Eugene Kontorovich
Subject: Abolishing the International Criminal Court
Bio: Executive Director of the Center for the Middle East and International Law at the George Mason Antonin Scalia Law School, and head of the international law department at the Kohelet Policy Forum, an Israeli conservative think tank.
Greg Townsend
Subject: Arresting Netanyahu
Bio: Lecturer at The Hague University of Applied Sciences, Professor of Practice at Brandeis University, based in The Hague, and advisor on the International Criminal Court’s Advisory Committee on Legal Texts. Previously worked for the ICC tribunals in Rwanda, Yugoslavia, Kosovo, and Lebanon.
If you’d like to share your thoughts on this episode, consider sending a message to @larrybernstein on Substack.
Transcript:
Larry Bernstein:
Welcome to What Happens Next. My name is Larry Bernstein. What Happens Next is a podcast which covers economics, politics, and law.
Today’s topic is Abolishing the International Criminal Court.
Recently the International Criminal Court’s prosecutor has set the wheels in motion to issue arrest warrants for Israeli political and military officials as well as the leaders of Hamas.
We have two speakers on polar opposite sides of the issue.
Our first speaker is Eugene Kontorovich who is a Professor of Law and the Executive Director of the Center for the Middle East and International Law at the George Mason Antonin Scalia Law School. He also works with the Israeli think tank The Kohelet Policy Forum.
Our second speaker is Greg Townsend who is a former prosecutor who worked for the ICC tribunals in Rwanda, Yugoslavia, Kosovo and Lebanon.
Greg spoke on this podcast last week and I received a number of requests for a speaker who would take the other side of his argument. So, I reached out to Eugene and have included an edited version of Greg’s previous remarks.
The purpose of today’s podcast is to find out the history and purpose of the International Criminal Court. Why the ICC is heading in the direction of issuing arrest warrants for Prime Minister Netanyahu? What does it mean that the ICC is a court of last resort? And is it unusual to make arrest warrants when the facts are uncertain in a war zone and before a country has done its own investigation? Is the ICC trying to influence domestic politics in Israel before its next democratic election? Can Israel try to save its hostages if they are held in civilian areas if it risks casualties of innocent people?
Buckle up.
Eugene, please begin with your opening six-minute remarks.
Eugene Kontorovich:
The International Criminal Court has just taken its most controversial action for democratically elected leaders of a Western country, Israel and possible warrants for Prime Minister Netanyahu.
The idea of an international court that will prosecute the worst crimes dates back to the Nuremberg Tribunals, which prosecuted Nazi criminals. The atrocities of World War II led many to think there needs to be international rules to prevent it. And that impetus gave rise to the United Nations, this idea that if countries come together and join in some common project, they will be able to prevent war.
The ICC started functioning in 2002. So, it's been around for over 20 years now. The way the ICC is supposed to work is like this. It does not have any powers of its own right. And that is because of a fundamental premise of international law that there's nothing more powerful than the state. Every state has the power to prosecute crimes within its territory. So, states by joining the ICC can prosecute only certain serious war crimes.
The ICC can't hear many cases. It doesn't have the capability. It would pick the worst things. Now, the vision was always a cosmopolitan world ruled by law that would somehow transcend national sovereignty, to create this norms-based world order that would be administered by these neutral legal technicians.
When you look at the countries that have joined versus the countries that haven't joined, there's a very clear distinction. The countries that have not joined are mostly those countries that are most powerful and most likely to find themselves at war. The United States did not join because the United States is involved in a large number of conflicts. Russia, China, India, Pakistan. and Israel didn't join. And with the exception of Jordan, none of the surrounding Arab countries joined. The United States was always suspicious of the ICC because the ICC is basically an independent prosecutor on steroids, not accountable in the way American prosecutors are. And also, there's a basic objection to the ICC is that for countries with well-functioning legal systems that are democracies that have a rule of law like the United States, the ICC is superfluous. And that membership serves largely symbolic goals, but can have practical deficiencies.
When the ICC was created, the United States passed the Armed Service Members Protection Act, which authorizes the president to use military force and other sanctions to free Americans arrested on behalf of the ICC.
