What A Day - What A War Crimes Arrest Warrant for Netanyahu Really Means

Episode Date: May 25, 2024

The International Criminal Court is formally seeking warrants to arrest Israeli Prime Minister Benjamin Netanyahu and Hamas leader Yahya Sinwar. But what power does the ICC actually have? Does anything they do matter? This week on How We Got Here, Max and Erin take a look at the short history of the world’s paramount arbiter of war crimes and human rights—an impressive title for a court that seldom convicts. The hosts pick apart cases against the leaders of Kenya, Yugoslavia and Russia to determine why the ICC matters, and to whom.

I've got a riddle for you, Max. The doctor was his mother? No. Although that is a popular answer to riddles. What kind of court has no cops, no way to arrest people or compel witnesses, and no way to enforce its rulings? Uh-huh. It sounds like a court that I would not take very seriously if it sent me a summons.

The answer is a tennis court. You're not alone in feeling that way about this particular house of justice. That feels like a hint. Here's another hint. Two people who share your view of the court in question are Israeli Prime Minister Benjamin Netanyahu and Hamas leader Yahya Sinwar. Oh, duh. It's the International Criminal Court. A body with less power than a small-town traffic court and yet somehow has more authority than any Supreme Court. Now there's your riddle.

I'm Max Fisher. And I'm Erin Ryan. This is How We Got Here, a new series where we explore a big question behind the week's headlines and tell a story that answers that question. Our question this week, does the International Criminal Court actually matter? It's never a good sign when you're asking whether the world's paramount arbiter of war crimes and human rights is maybe bullshit. Well, it's a question that world leaders think about a lot, too, because the question of how real this court is or isn't matters a lot for what those leaders think they can get away with. Presumably, it's also a question on the minds of those two Middle Eastern leaders I mentioned now that the court's prosecutor is seeking arrest warrants for them both. It's my strong conviction that if we do not demonstrate our willingness to apply the law equally,

if it is seen as being applied selectively, we will be creating the conditions for its complete collapse. That was Kareem Khan, the ICC chief prosecutor, announcing he was formally seeking warrants to arrest Netanyahu and Sinwar, along with a few other Israeli and Hamas leaders. Okay, but his comment about protecting the ICC's authority brings me back to my question, because it implies that the court has authority to uphold, but does it? So, yes, but not precisely in the ways that you might think.

Okay, Max, you're going to have to enlighten me then, because a court that issues arrest warrants but has no way to enforce them doesn't really feel like the world's most formidable body. It doesn't. So instead of our usual one story this week, we have three. Each is about a world leader who, like Netanyahu and Sinwar probably will be soon, got indicted by the International Criminal Court for Crimes Against Humanity. And what happened to them? A real Goldilocks. Three stories. I'm guessing the answer was not swift and decisive justice. So sometimes actually it is, and sometimes it's not, and sometimes it's in the middle.

But there are a few consistent patterns in how international justice works and in when it works that when you see them, well, it starts to make more sense why people take this court seriously, even with its shortcomings. Okay, let's start with the bad news. Tell us about a head of state who faced charges from the International Criminal Court and got away with it. So, Erin, are you familiar with a guy named Uhuru Kenyatta? I'm going to use context clues and take a wild guess that the leader named Kenyatta was the president of Kenya. Bullseye. But before that, he was charged by the ICC with having organized political violence that killed over 1,000 people. So not war crimes.

No, but some crimes against humanity are under the remit of courts like the ICC. Okay, got it. So what happened? Well, in short, Kenya had a presidential election in 2007. Uhuru Kenyatta was not on the ticket, but his party came in a very close second. He and others in his party accused the winners of stealing the election. I've heard this song before. It sounds very Stop the Steal. It gets worse. Kenyatta and others were accused of organizing these partisan activist groups to violently rise up across the country to challenge the election results. So Kenya's January 6th, sort of.

