The Just Security Podcast

A Request for ICC Arrest Warrants and the Israel-Hamas War

• Just Security • Episode 67

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On Monday, May 20, International Criminal Court head Prosecutor Karim Khan announced that he has submitted an application to the Court’s judges to issue arrest warrants for Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the Minister of Defence of Israel, and three Hamas leaders, including Yahya Sinwar, for war crimes and crimes against humanity. The allegations are extensive, as discussed in a lengthy statement released by the Prosecutor, although the application itself is not yet public.  

The decision has major implications for the devastating conflict still raging in Gaza; and for how the Court interacts with nations across the world. In Washington, the arrest warrants are certain to threaten recent increased cooperation with the Court, and efforts to prosecute Russian officials for war crimes and crimes against humanity committed in Ukraine could also be jeopardized. 

Joining the show to discuss Khan’s request and its potential consequences are Todd Buchwald, Tom Dannenbaum, and Rebecca Hamilton. 

Todd formerly served as Ambassador and Special Coordinator for the State Department’s Office of Global Criminal Justice. Tom is an Associate Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University, where he is also Co-Director of the Center for International Law and Governance. Rebecca is a law professor at American University and an Executive Editor at Just Security.

Show Notes:

Paras Shah: Hello and welcome to a special episode of the Just Security Podcast. I’m your host, Paras Shah. Joining me to co-host today is Just Security’s co-editor-in-chief and former senior White House National Security lawyer, Tess Bridgeman.

Tess Bridgeman: As many of our listeners will have seen this morning, today, Monday May 20, International Criminal Court head prosecutor Karim Khan announced that he has submitted an application to the Court’s judges to issue arrest warrants for Benjamin Netanyahu, the Prime Minister of Israel, and Yoav Gallant, the Minister of Defense for Israel, and as well as Hamas leaders, including Yahya Sinwar, for war crimes and crimes against humanity. The allegations are extensive, as discussed in a lengthy statement the Prosecutor released today, although the application itself is not yet public. 

The decision of course has major implications for the devastating conflict that is still raging in Gaza; as well as for how the Court interacts with nations across the world, including not just the 124 member states but also the United States and others that have supported Israel in its war against Hamas. In Washington, the arrest warrants are certain to threaten recent increased cooperation with the Court, especially around efforts to prosecute Russian officials for war crimes and crimes against humanity committed in Ukraine.

Paras: Joining the show to discuss Khan’s request and its potential consequences are Todd Buchwald, Tom Dannenbaum, and Rebecca Hamilton. 

Todd formerly served as Ambassador and Special Coordinator for the State Department’s Office of Global Criminal Justice. Tom is an Associate Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University, where he is also Co-Director of the Center for International Law and Governance. Rebecca is a law professor at American University and an Executive Editor at Just Security.

Tess: Bec, we'd love to start with you with a question about how we got here. This is of course, a momentous day for the ICC for the suspects charged, of course, for governments like the United States that have been supporting Israel in various ways, and its conflict with Hamas. And the charges today do seem to stem from the events of October 7th and beyond. But of course, the courts, the prosecutor’s investigation far predated these events. So can you give us a brief overview of how we ended up here today? 

Rebecca Hamilton: Sure, and I think you're right, I think for people who are not paying a lot of attention to the court, most of the time, it feels as though this just sort of came out of the blue. But in actual fact, the story extends back well over a decade. More like 15 years actually was when we had the Palestinian Authority first launch what's called an Article 12 III declaration which says we accept the jurisdiction of the court, even though we're not actually part of the court ourselves. And this story extends over three different prosecutors, in fact, so at the time, it was the prosecutor Luis Moreno Ocampo, who looked into that, but concluded that because at the time, Palestine had only observer status at the United Nations, that it didn't meet the requirements to be falling within the jurisdiction of the court. But fast forward to 2012, we had a UN General Assembly resolution that granted non member state status to Palestine at the UN; 139 votes in favor of that. And so what we saw in 2015 then was Palestine joining the court as a state party to the court, and by then we were at prosecutor Fatou Bensouda, who opened a preliminary investigation, and in 2019, concluded that, indeed, the criteria were there to open an investigation. But because of all of the complexities swirling around the particular situation of Palestine, she actually asked the pre–Trial Chamber to issue a ruling on the jurisdictional issues regarding territory in Palestine. And so in 2021, we had the pre Trial Chamber come in and say, yes, there is territorial jurisdiction, we will treat Palestine like any other state party to the ICC. And so Fatou Bensouda before she left office opened an investigation, which is what Kareem Khan, the current prosecutor, picked up when he came into office. And the results of all of that are what we see culminating today.

