Front Burner - ICC prosecutor wants Netanyahu, Hamas leaders arrested

Episode Date: May 22, 2024

The International Criminal Court’s top prosecutor is requesting arrest warrants for top Israeli and Hamas leaders, including Israeli Prime Minister Benjamin Netanyahu and his defense minister. Officials on both sides are being accused of war crimes and crimes against humanity — claims they strongly deny and argue benefit their enemies.Could these requests make a difference in the war? And what goes into building a war crimes case at the ICC? Michael Lynk, a former UN Special Rapporteur for the human rights situation in the Palestinian Territories, breaks down what comes next.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Jamie Poisson. After many months of speculation, on Monday, the chief prosecutor of the International Criminal Court in The Hague announced that he was seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defense minister, Yoav Galant, as well as three senior leaders of Hamas,

Yahya Sinwar, Mohamed Dey, and Ismail Haniyeh. The prosecutor, Kareem Khan, is seeking to charge the five men with war crimes and crimes against humanity. Observers say that if these arrest warrants are issued, it would be a hugely significant moment for the ICC, because it would be the first time that a powerful Western ally like Israel finds itself in its crosshairs. Michael is an associate professor at the Faculty of Law of Western University in London, Ontario, and he was the UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories from 2016 to 2022.

But before we start, I also just want to make clear that this case at the ICC is different and separate from the two ongoing cases at the UN's International Court of Justice, the ICJ, the one by South Africa accusing Israel of genocide, and the other one looking at the impacts of Israel's occupation of Palestinian territories. The big difference between these two courts is that cases at the ICJ involve countries, whereas the ICC brings criminal cases against individuals for war crimes or crimes against humanity. All right, let's get to it. Michael, hi. Thank you so much for making the time today. We're very appreciative. Thank you very much for having me, Jamie. today. We're very appreciative. Thank you very much for having me, Jamie.

So the ICC's chief prosecutor, Kareem Khan, is asking the court to issue arrest warrants for three senior leaders of Hamas, as well as for Israeli Prime Minister Benjamin Netanyahu and his defense minister. And my understanding is often this early part of the process is basically done in secret, right? Like the public wouldn't find out about it until after the court actually issues arrest warrants. So why would the prosecutor have made this early step public before those warrants are even granted? I think what the prosecutor is thinking here is that he wants to give a very clear warning to both Hamas leaders and Israeli leaders that the court is serious with respect to its information that it's been receiving over the last seven months with regards to allegations of violations of the Rome Statute regarding war

crimes and crimes against humanity. Intentionally causing death, starvation, injury and suffering to the civilian population, including so very many women and children, are criminal means to achieve military and political goals. He's hoping that's going to give pause to how each side is conducting this war, particularly with respect to the continuing hostages being held by Hamas and the way in which Israel is using its military forces now in the southern part of Gaza in Rafah. Right. Okay. So now I want to get to the charges being sought here. Let's start with the three Hamas leaders, Yahya Sinwar, who is the head of Hamas in Gaza, Mohamed Daif, who is the commander-in-chief of the military wing of Hamas, and Ismail Haniyeh, who is head of Hamas's political bureau.

My office submits that there are reasonable grounds to believe that these three Hamas leaders are criminally responsible for the killing of Israeli civilians in attacks perpetrated by Hamas and other armed groups on the 7th of October 2023. The taking of hostages and the other crimes... And what are the war crimes that the prosecutor Khan is seeking to charge these three men with? It's a range of war crimes and crimes against humanity. It's an allegation that Hamas is engaged in extermination of civilians,

that there's been murder, intentional murder of civilians, obviously the taking of hostages, which is a clear violation of the Rome Statute. There are also allegations with respect to rape, torture, and what the prosecutor is calling outrages on personal dignity. So those together are the war crimes and crimes against humanity with respect to the three en masse leaders. In a document issued by the ICC panel of experts looking at this case,

they write that they've, quote, concluded that there are reasonable grounds to believe that the three suspects had a common plan that necessarily involved the commission of war crimes and crimes against humanity, end quote. And they also write that they have reasonable grounds to believe that the crimes were part of a, quote, widespread and systematic attack against the civilian population of Israel,

end quote. When the ICC is building a case like this, what kinds of evidence would they need to gather to demonstrate that both this is a systematic coordinated attack and that the plan came from the very top of the organization? Well, they'd be trying to find obviously the best evidence available. So that would include video taken on October 7th. Many of these videos being taken by mass fighters or fighters from Islamic Shahad or other Palestinian groups that had come into Israel on that day.

