ASHLYNNE:

On Monday, the prosecutor of the International Criminal Court Karim Khan released a pretty extraordinary public statement….

Audio excerpt — Karim Khan:

“I have reasonable grounds to believe that three senior leaders of Hamas. Yahya Sinwar, Mohammed Deif and Ismail Haniyeh bear criminal responsibility for the following international crimes committed on the territory of Israel and the State of Palestine from at least the 7th of October, 2023.”

ASHLYNNE:

He said he was seeking warrants for their arrests and for the arrests of Israel’s prime minister and defence minister.

Audio excerpt — Karim Khan:

“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 Defence Yoav Gallant bear criminal responsibility for the following international crimes committed on the territory of…”

ASHLYNNE:

For Hamas, the charges included extermination.

Audio excerpt — Karim Khan:

“As a crime against humanity.”

ASHLYNNE:

Murder.

Audio excerpt — Karim Khan:

“As a crime against humanity and as a war crime.”

ASHLYNNE:

And the taking of hostages, rape and torture. Inhumane acts, cruel treatment during captivity and outrages on personal dignity. And for Israel, the charges include starvation as a method of warfare.

Audio excerpt — Karim Khan:

“Wilfully causing great suffering. Serious injury to body or health. Or cruel treatment.”

ASHLYNNE:

Wilful killing or murder.

Audio excerpt — Karim Khan:

“And intentionally directing attacks against a civilian population. As well as crimes against humanity of extermination and or murder.”

ASHLYNNE:

As well as Persecution and other inhumane acts.

Audio excerpt — Karim Khan:

“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.”

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ASHLYNNE:

From Schwartz Media, I’m Ashlynne McGhee, this is 7AM.

So how did the ICC’s prosecutor come to the point of applying for arrest warrants? What happens next? And can international law survive the scrutiny it’s now under?

Today, expert in international law and professor at the University of California Davis, Chimène Keitner, on the warrants now drawing attention from around the world.

It’s Friday May 24.

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ASHLYNNE:

To begin Chimène, 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 and how do they work?

CHIMÈNE:

So there have been suggestions in the news for some time that the prosecutor was looking very closely at the situation and there are 12 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 120 odd countries have signed called the Rome Statute.

Audio excerpt — Rome Statute:

“To place in your hands, the Rome Statute of International Criminal Court. May it serve mankind well in generations to come. Thank you”

CHIMÈNE:

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.

Audio excerpt — News Reporter:

“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.”

CHIMÈNE:

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 7th.

Audio excerpt — Karim Khan at Rafah Border:

“We have active investigations ongoing in relation to the crimes allegedly committed in Israel on the 7th of October. And also in relation to Gaza and the West bank and that jurisdiction going back to 2014.”

CHIMÈNE:

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, you know, without physically being on the ground in a particular location.

ASHLYNNE:

Can you tell us a little bit more about Karim Khan? Who is he? What's he like as the ICC prosecutor?

CHIMÈNE:

Well, we haven't had coffee, but I can tell you my impression 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 20 years.

Audio excerpt — Karim Khan:

“I believe in international justice. It's not just a job. It's something I believe in.”

CHIMÈNE:

And his approach certainly does seem to be more public facing. I think it's fair to say at least than his immediate predecessor.

Audio excerpt — Karim Khan:

“Very often, when I stand up, I do not know what I'm going to say. And 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.”

CHIMÈNE:

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 Hamas 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, being, 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, to see whether they agree that there are, again, the legal standard being reasonable grounds to believe that these crimes have been committed.

ASHLYNNE:

So if the warrants are issued by this three judge panel, what does that actually mean? What do they do? These warrants?

CHIMÈNE:

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 or Gallant travels that is a state party to the Rome Statute – which includes many countries in Europe but does not currently include the United States – would be obliged to arrest 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 Netanyahu, 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 of 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 Rome 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.

ASHLYNNE:

After the break, what happens if a country refuses to arrest these leaders charged with war crimes?

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ASHLYNNE:

Chimène, since the ICC prosecutor's announcement earlier this week – talk me through the kinds of reactions we've heard from those named.

CHIMÈNE:

Well, again, as a member of the public, I've heard and seen probably what you have.

Audio excerpt — Benjamin Netanyahu:

“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.”

CHIMÈNE:

What I've been more interested in, because it seems to me that the reactions of the defendants are fairly predictable. 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.

Audio excerpt — US President Biden:

“We reject the ICC’s application for arrest warrants against Israeli leaders. Whatever these warrants may imply, there is no equivalence between Israel and Hamas.”

CHIMÈNE:

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, Blinken 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 to secure a ceasefire or to more effectively conflict the provision of humanitarian aid or to get, you know, United Nations teams in to, you know, 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, you know, very complex negotiations. And so to have a criminal process running in parallel to that just is another, another wildcard.

ASHLYNNE:

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 equivalence. 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?

CHIMÈNE:

Oh, it seems to me that if Khan 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 Hamas 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, it was 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 7th didn't happen in a vacuum, the you know, extraordinarily, systematic and comprehensive, attempt to and I think the term that uses 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, politically very difficult for the prosecutor to bring charges only against Israelis, given that unlike the situation in Russia, you know, there was a really devastating attack on Israeli territory targeting civilians, involving sexual violence that is, you know, being documented and for which the prosecutor has said he may well bring charges, the continued unlawful detention 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.

ASHLYNNE:

If we assume for a moment that warrants do get issued, and Israel is already calling for countries like Australia to boycott the warrants – can countries actually do that? Is there any precedent for ignoring ICC warrants?

CHIMÈNE:

The notion that a country might have essentially mutually conflicting legal obligations and certainly, sort of mixed 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 interest.

ASHLYNNE:

It's a pretty big test for the International Criminal Court, isn't it? Can it stand up to this kind of pressure and scrutiny, do you think?

CHIMÈNE:

Well, Kahn certainly thinks he can 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 interests.

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, you know, that we don't think, as 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, you know, they are acting in self-defence, against this terrible attack of October 7th. 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 instrumentalise this idea of war crimes and who should be accountable, who should not be accountable, then I think that, you know, Western leaders will rightly lose all credibility in condemning, and using the language of international law to condemn actions by other countries.

ASHLYNNE:

Chimène, thanks so much for your time today.

CHIMÈNE:

Thank you for having me.

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ASHLYNNE:

Also in the news today,

Australians stranded in New Caledonia are still waiting for more evacuation flights amid a week of riots, after no Australians flights were 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 sinking any hope of a future referendum on full independence succeeding.

And

Federal environment minister Tanya Plibersek fell victim to a technical error on Sky News yesterday, with her microphone going live to air without her knowledge.

Plibersek’s microphone went live while a Sky News host was interviewing Coalition Senator James Paterson, with viewers hearing Plibersek saying the phrase, quote: “Don’t say anything horrible about James Paterson.”

7am is a daily show from Schwartz Media and The Saturday Paper.

It’s produced by Kara Jensen-Mackinnon, Cheyne Anderson and Zoltan Fesco.

Our senior producer is Chris Dengate. Our technical producer is Atticus Bastow.

Our editor is Scott Mitchell. Sarah McVeigh is our head of audio and Erik Jensen is our editor-in-chief.

Mixing by Andy Elston, Travis Evans and Atticus Bastow.

Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio.

I’m Ashlynne McGhee. This is 7am. Thanks for your company this week. We’ll see you again on Monday.

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