Larry Bernstein:
The ICC has investigated US malfeasance in Afghanistan. If the ICC decides that there might be war crimes, they could issue arrest warrants for Presidents Obama and Biden, the relevant defense secretaries, and US military officials.
Eugene Kontorovich:
The investigation into the United States alleged crimes reveals one of the fundamental problems with the ICC. The ICC is not supposed to investigate matters except in situations where the home country is unable or unwilling to prosecute. Unable or unwilling means there's been some collapse of the legal system or the domestic system is trying to shield its leaders or soldiers from prosecution. So, for example, the United States had the US policy in Afghanistan was based on understanding that it does not violate international law rather than disregard or carelessness about international law.
Now, other people may come to a different conclusion and the question is, is there deference to the United States good faith belief? And the way the ICC was supposed to function is it would only be in clear abuses where the domestic system is essentially incapable or unwilling of punishing its leaders. Now that's clearly not the case with the United States where the former president is now subject to numerous criminal prosecutions. Certainly not the case with Israel where the current prime minister is subject to prosecutors. Rather, there's a disagreement about what constitutes violations of international law.
Larry Bernstein:
Why is the ICC investigating the US and Israel which they know are functioning democracies with independent judiciaries? Are they trying to embarrass them? Are they trying to bring a spotlight to behavior in war that they do not like?
Eugene Kontorovich:
They have numerous things they're trying to do, but clearly, they're trying to set the rules by which America and Israel fight wars. America is a little hard to embarrass because it's a superpower and has a broad latitude for unilateral action. Israel is far from a superpower. And so imposing diplomatic costs on Israel can actually affect the way it fights a war. And crucially in a way that can only advantage Hamas because Hamas leaders are not embarrassed by being indicted by the ICC. It's just not within their system of values. So, it can only disadvantage western democracies.
This is a point which I think bears emphasis. The way the ICC operates is they want to show that they're even handed, we're going to investigate the Taliban; we're going to investigate the U.S.
In its 22 years, the ICC has only convicted after final appeals four people. That fact itself is astonishing, pathetic, and any prosecutorial institution with such a success rate in the United States spends about $300 million a year is its budget. Everybody has been African. Now there's a reason for that because Africa lies in the intersection of countries that have accepted ICC jurisdiction where crimes occur and where they might actually somehow get their hands on a defendant, which is a big problem for the ICC.
They did warrants for Putin, but they're never going to try Putin.
Larry Bernstein:
As you mentioned, the ICC has only convicted a handful of criminals in its quarter century of existence. And the ICC seems to be embarrassed that all the convictions are Africans. They want it to be less racially biased. Does that explain the ICC desire to expand the arrest warrants to Western democratic leaders?
Eugene Kontorovich:
The ICC they have no army and no police. People who they indict are those who wield public military power, and the only way they're going to get their hands on them is if they fall from power. So that has been Africa.
Now this led to both the judicial colonialism objection you explained, but also to a much more mundane institutional problem for the ICC. African countries said, when we joined the ICC, it was because we thought the EU was going to give us foreign aid for this. There's enough of this African prosecution, we're going to quit the ICC, and for the ICC, when countries quit, it's like their blood pouring out because they have nothing other than their membership that is their flesh and blood. The Philippines quit and African countries quit. Indeed, the African Union announced that it would try to orchestrate a massive African walkout of the ICC and that would be fatal to the ICC. And so, it has long been understood that there is a big imperative for the ICC to prosecute, not just investigate some western leader.
Larry Bernstein:
Which Western democratic leader fits in that sweet spot to get arrest warrants by the ICC?
Eugene Kontorovich:
Now, America's going to be tough because America can do bad things to you. Russia's tough because Russia can do bad things too. Israel is in that sweet spot in the middle. A western country with a strong vigorous political opposition that you might hope will bring down the government and perhaps could be pressured to turning people over to be prosecuted.
When people discuss the ICC, they talk about it as an impartial institution because it does not have national sovereign interests, but it has it advancing its own bureaucratic institutional survival interest.