Yeah, which then spiraled into mass violence against the winning party's supporters. Using machetes and other crude weapons, the youth meted out brutal violence on anyone they found. There are now fears that the cycle of attack and revenge is already beyond the control of the security forces. That was from an Al Jazeera English report in 2008. Okay, so Uhuru Kenyatta was allegedly, let's say, the Rudy Giuliani of Kenya's January 6th, which was actually a bunch of January 6th's that went on for months. Right. Eventually, there was an internationally brokered deal for the two parties to share power if they also investigated whether any politicians had played a role in all that violence.

Politicians like Kenyatta. But Kenya's government, surprise, never really did this. So eventually the ICC stepped in. I'm picturing Rudy at the docket in the Hague and I'm starting to see why the ICC exists. It's a pleasing image. The court charged Kenyatta and a few others in 2012. But the next year, something happened that made their case a little tougher. Uhuru Kenyatta is Kenya's new president, thanks to 50.07% of the vote.

I therefore declare Uhuru Kenyatta the newly elected president of the Republic of Kenya. Oh my gosh, this gives me chills. I therefore declare Uru Kenyatta the duly elected president of the Republic of Kenya. Oh my gosh, this gives me chills. I know. It's very disconcerting to watch from 2024 America. I don't like it. Okay, so this became a very public test case for the ICC's promise that it can hold even heads of state accountable. And how'd that work out? Well, the case went forward and Kenyatta even went to the Hague in the Netherlands to give testimony. But this wasn't because the court had made him come. It seems like it was more to thumb his nose at them. Wait, you're telling me that the ICC is so powerless that even when it has an indicted head of state literally sitting in its courtroom

facing charges for crimes against humanity, it can't, like, arrest him? You can actually hear the ICC prosecutor getting frustrated at one point because one of the key witnesses, a Kenyan government official, clammed up once Kenyatta became president. The person who is best pleased to answer that question is Professor Caguanja. And the Caguanja today is working for you, so it's more complicated. If you can't make it out, the first voice is Kenyatta daring the court to interview that key witness. And then the prosecutor, who speaks in a Spanish accent, says, he works for you now, so it's more complicated. Kenyatta's government kicked out ICC investigators and silenced witnesses, effectively shutting down the case. And he kind of bragged about this.

Not long after his testimony to the ICC, Kenyatta gave a speech at a summit of African leaders where he called the ICC, quote, a toy of declining imperial powers and accused it of race hunting African leaders. Is he wrong about that, though? I'm looking at a list of everyone the ICC has charged since the court was established in 2003. It's a few dozen names and they're mostly African. So there is truth to this criticism, but it's also a little misleading. Like for one thing, in most of these cases, the ICC got involved because African leaders had asked them to step in. Its first case was against warlords in Uganda, which it took on at the request of Uganda's government. But why would they ask an international court to try the warlords? Why not just do it themselves? So governments do this to give the rulings more legitimacy by showing, hey, look, we're not persecuting these people for political reasons. We're referring them to

an impartial third party. It's also useful when countries think that their own courts might not be up to the task or when trying someone domestically could invite political unrest by that person's supporters. That still doesn't explain why the ICC has been so focused on Africa, though. Like, lots of countries on other continents also have newish democracies with imperfect institutions. It's true. There was also a concerted effort by African leaders to build up the ICC in response to a wave of conflicts that swept through the continent in the 90s. And they wanted to create a new norm that if you launched a coup or started a civil

war, you might end up at the Hague where you couldn't bribe your way out or wait for another coup leader to release you. Now this court is making more sense to me. Imagine if we didn't have to worry about Trump pardoning all the insurrectionists and election tamperers because the Justice Department had shipped them off to be tried and jailed by an international court in the Netherlands. And that is actually an apt comparison because when people end up in the dock at The Hague, it's usually because their own governments put them there. But that creates a big loophole, right? Because a head of state like Uhuru Kenyatta isn't going to arrest himself. Yes, which brings us to the second of our three stories about world leaders facing an international court arrest warrant.

