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.
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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 Arresting Netanyahu. 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.
Our speaker today is Greg Townsend who worked for the ICC tribunals in Rwanda, Yugoslavia, Kosovo and Lebanon. I want to learn from Greg what the next steps will be in the ICC judicial process for the Israeli officials. Why they are being charged? And how this will all eventually play out. I also want to figure out whether these international institutions are in the Western democracies interest or if they have been co-opted by bad actors. I want to find out if Israel can legally defend itself if Hamas uses human shields.
Buckle up.
Greg, please begin with your opening six-minute remarks.
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 Karim Khan 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. The three recent criticisms are that it equated Hamas and Israel, that there shouldn't be a case in the first place because the court lacks jurisdiction, and that these requests will hinder peace and a settlement which should be the priority.
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 sights of the court western officials is perhaps a paradigm shift, and perhaps, demonstrates its efforts to apply the law equally.
Karim Khan doing this I thought was also incredibly media savvy. 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. So procedurally those applications will go before a panel of three judges, what's called a pretrial chamber, and those judges probably want to rule on this before they go to the summer recess.
The standard of proof is reasonable grounds to grant a warrant. And so that is not a high, beyond a reasonable doubt, standard but a lower threshold. And if they're convinced at that lower, reasonable grounds standard, then they can issue warrants and they will call on states parties to effectuate arrests and bring those persons forward or summons them to voluntarily appear. This is effectively what another pretrial chamber did in the Russia case for Ukraine and against the head of state Mr. Putin and Omar al-Bashir in the Sudan situation; it's not an indictment.
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. And effectively the three arguments there was an equivalence. I think there's two sides to an armed conflict and I think these requests stand independently and he would've appeared to be favoring one side if he had filed them at different times. 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:
Let's get started with a history of the ICC. 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 1998. And like most treaties, it only enters into force when a certain number of states ratify it and deposit it with the Secretary General. 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. And the best international criminal court is one that has zero cases because these cases are all prosecuted at the domestic level. We're not yet at that place. We still have great hopes that this will give accountability where there are victims in conflicts all over the world.
Its weaknesses are that it's not universal. Big players like the U.S., Russia, China, India, Pakistan are not states 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.
When I started working in international justice in 1998, I used to say international justice is in diapers and it is still 30 years into the international justice experiment. The institution in the long arc of time is relatively new. I'd say that the trend is positive and that the court is slowly gaining acceptance and its recent actions will only build up its credibility ultimately in the long run. Although it may take some time.
Larry Bernstein:
Greg, we met each other in the fall of 1987. I had started a job at Salomon Brothers and befriended Jeff Shell and I got to be friends with Shell's friend group of which you were a core constituent.
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:
Yeah, we were up to no good along in those early days. I have to admit I am a failed aspiring diplomat. Joining the foreign service never opened up for me. I studied international relations.
Larry Bernstein:
You went to the Tufts Fletcher School of Law and Diplomacy. I remember that I visited you in Boston when you were getting your master’s degree there.
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. I won more trials than I probably should have, and it was a great training ground. Here's 300 open files, welcome to division 43. And so that's how I started. I was reading the NY Times, this Rwanda Tribunal of the UN was soon to hand down its very first genocide trial verdict. And lo and behold, the spokesperson quoted my classmate from Nigeria from the Fletcher School, and he put my resume on the right desk on the right day. In 1998 I joined the Rwanda tribunal and I spent seven and a half years working, cutting my teeth, going from petty misdemeanors in downtown LA prostitution cases to a genocide file. I worked on significant cases, the Holocaust of my generation. I felt responsibility, and I had a million dead clients in the ground. I had a duty to zealously see justice carried out for Rwanda. And I spent lots and lots of time with survivors including survivors of sexual gender-based violence.
I did a trial against a Roman Catholic priest, a female minister for women's affairs who ordered her son to rape, to high-level military officials. The path from the Rwanda tribunal ultimately took me to Kosovo for a year and a half. I had Kosovo's most wanted terrorist suspect arrested by, short spoiler alert, I had his wife's phone tapped that was how we got him.
I met my wife who was from the UK in Kosovo and we moved to the Hague, started a family, and then I transferred to the Yugoslavia Tribunal.
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 helped put together the first indictment for terrorism ever at the international level in the 2005 assassination of Rafik Hariri, the then former Prime Minister and a big bombing and a very technical CSI-type evidence case. In 2014, I went back to the Yugoslavia Tribunal, and for the last six years I've been a law professor.
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.
Greg Townsend:
And we weren't so keen on the British proposition to have the firing squad and no trial.
Larry Bernstein:
Churchill said the better solution was to simply line them up and shoot them.
Greg Townsend:
That's how it’s been done.