Tess: So Tom, if you could take us from there to what was actually in the application for arrest warrants today. This is the third time of course you're joining us to discuss the war crime of starvation of civilians as a method of warfare, which does seem to be the key gravamen of what was charged with respect to Netanyahu and Gallant today, of course, the charges for the Hamas leaders look very different. But as you wrote in your excellent piece that you published with us this morning, this is a remarkably comprehensive set of allegations. It represents an unprecedented level of transparency at this stage of an ICC case. So can you just talk us through exactly what Khan is alleging in the application for arrest warrants today, and whether there's anything that surprised you in what was charged given you've been following this so closely. 

Tom Dannenbaum: So I think it was inevitable that on the Israeli side, starvation was going to be the crux of the investigation and the crux of the initial allegations. What I suppose was surprising in today's application, or the announcement of today's application for arrest warrants for Benjamin Netanyahu, Yoav Gallant is that salvation was the crux, but the starvation war crime wasn't the exclusive allegation. Instead, he included a number of other war crimes, willful killing, or cruel treatment, willful killing or murder, I should say, willfully causing great suffering or serious injury or cruel treatment, and then intentionally directing attacks at a civilian population, and a number of crimes against humanity, extermination or murder, persecution is a crime against humanity, and other inhumane acts as a crime against humanity, the residual category, all of them, though, ultimately, are rooted in starvation. And so you might wonder, why bring all of these different allegations with respect to the same fundamental crime base. And I think there are a number of reasons for doing that. One is expressive that these captured different components of the wrong here. So in particular, some of these crimes are really about the lethality of what's happening: extermination, murder, willful killing, and murder as a crime against humanity and as a war crime. Some of them are about discrimination, persecution, for example, some of them are about the suffering.

The other component that warrants these multiple different charges is that they have different strengths and weaknesses from a prosecutorial perspective. So in particular, the salvation war crime has never been prosecuted at the international level. So there's some uncertainty with respect to exactly what would be necessary to get that across the line. But it's also the case that in this situation, it attaches only in international armed conflicts, whereas the other war crimes I mentioned, have international or non-international armed conflict versions. And so when I was giving those alternatives earlier, it was partly because one version is the international armed conflict version, one version, is the non-international armed conflict version. My view is that this is an international armed conflict, certainly as applied to Israel's conduct in Gaza. But if there were any uncertainty about that, these other war crimes that offer a non-international armed conflict version are secure against that, precisely because you can charge those under non international armed conflicts. And then with respect to crimes against humanity, there doesn't need to be a nexus to armed conflict at all. Instead, we're emphasizing the widespreadness or systematicity of the violations. And so that is both expressively valuable, but also allows for a different path. And additionally, perhaps allows for setting a precedent for how starvation crimes can manifest in multiple different ways. So for example, my view is that in the crime against humanity category, the other inhumane acts, subcategory is perhaps the subcategory that is most often going to be available with respect to salvation crimes, and so setting a precedent for that would itself be valuable. And I don't know if you want me to also discuss the Hamas side at the moment, or not yet.

Tess: Yeah, sure, that would be helpful Tom. Just give us a brief overview and to break down a bit what you were just saying, unpack it a bit. For some of our listeners who might be less familiar with these terms. The prosecutor said in his announcement today, my office submits that the war crimes alleged in these applications were committed in the context of an international armed conflict between Israel and Palestine, and a non-international armed conflict between Israel and Hamas running in parallel. So I think you were getting a little bit at what it means in terms of which kinds of crimes can be charged, depending on what kind of conflict you're in. But if you could give us a brief overview of the Hamas allegations, with that as background. 

Tom: Yeah, so just to go in on that armed conflict issue. There are two basic theories for why this can be classified as an international armed conflict, at least on one side, although it's a little bit complicated to frame it in those terms. 

One is that there's an occupation. And there, one can either take the view that Gaza was occupied prior to October 7; or if one disputes that one might take the view that parts of Gaza became occupied subsequent to the hostilities that ensued once Israel gained full control over various areas of Gaza.

If there's an occupation, then that is a context in which the occupying power is bound by the law of international armed conflict. That doesn't necessarily mean that non-state armed groups fighting against that occupying power are going to be governed by the law of international armed conflict. That's a somewhat complicated question. But additionally, the second way of getting to an international armed conflict here is that Israel is using force on the territory of Palestine without Palestine’s consent. That's a newer theory of when an international armed conflict can occur. But it's a theory that the International Criminal Court has endorsed in past cases, most notably the Ntaganda case, although it was in dicta. 

If that obtains again, it doesn't necessarily mean that there's not also a non-international armed conflict. So when Israel is using force against Hamas, it may be involved in an international armed conflict with Palestine. And yet at the same time, the dyad with Hamas is a non-international armed conflict, because it's a state versus a non-state armed group. So this is highly technical, and it's very legalistic, but it has significant implications in terms of the crimes that are available, and precisely what charge would obtained. The way that the prosecutor has approached it here is that all of the Hamas actions are under non international armed conflict war crimes, whereas the Israeli actions have been alleged under both as alternatives to one another. 