They'd be looking at any telephone intercept messages that they wound up receiving through various sources. I know they've met with survivors both in Israel and in The Hague regarding this. All of this together would be part of the dossier, evidentiary dossier, that the prosecutor is building against the Hamas leaders.

A senior Hamas official criticized the ICC prosecutor's decision this week. He told Reuters that it, quote, equates the victim with the executioner, unquote. And just, I'm curious what your reaction to that is. Well, I think virtually anybody who's accused of war crimes or crimes against humanity is going to find arguments as to why it's so unjust that they are the focus of arrest warrants or allegations. You know, Hamas, I think, committed, and there's strong evidence that they did commit these deliberate attacks on civilians. Certainly, they took hostages, Hamas, I think, committed and there's strong evidence that they did commit these deliberate attacks on civilians. Certainly they took hostages and certainly they've been firing on guided missiles towards Israeli civilian communities.

All of those would be war crimes or crimes against humanity. All of those would be, I think, unanswerable with respect to any defense that Hamas leaders may give, should they actually stand trial with regards to this. So now let's talk about Israeli Prime Minister Benjamin Netanyahu and his defense minister, Yoav Galant. What are the war crimes and crimes against humanity that the ICC prosecutor is seeking to charge them with? by Defense Minister Galan, which was followed by the Israeli military with respect to stopping food, fuel, water, and any other of the necessities of life from entering into Gaza after the attacks on October 7th. We are putting a complete siege on Gaza. No electricity, no food, no water, no gas. It's all closed.

And as well, I'm sure the interference or hindrance of the supply of humanitarian aid throughout the seven months of this war will also be on the docket with respect to the allegation of starvation of civilians. They're also alleging willful killing, the intentional directing of attacks against a civilian population, extermination and persecution of Palestinians. You were mentoring those statements by Golan. I think he said, I don't have them right in front of me, but I think he said something like a total siege of Gaza and that everything would be shut down. And this was when he made that

remark about fighting human animals, essentially. My understanding is that this would be the first time the ICC is seeking to prosecute starvation as a war crime. Am I right there? To the best of my knowledge, that is true. Now, we should know that the starvation of civilian population and the denial of the necessities of life is also on the docket with respect to the International Court of Justice and the case being made with respect to both statements made by Israeli political and military leaders, certainly in the days and weeks after October 7th, and the actual actions on the ground with respect to the denial of food, fuel, and water, and the hindrance with respect to humanitarian aid. So Khan has noted that he's still investigating a number of issues related to both Hamas and Israel.

So he could, in theory, end up adding more crimes to these lists, right? Or go after more people here? Of course, yes. And he made that very clear in a statement on Monday. Today, we underline in the clearest possible fashion that international law and the laws of armed conflict apply to everyone. No foot soldier, no commander, no civilian leader, no one can act with impunity. He can widen the number of offenses under the Rome Statute for the five leaders that he has charged. He can widen that to include other people. And remember

that he also has ongoing files from the 2014 war between Israel and Hamas on Gaza, the 2018 Great March of Return, and as well, the Israeli settlements or civilian settlements and occupied territory are deemed to be war crimes under the Rome Statute and the Geneva Convention. So he has all of those in the background. It's just a matter for him, I suspect, of resources and wanting to make the best case on the strongest charges against the most likely accused. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections.

Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income. That's not a typo, 50%. That's because money is confusing.