Larry Bernstein:
Earlier this week, Israel successfully rescued four hostages held in the home of an Al Jazeera reporter in a densely populated civilian area. During the rescue attempt, the hostages were taken alive but their cover was blown that resulted in a battle. Air power was required to support the extraction that according to Hamas led to a couple of hundred deaths including both civilian and Hamas military fighters. How should Israel be judged for saving its hostages lives that resulted in loss of life on both sides?
Eugene Kontorovich:
I want to say one big caveat which we should keep in mind throughout this war, there's been an extraordinary tendency during this conflict to assess in detail the validity of particular military operations in real time with no information. We simply don't know what was the expected benefit, what are the casualties? So, in this case there were civilian casualties. We have absolutely no idea how many. Israel says 100. Hamas first said 200, they've now up to 300. We have no idea what proportion of those would be Hamas fighters.
I have seen absolutely no information to indicate fundamental lack of proportionality because we don't even know who killed whom. Israel's removing this rescue force and the hostages from Gaza was a military objective of the highest importance.
Larry Bernstein:
The ICC has asserted in its arrest warrant that Israeli officials are denying food and water to civilians in Gaza. Israel says that is false. How can the ICC evaluate these claims in the middle of a war zone?
Eugene Kontorovich:
To be fair, the ICC prosecutor claims to have conducted an investigation. It's hard to believe that they could have inducted a good investigation because it's impossible to get accurate facts of Gaza. They did not enter Gaza. They went to the Rafah Crossing and talked to some people. It is beggar's belief that if you show up as the ICC prosecutor and at the Rafah Crossing and say, we would like to talk to witnesses of potential war crimes, you're going to get anything other than scripted Hamas agents.
Larry Bernstein:
Israel is trying to separate the Hamas fighters from the civilians in places like Rafah. They want to protect civilian lives and then kill the Hamas fighters. One approach is to use a siege. Under the rules of war, can Israel attempt a siege?
Eugene Kontorovich:
Let's start with the law. According to the U.S. Defense Department Law of War Manual, siege is a legitimate and ordinary part of warfare. I'll quote from the manual. “Siege is an essential aspect of modern military operations. Only starvation directed specifically at civilians is prohibited.”
What does specifically mean? That means if you have a city and there is a military force in it and you want to deny them food but in the process, it will also restrict food to civilians. That is exactly the conduct of a siege and it is a legitimate part of military operations which the United States has used in Fallujah and Mosul. So, siege itself is lawful even when it restricts food incidentally to civilians. It's only illegal if it done for the purpose of denying sustenance to the civilian population. If it is done for the purpose of denying sustenance to Hamas, it's entirely legal. Now, this is particularly a significant point in the context of Gaza, where we know that any food that gets in goes to Hamas.
Hamas eats before anyone. So, Israel has every reason to believe that allowing food in is going to primarily help Hamas. Now, at the same time, Israel has allowed food and humanitarian supplies coming in throughout the war, and a recent study has shown that even full caloric requirements are being met on average. And what's extraordinary about this allegation is that they’re saying you can commit the crime of starvation even if nobody actually starves. Call it attempted starvation.
There is a government in Gaza and supplies go in and Israel does not determine how they get distributed. So, if those supplies are not reaching the man on the street in Gaza, it is not because they're not coming in, it's because Hamas is taking them.
Larry Bernstein:
The battle for Rafah is going on right now. There are reports that Israel successfully moved out a million civilians from the battle area. Many said that could not be done.
Eugene Kontorovich:
Israel has taken quite extraordinary measures for separation and they resemble measures America took in Fallujah and Mosul. These measures come at considerable cost to Israel because they telegraph the timing and slow down its operation significantly.
You can assume it's not just civilians who are leaving the target area. We know that Hamas will take on civilian persona.
The amazing thing about Israel's evacuation of hundreds of thousands of people from Rafah is that for many months much of the western world, including Secretary Blinken were saying that it could not be done. You might recall Kamala Harris said she looked at a map and there's nowhere to move anyone.
An extraordinary testament that it was done quite peacefully. Of course, it has the cost of making it harder to fully wipe out Hamas because they will surely smuggle out their fighters dressed as civilians.
Larry Bernstein:
The choice of the arrest warrants of Netanyahu and Gallant and their timing suggests that the ICC wants to influence domestic politics in Israel.
