Has Israel's Impunity Been Destroyed By ICJ And ICC? Prof. Heidi Matthews Gives Masterclass

now this is arguably I think been the most disastrous week for Israel in terms of its quote unquote International standing since its foundation uh we've had the international criminal court Chief prosecutor issue requests for a restants against its leadership we've had three European nations on top of those who've already done so recognizing the state of Palestine and we now have the international court of justice issuing provisional Ord more orders demanding Israel ceases actions military actions in Rafa um as well as unimpeded un fact finding missions um and to open the Rafa Crossing which is obviously crucial for humanitarian Aid now I really want to talk about the significance of what the icj in particular means they're going to talk about the ICC and other stuff as well but I'm really delighted to be joined by hey Matthews assistant professor of law osgard whole um School whole law school sorry uh York University specializes in law of war and particularly looking at questions of genocide I've been following Heidi's work all the way through this horror um and you've been a Lifeline for so many of us so thank you Heidi for your brilliant work and it's an honor for you to talk to you well it's okay lovely to be here well I just want your for first general takes in the international court of justice ruling yeah so uh this has just been with us for a few hours um so those of us in the nerdy International court of justice Universe um are kind of sitting with it reading uh the majority opinion but notably um some uh uh appended uh declarations by the judges we could talk about that as well because it's part of the Israeli government's spin um on what this order actually constitutes so um so I'll give the the kind of simple version which I think is uh very difficult to upend um of what the court said but but the basic the basic reading here is that the court made the factual finding that uh Israel's attempts or efforts um Israel itself called these extraordinary efforts at ensuring uh both adequate provision of humanitarian Aid and assistance so that would be you know food medicine water fuel um of that shelter Etc uh to the population as well as efforts to minimize civilian harm in the context of Rafa um the court cided with South Africa very very clearly saying we don't accept um the contention by Israel that it's taken these Extraordinary Measures or really any measures that would be sufficient um to satisfy its obligations under international law and so the reason why I started with a factual finding there as opposed to stting starting from from what was actually ordered and then working backwards to the facts is that the factual findings that the court made so rejecting Israel's contentions and accepting very clearly those of South Africa with respect to this question is that it helps us make sense of what the order actually is because there is some spin swirling around the order right now so um for folks who who are who are into this kind of thing you can find this online but the the first order and I'll just read it and I'll let you know where the pun situation is because this has become an issue so the first and the most important part of this order from a ceasefire perspective is as follows uh Israel is ordered to quote immediately halt its military offensive comma and any other action in the Rafa government comma which may inflict on the PO on the Palestinian population sorry group in Gaza conditions of life that could bring about its physical destruction in whole or in part MH so to my mind in light of the factual determination that I started with this is a very clear order from the court to the Israeli government that it must immediately halt any military activities within Rafa yeah but so on oh go on because because I was going to put the the spin the Israel foreign Ministry spin you you give the spin so they they come out with their join statement of the head of the National Security Council and spokesperson of the Ministry of Foreign Affairs ra South Africa is really mean uh charges of genocide false outrages and mly repugnant war of self-defense we're trying to get our hostages back obviously they've killed more than hostages and they've rescued by military means um Israel has not and will not conduct military actions in the Rafa area which may inflict on the Palestine Civ population Gaza conditions of life that could bring about its physical destruction in whole apart so they're like okay yeah fine we're doing that anyway yeah exactly and that doesn't Accord though does it with the fact because all the way through the ruling it the the court makes clear things were terrible in January but things have got a lot worse and there's a humanitarian catastrophe so the whole point of what they're saying is this is a catastrophe now in Gaza yeah exactly so and the court is at pains to kind of walk us like in the 18-page majority order itself is at pains to walk through the progression of the deterioration of the humanitarian situation in Gaza in general and also with in with respect to Rafa in particular and so it talks about the order it made in January about how it reaffirmed the order um and then modified it twice most recently at the end of March it noted very clearly that its worry at the end of March that the situation was about to deteriorate even more uh uh has been uh has come to fruition basically so so the risk of deterioration that the court was concerned about about has intensified and it's that significant change in circumstances that justifies ordering these new measures and so the idea that either Israel is permitted to carry out Military activities um if they don't have a genocidal impact or as one of the judges appears to be suggesting uh Israel's permitted to carry out defensive but not offensive activities as though that were real an distinction in terms of the law of War neither of those interpretations to my make any sense uh with respect to the the factual findings that the court has has clearly made and it's clear I mean when we're talking just in terms of what they're actually talking about here they they're they're they're saying that could bring about its phys the physical destruction of the palestin group in Gaza conditions that would bring about his physical