Tess: Extremely helpful, so that gives us a bit of insight into why the prosecutor may have proceeded this way, although I'm sure the nature of the conflict is something that will continue to be debated as we see more coming out of this action today. So with that, one last follow up for you, before we turn to Todd is: can you give us a brief overview of those charges against Hamas, that, as you, as you said, apply in non-international armed conflicts, which is how the prosecutor has proceeded thus far.

Tom: Right, so the charges against Hamas leaders include both war crimes and crimes against humanity, based on the way that the distinction between international armed conflicts and non-international armed conflict seems to have been evaluated by the prosecutor, all of the war crimes charges on the Hamas side are non-international armed conflict war crimes charges, and they include taking hostages, murder, torture, and cruel treatment, and also rape and other acts of sexual violence. Although in that specific category, he specified that it is exclusively within the context of captivity, and that investigations of rape and other acts of sexual violence on October the 7th itself are still ongoing and are not part of these allegations. Then on the side of crimes against humanity he included extermination, or murder, extermination, just being mass murder, torture, again, rape and other acts of sexual violence in the context of captivity and other inhumane acts. So again, it's a broad range of charges and includes both acts on October 7th, including killing and other forms of harming and then crimes in the context of captivity, in addition to the hostage-taking crime itself.

Tess: That's great. Thank you so much, Tom. And turning to you now, Todd, with the questions that I think will be on a lot of our listeners' minds that really have to do with the responses of states, and in particular, the United States to today's announcement. You've of course, made policy for the United States and seen policy being made for the United States on the ICC from the inside across Democratic and Republican administrations, and in a range of contexts. 

The White House issued a very excoriating statement within hours of the prosecutor’s announcement today. It's worth reading in full, it's quite brief. It says "the ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. And let me be clear, whatever this prosecutor might imply, there is no equivalence, none, between Israel and Hamas. We will always stand with Israel against threats to its security." And that's the statement in full. There was a longer but equally outraged statement by the Secretary of State, again saying that the application is rejected by the United States and calling it in fact shameful.

What, given your history on these issues, including dealing with the court when it was investigating the United States, what is your message to the Biden administration and to congressional leaders in this moment? What his history taught us about what would in fact be a misstep or a reaction that could be a mistake in this moment? And what if anything, should be done in concrete ways to respond to today's news?

Todd: Thanks, Tess. I think that the first thing that history tells us is that ICC policy is made in a vacuum. It's about the ICC, but it's only partly about the ICC. So an administration may have a predilection towards viewing the ICC in one way or another, with great suspicion in the early days of the Bush administration after the Rome Statute entered into force, or more hopefully in the Obama administration, but then events in the real world swing sort of one way or another, and the administration comes under pressure to recalibrate. So for example, we saw in the Bush administration, where they had very strong sort of conceptual concerns about the ICC, President Bush looked at what was happening with atrocities in Darfur for in 2003 to 2004, and decided that the possibility of accountability offered by the ICC, the Darfur part of the equation was more important than theoretical concerns about the nature of the ICC. And you saw that, by the second half of the Bush years, the administration was working, in fact, to repeal some of the statutory restrictions that had been imposed under the American Servicemembers Protection Act.

And so too, in the Obama administration, where there was a more hopeful view towards the ICC, you did see a significant chill descend on the playing field, as the prosecutor towards the end of the Obama administration moved closer and closer to commencing an investigation of the situation in Afghanistan, which would encompass allegations of torture as part of the Bush administration's so called enhanced interrogation program. So, you can agree or disagree over whether that's what should happen, but that’s what does happen. So that tells us that in deciding what it should do now, the US government will be focused on, you know, what it sees as the bigger picture: the relationship with Israel, the Middle East peace issues, and so forth. That will shape the playing field way more than the conceptual issues about how we should interact or not interact with the ICC. So I think there will be a strong response that will cause a strong response. It may not be what listeners to this podcast want to hear, but broader dynamics, the political dynamics, are going to clamor for it. And you can see that in the statements already this morning from Secretary Blinken and the President.

That said, the exact shape of the strong response is another thing. So right now, we can see a significant push for sanctions, presumably along the lines of the executive order the visa sanctions imposed during the Trump administration.

I personally think that would be a mistake. And just to go back, when we were putting together the report for ASIL, for the American Society of International Task Force in 2021, policy options for engagement at the ICC, we spoke with a seemingly endless number of foreign government officials, members of the international community. And it's really hard to overstate how damaging the resort to sanctions was for the reputation of the United States. The view people had of it. And it was really worse than that, because even on a more tangible level, it was sort of counterproductive to what the Trump administration wanted to have happen in the sense that it backed our allies into a corner, they felt compelled to rally to the Court’s defense. That's what we heard over and over and over, virtually from everybody we talked to. And when you think about it, an act like that really leaves the court with no way out. It virtually compels court actors, you know, not to show weakness, not to give an indication that they're succumbing to U.S. pressure. So it might feel good to some people to enact sanctions legislation. But from my experience, you might as well be enacting the "Exit Ramp Elimination Act." There's no clear line I see between adopting that kind of legislation and ending up with a result that the US government will say that it wants. And I think you also have very significant First Amendment challenges, which were not resolved during the Trump administration. But the idea that sanctions like this would prevent people from basically expressing their views to ICC actors in support or against what the ICC is doing, raises First Amendment kind of concerns that people should be concerned about, regardless of what they think about this particular issue.