Eugene Kontorovich:
When you look at their choice of indictments, Israel had a small war cabinet, which was a Prime Minister Netanyahu, Defense Minister Gallant, and Benny Gantz from the opposition party who joined the Unity government as chief of staff. And the chief of staff is an extremely important person in Israel, more powerful than the defense minister.
None of the things that the ICC objected to were Netanyahu's ideas as opposed to the ideas of the entire Israeli defense establishment with extraordinary popular support. But they only got warrants for Netanyahu and Gallant. What do they have in common? They're members of the right-wing Likud party and the other members are not. So, it does look like they're trying to engage in some manipulations of Israeli politics.
Larry Bernstein:
The ICC is only supposed to intervene if there is an expectation that the Israeli government lacks a judiciary that can prosecute war crimes effectively.
Eugene Kontorovich:
Israel has a legal system which is with an extremely independent prosecutor who is not afraid to prosecute the Prime Minister as evidenced by the fact that they do it all the time and not just this prime minister. The reason Israel is not prosecuting or investigating these alleged offenses is because they do not believe there are offenses. The prosecutor is operating on an entirely different theory of the content of the war.
I read to you the US Department of Defense Law of War manual. There are some law professors who take a much more restrictive view of siege warfare. This is not a view that is the current state of the law, but they have argued that it should be the law, and it is basically their extremely restrictive view that the prosecutor is going by, which is why the lack of democratic legitimacy of the prosecutor is such a problem. It's not that the rule here is written in stone. Israel is following the rule as it has been understood so far, and Israel is not investigating because they don't believe these actions to be criminal.
The United States would not believe them to be wrongful either. So, the decision to not investigate is itself a good faith judgment by Israel's extremely liberal, cosmopolitan prosecutors that there is no crime here. The ICC is saying no, unless you adopt our position that there may well be a crime, then we can issue warrants. They're trying to redefine the rules of war.
Larry Bernstein:
Israel lives in a dangerous neighborhood and is constantly at battle with their neighbors. Why does Israel have to engage with the ICC if it believes the organization is against their interests?
Eugene Kontorovich:
Israel specifically did not join the ICC because it was afraid of general bias you find in international institutions like the UN. The only reason they claim the jurisdiction over Israel is because since Israel didn't join, they said the State of Palestine joined.
This is the only investigation carried on by the ICC at the behest of a so-called member state whose status as a state is in controversy, who's not a member of the United Nations. So, when you take a step back, what do you have here? The Palestinian Authority, which is not a state, goes and gets the ICC to recognize it as a state. Palestinian factions perpetrate the October 7th massacre, and when Israel acts to defend itself , they say, “ah, now you've triggered ICC jurisdiction.”
You have a choice between trying to defend yourself from rocket attacks and rescue your hostages or not, or avoid the jurisdiction of the ICC is quite problematic.
Warrants for Israeli officials and Hamas only works to Hamas' benefit. And how do we know this? Hamas celebrated the announcement of the ICC warrants. The ICC cannot do anything to prosecute leaders of illiberal regimes like Putin or Hamas because it can only seize them if they fall from power. And when you decide to embark on a course of conduct like invading Ukraine or invading Israel, you already know that this is either going to end with you winning or you dying.
If Putin wins, nobody's going to touch him. And if he loses, he has much bigger things to worry about than the ICC. Look at it from Sinwar's perspective. If he wins, he will be the hero of much of the Arab world. If he loses, he's probably actually seen ICC prosecution as a better alternative to being in an Israeli jail or killed in an Israeli operation. The Hague would be perfect with him. He'd be giving speeches for the rest of his life.
Israel does not have dictatorial leaders. There are politicians who rotate in and out of power one day, prime minister next day. And you think, should I have the headache of defending my country. There's a possibility that democratic leaders will say, I don't need the headache. I want to travel to Paris. Sinwar is not planning to travel to Paris.
Maybe I'm going to pull my punches.
Larry Bernstein:
Is the ICC looking to outlaw war? Are they trying to implement a utopian foreign policy in an anarchic world order?
Eugene Kontorovich:
So the ICC is part of a broader set of ideas referred to as cosmopolitan, and they are largely informed by a view which World War II gave rise to that nationalism, putting your country first is the source of conflict.