destruction in whole or in part that's genocide that's just that's the definition genocide it's part of the definition of genocide so if you look at article two of the genocide convention there are five different ways different kinds of Acts that can constitute genocide um and causing conditions of Life uh that could bring about the physical or that are intended to bring about the physical destruction in whole or in part of a group constitute a genocidal act and that's actually really I'm glad you mention that because it's an it's an important specification I had inferred from previous Court orders including the one in late March that the specific genocidal act that the court was concerned with um uh more concerned with than others was this sub act in other words causing conditions of Life calculated to bring about physical destruction in whole or in part as opposed to for example killing members of the group obviously that's happening too but it was it's been apparent in each of the Court's orders that actually what it's really concerned with is this kind of systemwide um population wide um humanitarian catastrophe which now the court in this order comes out clearly and says has now devolved into something worse it says it's a disaster I mean I mean that in terms of talking about it being a disaster must surely mean because it's not spelled out those terms that Israel has failed to abide by the specific orders issued by the Court which our orders whatever the former president of the icj the kind of semantic War she Unleashed in a interview with the BBC I believe um is because these orders were in order to prevent to protect the Palestinian people of protected group um from physical destruction in Hollow par is and genocide um and one of those is critical is access unimpeded access to humanit in Aid in order to satisfy the needs of life now they've clearly refused to do that and obviously the overwhelming evidence being what it is but also that's a key plank of the international criminal courts prosecutors um request for arrest warrants for Netanyahu and defense minister y gallan isn't it so that that's the point to get that what they're saying is because they had to issue that order in January then additional order in March because they clearly hadn't done so and now they're saying things are disastrous so they must be saying you are failing to satisfy the or like you are flouting out orders and these are orders to prevent genocide yeah absolutely you'll see my head turning here just because I have another screen where I look for like precise language but yeah so the court says this and I'm quoting now from today's order the court is not convinced that the evacuation efforts and related measures that Israel affirms to have undertaken to enhance the security of civilians in particular those recently displaced from Rafa are sufficient to alleviate the immense risk um and that risk uh is the risk of genocide namely but not limited to um having conditions of Life inflicted to bring about fiscal destruction in h her in part so some might now look look at this and go well yeah what does it all really mean I mean in fact it's quite interesting actually because uh judge dadyy who's from just to be clear which which nation again I can't remember now I think he's the South African judge yes he is he is right yeah and you know he says no words to describe the hor and GS the words apocalyptic exceptionally grave disastrous and catastrophic you know he's saying they don't even do it justice basically um and um yeah I mean it so he's he's he he talks about all of that and but he says at the end of the day you know he said this is just a court I mean he does make that clear he said there were basically saying there were limits to and that Israel can you know Israel just goes well you know they've got the ICC now they've got the icj they've got various European nations clearly you know they're becoming increasingly isolated and the but they're still they're still carrying on so what does it all mean um well I'll do my best yeah I mean I think you know I've resisted using link anguage that says you know this is a big test for international law because it seems that every prominent or important case gets gets touted as a as a test for international law and you know and if we don't see you know an immediate and sort of satisfactory resolution then international law has failed and you know isn't you know isn't alive or an operative kind of factor in geopolitical um you know operations and I I think that's just that's a little bit too simplistic that being said um this is a test in the specific um sense uh uh of for Biden but others um particularly States who are members of the international criminal court um which we'll talk about as well and so I think from from the perspective of this judgment you know Biden and his administration have been uh kind of clear that they were opposed to uh what they called a large scale operation in Rafa and they've resisted um basically using Israeli talking points um that what is happening in Rafa constitutes a large scale operation they say it's limited and targeted and you know done in a way that provides maximal protection for civilians Etc and of course that's not true um uh and so what we see again the importance of the factual finding here in addition to the order itself is that the court has found that Israel's claim that this is not a large scale offensive with the kinds of humanitarian impacts um that a large scale offensive has on the population is implausible so I uh you know we haven't seen I don't think yet unless you've seen something that I haven't a response from from the US yet here no not not as we not as we speak yeah it's coming I guess um so we can all look forward to you know Matt Miller or whoever trying to to do this language game too but uh it'll be interesting to actually see see how they choose to how they choose to do this but you know some kind of spin is coming the real point though is that as I've said the court has found that this humanitarian situation is a result effectively of a large scale operation and even if it weren't a large- scale military operation using some kind of you know other like definition of what a military offensive means the humanitarian impact is such that it cannot continue right because we're at disaster level and I think