On Monday, the prosecutor of the International Criminal Court, Karim Khan, released a pretty extraordinary public statement.
I have reasonable grounds to believe that three senior leaders of Hamas yahyasinwah Muhamma Daif and Ishmael Haniah bear criminal responsibility for the following international crimes committed on the territory of Israel and the State of Palestine from at least the seventh of October twenty twenty three.
He said he was seeking warrants for their arrests and for the arrests of Israel's Prime Minister and Defense Minister.
I can also confirm today that I have reasonable grounds to believe, on the basis of evidence collected and examined by my office, that Israeli Prime Minister Benjamin Netanyahu and Minister of Defense you have got bear criminal responsibility for the following international crimes committed on the territory.
For Hermas, the charges included extermination.
As a crime against humanity, murder as a crime against humanity and as a war crime, and.
The taking of hostages, rape and torture, in humane acts, cruel treatment during captivity, and outrages on personal dignity and for Israel The charges include starvation as a method of warfare.
Wilfully causing great suffering, serious injury to body or health, or cruel.
Treatment, wilful killing or murder.
And intentionally directing attacks against a civilian population, as well as crimes against humanity of extermination and or murder.
As well as persecution and other inhumane acts.
Unfortunately, these crimes continue to this day. Should the learned judges approve my applications and issue the requested warrants, I will work closely with the Registrar of the Court to apprehend the named individuals.
From Schwartz media. I'm Ashlin McGee. This is seven am. So how did the ICCs prosecute it come to the point of applying for arrest warrants? What happens next? And can international laws survive the scrutiny it's now under today. Expert in international law and professor at the University of California, Davis Chamen Kaidner on the warrants that are now drawing
attention from around the world. It's Friday, May twenty four to begin in I wanted to understand how the ICC prosecutor goes about bringing these charges, Like what sort of work goes into it, what sort of evidence do they gather, how do they work.
So there have been suggestions in the news for some time that the prosecutor was looking very closely at this situation. And there are twelve situations currently that the prosecutor is actively investigating, and any one of those situations would merit
further action. And in order to investigate a situation, the ICC prosecutor needs to have authority that comes from somewhere, and in the case of the International Criminal Court, that authority comes from a treaty that one hundred and twenty odd countries have signed called the Rome Statute.
Took place in your hands the room Statutes of the International Criminal Court, may it said mankind were in generations to.
Come thank you.
And countries that are party to that treaty have basically agreed that the International Criminal Court will have jurisdiction over certain very serious international crimes committed by their nationals or on their territory.
Six years after it began an initial investigation of Israel's actions in the Palestinian territories, the International Criminal Court has opened an official inquiry into alleged war crimes.
And the prosecutor has been investigating alleged crimes committed on the territory of Palestine for a number of years now, but this is the first we've heard of charges. And so also the prosecutor has been interviewing, as I understand it, former hostages, hostage families, those who witnessed the events of October seventh.
We have active investigations ondoing in relation to the crimes allegedly committed in Israel on the seventh October, and also relation to Gaza and the West Bank Canna jurisdictionar back to twenty fourteen.
We've heard testimonials from people who have been on the ground in Gaza. I also think there's a lot of possibility of expert analysis of literally how much food is going into Gaza and how many people there are in
Gaza to feed. So, although the statement that we saw this week and the expert report that accompanied it don't actually chronicle in any detail the evidence that underlies the application that's going to be made to the pre trial chamber here, we can assume that it includes these sorts of testimonies, video evidence, things that in our digital age can actually be obtained without physically being on the ground in a particular location.
Can you tell us a little bit more about Karim Khan?
Who is he?
What's he like as the ISASA prosecutor.
Well, we haven't had coffee, but I can tell you I am front from a distance. So he's a third prosecutor that this court has had, because it is a court that has been in existence for about twenty years.
I believe in international justice.
It's not just a job, it's something I believe in.
And his approach certainly does seem to be more public facing. I think it's fair to say, at least than his immediate predecessor.
Very often, when I stand up, I don't know what I'm going to say. No, no, it comes out for better or worse. Of course I try. The duty of an advocate is to make points as clearly as possible.