And there's also a kind of technocratic aspect to it that we can have these international bureaucrats who represent the world administer system of justice, which will be superior.
Israel is a western liberal cosmopolitan country with lots of people who are sympathetic to this worldview. Israel, unlike Russia, does not plan aggressions, but what happens when your neighbor invades you? We've talked about Hamas using human shields. I would say Hamas is also using the Hague as a shield. And the day it was announced that the ICC prosecutor was going to get Israeli officials and Hamas officials, Lebanon said, we're signing up with the ICC too. Now, does this mean that the Iranian puppet state of Lebanon has decided that war is no longer a method of going about one's business? No, they saw the ICC for what it is. They said, we're never going to be prosecuted. They have evidence for that.
There was a special international court for Lebanon to do with the assassination of the former President Hariri, and they managed to put in jail zero of the perpetrators after spending a lot of money, indicting a couple of people for obstruction of justice, convicting a couple of low-level Syrian officials in absentia, they actually did nothing. Lebanon already knows how the story ends.
Larry Bernstein:
Do you think that the ICC made a mistake by attacking Israel because it will focus Americans and other nations that the ICC’s mandate and policies undermine our allies’ ability to defend themselves?
Eugene Kontorovich:
I think the ICC made a gross miscalculation. They have created a real unified opposition to the ICC and have made it extremely unlikely that any Israeli government would cooperate with the ICC. They have also enraged many Americans. The House of Representatives passed a bipartisan ICC sanctions bill, which apparently after George Clooney called President Biden to complain about it because his wife is involved with the ICC may not get a green light.
I don't wish any particular ill to the ICC, but in this case, they clearly overstepped. Benjamin Netanyahu was already indicted by Israeli domestic courts. The Hague adds little to his headaches. That is to say, the horror of October 7th was so great, there's really the little that the ICC can add to it.
Thanks Eugene, we are now going to turn to my friend Greg Townsend who is a former prosecutor with the International Criminal Court.
Greg Townsend:
I'm of the view that the U.S. should support the International Criminal Court (the ICC) whether it's investigating Russian abductions, forced transfer of children from Ukraine, or be it the ICC’s prosecutor Kareem Kahn asking to open an investigation in Palestine. I'm of the view that recent decision to ask for warrants of arrest against two Israeli officials and three Hamas officials is a sound decision.
To turn to recent events, the prosecutor on 20th of May, 2024 announced publicly that his office had filed two requests asking the judges to grant arrest warrants in the situation in Palestine. And that's big news for the court and perhaps bringing within the sites of the court, western officials is perhaps a paradigm shift, and perhaps, demonstrates its efforts to apply the law equally.
Kareem Khan doing this I thought was also incredibly media savvy and that he announced it with two senior prosecutors flanking him, did it on the basis of an expert report that included a high-level Israeli and British lawyers and prominent Jurists and even Amal Clooney. I don't think he had an alternative if he was going to have the court act fairly and not appear to be applying it selectively.
Ultimately the big picture here is that the ICC is a court of last resort and so that any domestic investigation that was legitimate, any domestic prosecution would divest the international criminal court of jurisdiction. So it only goes where those states fail to do so. I think the U.S. has got to get its head around the fact that it's in the minority; 145 states of 193 at the UN, that's like more than 74% have said Palestine is a state.
I think the U.S. is shortsighted if it wants to collaterally attack the ICC upholding the rule of law and supporting the court in its legal process ultimately is the right thing to do here.
Larry Bernstein:
What is this court? When was it founded? What was its purpose? What has it accomplished? What do we want the International Criminal Court to do?
Greg Townsend:
The International Criminal Court is a treaty-based court and the treaty underlying it is known as the Rome statute where it was agreed in 1988.124 states have signed up. And effectively they've agreed that the crimes of genocide, crimes against humanity, war crimes, and more recently the crime of aggression are all crimes that should go before this permanent institution as distinguished from all previous international courts, be it Nuremberg, Tokyo, Yugoslavia, Rwanda tribunals that were temporarily and limited to geographic fixed locations. This would be a permanent court, worldwide in scope. States said where these crimes occur and where states don't prosecute and investigate them, then this court as a court of last resort would have jurisdiction.