So that's what I can bring to bear from my experience on the general issue of where the US is going. It's going somewhere, it's going somewhere strong, and whether that strong response should include sanctions, which I don't think is a productive move.

Tess: Todd, that's extremely helpful. And I think we can coin today, credit to you the exit ramp Elimination Act, the ER EA, which we will see in the forthcoming weeks and months. I wouldn't be surprised if we end up seeing it in the NDAA, the National Defense Authorization Act, which is my guess where this battle will end up being fought. But just one more follow up question on that. Given what you said, there will be a strong response. We've seen it already beginning today, given there is more than ICC policy that goes into this, when it comes to how the administration should respond, what exit ramps are available? What does a middle path look like? What is the temperature of the room when cooler heads prevail in terms of what can actually be said? I'd be interested in your take on that. Todd, as well as Bec, I think you might have thoughts on that as well.

Todd: The problem is, as Harold Koh used to tell me, that you can't defeat something with nothing, you can't sort of ward off sanctions unless you come up with some kind of plan. And it's not really clear yet, although this is only day one, what that plan would be. But it's true that it won't be possible to defeat something with nothing. There's a lot of issues that this is going to push to the fore, I think, that have been sort of brewing in different ways, largely in the context of Ukraine in the last couple of years that will be reexamined, and or may be reexamined, and or pushed harder, in a way that I would guess a lot of listeners to this podcast won't like. I think one issue that they will push forward is the whole issue of head of state immunity, which is something that the ICC thinks it's decided. But I don't think it's decided it to the to the satisfaction of the US government, or virtually any government that isn't a party to the Rome Statute.

 And the US has sort of looked the other way when the head of state you're talking about is the Russian head of state. But this is a real issue. And it's not clear how a group of states, the ICC members, can agree among themselves to overcome the rights of a third state that hasn't agreed to it. Or, how a rule that that is the rule that applies to international courts has become customary international law, in the face of the fact that none of the countries who it would happen to have agreed to it or would agree to it.

I think this will push to the fore issues about which really, I hadn't really thought about that much before this, about the probable cause standard as the standard for picking the senior official in the head of state of a foreign government and putting him in jail, of a democratic government. I mean, that's not really sort of obvious. That's, you know, that's one thing that they put me in jail here, but to interfere with a foreign state on mere probable causes is not an obvious kind of thing. And it hasn't really been questioned in the past, how complementarity is supposed to operate in an ongoing, well, how the ICC is supposed to operate in an ongoing, in the midst of an ongoing conflict? And how much you saw in the, I saw, in the Secretary Blinken statement this morning. He was pushing at that, that you have to give time for a state to sort of marshal its response. And essentially, this was saying you're pulling too quickly, on the idea that the Israelis won't respond in some complementarity-friendly way. 

I do think a lot of these will come under pressure, because they'll push the United States in an opposite direction they've been pushed in the context of Ukraine. And that's going to be hard for the administration to deal with. I think there's a whole question of whether the Israelis will write off the possibility of engagement at this point. And, you know, it's not obvious that that's what they would do. It's not, you know, they have been engaging. And, you know, whether this makes the climate among the Israelis such that they can't do that anymore, I don't know. But that is also a possible way out, a way, you know, sort of through reason, and making arguments and making arguments to friends and allies and so forth, rather than, you know, putting a gun to the head of the ICC and saying, you know, move forward, and we're going to shoot. 

Rebecca: In terms of, just Tess to respond directly to the question of what hope to urge policymakers in the US to be considering now. And I think the hope would be that cooler heads might prevail, because what we have seen in what Tom has laid out, the relationship with the ICC, and the US government over time, is that it's very clear that there have been situations and there will continue to be situations where it is to the advantage of the United States to have a functioning International Criminal Court. So we have seen that, with respect to atrocities in Darfur in the mid 2000s. And unfortunately, again, now, we've certainly seen that in bucket loads with respect to what has been happening in Ukraine. And the thing about sort of quick and harsh responses is in the moment of, of sort of furor, you can impose sanctions, for example, but the time that it takes to walk those back after the fact, is much longer than you might anticipate.

And so given that, and that is just the nature of bureaucracy, once you put something in place, it is much more difficult to repeal it or walk it back, I think it merits time being given now at the front end to a really fulsome consideration that, you know, we can't expect to happen on a day one reaction. But a fulsome consideration of the different ways in which it is actually beneficial for the United States to have a functioning International Criminal Court within the international system.

