0:03

Al Jazeera podcasts. Today

0:13

behind an Israeli warning that

0:15

international prosecution may be looming.

0:18

Israeli officials for the International Criminal Court

0:20

may issue arrest warrants for senior members

0:23

of government and Prime Minister Benjamin Netanyahu

0:25

may be on the list. So

0:28

what would legal action mean for Israel?

0:34

I'm Malika Bilal and this is

0:36

The Take. Al

0:45

Jazeera's Hamda Salhut is on the ground in

0:47

Tel Aviv. She's been following

0:49

these recent warnings suggesting that international

0:51

criminal court arrest warrants might be

0:53

in the works for some of

0:55

Israel's most senior leaders. Israeli

1:00

officials have been speaking about this

1:02

at length, including Israel's foreign minister

1:05

Israel Katz and the Israeli Prime

1:07

Minister Benjamin Netanyahu. No

1:10

ICC action will impact

1:12

Israel's ironclad determination to

1:14

achieve the goals of our war with Hamas

1:16

terrorists. We will destroy

1:18

Hamas's military and governing capabilities in Gaza.

1:22

We will release all our hostages and

1:24

we will ensure that Gaza never poses a

1:26

threat to Israel again. Now

1:30

the Israeli Prime Minister has said

1:32

that this would quote be an

1:35

outrage of historical proportions saying that

1:37

the international court is trying to

1:39

put Israel on the dock as

1:42

Israel continues its war on Gaza.

1:48

We reached out to an international law

1:50

expert to help us learn more about

1:52

ICC prosecution and its impact on Israel.

2:00

of the Fraser Valley. My work

2:02

focuses on human rights law and

2:04

the prosecution of international crimes, so

2:07

war crimes, crimes against humanity, and

2:09

genocide. Hmm, which is why

2:11

we have you here. So talk

2:13

to me about what that looks like for you

2:15

when you get a breaking news alert

2:17

on your phone and it says something like, Israeli

2:21

officials warn

2:23

of potential warrants.

2:26

It's about time. You know, I'm

2:29

not new to this game. I've been working

2:31

in this field and studying this field for

2:33

a long time. Israel and

2:35

Palestine isn't the only situation where people

2:38

like me, in particular, victims and survivors

2:40

and advocates are a little bit impatient

2:43

for something to finally happen on the

2:45

justice and accountability front. I'm

2:47

one of those people who believes that

2:49

this conflict continues to happen

2:51

because there's such a mass

2:54

and denial of accountability and

2:56

a production

2:58

of shame constantly

3:01

against civilians on all sides of

3:03

this conflict. For me, it's about

3:05

time. And when people like,

3:07

you know, Prime Minister Benjamin Netanyahu are

3:10

worried, I think we're doing the right thing.

3:13

Hmm. So we know that

3:15

the ICC has been investigating possible crimes

3:18

in the Gaza Strip and the West

3:20

Bank since 2021. And

3:22

we now know that Israeli officials are

3:24

concerned. But to understand why that

3:27

matters, we have to start with who is

3:29

and who isn't in the ICC.

3:32

Palestine is a member of

3:34

the ICC. Israel

3:36

is not and doesn't

3:39

recognize the court's jurisdiction. So what

3:41

difference does this make? Yeah,

3:44

such an important question. And I know that

3:46

sometimes it can get kind of lost in

3:48

legal mumbo jumbo, but I think there is

3:51

a relatively simple way to understand this. So

3:54

first of all, for the

3:56

purposes of the International Criminal Court, it

3:58

doesn't really matter. how many

4:00

states recognize Palestinian statehood. We know

4:02

now that across the world, 142

4:04

do, and

4:07

then there's those that don't primarily Europe, the

4:09

country that I'm in right now, Canada, United

4:12

States. But for the

4:14

International Criminal Court, all that really

4:16

matters is that the ICC itself

4:18

recognizes that Palestine is a state

4:20

for the purposes of the International

4:23

Criminal Court, which as you rightly

4:25

mentioned means, it can investigate on

4:27

the territory that is Palestine. Now,

4:30

you also noted that the ICC's

4:32

been investigating since 2021. It

4:35

opened its investigation in 2019, but

4:38

what it had to do then, the prosecutor

4:40

at the time, is basically

4:43

figure out what is Palestine, right?

4:45

Because there's been questions for decades

4:47

as to what exactly Palestine is.