Larry Bernstein:
Truman nominated the US Supreme Court Justice Robert Jackson to prosecute the Nazis at Nuremberg. Was that trial a success and did it serve as the example for the ICC – The International Criminal Court?
Greg Townsend:
I think the Nuremberg trial was a huge success. If we didn't have Nuremberg, we wouldn't have had this crime that we now call Crimes against Humanity. It was the precedent setting there that is so important. We probably also wouldn't be in a position now to talk about a crime of aggression. And I think the precedents and the idea of running trials for those crimes, and the Nazi crimes were so massive, they really couldn't be ignored. I think it was a great moment.
Larry Bernstein:
In comparing the Nuremberg and Tokyo Trials to the proposed warrants in the Israel and Hamas cases. There were no indictments against Truman, Churchill, or Stalin. There was no indictment of Supreme Allied Commander Dwight Eisenhower, British RAF Commander Bomber Harris, or Curtis LeMay who ordered the firebombing of Tokyo. It was one-sided affair against the Nazi and Japanese leadership. There were plenty of atrocities on both sides of the conflict.
Truman ordered the nuclear strike on Hiroshima that killed 150,000 people mostly civilians.
Greg Townsend.
And the second one - Nagasaki.
Larry Bernstein:
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 quest for 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, a 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 use 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 objects. 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.
Larry Bernstein:
Immediately after October 7th, I did a podcast with the Professor of War Stephen King and in that podcast I asked him what the urban violence would look like in Gaza, and he said, it would result in enormous loss of life on both sides. Urban warfare advantages the defensive, as Hamas soldiers could from behind in those tunnels.
Ex post, it seems Israelis went building by building telling occupants to evacuate before destroying the building. This turned out to be successful in minimizing Israeli casualties.
Greg Townsend:
Israelis largely fought this from the air it seems.
Larry Bernstein:
Saving your own military’s lives has historical precedent. Truman justified dropping of two nuclear bombs to save a million American lives.
Greg Townsend:
The law on arial bombardment at that time wasn't settled. 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 largely doing a lot along the lines that you're saying. They're 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 that is largely due to the legal requirement to do so. And so they're playing largely by the rules. But where the more problematic things that the prosecutor 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. And that this warrant from the ICC is almost anticipatory in nature, that they expected future crimes and wanted to begin the cross-examination and arrest prior to the attack. Is it the role of the ICC to anticipate and demand compliance before the attack or should it wait for a crime to be committed and then seek justice?
Greg Townsend:
The ICC would largely say that it's not charging anything in an anticipatory way, that it's all stuff that it's observed, 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. And because of the perception that Israel is powerful enough and has good enough intelligence that they're vulnerable, that they feel that they need to cheat and violate the laws of war and fail to distinguish, and then they basically put large populations in harm's way. I'm not at all surprised when I hear the amount of military infrastructure that's hidden under civilian infrastructure. 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 are proportionate and that it takes efforts in accordance with the law to minimize civilian and human suffering.
Larry Bernstein:
I did a book club with Ronen Bergman for his book, Rise Up and Kill First. This is a history of the Mossad. Israel lives and operates in a difficult neighborhood.
The Israelis don’t believe that peace is achievable. They prefer low scale to full scale violence. One approach is to assassinate terrorists. Netanyahu's process separates the decision makers for who is to be assassinated from the killing department. There's an evaluation of the potential collateral damage given the threat of the relevant terrorist. The assassination file is then brought to the entire cabinet and then Netanyahu makes the ultimate decision.
The Israelis evaluate their successes and failures. One failure was a meeting of high-level Hamas officials near a school. Netanyahu decided to use a small bomb that was ineffective and the Hamas leadership left unscathed.
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 perhaps we're not looking at it from the Israeli point of view and this sort of existential threat that they're feeling, but ultimately no one at this point feels like Israel is facing the threat of being wiped off the face of the earth by Hamas. And so they need to fight a little bit more humanely.
You mentioned this very detailed process. I mean, what's also come out is the use of artificial intelligence AI in the targeting. AI is producing hundreds of potential targets in a day, whereas old fashioned human intelligence techniques would produce a handful. This really ratcheted up the attacks and whether or not this level of supervision that's all hidden to the outside observer, those approval processes. And yes, there's chaos in war and there's fog of war and there's going to be mistakes made.
I guess zooming out that if there's two states, and there's applicable law, then this may hopefully after a cease fire and change of government and less terrorists attacking civilians by Hamas that will have cooler heads prevail.
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 Karim Khan, 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. And if that is deemed legitimate and there's a bona fide investigation, the ICC has to give some deference to that. If the result on the other hand is that no, there was excessive force, they tried to starve, then a domestic case that imposed some sanctions would also deprive the ICC of jurisdiction. 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 have 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. The price to pay for these persons 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 a 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 to the ICC.
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 Greg for joining us today.
If you missed last week’s 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.
Arresting Netanyahu