the other just quickly the other factual finding that um I haven't seen others talk about here but I think is really important is the role of the force displacement right so the court finds that over 800,000 people having been forcibly displaced from Rafa under the guise of evacuation orders two parts of Gaza that are are not fit for human habitation essentially that that in and of itself constitutes a humanitarian disaster and that's before the offensive even starts right like we're not even in that zone the force displacement is enough to get to that point I think and so what that means just just really quickly so what that means for Biden is okay so so the court has found that we are in fact in a large scale offensive there is in fact a humanitarian disaster you know is is Biden going to admit that that's what's happening or will he continue to spin it as not what's happening um and we might see I think we will likely see some kind of resolution at the security Council um in terms of enforcing this order and then you know the US has a has a choice to make before ask just how this fits together ICC um the international criminal court um what Ju Just yeah we did we mentioned that terms of Judges sometimes set out their own thoughts separately don't they they set up their and and some of have I just wonder your general thoughts on on what that tells us what the judges have said yeah um I I'm not entirely sure what's going on here either so what the order of this would have been if the judges um received the majority opinion so the judges who wrote separate declarations um who agreed with the majority order but are interpreting what the impact of that order means differently in other words interpreting it not to mean uh an actual end to hostilities in Rafa but just an end to like the hostilities that cause the risk of genocide right um there are a few judges who've taken that position uh there's a question about whether they have taken that position sort of in a in a quite what would be I think a very cynical manner which is to say they looked at the majority opinion they looked at the way that the order was drafted which admittedly is could have been clearer from a grammatical perspective um and they thought okay we can agree to to this um using our interpretation which is more restrictive than the one that the majority um the majority uh uh uh is advancing um yeah it's unfor that is unfortunate because again that the fact that the judges have actually come out and said you know we only think like I don't know how you'd even describe it we're we're in favor of a a a non-humanitarian disaster offensive in circumstances where we know a humanitarian disaster is already underway um but that's what I've said essentially um I say I kind of think it's odd that all the judges don't just issue their own declarations it just seems a bit lazy for anything seemit oh I put a vote I'm done now I don't I don't really have time I've got other cases um but it gives us certainty the problem is when you got everybody weighing in on what they understood the Oxford comment to mean we're in trouble right yeah get you yeah that makes sense so putting this together now with international criminal court Chief prosecutor issuing these arrest warrants requests so this is a very important requests for arrest warrants this week um though it has to be said I mean you know by Kenneth Roth the former head of Human Rights Watch says this is someone with a very conservative approach his special advisor says the evidence is absolutely overwhelming they're extremely confident these requ arrests will be issued um I mean is this the week isra impunity really just collapsed um one would have thought and again this is where we're in this like zone of of a of a political test for the core institutions of international law in the post World War II United Nations era frankly because what we have seen in response to Kareem Khan's uh going public on Monday that he had has requested these warrants um what we not just on the part of the us and Israel which you know we would have expected a a very strident response the US has a complicated relationship with the IC um when it prosecutions there serve its purposes such as in the uh Ukraine Russia case uh with warrants against Putin they have no problem they're very supportive but but overall have been um at times extremely hostile to the court and of course are not a state member of the Court neither is Israel so so we would have expected I think the kind of really strident um uh uh frontal assault essentially that the US and Israel have come out with what was more surprising and worrying to me watching all of this unfold this week is the way in which um other Western liberal democratic um allies uh primarily English speaking but not only of Israel have taken the same stance uh so countries that are not only members of the international criminal court but have been historically um extremely important members of the court from the perspective of providing funding Personnel negotiating the statute um populating you know the court Etc so all kinds of both um political material and uh uh intellectual support for the project of this court over the last 25 years those states have also come out and and basically repeated the script that somebody in Washington or or or Israel has come up with with which is to say uh uh you know charging these three Hamas Leaders with Netanyahu and Gant constitutes a form of of false moral equivalency um so that's lit there's literally a paragraph that like I don't know every Senator and Congress person in a in a in a in a sort of bipartisan fashion um as well as officials from all of these other states Canada the UK Germany um uh have just kind of repeated all week long and and that to me um raises a a lot of questions about the extent to which those States again who are important members of the Court are now acting in a way that is is at minimum um gives the impression of a lack of cooperation which which is a legal obligation on those States who are members of the court I do wonder I mean how far do you think the net could end up being cast because obviously we we've got the moment I mean I wonder if you think partly this is this kind of because International ORD be so rigged in favor of the global North this is symptomatic of the global North Decline and the