking to his office as one of the international organizations that has some role in managing this conflict, just like Nadav explained before, how the ICJ is inserting itself into this conflict, just like Nadav explained before how the ICJ is inserting itself into this conflict. I think this is ultimately going to be bad for the court. I also think these efforts are going to aggravate the conflict. I think they're going to push the sides actually further apart. But I also just wanted to make the point that even if Israel has a robust democracy, and you've written a lot about that,CC's very mandate that it is to be a court of last resort. It is to defer to the national legal systems and give them an opportunity to work through these issues. I'd also just add that a key idea, and I'm coming back now again

to the allegations against Israel, a key idea running throughout the laws of war is reasonableness. And Israel's conduct needs to be assessed with a realistic understanding of what it means to fight an enemy that plans and operates by embedding itself, a terroristic enemy that fights by embedding itself in and under a civilian population. One has to be reasonable about how that kind of war is going to go. Hamas is engaged with a strategy designed to put civilians in harm's way. And it has been a very, very effective strategy in that regard. And without a realistic understanding of this situation and the need to take into account the military demands of this kind of war, I think international law is going to suffer. Okay. One question briefly for each of you. First of all, when you say international law

is going to suffer, can you put a concrete example of how that may express itself or manifest itself? What does that actually mean, international law will suffer? Yeah. The laws of war are based on a balance between military necessity on one hand. States need to be able to defend themselves effectively. And that's balanced with humanitarian interests, protecting civilians from unnecessary suffering, for example. And that balance can't fall too far in either direction, right? If you don't give adequate attention to humanitarian interests, then it's not really law at all. Then it's just states do what they want in how they want to wage war. But there's a danger in the balance tipping too far in the direction of humanitarian interests, which is that it can impede the reasonable abilities, the reasonable necessities of states in how they protect themselves, especially against

enemies, adversaries that are themselves systematically violating the laws of war. I think one, you know, I would add to Nadav's excellent summary of the ICJ, the recent ICJ case of just this morning, that although it is being, its decision is being cheered in some circles, I don't think that decision is going to prove effective. I think it's going to end up eroding the respect over long-term for the ICJ. And I think the same thing is going to happen with regard to the ICC, that these institutions can only maintain their respect among states if they can accommodate the reasonable needs of those states in how they defend themselves. Nadav, any reaction to that before we wrap? Yeah, I want to add some info because things are changing quickly as we speak. And what I did during Matthew's excellent summary is listen to him and at the same time read the opinions of the judges that were published on the ICJ website.

And what we're seeing is that indeed the interpretation that I presented at the beginning as an interpretation by the Israeli scholars is not only of the Israeli scholars. First of all, it's Justice Barak, in his remarks to the court, who has made this kind of move. And I'm going to quote that to you, Dan, because it's so important, the way that he explains that this doesn't mean that Israel needs to stop the operation in Rafah. Unlike what is said in international press right now, that the court orders Israel to stop operations in Rafah that might risk the destruction of their protected group, that is, the Palestinians. So actually, the court allows military operations in Rafah,

not only according to Justice Barak, but also, for instance, according to Justice Nolte. And I'm just going to read to you what Barak says about this, because this really shows you, you know, the capacity of Aaron Barak. He says, This measure requires Israel to halt its military offensive in Rafah only in so far as it's necessary to comply with Israel's obligations under the Genocide Convention. In this sense, he says, it is merely a reaffirmation of Israel's existing obligation under the Convention. Even without an order issued by the

court, a military offensive that may result in a violation of a state's obligation under the Genocide Convention would have to stop. Israel has never disputed this. Thus, the measures indicated by the court differ decisively from those requested by South Africa. Instead of ordering a blanket suspension and a total withdrawal from the Gaza Strip, the court order is explicitly limited to the existing obligation under the Genocide Convention.

And I wouldn't just quote Aaron Barak here because this is a sort of pro-Israel position and he is the Israeli judge, but because other judges have made the same remark in their opinions. And in that sense, this is, and I'm just saying something that Matthew has hinted to, this is just, we say, you guys in law say, although I did my, you know, my first degree in law, you know, I think bad cases make bad judgments. This is supposed to be a clear order. It shouldn't be something that both sides would be able to interpret. And what we're seeing right now is that there is a very powerful interpretation saying that

Israel can actually continue its Rafah operation in so far that it does not risk the defense of the protected group that is the Palestinians. For instance, it cannot evacuate all the Palestinians, destroy all structures. But Israel, in any case, is saying that it's only doing things, for instance, allowing the population to leave so that they won't be hurt. So in that sense, this thing, this interpretation that I began the program with seems now much more legitimate and being endorsed by the court. And it is, I have to say, very different from the kind of headlines that we saw at the beginning, both in Israel and we're seeing until now by the international press all around. I don't know to what extent this would change things,

Dan. And also, I should stress that the court is very clear in its order that Israel should allow these commissions or committees to come and investigate the argument of genocide within the Gaza Strip. So that's very clear. And that's not part of any interpretation kind of dispute. And also about the Rafah crossing. So all in all, this is, you know, this is not a good news to Israel. But it's also not in order to stop the Rafah operation.

Right. It's not as clear cut stop the Rafah operation. Right. It's not as clear cut. It's not black and white. No, no, no, it isn't. And I think that Israel is going to make that case because basically it's justice made this case during that. And this was accepted, again, at least by Judge Nolte's opinion that I just read. And I also talked with a couple of more professors from international law that have read the entire thing. All right.

We will leave it there, gentlemen. Thank you, including your late-breaking intervention. No, no, we tolerate multitasking here on Call Me Back. People can be a guest while they're gathering information. It's a full-service operation. Nadav Ayel in Tel Aviv, Matthew Waxman in New York City. Thank you both for being here. I'm sure we'll be calling on you both on this issue and probably others soon. So thanks for taking the time. Thank you.