But from the outside we really never know where the prosecutor's focus is unless he tells us, And he made clear in his statement that he essentially feels like he has put the Israeli leadership on notice. On the Commas side, I think, again, the prosecutor is going straight to the top, so to speak, and so I think he does certainly seem to be strategic about both the way in which he is making these announcements. He's also in this case been sort of extremely prepared for the criticism that he
knew he would get. And so certainly all of the lawyers working on these cases have been assembling the evidence they need, deciding which charges are most suitable in this first round of charges to fit the situation and the available evidence, such that the prosecutor could proceed on the basis at least in his view of confidence in ultimately
securing a verdict. So now that sort of package of evidence goes to what we call a pre trial chamber, basically a subgroup of judges of the International Criminal Court see whether they agree that there are, again the legal standard being reasonable grounds to believe that these crimes have been committed.
So, if the warrants are issued by these three judge panel, what does that actually mean, What do they do these warrants?
Well, the ICC doesn't have a police force, but it does have a binding authority under international law that comes from this treaty, and under the treaty, states that are party to the Rome Statute are obliged to cooperate with the Court's requests, including their requests to arrest and surrender
individuals against whom arrest warrants have been issued. So that would mean that Palestine is obliged to arrest and surrender the three Palestinian defendants, and that any country to which Netanyahu Orgalant travels that is a state party to the Rome Statute, which includes many countries in Europe, does not currently.
Include the United States, would.
Be obliged to unrest and surrender him as well. Again, within the Rome Statute framework, Israel is not a state party to the Rome Statute, just as Russia is not a state party, and so there's a slightly more plausible argument in my view that countries would essentially have to choose between their international legal obligation to respect the immunity of a sitting head of state from arrest and surrender
and their obligations under the Rome Statute. But in any event, if I were in at Nyahu, I wouldn't want to risk that or roll the dice. But I would find it very surprising at the end of the day to
see a panel reject this request. That said, whether or not we'd actually see an arrest any of these individuals will really depend on which countries they are in and the political calculations of those countries in terms of following their own statute obligations compared with whatever other political pressures they find themselves under.
And so this is real. It's not going away. The ICC is not bound.
By any of these political considerations or diplomatic considerations, and so is moving forward.
After the break. What happens if a country refuses to arrest these lateness charged with war crimes? Schamann since the ICC prosecutor's announcement earlier this week, took me through the kinds of reactions we've heard from those names.
Well again, as a member of the public, I've heard and seen probably what.
You have to seek.
Arrest warrants against the democratically elected leaders of Israel is a moral outrage of historic proportions. It will cast an everlasting mark of shame on the international Court.
What I've been more interested in, because it seems to me that the reactions of the defendants are fairly predictable, is actually to see the reactions of others. Right. So one thing we saw, of course I'm sitting here in the United States, was really an immediate rebuke from President Biden.
Reject the ICC's application for rest warrants against his Wielan leading one of these warrants may imply there's no equivalence between Israel and Hamas.
It's a little bit more surprising to me perhaps that we also saw a very strong rebuke from the Secretary of State. Of course, Blincoln and Biden are part of the same administration, but this is also an administration that has engaged with the ICC, and that was very supportive of the ICC's investigation and actions with respect to Russian crimes in Ukraine, and that has supported other past investigations
and prosecutions. The other piece of this right is that we are seeing in both the Ukraine situation and the Palestine situation the issuance of warrants while armed conflict is continuing, and there really is, to my mind, this question of whether or not they're playing a constructive role and whether or not the many pieces and considerations that go into things like negotiations to secure the release of the hostages, or secure a cease fire, or to more effectively deconflict,
the provision of humanitarian aid, or to get United Nations teams into monitor what is coming in on trucks into Gaza, rather than having the Israeli army performing that role. I mean, all of these things involve very complex negotiation, and so to have a criminal process running in parallel to that just is another wildcard.