global South flexing itself but Israel is still protected by it's got the you got the you got the hegerman on side that helps that's that's where they're currently at but how because you know obviously in other if we look at other you know like in in form Yugoslavia you didn't just put on so mosovich you didn't just hold them legal accountable and I don't just you know the genocide convention obviously will set up it because of and in the aftermath of the Holocaust and the argument then was I was just following orders doesn't cut it you can't get away with that and I'm just moment it's just we've got Yo gallan and Benjamin Netanyahu in the frame but I mean you can't you you you can't just argue they're the full Guys Legally could this end up I mean what what of you know the the question at the moment of arm cells to Israel by states which uh now we've got the ICC and the icj doesn't that put a lot of people in quite a lot of legal Jeopardy in theory yeah so um so a bunch going on there but I'll start backwards so the the question of arm sales yeah so uh States who are engaged in significant um military trade with Israel and also assistance of other kinds um so you know the U us being obviously at the top there but also Germany following next and then um the UK and then some other states that um you know it's not a massive amount of assistance but Canada you know my own state of nationality provides assistance as well and in all of these states um uh uh are are bound um by an international legal framework around arms the arms trade um that they have enacted within their own domestic law and so in the US you'll hear things like about the Ley law um you know gerid has its own regime that it detailed at the icj ETC there's a you know a legislative regime in each country that's set up to do this and the basic idea is that states are not permitted to engage to authorize arms exports when they're is a substantial or serious risk um that the destination uh country will use uh those arms to commit serious violations of international law war crimes crimes against humanity genocide you know Etc so um I you know way back now in in January of this year with the first order from the international court of justice which did find that there was at minimum a substantial risk that genocide would occur um in Gaza at that point all of these states were on legal notice that they were selling arms in a situation where there was a substantial risk at minimum if not an already ongoing genocide right so so the duty um to seriously uh you know look at at one's domestic arms trade regime and ask those questions about compliance um was I I mean let's just say heightened domestically by that court but also there's an international level obligation so an obligation that's separate from whatever domestic um uh export regime a state has there's also of course um an international obligation to prevent or punish genocide and clearly part of the obligation to prevent includes not engaging in military trade or assistance where there is a serious risk of of violation so so that's been in play for quite some time now yeah you know I'm sure your audience knows about litigation efforts in various countries to to try and get a handle on that um there been solicitor leading uh some of the that that particular attempt in Britain oh great yeah yeah so so your audience will know about yeah so so that's been going on for some time whether the IC move so the prosecutors move at this point um it doesn't like create a new obligation I think it just it it it uh it um builds or strengthens the evidentiary foundation for States when they're reviewing their the compliance um with their domestic law law so if the you know assuming that these arrest warrants are issued what that means concretely is that judges at the international criminal court have decided that there are reasonable grounds to believe that these accused persons have committed these crimes and those crimes you know the icj has given us certain determinations around genocide the crimes that the ICC have charged don't include genocide critically we can talk about that too but extend to war crimes and crimes against humanity so now we've got like the whole terrain of international criminality we could say is covered essentially you but with the in the case of the uh Chief prosecutors arrests warrant requests there could be other charges and also there could be um secret what they called um secret arrest on they don't called that what they called what's the legal term sealed they can be sealed yeah yeah exactly so there a bunch of different options um arrest horns uh look it's it's opened the prosecutor once a warrant has been issued to seek to amend the charges right to add additional warrants to add additional individuals yeah um because torture is not there and people would look at this and think come on torture come on now there's so much evidence about torture we do have torture torture is there for Hamas I believe yeah which reasonable but there's no there's no none at all for that massive widespread evidence about torture I mean CNN ital you know CNN and media organizations like that have reported overwhelming evidence so anyway who knows yeah no totally and I think like just just quickly like there's um you know the prosecutor has there's a Litany of crimes that could be charged against Israel in these circumstances and choices have to be made right and so the prosecutor is going to be making certain decisions that have to align with expressed priorities of his office um with you know investigative constraints resource constraints all that kind of thing and also with the overarching theory of the case and the theory of this case is that Netanyahu and Galant are involved in a common plan I'm just going to use the the language here from from the prosecutor a common plan to use starvation as a method of war and other acts of violence against the gods and civilian population as a means to eliminate Hamas secure the return of hostages but also to collectively punish the civilian population in Gaza and so oh but crucially as well they say who they see as a threat to Israel I look at that and I think how that not be genocidal by definition yeah if you think the if you think the civilian population poses essentially an existential threat to your nation that is genoci That's the