In its first case, it opened up a case against Lubanga who had recruited child soldiers in the Democratic Republic of Congo. It then proceeded to cases in Uganda and now it has more than 15 situations worldwide. It's investigating in Afghanistan, Ukraine, and the 20th of May, 2024 is obviously the start of potential arrest warrants in Palestine against Israeli officials and Hamas leaders.
You ask, has it achieved much? Most critics would say the caseload has been under what they expected, but perhaps this galvanized states into prosecuting things domestically.
Its weaknesses are that it's not universal. Big players like the U.S., Russia, China, India, Pakistan are not state's parties. It is the hope of the court to become a universal court. It's for now a permanent court, and we are hoping that it will gain acceptance legitimacy and states will sign up because one, they have nothing to fear if their domestic judiciaries prosecute cases legitimately. And two, it will effectively be recognized as a fair court and one that dispenses justice equally and fairly.
Larry Bernstein:
How did you end up at the International Criminal Court in the Hague in the Netherlands? This seems just an unbelievable route from when I met you in New York City in 87. What happened? Tell us about your path, your career and working as a prosecutor at the ICC.
Greg Townsend:
As a failed diplomat, I went to law school in Los Angeles and then I went to the LA Public Defender's office. In 1997 I started a job as I like to say representing LA's finest falsely accused citizens. In 1998 I joined the Rwanda tribunal and I spent seven and a half years cutting my teeth, going from petty misdemeanors in downtown LA prostitution cases to a genocide file. I had a duty to zealously see justice carried out for Rwanda. And I spent lots and lots of time with survivors.
I did a trial against a Roman Catholic priest, a female minister for women's affairs who ordered her son to rape high-level military officials. The path from the Rwanda tribunal ultimately took me to Kosovo for a year and a half.
That led to a job at the Special Court for Sierra Leone working on the Charles Taylor trial. That led to a job with the special tribunal for Lebanon where I put together the first indictment for terrorism ever at the international level in the 2005 assassination of Rafi Hariri, the then former Prime Minister and a big bombing and a very technical CSI type evidence case.
Larry Bernstein:
Next topic is whether there should be an international criminal court. After World War 2, the Americans encouraged its allies to prosecute the Nazi leadership.
At Nuremberg and the Tokyo trials, we did not put the allied commanders on trial. There was no moral equivalence.
Greg Townsend:
Nuremberg and Tokyo are examples of victor's justice, and so that's a valid criticism. Zealous advocates for the allies today would say that there wasn't the same criminality. But there was not a matching; we will take care of our own on the US or allied side as well.
And particularly the Soviet Union, you can imagine there wasn't any interest, but that's true for all sides there. So that's a valid criticism. What's happening in today's events, we're trying to hold all sides to a much higher standard. And what grew out of the World War II experiences, the Geneva Conventions in 1949, we're trying to humanize war in this body of international humanitarian law of war now stands to make ideally all sides act fairly.
The ICC started right after Nuremberg. There was this resolution from the UN to draft an international criminal court statute. And that process was stalled for 50 years because of the Cold War. The creation of a permanent court that isn't directed at one side to try and create a fair less political justice. The situation today that we are confronted with and that the prosecutor I think really had no real alternative but to request warrants is to say that the attack of 10/7/23 of Hamas clearly amounts to a war crime. That several war crimes, he's alleged in fact five war crimes, two crimes against humanity, and that the Israeli side is effectively, the prosecutor's words are, Israel is intentionally and systematically depriving the civilian population in Gaza of objects indispensable to human survival. So, food, water, this total siege is the easiest charge and the prosecutor, very prudently decided that that's what he thinks the rule of law requires.
Larry Bernstein:
In the post-World War 2 period, what are the new rules of the road for the use of force in times of war?
Greg Townsend:
The Geneva Convention 75 years ago, said, we're going to all agree that when there is a war that we are not going to act disproportionately and we're going to attempt to apply the principle of distinction and say there are military objects which are fair game, good soldier kills other soldiers, doesn't go to jail, gets medals and rewarded. As soon as they cross the line and fail to distinguish and they kill too many civilians where there isn't a military object or excessive force, then they've crossed the line and effectively that conduct has become illegal.