4:49

Where does Palestine stop? Where does

4:51

it end? Which parts are

4:53

Palestinian? Which parts are not Palestinian? And

4:55

the judges came back in 2021 and

4:59

basically said, look, we believe

5:01

that Palestine as a state before the

5:03

International Criminal Court is made

5:05

up of Gaza and the

5:07

West Bank, including East Jerusalem. So

5:13

that means that despite the fact

5:15

that Israeli officials and the IDF,

5:17

et cetera, are citizens

5:19

of a state, Israel, that is not a

5:21

member state of the ICC, the

5:24

ICC can investigate and prosecute

5:26

those crimes because they're happening

5:28

on the state of Palestine.

5:30

It also means that

5:33

any citizen of Palestine can be investigated

5:35

by the ICC, which is important for

5:37

October 7th, because it's

5:39

very likely that the ICC prosecutor

5:41

will issue arrest warrants in the

5:43

coming days or weeks for Hamas

5:46

perpetrators whose atrocities were committed in

5:48

Israel, which again, is the territory

5:51

of a state that is not

5:53

party to the ICC. But because

5:55

they're Palestinian, the ICC can exercise

5:58

their jurisdiction. perhaps

6:00

to kind of figure this out is, look,

6:03

we're having this conversation around Israel-Palestine

6:05

for political reasons, but no one

6:07

doubts that when Russia invaded Ukraine

6:09

in 2022, that it

6:11

was somehow wrong for the ICC

6:14

to investigate Vladimir Putin, even though

6:16

Vladimir Putin is the president

6:18

of a country that is not a member

6:20

state of the ICC. The

6:23

International Criminal Court in The Hague has

6:25

issued an arrest warrant for Russian President

6:27

Vladimir Putin. In a statement,

6:29

the ICC said the warrant is in connection with

6:31

allegations of war crimes in Ukraine. It

6:38

would make no sense if states could

6:40

join the ICC, but then citizens of

6:42

other countries could come in and commit

6:44

atrocities, and the ICC would be like,

6:46

oh, well, we can't actually do anything

6:48

about this. We can only investigate those

6:50

who accepted the jurisdiction. That doesn't protect

6:52

anyone. Right. Otherwise, it

6:55

would make the ICC pretty

6:57

toothless. So that makes

6:59

sense. Given all

7:01

that, though, the flip side is that

7:03

the ICC has given no indication that

7:05

warrants for Israeli officials or Hamas

7:08

officials are imminent, and it's made

7:10

no comment on the claims. When asked

7:12

about these media reports of the

7:14

arrest warrants, the ICC told NBC

7:16

News that it, quote, has

7:19

an ongoing, independent investigation in relation to

7:21

the situation in the state of Palestine.

7:24

So then why the concern?

7:28

So it's an interesting point. So first of all, totally

7:31

makes sense that the ICC prosecutor is

7:33

not talking about arrest warrants. We

7:36

shouldn't really know whether the ICC is

7:38

going to issue arrest warrants at any

7:40

given time because it's a highly confidential

7:42

and sensitive process. The

7:44

question then arises is why is Israel afraid

7:47

of something that the ICC hasn't actually done

7:49

yet? I think it comes down

7:51

to the fact that they know that something is

7:53

coming. I've written about

7:55

this before, just like

7:57

the United Nations and other countries. The

8:00

ICC just isn't immune to espionage

8:03

and intelligence gathering, right? And

8:05

that is something that we all

8:07

know Israel is very, very adept

8:09

at. I think it's just pretty

8:11

clear that they got with of

8:13

something coming down the pipeline and

8:16

shared it internally, whether or not they're getting

8:19

it right. I don't know, you

8:21

know, intelligence doesn't always get it exactly right.

8:23

But it's enough that it

8:26

caused what seems like

8:28

mayhem and nervousness and a certain

8:30

level of hysteria among

8:32

senior Israeli politicians. And

8:35

in my view, that doesn't

8:37

happen if there's no point

8:39

whatsoever. After

8:41

the break, the US lawmakers are

8:43

warning the ICC that arrest warrants

8:45

for senior Israeli officials will be

8:47

met with US retaliation. The

8:53

Inside Story podcast dissects, analyzes and

8:55

helps define major global stories. We

8:58

get into the details with experts who

9:00

explain how policies affect people. The

9:03

Inside Story podcast by Al Jazeera. So

9:16

Mark, we know that this isn't the

9:18

beginning of the ICC's involvement in Israel-Palestine.

9:21

It launched a probe three years ago,

9:23

we mentioned, into possible war

9:25

crimes committed by Israel and Palestinian

9:27

fighters. And Israel's construction

9:29

of illegal settlements in the occupied West Bank

9:32

was also tied up in that. And

9:34

there was fallout from that eventually. The

9:37

Trump administration imposed sanctions against

9:39

the International Criminal Court in

9:41

2020 in coordination with Israel.