Is this the good news story before we get to our final fuzzy middle ground story? It's about a head of state who faced an international arrest warrant for war crimes, but unlike Kenyatta, was actually arrested. And you've definitely heard of this guy, Erin. Slobodan Milosevic. Yes, the longtime president of Serbia in power for most of the 90s, responsible for a whole bevy of war crimes and acts of genocide in Bosnia and Kosovo and Croatia. If you're not familiar with Milosevic, just know that there used to be a country in Eastern Europe

called Yugoslavia, broke apart after the fall of the Soviet Union. That led to a series of wars among and within the successor countries, with Slobodan Milosevic responsible for many of the worst atrocities that took place in those wars. I remember Bill Clinton holding a lot of news conferences and furrowing his brow at Milosevic. Yeah, and then they'd always cut to B-roll of Milosevic in one of his giant baggy suits doing that weird 45 degree lean he always did. Why do so many despots not know how to stand properly? It's two skills you would think would overlap, but they apparently don't. Sitting and standing. Can't do it.

Anyway, these wars dominated the 90s and Milosevic did end up in the Hague fort, which raises the question, why did he land in jail while someone like Uhura Kenyatta didn't? A question that matters if you're, say, Benjamin Netanyahu and wondering which of those two paths you're going to end up on. At first, it did look like Milosevic would go scot-free too. He got indicted in 1999 by a special United Nations court called the International Criminal Tribunal for Former Yugoslavia. So not the ICC. No, but kind of the same idea. And there were a few of these UN tribunals set up in the 90s and 2000s that became the predecessors to the ICC.

And like the ICC, I'm guessing it had no way to enforce its arrest warrants or its rulings beyond its little block of meeting rooms and jail cells in the Netherlands. Right, which is why Milosevic initially ignored the war crimes indictments. Some of his co-conspirators who lived abroad in places like Germany did get arrested by local police. But, hey, he's the president of a whole country. Who's going to come arrest him? Well, someone did. I remember seeing him frog-marched into the courtroom.

It was actually his own government. A year after the war crimes charges, he faced re-election. Vote for me, the indicted war criminal. Doesn't look great on a campaign ad, I'd guess. No, and he claimed to have won enough votes for Ronoff, but nobody believed him. So there were these mass protests and strikes calling him to step down.

Here's a snip from a documentary produced by the International Center on Nonviolent Conflict. The miners have set an example. Now the rest of the country joins them in a nationwide action to bring all normal life to a standstill. Martin Sheen. That's right. That's so 90s. President Bartlett himself. So after this happened, the Serbian army abandoned Milosevic and he was deposed. The opposition took power and a few months later had him arrested and then handed him off to the Hague. Case number IT 9937I, the prosecutor versus Slobodan Milosevic.

So this was less about the international levers of justice coming from Milosevic than it was his political opponents using the court to solve their how do you solve a problem like Slobodan problem. Right. This got him off of Serbian soil so he couldn't try to retake power. And it saved the new government from holding a domestic trial that might make it look like it was persecuting its rivals. It doesn't exactly fill one with wonder at the splendor of international justice. I mean, it seems clear he did it. Like, we saw you, Slobodan. But he only landed in the dock because it was expedient for his political opponents in Serbia to put him there. When you look at which world leaders have ever actually

faced charges for war crimes, this is the model pretty much every time. You mean this has happened other times? As a rule, sitting leaders only face justice for war crimes under one of two mechanisms. They are removed from power by rivals, or they are captured by the opposing army in a war. I suppose the Nuremberg trials after World War II fit that model. The Allies set them up to try Nazi leaders for crimes against humanity, but the trials never investigated any atrocities committed in the war by the Allied armies. Yeah, Nuremberg established a lot of the international law around war crimes that's still in place. That included a principle called court of last resort, which says that the international court should only step in when the

perpetrator's home country is unable or unwilling to try them. So Nuremberg didn't look into American or Soviet abuses because that would be left to American and Soviet courts, which, of course, mostly absolved their country's actions. Can it really be that every international war crimes investigation just looks at people who've lost a war or power struggle? Like, wasn't there a big international tribunal for the Rwandan genocide? Yes, but only after the Rwandan government that oversaw the genocide was toppled in a civil war. The winning side put the losers up for the tribunal, but the winners of that war had also committed acts of genocide themselves, which they were never punished for. And one of those rebel leaders, a guy named Paul Kagame, became president in 2000 and still holds that office today.