Larry Bernstein:
The idea of separating military and civilian targets seems great in theory, but Hamas decided to operate their military headquarters in a Gaza hospital. They built tunnels under civilian homes, and they used human shields in battle in violation of the codes of wartime conduct. How should the Israeli military fight under these circumstances?
Greg Townsend:
The real challenge for the law is balancing civilian life and military object. And there's very little jurisprudence defining this, and it's a really difficult question. Using of human shields makes the targets military targets; they're legit. It's not saying you can't attack it. They're saying if it's a military object, then you can attack it, but you need to use proportionate means.
The law today says the civilians should be protected where they can, and that the onus is on the attacker to do a proportionality analysis, and the failure to distinguish makes it more complicated. Israel's trying to move civilians away, dropping pamphlets saying you have to leave the North and most recently saying you need to leave Rafah.
There are some obvious efforts to minimize loss of civilian life, and they're playing largely by the rules. But where the more problematic things that the prosecutors brought saying deserve more investigation is that there's so many civilians packed into Gaza that they need to have food and water.
Larry Bernstein:
Your point is that the attacker needs to act prudently to protect civilian life. Yet, immediately after October 7th, there was both diplomatic and an international media blitz that Israel had to stop its aggression even before the military response had even begun. In the example of Israel's announcement that they were going to destroy Hamas in Rafah, the international media said civilians are going to die of starvation and get killed in the crossfire before Israel began the evacuation of civilians. The Israelis seem to be guilty of planning.
I heard that over a million Palestinians have evacuated Rafah in the last couple of weeks. Pamphlets were dropped, that food and water and safe passage was provided to civilians, and that there has been almost a miraculous movement of refugees out of Rafah.
Greg Townsend:
The ICC would largely say, that there's evidence already showing as an event that took place. With the International Court of Justice, which has a claim from South Africa saying, please world court as a state to state matter issue provisional measures to enjoin Israel from taking steps towards genocide. And no one contests Israel's right to legitimately defend itself after 7th of October. What's happening in Rafah is relatively recent. And that builds on months of what the prosecution and others would probably say is deliberate efforts to have a total siege and deprive the civilians of food and water.
Larry Bernstein:
How will the ICC evaluate the use of human shields in the war and locating the military in hospitals and tunnels?
Greg Townsend:
I worked at the special tribunal for Lebanon, and I can tell you in the prosecutor's role in that office that we had evidence that Hezbollah in Southern Lebanon had located its command-and-control center in a hospital. I think the ICC would strongly say that Israel has a legitimate right to defend itself. It's just that the law requires that its means used as proportionate and that it takes efforts in accordance with the law to minimize civilian and human suffering.
Larry Bernstein:
War is chaos. Mike Tyson once said, every boxer has a plan until he's punched in the nose. How should we think about Israel’s proportionality and its efforts to minimize civilian deaths while fighting in the fog of war.
Greg Townsend:
Israel doesn't have a lot of friendly neighboring countries. That's a fair statement. And as a function of that, it has become more and more militarized and it has successfully defended itself on numerous occasions. And now it's by going into Gaza and setting itself perhaps an impossible goal of eliminating every Hamas soldier. It's not that they're necessarily killing excessively, and that's a small part of the overall picture, but they're saying the civilians need to get the food and water that's indispensable for life. And so they need to fight a little bit more humanely.
Larry Bernstein:
When President Wilson proposed the League of Nations, there was a belief that international institutions could prevent war. In the past few decades, many Americans are disillusioned in these institutions like the United Nations, UNESCO, the UN Human Rights Council.
Many of these institutions are being used against the United States and its allies. For example, the Russians recently tried to use Interpol to arrest Russian dissidents in Spain.
Tell us about the success and failure of international institutions and whether they will be co-opted by the enemies of the Western democracies and is the League of Nations progeny the best path forward?