Let's pick up on something in the international reactions that we've heard, which is this line we've heard from Biden and others about the false equivalents. Help me understand a little bit. Why do you think the ICC decided to seek these arrest warrants for both the Hamas leaders at the same time as the Israeli politicians. What was that about? What was the motivation for doing it at the same time.
Oh, it seems to me that if Kahan was going to seek warrants, he had to do it with respect to both sides of this conflict. In other words, had he only sought warrants against Commas leaders, there would have been an outpouring of criticism, continuing criticism that the ICC has faced for years, suggesting that it's only prosecuting individuals from the global South, that it's essentially a tool of imperialism.
And moreover, is Palestine that has been really pushing the agenda in the ICC by joining the statute, by inviting the prosecutor to investigate alleged crimes in the West Bank, East Jerusalem and Gaza.
At the same time, it's also clear that.
If one looks at what's going on in Gaza now, although certainly the attacks of October seventh didn't happen in a vacuum, the extraordinarily systematic and a comprehensive attempt to and I think the terms of news is eradicate Hamas right from the Gaza strip has been something unlike anything
we've seen, you know, in recent decades. And I think it would have been again just just politically very difficult for the prosecutor to bring charges only against Israeli's given that, unlike the situation in Russia, you know, there was a really devastated attack on Israeli territory targeting civilians, involving sexual violence that is being documented and for which the prosecutor
has said he may well bring charges. The continued unlawful the tension of hostages, sexual violence against hostages, which does figure into the current set of allegations. And so I think one can question the decision to bring this application in public at this juncture. But if it was going to be brought, I think the expectation absolutely was that individuals on both sides of the conflict would be named.
If we assume for a moment that warrants do get issued in Israeli is already calling for countries like Australia to boycott the warrants. Can countries actually do that is any precedent for ignoring ICC warrants.
The notion that a country might have essentially mutually conflicting legal obligations and certainly sort of make political interests when it comes to complying with its obligations is something that's not unusual at all in international law. To my mind, if we want the International Criminal Court to be effective, if countries support the attempt to prosecute people like Vladimir Putin, you cannot pick and choose.
You can't have it both ways.
And I think that's also something that US decision makers are grappling with again. The United States has never joined the Rome Statute, it's never indicated any intention to do so, but it has cooperated with a number of investigations, and it has supported a number of investigations, and you can't only support those that are in your national interests.
It is a pretty big tiss for the International Criminal Court, isn't it Can it stand up to this kind of pressure and scrutiny, do you think?
Well, con certainly things you can't and has said as much.
You know.
It's a court that depends on member state cooperation and funding. But it is also a court that, in recent years, again I think, has been under tremendous pressure from many of its constituents to show that it is not meeting
out selective justice on the basis of political interest. It will be a test really of countries, Western countries, I'll use that word, although of course this terminology is fraught, because it is one thing to say that we don't think some Western countries have said that Israel has shown genocidal intent. We think they have some crazy people in their cabinet who are saying despicable things, but they are acting in self defense against this terrible attack of October seventh.
It's quite another to say that international law accepts the degree of civilian destruction and suffering that we have been seeing in Gaza. But if we continue to instrumentalize this idea of war crimes and who should be accountable who should not be accountable, then I think Western leaders will greatly lose all credibility in condemning and using the language of international law to condemn actions by other countries.
Chaman, thanks so much for your time today and thank you for having me. Also in the news today, Australians stranded in New Caledonia are still waiting for more evacuation flights amid a week of riots after no Australian flights
who are able to depart yesterday. The unrest in New Caledonia was sparked by constitutional changes supported by the French government in Paris which would give non indigenous residents voting rights, potentially thinking any hope of a few referendum on full independence succeeding and Federal Environment Minister Tanya Plibersex fell victim to a technical error on Sky News yesterday with a
microphone going live to air without her knowledge. Plybisx microphone went live while a Sky News host was interviewing Coalition Senator James Patterson, with viewers hearing plibers X saying the phrase quote don't say anything horrible about James Patterson. Seven Am is a daily show from Schwartz Media and The Saturday Paper. It's produced by Kara Jensen. McKinnon, Shane Anderson and Zalton Fecho. Our senior producer is Chris Dengate. Our
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