Tom: I agree with that. And I think I'm surprised that the reaction was this swift, and this fiery, precisely because there was time to react to this, it didn't need to be the case that there was a statement from the State Department or the White House within hours of the announcement by the office of the prosecutor. And given the reasons that Bec just laid out, taking that time to think about what exactly is the best way to respond in the US national interests. Of course, that was what one would expect from the US government, but in a way that is balanced and nuanced, and not reactionary. And this statement today, to me, felt quite reactionary. And I think on the point of engagement, the prosecutor had warned multiple times over a series of months that this specific crime was at stake, that he was investigating it, and even said, that those who don't take action now to reverse this process, cannot complain and cannot be surprised when my office takes action later. And so on the question of whether there were opportunities for Israel to engage, there have been opportunities. And the question that I think is worth posing in that regard is, how long is the prosecutor supposed to wait before taking action in the face of a mounting humanitarian catastrophe? 

Tess: Can I jump in just to press you on that briefly, Tom, because I think you're hitting on two different points. And we've touched on two different points. And they're ones that can get easily mixed up in the public debate on this: the issue of complementarity and the issue of cooperation. I think everyone would acknowledge that it doesn't really make sense for the prosecutor to sit and wait for the Government of Israel to investigate Netanyahu and Gallant for the war crime of starvation of civilians, that doesn't seem intuitive that that would occur, regardless of how strong the justice system is. The United States certainly didn't do that with respect to its senior leaders, when, you know, the action that brought us in front of the ICC took place in the Bush administration. So I think that's, I think that's just correct, as a matter of, you know, understanding the political situation in any democracy. That said, there's a difference between that lack of complementarity for these charges in particular, and the issue of cooperation.

So I think with respect to timing, the other question that is on people's minds is if Israel was cooperating, if they had been interested in seeking a deferral, if they had been, as it appears to be the case in Secretary Blinken statement from today, if the prosecutor's office had been working with the Israeli government and others to in fact, arrange a visit, which looks like it was pulled down today, after this announcement, which seems to have caught them by surprise, does that not speak to a level of either politicization or, you know, a rush on the part of the prosecutor that is, perhaps what's precipitating this response on the part of the United States that's coming out so fiery, and indeed, not looking like cooler heads are prevailing with some of the language being used in these statements? Is there just a fundamental miscommunication and impasse there with respect to the expectations of the governments and if the prosecutor in terms of what they thought would happen next in this investigation? 

Tom: I think it's difficult to know exactly what the dynamics between these various actors, well, we're getting one side of the story at the moment. But I think what is clear is that the prosecutor has been public and explicit about this focus, and has built to this point and has not moved as early as he could have moved in terms of when in, at least in my view, criminal liability attached, but has waited and given an opportunity for cooperation on this specific issue. And it's, I think, speculative to think that him moving now is based on some kind of political consideration, rather than simply that he's reached the end of the point at which that waiting is appropriate. 

Tess: Yeah. And I think that's exactly the discussion that we’ll hear in the coming weeks and months when, when the prosecutor is able to build on the transparency that we've seen today with some more transparency into the process. I'm sure that'll be a question that's high on people's lists. Paras, I wanted to turn to you for taking us in another direction. 

Paras: Yeah, let's turn to some of the practical implications that might flow from if the Pr- Trial Chamber does, in fact, approve these arrest warrants, what are the real world consequences for Netanyahu and Gallant? 

Rebecca: So, you know, the immediate and obvious consequence is limitations on travel and very significant limitations on travel, because there are 124 member states of the International Criminal Court, who, if the warrants are issued, will be under a legal obligation to actually execute those warrants, if any of the suspects come on to that territory. So that's the immediate and obvious one. And I think it's sort of bears emphasizing also that these warrants are there in perpetuity, they don't go away when somebody leaves office. So they are going to be hanging over the hands of all of these suspects for the rest of their lives. Then, you know, I think beyond that, it's really the political ramifications, which we've started discussing, certainly just in practical terms, it makes it more complicated to engage diplomatically, when you have a head of state, for example, that has an ICC arrest warrant out against him. So those will be decisions that the Israeli government will need to make about whether it makes sense to continue to have a prime minister that is in the situation, and for obviously, first and foremost Israeli citizens, in that regard.

I just want to come back for one moment, because I think there's some confusion often among U.S., listeners, when we talk about probable cause and restaurants just to pick up on Todd's earlier point, though.

At the International Criminal Court, the process of applying for an arrest warrant, the application that gets launched, is very intense, and very comprehensive. And the prosecution, the prosecutor, the standard that they have to met is reasonable grounds to believe that this person has committed this crime. But this particular prosecutor Kareem Khan has said that he will always be going for a higher standard than that when seeking an application for an arrest warrant. And that is a policy decision that he's made. So I just don't don't want to get the impression that the prosecutor just sort of walks in and says, “we think there's probable cause and give us an arrest warrant.” And it's a process of extended months of investigation and sifting through the evidence and trying to figure out not only if a warrant can be issued, but if in fact a warrant is issued, is this a case that can succeed at trial? 