Greg Townsend:
I think internationalism is the way forward. To say that the court should prosecute one side and not another would make the court not a legitimate court. I would characterize its most recent action is showing its even handedness and even application. The checks and balances here for the ICC, it's not Kareem Khan and King's Counsel that decides whether a case goes forward. It goes to three independently selected elected judges from three different states and that they are the ones that have to decide by majority to give a green light.
The prosecutor before making these requests made at least five statements and press conferences saying the lack of aid to the Palestinians looks like a war crime. The high commissioner for human rights said so.
And the U.S. officials have also said, this looks like starvation to us. I don't think it can really come as a surprise.
Larry Bernstein:
I want to clarify potential next steps for the Israeli government if the ICC decides to move forward with an arrest warrant for Netanyahu. Israel has a judiciary that is independent of the executive branch and even appoints the government’s top lawyer its attorney general. Tell us about the importance that the ICC is a court of last resort and what happens if Israel decides to do its own investigation and trial.
Greg Townsend:
For me, the easy way out so to speak for Netanyahu is for the State of Israel to have clean hands here and conduct an investigation.. Effectively the ball’s in Israel's court.
Larry Bernstein:
A joint paper was published this week by a group of Israeli academic nutritionists that analyzed whether the Israelis were providing sufficient food to the people living in Gaza. The study concluded that the Israelis had provided 3,375 calories per person in excess of the 2,100 daily recommended amount. 96% of the people in Gaza surveyed said that they had access to food and water, but it was challenging and difficult because of the ongoing warfare.
Greg, what is your best guess how this ICC matter will play out for the Hamas and Israeli officials?
Greg Townsend:
I suspect that all the arrest warrants and all five will probably be returned and then the ICC will be in the same situation it is in many cases. It'll be viewed as a paper tiger that can't enforce and that was the experience with the Yugoslav tribunal in its early days. It may take a long time and change of powers. On one hand it may expedite Netanyahu's fall from grace and whether he's able to retain his position politically.
Do I think the Israelis are going to cuff up the two persons on an arrest warrant? No, I don't think Israel will cooperate, the position's quite clear. We don't accept the jurisdictional basis and we've made this basis where it's a longstanding objection so we don't recognize it; it's not legitimate.
I understood that one of the three of the Hamas officials is not in Gaza might be somewhere in the Gulf. I don't think any of the states where they find themselves are states’ parties, but there will be certain pressure on them. There will be the price to pay for these person's subject of arrest warrants is they will have to dodge them, and they will have to travel selectively. And that's where the screws will be turned effectively to make it more difficult for them.
Larry Bernstein:
I end each of my podcasts with a note of optimism. What are you optimistic about with regard to the future of the ICC?
Greg Townsend:
I'm optimistic that the ICC by following the facts and the law here will gain credibility. My vision is that the ICC is supported by the future U.S. administration, and that the U.S. position, which was one of leadership in international justice from the days of Nuremberg that we started talking about, is regained and that the US recovers from its Guantanamo and Afghanistan fiascos and regains that stature by becoming a state party.
That this is a clarion call to say we need to build international institutions and trust that they will operate evenly fairly and that the guilty will be convicted and the innocent will be found not guilty.
Larry Bernstein:
Thanks to Eugene and Greg.
If you missed our previous podcast, check it out. The topic was What is Wrong with Copyright. Our speaker was David Bellos who is a Professor of Literature at Princeton. David has a new book entitled Who Owns This Sentence: A History of Copyrights and Wrongs.
David explained the rationale for copyright but complained that the 95-year term for most copyrights is way too long? He was concerned about extending copyright to such things as fashion and furniture. We also discussed how AI will probably upend copyright and intellectual property.
I would like to make a plug for next week’s podcast about a possible naval conflict between the US and China. Our speaker will be James Holmes who is the J.C. Wylie Chair of Maritime Strategy at the Naval War College. Naval technology is changing rapidly, and I want to learn if the US fleet is capable of repelling a Chinese invasion of Taiwan, and what that conflict would look like.
You can find our previous episodes and transcripts on our website whathappensnextin6minutes.com. Please subscribe to our weekly emails and follow us on Apple Podcasts or Spotify. Thank you for joining us today, good-bye.
Check out our previous episode, What is Wrong With Copyright, here.
Abolishing the International Criminal Court