9:46

So the fallout wasn't

9:48

great. But on the other hand, I think

9:53

it did. do

10:00

something, which is if Donald

10:02

Trump is going to have this

10:04

massive hissy fit over the

10:06

ICC's work abroad, if you have

10:09

this massive disproportionate reaction, it

10:12

also does something important and I think is

10:14

actually good, which it says the ICC is

10:16

doing the right thing. Because if people like

10:18

Donald Trump and Benjamin Netanyahu are worried about

10:20

the ICC, that means that the ICC is

10:22

doing its work without fear or favor from,

10:25

you know, politicians

10:27

or states that would otherwise

10:29

happily threaten it and interfere

10:31

with it. And I

10:33

think it's actually quite an important

10:36

story to highlight that you're absolutely

10:38

right. There was coordinated sanctions against

10:40

the ICC prosecutor. There was various

10:42

kinds of threats to the ICC

10:44

prosecutor and indeed, crazily

10:46

enough to their families from the

10:49

United States. And

10:51

the ICC is still investigating the situation

10:53

in Palestine. So they stood their

10:55

ground and they withstood that kind of political

10:57

interference. Do I think that that will happen

11:00

again? Yes. I think if you look at

11:02

Twitter and all the kind of Congress people

11:04

and senators, both Democratic and Republican, again,

11:07

they are making, you

11:09

know, very extreme claims about the ICC.

11:11

There's suggestions that this would be a

11:13

fatal blow to the ICC. So basically

11:15

threatening the ICC with it that it

11:17

might not even exist if it continues

11:19

to do this, that they'll sanction it.

11:22

Behind the scenes, I think, are

11:24

actually the more important threats. I

11:26

know that the ICC constantly on

11:28

this situation faces threats from states,

11:30

whether it's to pull funding or

11:32

for states to, you know, reduce

11:34

their levels of cooperation and support

11:37

of the ICC. It's a

11:39

really big moment for the court

11:41

because it's never really done anything

11:43

on this scale. It is

11:45

about time. But it's also a really tough

11:47

thing to do to go after the leaders

11:50

of a state that have so

11:52

much support. What I do hope

11:54

and what we haven't seen, unfortunately,

11:56

I think so far is. We

12:01

haven't seen states that do support

12:03

the ICC and its investigation stand

12:05

up and say, hey, if

12:07

anybody's threatening the court right now, they should stop

12:09

doing this. They don't have a right to interfere

12:12

with the ICC. And I'd

12:14

really like to see that, right?

12:16

Hopefully they do that. Of course,

12:18

whether they do that publicly matters.

12:20

It also just simply also matters

12:22

whether they're communicating that in private

12:24

to the prosecutor, they'll support and

12:26

stand by whatever the prosecutor decides,

12:29

and they don't have to like it. No

12:32

one should like the fact that we're

12:34

in a situation where arrest warrants are

12:37

necessary right now. I

12:45

think back quite often on what the

12:48

ICC prosecutor Kareem Khan had said repeatedly

12:50

in October and then again in February

12:53

on something like the denial of

12:55

aid into Gaza. He

13:24

said, look, this aid, medical

13:26

aid, clean water, food has to

13:28

come in. And if

13:31

it doesn't, that is a war crime

13:33

under my jurisdiction. And

13:35

if it doesn't come in, if

13:37

this situation does not change, do

13:40

not be surprised if you

13:42

basically forced my hand into issuing arrest

13:45

warrants. In February, he basically called Israel

13:47

out. He said, look, I

13:49

haven't seen enough change in behavior. I

13:51

told you in October that not enough

13:53

aid was going in, that this was

13:56

going to create a massive humanitarian crisis.

13:58

You didn't listen. don't change,

14:00

don't act surprised later, if

14:03

I have to issue a arrest warrant. Laws

14:06

of war must be respected.

14:09

They can't be rendered hollow. They

14:12

can't be interpreted so as to void

14:14

them of meaning or to dilute

14:18

or eviscerate any protective purpose that

14:20

the Geneva Conventions and the law provides

14:23

the most vulnerable children, women,

14:26

people that are sick, or civilians.

14:28

They must be interpreted with full protection.

14:32

So states don't have to like that this

14:34

is happening. All they

14:36

have to do is respect that the

14:38

only independent credible investigation into these atrocities

14:41

right now is happening at the ICC.