So it's the Spider-Man pointing at Spider-Man meme or victor's justice. Yeah, in the sense that it's the victors of some conflict who put its losers in front of the international court. But not always in the sense of the court itself imposing prefixed rulings. Like the courts follow all the rules of due process and impartiality and its prosecutors do sometimes lose. Sure, I believe all that. Still, even if the court's goal is impartial justice, the fact remains that it can only try the people who are put in front of it. Right. And that means it relies on governments. So it is a tool of governments,

which would be fine if it weren't supposed to be a check on governments. Yes, that is right. It is kind of a check on governments in the sense that people in power have to worry that if they commit crimes against humanity, they could one day be removed from power and sent to the Hague. But only if their successor in office wants to ship them off to an international court. Yeah, international justice is, in a lot of ways, something that happens to people who lose power in countries where it's more convenient for the victors to ship the vanquished abroad. So to bring it back to the Israeli and Hamas leaders who are facing possible war crimes charges from the ICC, how do they fit into this model? In all likelihood, the Hamas leaders will probably not end up at the Hague unless they are deposed by some other Palestinian political faction or unless they get caught trying to flee

abroad. But not if they're captured by the Israeli military. So Israel is not a party to the treaty that established the ICC, which means it does not consider itself bound to the court, and it doesn't recognize the court's jurisdiction over itself or over Gaza. Obviously, the ICC doesn't agree. No, the ICC considers Palestine to be a state that became party to the court back in 2015. That took many, many years of diplomacy.

And it means that the ICC has jurisdiction in Gaza, along with the West Bank and East Jerusalem, and can therefore charge Palestinian leaders for war crimes, as well as Israeli leaders who commit war crimes within those territories. So what about the Israeli side? Am I going to see a Netanyahu perp walk? It's hard to picture. Netanyahu and his defense minister, for whom the ICC prosecutor is also seeking an arrest warrant, would have to lose power and then be replaced by a government that wanted to voluntarily send them to the Hague. From what I know about Israel's main opposition parties, that seems unlikely. They hate Netanyahu, but they mostly support his war.

And I doubt they'd risk the backlash from Israeli voters. Any Israeli leader is also going to think twice before establishing a precedent that could one day be used against them, especially since Israel's ongoing occupation of the Palestinians is also under ICC investigation. Plus, they don't recognize the court. Right. That's a big one. And it's not clear that deporting Netanyahu to the ICC would even be legal under Israeli law. We should mention that the United States also does not recognize the International Criminal Court. So it almost did. Bill Clinton signed the treaty to recognize it. But then George W. Bush backed out when it became clear that the war on terror and Iraq invasion could expose American troops and officials to war crimes charges.

So the same reason that Lucky the Leprechaun would be against making possession of Lucky Charms' serial felony. Similar in so many ways. Russia and Ukraine also not members. Neither is China or India, along with big chunks of Asia and the Middle East. And that leaves about 110 countries who are members. If war crimes are outlawed, then only outlaws will do war crimes. Erin, did you read that off of a bumper sticker on John Yoo's Subaru? I sure did.

Okay, Max, you promised three stories about world leaders charged with war crimes. You gave us the bad and the good, although the good could have been better, to be honest. Now it's time for the fuzzy middle ground story that's supposed to help us understand what it all means. Yes, it's the story of another head of state who was recently charged with war crimes, but whose country is not part of the ACC and who remains firmly in power today. Oh, I know this one. Now, let's return to the news that's broken this afternoon with the International Criminal Court issuing an arrest warrant for President Vladimir Putin for the alleged trafficking of children from Russian occupied parts of Ukraine. That was the BBC announcing the arrest warrant. So a little over a year ago.

Boy, things in Europe sure have quieted down now that Putin is behind bars. Yes, it was a great day for peace when the ICC said, hey, Vladimir, could you please turn yourself in? And Putin answered, no, thank you. Tell us why we should feel anything other than pessimistic about international justice just from this. So this is an example of why war crimes charges can make a difference, even if they don't lead to any immediate arrest or trial, and even if that might never happen.