Tess: Thank you for that. And I do actually want to bring us back as well to one of the other things that we were touching on with Tom's response that I think, Todd you and Bec as well might have some thoughts on, which is: what is likely to be the prosecutor’s rationale for moving ahead now and for moving ahead on this range of charges? You know, the relationship with the United States being jeopardized is something that we've started to touch on. We can also see likely consequences to the extent the United States does move forward with a rash action like sanctions. We could see the Russia investigation being jeopardized, we could see potential Darfur investigatory steps being jeopardized. 

There seems to be a kind of motivation relating to deterrence based on the statements that Tom was pointing us to where the prosecutor said: “I'm watching, these look like war crimes, if they continue, I'll have to act accordingly.” So do you think deterrence is, in fact, a main calculation driving why the prosecutor decided to go today on this, despite potential cooperation from the Israeli side or not?

Do you think deterrence is the result that we will see from these actions today? What do you think are the likely implications for the conflict, for the region, for civilians on the ground? 

Todd: So I think that, I think that I don't know. There will undoubtedly be different people analyzing his calculations differently. And his version will undoubtedly be that his action was compelled by the evidence. I have personally no real way to evaluate that. And the issue of timing, which he may have done the right or wrong timing, but it's hard to ever, not just for this case, it's always hard to sort of explain timing in you know, strictly in terms of what the law required when, because there's always an element of judgment in that. So it's hard. Others are going to be more critical. They'll talk about him succumbing to international pressure. There'll be some who believe that and some who don't believe that. It was implicit, I can't remember if it was explicit in Secretary Blinken’s statement this morning, but it's hard to tell. 

And in terms of whether it could, would, serve as a deterrent, you know, temper Israel's actions now, it's very hard to know. I think that depends on things that none of us really have sort of a good feel for, which is, which starts with the extent to which I guess which is likely that the Israeli public will then rally around Netanyahu. And it may well, my best guess, and I'm no expert in Israeli politics, but my best guess is this will actually strengthen his hand within Israel. 

Rebecca: I think, certainly, deterrence is a piece of the calculation, as it always is in an ongoing conflict. Now, that doesn't determine the time, right, because in theory, the prosecutor could have just continued to issue the warnings that he has been systematically warning, and not take the next step to apply for the arrest warrant. But one thing I do think it's important to note is that we've seen very different timelines over the course of the Court's history. But that's in part because we've had very different prosecutors, and Karim Khan, the current prosecutor, has just been moving more expeditiously in some areas, and so it may just be a consequence of that, of personnel change, more than any sort of grand scheme.

And the other thing that I think is worth just reminding ourselves of is, you know, we’re a U.S. podcast, we're connected to what a US audience in particular is thinking through. And so the questions that are present are well, how is this going to impact the relationship with the US government or the Israeli government? But remember, the U.S. government is not a party to the International Criminal Court. So if your position is in fact, in The Hague, and you're the ICC prosecutor, you're not only looking to what the U.S. thinks, but you're factoring in what happens if I don't move on this in terms of my perceived legitimacy in the eye of 124 states that are party to this Court, and that are moving in all sorts of ways, in the international sphere. And so I think that there's another piece of this to consider. 

Todd: I'm not disagreeing with what Bec said at all. But the, what will happen if I don't move forward, is also a description of succumbing to political pressure, you know, if you if you have those kind of eyes, it's a version of succumbing to political pressure, it can be re-characterized as that. The other thing I was guessing, as I was reading the news this morning, was how long will it take before Netanyahu has an invitation to speak to address the Congress? And I wouldn't be surprised if it's by the end of the week, or even the end of today. You know, I think the US probably, or may well, make a show of, you know, not accepting or not accepting the result, basically. 

Tess: Yeah, Tom, did you want to come in on that as well? 

Tom: Yeah, I just wanted to come in on a couple of points, one on timing and one on succumbing to pressure. I think Todd made the point that we can't really have any way to know whether this was well grounded and whether it was based in a purely legal analysis or not. One thing we do know is that an independent expert panel unanimously came to the same conclusions as the prosecutor. It’s an independent expert panel with international law heavyweights. And they are not all cherry picked by the prosecutor. And they came to the conclusion that this is well grounded. So that itself does give us some indication that multiple different legal minds have looked at this, looked at it independently, and come to the same conclusion that these facts, applying the Rome Statute to them, weren't moving forward at this stage. That of course, is not dispositive.