In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. Since this announcement, I've seen a lot of commentators and experts talking about what a seminal moment this is for this court, the ICC, which has been criticized for focusing too much attention on African countries and not on Western governments, right? And the prosecutor, Karim Khan, actually told CNN's Christian Amonpour this week. And of course, I've had some elected leaders speak to me and be very blunt.

This court is built for Africa and for thugs like Putin, was what one senior leader told me. We don't view it like that. This court is the legacy of Nuremberg. I wonder if you could put that into context for me. How unusual is it for the court to be going after a close ally of the U.S., like Netanyahu? This is the first time that it's happened. All of the previous cases have been arising out of Africa and a few other locations. There has been arrest warrants issued with respect to Vladimir Putin, but never before has a Western ally had its leaders targeted by the ICC prosecutor. So this is momentous.

It's a first important step towards ensuring that law is applied equally to all. to all. When the Rome Statute was adopted in 1998, Kofi Annan, who was then the Secretary General of the United Nations, offered his congratulations in a speech to the countries who had negotiated the Rome Statute. And he said, and he quoted Marcus Cicero, who had once declared 2,000 years ago that in the midst of arms, law stands mute. And Kofi Annan added to that, as a result of what we're doing here today in Rome, there's real hope that the bleak statement will be less true in the future than it has in the past. The idea of extending accountability, the idea of extending justice to all, wherever allegations of war crimes may be committed, is going to be an incomplete project for the longest time. But the fact that it's now

widening its aperture sufficiently to include what's going on in Israel and Palestine, I think is a good day for the court. And I want to talk to you more in a moment about what this kind of accountability might look like practically, right? If this goes ahead. But before we do that, we've heard Israeli officials come out forcefully against the prosecutor's decision. On Monday, Netanyahu recorded a statement calling it a, quote, travesty of justice and a disgrace. Mr. Khan creates a twisted and false moral equivalence between the leaders of Israel and the henchmen of Hamas. This is like creating a moral equivalence after September 11th between President Bush and Osama bin Laden, or during World War II between FDR and Hitler. On Tuesday, Yoav Golan posted a series of tweets on X where he said that, quote,

Kareem Khan's attempt to deny the state of Israel the right to defend itself and release its hostages must be rejected outright, unquote. And Benny Gantz, the third member of the Israeli war cabinet, along with Netanyahu and Golan, and he's not been named in this case. He also criticized the government saying that Israel fought with one of the strictest moral codes and had a robust judiciary capable of investigating itself. And how would you respond to what they're saying there? I know there's a lot going on there, but generally. Sure. Keep in mind that Israel has been heavily criticized by a number of international political

legal forums over its occupation of Palestinian territory over the last 40 and more years. There's been criticism from the Human Rights Council of the United Nations, the General Assembly, the Security Council, and also, obviously, in the last several months, from the International Court of Justice. None of those criticisms, legally or politically, from these forums has any bite with respect to Israel, primarily because Israel is able to turn to the United States for diplomatic shield to protect itself. This application for arrest warrants does have bite because there's nothing that the United States can do formally to try to protect Israel from the issuance of these arrest warrants should the international criminal court be persuaded by the prosecutor's application. And those who have paid attention to the Middle East over the

last number of decades have bemoaned the fact that there is very little accountability in the way which Israel has been conducting its occupation. It's often been said that in the Middle East, international law is closer to power than it is to justice. So that, I think, is a fairly fulsome answer to the kinds of criticisms we would have heard yesterday by the Israeli political and military leadership with regards to this important step. They may be bold, I think, in their criticisms, but they now recognize that if these arrest warrants are actually approved by the court, that suddenly the diplomatic world for