Because it gives us all permission to formally refer to him as indicted war criminal and overcompensating amateur judo fighter Vladimir Putin. For one thing, Putin can no longer travel to any of those 110 or so countries that recognize the ICC. If he does, that country is legally obligated to arrest him. But that doesn't mean they will. No, but it's enough of a risk that last year Putin skipped an international summit that he was supposed to attend in South Africa. That can't be helpful for his ability to, you know, conduct diplomacy and advance Russia's foreign policy interests.

Being banned from Europe is especially hard on Putin, who knows that once the war ends, he'll need to rebuild ties if Russia's economy and standing are ever going to recover. I'm not so sure about this. I remember the ICC issuing warrants for Sudan's president, Omar al-Bashir, back in 2009 on charges of genocide in Darfur. Yeah, it was a big deal. I looked into this a bit, and yeah, when the charges came down, everyone thought, wow, now Bashir will be so internationally isolated. Surely that will do something. But Bashir went on committing more war crimes, and he kept traveling too. Including to ICC countries? Yeah, a bunch of them. Jordan,

Uganda, Malawi, Djibouti, Chad, even South Africa. A regular gap year world tour for this guy. It's got some great souvenirs. I guess that speaks to the same problem as the Slobodan Milosevic story. You can charge heads of state with all the well-documented war crimes you want. Nothing's happening unless a government with the power to scoop that person up decides it's in their interest to do that.

He's like Milosevic in another way, too. In 2019, after 26 years in power, Sudan's military removed Bashir in a coup. And what did they do next? Arrest Bashir and start talking about shipping him off to the ICC. They haven't yet, but those coup leaders are talking to the ICC, which raises the question of whether the ICC arrest warrants helped tip the military's calculus at all in favor of removing Bashir. It was 10 years later, so probably not decisive. No, but it was one of many ways that Bashir's status as a war criminal pariah had become a burden on Sudan. And the coup plotters might have thought that removing him could help win

back the outside world's good graces. Which is maybe also part of why it might be good to bring charges against even a despot as firmly lodged in power as Putin. I don't think the ICC likes to think of itself as a body for encouraging coups, but probably that was part of why Ukraine asked the ICC to investigate Putin's invasion, though they had a lot of other good reasons to do that too. Like what? Well, diplomatic pressure, for one. Early in the war, it was not clear that Europe would unify in support of Ukraine. The ICC investigation helped demonstrate

that Putin was engaged in crimes against humanity, which maybe helped to rally European voters and to pressure their leaders. Harder to take a middle position in the war if one side is led by an indicted war criminal. Yeah, the ICC can also act as an outside authority, validating Ukraine's claims of Russian atrocities, which is a big part of why Palestinian leaders

have also sought the court's involvement. To separate children from their families, to deprive them of any opportunity to contact their relatives, to hide children on the territory of Russia, to disperse them to remote regions. All this is obviously Russian state policy, state decisions and state evil, which starts exactly with this top official of the state. That was Ukrainian President Volodymyr Zelensky in a video address he posted on the ICC arrest warrants. He'd been saying for a while that Russia was committing ethnic cleansing by deporting Ukrainian kids into Russia. And here was the ICC providing proof. Child stealing is...

It's not a good thing. No, pretty evil. It's not what you want to be known for. Maybe there's some symbolic value to that for the victims and their families too. The world sees what Russia is doing to you and has at least recorded the truth. Not feeling forgotten or abandoned by the world. Yeah. I feel like this is bringing us closer to some ground truths about the significance of likely ICC arrest warrants against Israeli and Hamas leaders. Just to give a bit more detail, since we didn't cover it earlier, the ICC chief prosecutor is seeking arrest warrants for five people. Israeli Prime Minister Benjamin Netanyahu, Israeli Defense Minister Yoav Galant, Hamas political leader Ismail Haniyeh, Hamas military

leader Mohammed Daif, and Hamas leader for Gaza Yahya Senwar. The charges against the Israeli leaders include intentionally murdering and causing suffering to civilians, as well as extermination, including through deliberate starvation. And the charges against the Hamas leaders include extermination, murder, torture, hostage-taking, and rape as both a weapon of war and in the context of captivity. It's a real case that they're building. It's not symbolic. No, the intention here is not to make some empty gesture. It's to bring evidence documenting crimes against humanity, and it is to put these five people on trial.