 We can never know all of the considerations that are being taken into account. But I think it's not quite fair to say that we have no real way to know at all, if the prosecutor’s acting purely on the basis of legal considerations here. The second is with respect to succumbing to pressure. The prosecutor has enormous pressures against doing this, from the United States most obviously. And he's also faced enormous pressures from Russia in the context of the investigation in Ukraine. He responded admirably to the question posed to him in the Security Council last week with respect to how he was handling pressure. And I think we should, looking at the various different pressures he's under, actually see this as an act that's resisting pressure rather than succumbing to it. Certainly, I think that it's somewhat leaping to a conclusion to say that this is succumbing to pressure, as opposed to an indication precisely of his independence and willingness to stand up to pressure because there has been no pressure as extreme as the pressure placed on the prosecutor by Russia in the context of Ukraine, and historically, the United States and quite likely, prospectively the United States in this context. 

Rebecca: Yeah, and I just want to sorry, Tess, I just want to clarify that when I said, you know, the view from The Hague is factoring in the positions of 124 different states, I didn't mean to imply by that that's political succumbing to political pressure. It is about upholding the perceived legitimacy of the court, in the eyes of that much broader constituency than simply the U.S. government. 

Tess: Yeah, I think it's incredibly important to keep in mind that for one set of constituents, moving ahead today bolsters the court's legitimacy. For another set of constituents, moving ahead today detracts from the court's legitimacy. And there's going to be a difference of views on that. And that's something that will be discussed a great deal in the weeks and months ahead. But I do want to separate these questions of legitimacy of the court itself and the validity of the actual charges, which, which I too think, you know, appear to be quite strong, although we'll have to see how that comes out when we are privy to more of the facts. But there's kind of an uncomfortable question, when we talk about international criminal justice, which is taking the substance of it aside, what does it do in the real world? And so I think that the reason that I was trying to focus us on deterrence, and not just on the question of did the prosecutor go today, because the facts led him to make these conclusions today, which may well be the case.

The question remains, why do we have a system of international criminal justice capable of operating in the midst of ongoing armed conflicts? Which is what's going on here. And are we in the context of having such an institution, that, of course, the United States is not a part of but plays a role with respect to, but 124 other states have to think about this as parties, what does it mean for the conflict? Will, as Todd suggested, it result in a rallying around the flag effect around Netanyahu, will it result in leaders on either side of the conflict digging in and being less likely to want to agree to a ceasefire, will it serve a deterrent effect, which seems to be again, what the prosecutor may have hoped? Which of these things will occur? As Todd said, we don't know, we can only make guesses. But I do think it's important that when we talk about criminal justice, we don't just think about do the charges make sense, you know, is the evidence there? But also what is the impact when you have an ongoing armed conflict that is still raging with such devastating consequences? So I don't know if anyone wants to take a crack at that. Before we get to one final set of questions. 

Rebecca: Sure, I'm game. You know, I think the empirical data on deterrence in terms of the ICC, which is still historically speaking, an incredibly new institution, is limited but positive. But it's limited because deterrence is always really so difficult to actually gauge, right? You're trying to measure something that didn't happen. So it's complicated to quantify that. But certainly that's the foundational promise of having an International Criminal Court that doesn't have to wait, as the ad hoc tribunals did, until after a conflict has ended in order to act. It is on the theory that it can have a deterrent impact. And I've forgotten what was the second part of the question? 

Tess: Whether we might see these kinds of, you know, effects that would lead to harms for civilians, actually, to the conflicts, and then further to the leaders on both sides becoming entrenched, because yeah, finding now is literally personal jeopardy for them. 

Rebecca: Yes. And, you know, what I think I would say about that, acknowledging, as we all have we don't know, right, is that the history of international criminal justice, as comparatively short as it is, tells us that the impacts change over time. So we might in the immediate moment, see a rallying around what was otherwise becoming an unpopular war strategy in Gaza, from the perspective of some people inside Israel from some people within the Biden administration. So we may see that in the short term, and we should revisit that perspective, another decade from now. And I think that with that temporal adjustment, we will see shifts and how this is perceived. That is, the one one and only thing I can be really sure of in terms of the history of international criminal justice today. 

Todd: Just could I add one point one point, which I agree with that, is that it seems to me there's another dimension to deterrence, which is more in my mind, what the original concept of deterrence that was baked into the court, which was, I'm not sure the extent to which, you know, at Rome, people had Yugoslavia and Rwanda in their minds. And I'm not sure the extent to which people were really sort of focused on injecting the court into ongoing conflicts, and that kind of deterrence, which would be good if it happens, and is something not to be sneezed at, that's an important thing. And, but also the broader concept of deterrence of building a world where everybody agrees, and there's this sort of ethic that seeps down to people, everybody agrees this is stuff that's beyond the pale, and it's sort of socialized into countries and humanity and the international community everywhere. And it seems to me that that is, it's certainly plausible, and hopefully real, it does sort of depend on something that is hard to keep in place, which is broad consensus about what the ICC is doing. And, you know, it will undermine that, if the United States comes out now, as I think it will, take a very strong position against what the Court’s doing, and that's a definite con to what's happening. What's happening now. 

Tess: Right, not to be too colloquial. But essentially, there's a long game here. And we need to keep in mind that the principles at stake that are motivating this are of the utmost importance, before we jump to any conclusions. Tom, you wanted to come in on this as well? 