Israel is going to have shrunk considerably with respect to the support that they could hope for from the global north. Well, just talk to me a little bit more about that, about the practical implications here, because I think it's also worth noting that Israel is not a member of the ICC, right? They do not recognize it as having any authority over their officials. So if the court did issue, for example, an arrest warrant for Netanyahu, what would that mean? What would that do to him? Sure. So there are 124 member states of the International Criminal Court. You're right, Israel is not a member, nor is the United States. Canada is, and most European states are, among other places. If the arrest warrants are issued, then there's an obligation on each of the 124 member states to arrest anybody against whom

an arrest warrant has been issued and turn them over to the International Criminal Court in The Hague for trial. So that's going to, as I mentioned, severely restrict where Benjamin Netanyahu and Yoav Galant can wind up traveling to in the future. And for those who may say, well, because Israel's not a member, how is it the court has jurisdiction? The court accepted Palestine as a state and a state member who may say, well, because Israel's not a member, how is it the court has jurisdiction? The court accepted Palestine as a state and a state member in February of 2021, which means that the court does have jurisdiction through Palestine's membership over East Jerusalem, the West Bank, and Gaza. So any allegations of war crimes committed by Israel in any part of the Palestinian

territory, therefore, becomes part of the jurisdiction of the court. And that's what was being exercised yesterday by the application of the prosecutor. I saw yesterday the United States was making an argument that the ICC did not have jurisdiction over prosecuting the Israelis or the leadership of Hamas. We do not believe that they have jurisdiction over either of the parties of this conflict. So you don't think that Hamas leaders should be prosecuted? We absolutely believe that Hamas should be held accountable. That could be either through the prosecution of the war effort by Israel. It could be by being killed. It could be by being brought to justice in an Israeli court.

We do not believe the ICC has jurisdiction over either of the parties. And why is it that they were making that argument? The U.S. has had kind of a tortured relationship with the International Criminal Court. When it was created in 1998, the U.S. had participated in the negotiations, and they did sign the Rome Statute, but it never ratified it. And then under President George Bush, they removed the American signature. So it's never been a member, but it has been cooperating with the prosecutor's office with respect to supplying him with information regarding alleged Russian war crimes in Ukraine, as well as supporting ICC investigations into alleged war crimes in Sudan.

So this raises the issue of if the U.S. has supported the ICC with respect to issuing an arrest warrant for Vladimir Putin, and Russia is not a member, then how is it you're saying, well, the prosecutor has jurisdiction over war crimes in Ukraine, which is a member, but it doesn't have jurisdiction over Israeli alleged war crimes in Gaza or the West Bank or East Jerusalem? What about the argument that they have the capacity to deal with this themselves, right? Like that they can investigate these alleged crimes on their own. That's a very important question. You know, there's a principle that's embedded in the International Criminal Court that state members or states whose individuals might have been charged with violations of the Rome Statute. individuals might have been charged with violations of the Rome Statute, that they should have the initial opportunity to prosecute those who have allegedly committed these crimes in their own

domestic courts. The International Criminal Court is meant only to be a court of last resort when domestic judicial avenues are deemed not to be working. And I'm sure that Israel will raise these arguments. I'm sure the United States will raise these arguments that Israel has a robust domestic judicial system. But I think the answer to that is that's really never happened in Israel's history. No Israeli political or military leader has ever been held accountable with regards to allegations of war crimes or crimes against humanity in domestic Israeli courts, which is why that human rights organizations, both Israeli and Palestinian, as well as

international organizations, have turned to international legal and political forums in order to seek accountability with respect to Israel's conduct of its occupation. And the best example I can use is Israel's massive state investment in the 300 or more settlements that is built in occupied East Jerusalem and the West Bank. An occupying power that builds civilian settlements in occupied territory is committing war crimes under the 1998 Rome Statute, as well as the 1949 Geneva Conventions. well as the 1949 Geneva Conventions. But Israeli courts have never accepted the premise that international law prohibits civilian settlements, and it's therefore impossible for human rights groups to seek justice on this issue in the domestic courts of Israel. I will just note that Israeli governments, successive Israeli governments, have disputed the idea that they are an occupying power. They have also rejected the idea