14:43

And they should all, in my

14:45

view, especially democracies around the world,

14:48

side with the fact that accountability

14:50

matters, that justice matters,

14:52

and that anything that suggests otherwise

14:54

is such a flagrant insult to

14:56

victims and survivors in Israel and

14:59

Palestine. So

15:01

then I wonder for you if

15:03

you could explain to people who hear that and

15:06

who think justice does matter, why

15:09

then it seems like there is an exception

15:11

when it comes to Israel, at least

15:14

with the United States. You

15:16

mentioned the US lawmakers who are threatening

15:18

action against the ICC. They're

15:22

not the only ones. The Biden

15:24

administration also does not support the

15:26

ICC's investigation into Israel's actions in

15:28

Gaza. But in the

15:30

past, the US has welcomed actions

15:33

by this court against

15:35

countries like Russia. So

15:38

there's a little bit of a conundrum here. What

15:41

power does the US actually have to

15:43

stop prosecutions from happening in cases where

15:45

it wants to stop them? No.

15:48

I mean, technically no. It

15:51

can try, and it is trying, and

15:53

it has tried before, but it theoretically

15:55

has none. As I said before, the

15:57

United States isn't even a member state.

16:00

of the International Criminal Court. One of

16:02

the most

16:04

absurd facts about international criminal law

16:06

in the ICC is that the

16:08

state that has tried to influence

16:10

and affect the ICC the most

16:12

in its history has been a

16:14

non-member state. Wow. Yeah,

16:17

it's just remarkable. And look,

16:21

I think I agree with those

16:23

people who say, look, I really hope that one

16:25

day the United States just joins the ICC, is

16:27

bound to the ICC. But

16:30

until then, we have a state that,

16:32

as you pointed out, sometimes likes

16:35

the ICC's work and sometimes doesn't.

16:39

So say these arrest warrants are

16:41

issued. What would they

16:43

entail? What would officials be charged with?

16:46

I think if we're looking at Hamas, it's

16:49

not that difficult because Hamas

16:51

attacks are inherently and explicitly

16:53

indiscriminate. So I actually

16:55

think it's not very difficult to

16:58

build cases against Hamas perpetrators under

17:01

international humanitarian law, which is the kind

17:03

of legal regime that governs war

17:05

crimes. So those cases should be relatively

17:07

easy. On the

17:09

Israeli side, I think it's actually a

17:11

little bit more difficult. It's

17:16

really important to note that

17:19

the ICC cannot investigate

17:21

in Gaza on the ground or in

17:23

Israel because Israel will not allow it

17:25

to. And so that

17:27

will create certain limitations. So

17:29

what I think actually, and I

17:31

could be wrong, but I think

17:33

the ICC will focus on kind

17:35

of policy driven crimes

17:37

at first. So

17:39

for example, the denial of aid

17:41

or the intentional starvation of Gazans,

17:44

that is something that the ICC

17:46

can investigate without actually going

17:48

into Gaza. Final

17:54

question, Mark. Say

17:56

these arrest warrants are issued

17:58

against these cases. individuals because of

18:00

course that's what the ICC does. What

18:05

effect will that actually have in Gaza? Will it

18:07

change anything on the ground? I

18:12

hope so. I really hope so.

18:14

I don't think, look,

18:19

it will not bring peace to

18:22

Gaza or the West Bank. What

18:26

I do hope that it signals, for

18:28

the first time ever, is that

18:30

an international court believes you. Believes

18:33

that what happened to you was

18:36

awful. And not just awful

18:38

and not just as we hear so

18:40

often tragic, but criminal in nature. That

18:43

the only permanent international court created

18:46

to investigate war crimes, crimes against

18:48

humanity and genocide, as imperfect as

18:51

that court may be, believes

18:54

that the victims and survivors have

18:56

experienced something unlawful. And

18:59

even if the arrest warrants aren't immediately

19:01

enforced, and even if someone like Netanyahu

19:03

doesn't end up at the ICC in

19:05

the next coming months or years, there's

19:08

justice in the process of pursuing

19:10

justice. And

19:14

that's The Take. This

19:17

episode was produced by Sariel Khalili,

19:20

Khaled Sultan and Sonia Baghat,

19:22

with Naguin Aliayi, Chloe Kaylee,

19:25

Manahil Navid, Tamara Khandakar, Catherine

19:27

Nuhan, Ashish Malhotra, David Enders,

19:29

Amy Walters, Zaina Bazar, Taranisa

19:32

Campana, and me, Malika Bilal.

19:35

Our sound designer is Alex Roldan. Joe

19:37

Plourd mixed this episode. Alexandra

19:39

Locke is The Take's executive producer

19:41

and Ne Elvarez is Al Jazeera's

19:44

head of audio. We'll be back.