Tom: Yeah. So I think it was very much in line with what both Bec and Todd have just said that we should distinguish specific deterrence in general deterrence. In other words, deterrence in this specific context, with respect to the particular actors that are under investigation and potentially facing arrest warrants here, versus the deterrence of actors in armed conflicts, generally looking at this situation and thinking about how their prospect of situations that aren't yet underway are going to play out and how they're going to play a role in those situations. And then an additional question or issue, which is normative internalization, which is really distinct from deterrence, of either of the first two kinds and is more about this idea of norms building and being internalized within militaries as the right way to participate in armed conflict. And what's really important here is that particularly with respect to the war crime of starvation of civilians as a method of warfare, as I said earlier, this is not a crime that's been charged before.

 So in terms of building that normative internalization, in terms of recognizing the moral toxicity of this particular practice, this is an important moment. It's an important precedent. And, of course, it's difficult to determine exactly what's going to happen in this specific conflict and how Netanyahu is going to react, how the Israeli government is going to react, how the conflict is going to develop from here, but it's pretty clear that he didn't want this to happen. He was expending significant political capital to try and stop this from happening. So a leader looking at this situation from the outside and thinking about a war that they're fighting subsequent to this, ought to be looking at this and thinking I don't want that outcome. Even if ultimately this doesn't improve conditions in Gaza, that's very difficult to predict, it certainly can have an impact in terms of that broader deterrent effect. 

Paras: So we're running short on time, and I want to have one final question for each of you. Because as we've seen, there are so many different threads and dynamics to this discussion. What are the one or two things that each of you will be watching for in the coming weeks? 

Todd: I'm sure I’d have a better answer if I had thought about this in advance. Two things. One is the list of issues that this pushes to the front burner to sort of think about, what that I was talking about before, you know what this does to positions that the United States either supported or tolerated in connection with Ukraine that now come under pressure, because they're being applied against our ally? So that's one. And then, and then the second is just sort of obvious. It's sort of the fierceness of the criticisms that we'll see and whether they start building on each other, which is probably likely, or whether there's any attempt by the administration to sort of try to rein it in a little bit. I mean, it's conceivable that the statements today were part of a strategy to sort of prove the toughness to the administration. So as part of an effort to sort of, ward off sanctions. The administration has said, it's against to sanctions in the context of, you know, this set of events before there were arrest warrants, whether it's going to succumb to the pressure, whether it's going to do things and come up with a strategy, that part of which is to sort of avoid that result. 

Rebecca: I think I'm going to be looking first and foremost, at impacts, we see on the ground. Any change in the way that the war is being prosecuted, any shifts in the reaction of Israeli citizens as to how they're viewing this? So basically, I guess the question is, how is this going to land in the local context that it is related to, is number one, and then, you know, on the US side, I think the question is going to be, is it the sort of, I think, fairly expected, aggressive rhetorical response to today's announcement – does it move beyond that, to actually the implementation of things that could really undermine the ability of the court to do its work in general, including in in other situations that it's engaged with. 

Tom: One thing I'll be looking at is how the states that really threw their support behind the International Criminal Court in terms of financial support, in kind support, investigators, collaboration and investigation, and just expressive support in the context of the investigation of Ukraine respond to this situation. Both of those ongoing armed conflicts, both of them involve investigations and ultimately arrest warrants, or in this case, the application for an arrest warrant for the highest level officials within state parties. And so what I would like to see from those states that thought that this can be a court that can evaluate questions of jurisdiction, complementarity and immunity independently and impartially and be a rule of law institution in the context of Ukraine.

 What I want to see is, are they going to apply that same standard in this context? Because if they don't, I think they really will undermine the utility of invoking the rules-based international order as a political focal point for mobilization in other contexts, such as the context of Ukraine. And so it really behooves them to show consistency here and stand up for the prosecutor when he's coming under, and his entire office and all of their staff and members of the International Criminal Court, when they’re coming under this external pressure in ways that are simply inappropriate. 

Tess: I think those are the best parting words that we could hope for. It's such a rich discussion with so many threads, I'm sure we'll be asking you all back on again very soon. But thank you for giving us your initial insights just on the day that this news is breaking. We talked about technical legal issues, policy implications, political implications, humanitarian implications for those on the ground, and we'll want to return to each of those, because indeed, this is news that merits thinking through all of those strands as we move forward. So thank you to all three of you for your time with us today. And with that, we hope to see you again soon and thank you for listening.

Paras: This episode was co-hosted and produced by me, Paras Shah, and Tess Bridgeman with help from Clara Apt. 

Special thanks to Todd Buchwald, Tom Dannenbaum, and Rebecca Hamilton. You can read all of Just Security’s coverage of the International Criminal Court and the conflict in Gaza, including analysis from Todd, Tom, and Bec, on our website.

If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.

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