that the West Bank settlements are illegal. In essence, they argue that they have a historic and legitimate claim to the land. In the past few months, we've seen, as we've talked about, the South Africa genocide case at the ICJ, which is ongoing. There were also hearings at the ICJ looking at the impacts of Israel's occupation of the Palestinian territories. And now there is this request for an arrest warrant for Israel's prime minister at the ICC. And I wonder if you could talk a little bit more about what you think the cumulative effect of all of these legal proceedings might be on Israel's actions, if anything, whether in the long or short term. In the short term, I think it's going to give a significant pause

to other political and military leaders in Israel with respect to their actions. I know that we all have heard the repeated defense given by Israel that we are the most moral or one of the most moral armies in the world, and we don't make any actions with respect to defending our population and our state without serious attention being paid to the demands of international law. I think that argument is running increasingly hollow with respect to how Israel is conducting its occupation. It stands in violation of international human rights law by denying Palestinian self-determination over the last 57 years. It stands in violation of international human rights law by denying Palestinian self-determination over the last 57 years. It stands in violation of international humanitarian law with creating

and perpetuating a forever occupation of the Palestinian territory of annexing Deyuri and de facto Palestinian land and of building over 300 settlements with 740,000 Israeli settlers in East Jerusalem and the West Bank. And now it's roping up against international criminal law with respect to how it's conducted its previous wars on Gaza, as well as its current war over the last seven months. None of it before the application was announced yesterday for seeking the arrest warrants, application was announced yesterday for seeking the arrest warrants, did Israel really give any serious pause with respect to whether or not there might be international consequences for its military and occupation actions? I think now this is going to, or has the potential to, significantly change the political and military discourse within Israel. There's going to have to be much more care being

taken by leaders whenever they succeed Benjamin Netanyahu as to how to relate to the rest of the world. You can see the growing distance between Europe, which is the largest trading partner of Israel, and Israel itself in the course of the last seven months with the European Union Foreign Affairs Chief and a number of European countries saying, we salute the ICC, we support the ICC, and we will enforce any arrest warrants that they may issue arising out of this particular case. So I think finally, the issues of accountability and the end of impunity, I don't think they're going to happen tomorrow. But I think they've changed course with regards to this. And we may see a more careful Israel and one that may be a new leadership that might be more open to taking seriously its relationship with the Palestinians that it lives with.

Right. And worth noting, maybe you and I are talking at around one o'clock on Tuesday, Eastern Standard Time, and both Germany and France have come out in support of the ICC. Canada has not said anything at this point. But finally, before we go, I just want to ask you a question about the Hamas officials. If they were to be prosecuted at the ICC, do you think that that would have any impact on Hamas's actions? Oh, I think it would. You know, you can't suddenly lose your political and military leadership and see it being held accountable at an international forum and not take account of how you've conducted yourself up until that point. So I think, you know, certainly for those who support Hamas within Palestinian society and beyond, the fact that Hamas leaders themselves are being accused of serious war crimes arising out of October 7th and thereafter has to be a significant factor they have to take into account about how they conduct themselves politically and militarily

in the future. All right. Michael, thank you so much for this. I learned a lot. Thank you. Thank you very much, Jamie. Sure, Jamie. All right. So after we recorded this interview yesterday, Foreign Affairs Minister Melanie Jolie said Canada will respect the ICC's independence and there is, quote, no equivalency between Israel and Hamas.

Because one organization is a terrorist organization, the other one is a state. That being said, charges that have been laid are different. What I'm telling you right now is that we will respect the independence of the court and therefore of its process and we'll follow it very closely. And of course, the court will continue to do its work and we will make sure that we react accordingly.

Jolie would not answer questions about whether Canada would arrest Netanyahu if he came to the country while under an arrest warrant, saying it's a hypothetical question. Also, later on Tuesday, U.S. Secretary of State Antony Blinken said that the Biden administration would work with Congress on possible sanctions against the ICC over this decision. All right, that's all for today. I'm Jamie Poisson. Thanks so much for listening, and we'll talk to you tomorrow. For more CBC Podcasts, go to cbc.ca slash podcasts.