Based on everything we know from those three stories you told, I think we have some sense of what this would mean for those leaders. Let's start with Netanyahu and Gallant. If the arrest warrants are issued, which they probably will be, then most of the outside world closes to Netanyahu and his defense minister. They can travel to Washington and Moscow and Beijing all they want, but Europe is off limits to them.

Yeah, and off limits forever. There's no statute of limitations for a war crimes charge. And Netanyahu is now even likelier to lose power in Israel's next elections. Whatever else Israeli voters think, they don't want their country to be a total international pariah. But barring some sort of radical shift in Israeli politics, it's pretty unlikely that any future Israeli leader will hand Netanyahu or Galant over to the ICC. Yeah, at most they will try Netanyahu in an Israeli court for the corruption charges that he's already facing. It feels tougher to say what will happen to the three Hamas leaders, though. It is. Probably it will depend on who ends up governing Gaza once this war is over,

which is a bigger and harder question that we have time to get into here. And then there's the question of what the arrest warrants would mean for the conflict beyond the five indicted war criminals who are leading it. You hope that it might chasten other Israeli and Hamas leaders from continuing to participate in the war crimes that got their bosses put on the ICC wanted list, like if only because they don't want to get permanently exiled from Europe too. Maybe it's also meaningful for the victims' families in some small way to see what happened acknowledged by the world's highest arbiter of human rights. And as with the ICC arrest warrant against Putin, perhaps this is helpful for diplomacy around pressuring Israeli leaders to halt what the ICC is seeking to formally

label as war crimes. What, LA-based podcasters calling it? That wasn't enough? So what do you think, Erin? Are international criminal courts bullshit? Well, obviously, if an African leader can go and laugh in their face and then leave without anything happening to them after committing some pretty obvious crimes against the citizens of their own country, that's a little bit bullshit. It's a data point. That's a data point. But I do think that the proof that the ICC does matter is in how apoplectic Netanyahu and his allies have been after this came into the news this week. If it didn't matter at all, then people wouldn't be issuing such strong statements against the potential coming indictments. If it didn't matter, they wouldn't be throwing a fit.

Yeah. I think for me, I keep coming back to that clip we heard at the top of the show of Kareem Khan, the ICC chief prosecutor explaining the warrants. Remember he said that, yes, this is about bringing justice, but it's also about protecting the very idea of international laws and rules that bind us in conflict and maybe even tightening those binds. Like you heard how new all this is. International courts like this one have only been around for about 30 years. That's nothing compared to tens of thousands of years of human conflict. Of course, international justice is flawed and messy and barely works. I mean, that it works even a tiny bit is kind of a miracle. Every conflict where we get better at it is a chance to deter leaders from going so far the next time war breaks out. It's why even if

none of these five ever see the inside of a courtroom, which they probably won't, I think this is a really big deal. But it's also why I was honestly kind of angry and disappointed to see Anthony Blinken, Biden's Secretary of State, say the White House might support targeting the ICC with retaliatory sanctions. Even suggesting that is an attack on what very frail but very important little germs of international laws of war we have in this world. Anyway, let's go out with the final concluding comments from ICC Chief Prosecutor Kareem Khan in announcing the arrest warrants earlier this week. Now more than ever, we must collectively demonstrate that international humanitarian law, the foundational baseline for human conduct during conflict, applies to all individuals and applies equally across situations addressed by my office and by the court. This is how we will prove

tangibly, in real terms, for all victims, that the lives of all human beings, wherever they may be, have equal value. and by Aaron Ryan. It's produced by Austin Fisher. Emma Illick-Frank is our associate producer. Evan Sutton mixes and edits the show. Jordan Cantor sound engineers the show. Audio support from Kyle Seglin, Charlotte Landis, and Vasilis Fotopoulos. Production support from Adrian Hill, Leo Duran, Erica Morrison,

Raven Yamamoto, and Natalie Bettendorf. And a special thank you to What A Day's talented hosts, Trevelle Anderson, Priyanka Arabindi, Josie Duffy Rice, and Juanita Tolliver for welcoming us to the family.