basis of genocide yeah like well I mean it's one it's one way in which we get to genocide quite quickly right there's a number a number of reasons for which you could commit genocide but I think what you're saying is is it makes clear one of the contextual elements that is needed for crimes against humanity and that is a um intentional attack that is widespread or systematic directed against the civilian population itself and so that's partly how the prosecutor gets there what that that's the other thing I wanted to talk to you about and that is about genocide as people understand genocide because it strikes me that one of the ways uh I suppose both by both by Israel itself or Israel officially official Israeli spokespeople ministers all the rest of it and their cheerleaders is they've they've manipulated people's lack of understanding of genocide including how common genocide is throughout history so as a consequence the Holocaust basically becomes the main reference point for people it be it feels I mean obviously I mean the Holocaust was the show was particularly heinous genocide but I suppose in that sense it it what we're talking about is a the Holocaust is an outl it strikes me because it was an industrialized attempt to exterminate an entire people um which succeeded in killing two-thirds of All European Jews in v short space of time um and it was it was against an entirely defenseless civilian population so for example when I was argued with Pierce Morgan probably for a punishment for something I did in a past life um last November and you know I pointed out to him he'd said that Russ's attack on Ukraine was genocide I would question that myself there's a brutal Invasion anyway whatever but who knows but anyway but he said um but he said because that was because the difference is um what Israel did was self-defense but that's not what how genocide starts is neither here nor there it it's either a genocide or it isn't but the what he's twist what that it Taps into is people don't understand how common genocide is and how it often emerges during an armed conflict where you have an armed group supposedly representing or part of an ethnic group which then the civilians get exterminated Rwanda as one example or in Bosnia yeah no totally um yeah so this has been referred to as the with and I'll talk a little bit about the Canadian context for um a particular reason but this has been referred to uh in recent developments here as the the Holocaust prototype right and so so um which is a fundamental misunderstanding of the nature of genocide as it was conceptualized by Rapha Raphael Lin who of course came up with this in the 40s and then how it got institutionalized which actually looks a bit different quite a bit different in the genocide convention itself and then how je for people who don't know he's a Jewish polish lawyer yeah totally yeah yeah sorry no no no no no that's super helpful thanks uh uh you know so so he had a um in some sense it's a broader understanding of actually what constituted genocide anyway that works itself out in terms of the treaty and then that works itself out in terms of um inclusion in the Rome statute other tribunals in the 90s and then uh a series of judicial developments that kind of um uh make meaning of the the the the actual text of of the convention itself and so um you know a few things that people if you look at the the text of the genocide convention itself um and I will alluded to this before but we don't actually need killing right like theoretically um you could have it's difficult obviously factually and would be very rare but if you're just looking at interpreting the statute itself you don't actually need um a killing of individuals right in order to bring about the destruction of a group there is a debate about what the meaning of physical destruction means um and if it can Encompass uh the Capac capacity of a group to actually um survive in time as a group U notwithstanding the fact that there may not have been a massive amount of death so all of that to say that there's this this internal debate within the law of genocide um around that but certainly uh the Holocaust as a prototype is is just a it's a misleading um it it sort of undergirds a bunch of misleading ideas about what the law of genocide means but also about as you say what it means historically so you know this idea which Israel continues to um put forward that military operations conducted um in self-defense and we can have a debate about whether self-defense applies here that's for another day right but let's assume that Israel is acting in self technically occupied under international law yeah correct yeah yeah and so it's not that I want to be clear there it's not that Israel wouldn't have the right to defend its citizens in some fashion but it's a question of whether it can resort to the use of actual War to do that right armed conflict there are other ways you can do that policing operations counterterrorist operations um counterinsurgency operations you know Etc um you don't have to do allout War um so anyway let's assume allout you know uh some military response uh to the level of armed conflict is was actually required okay fine F once that the conduct of that operation starts having genocidal impacts on the civilian population then the story has changed so and this is something that South Africa has been has been hammering home at the icj for months is that you can't nothing not even self-defense um justifies genocidal actions and so the two are are not mutually exclusive um by any stretch of the imagination because just don't I mean again all of these are very different I mean this the point you know genocid the way they were you know their historical context how they unfold all they different I just think striking Rwanda you had you know the genocide against the uh tootsies by the hu extremists yeah um and obviously you know you could start the clock in theory and go well in 1990 the Randa patriotic front who represented the interest supposed the tootsi minority invaded Rwanda from Uganda committed I would know a lot of atrocities killed a lot of innocent people they were also accused of for example rape um and then HW extremists declared this was an attempt at genocide that they were going to commit genocide against the hutus and then up to and during the genocide the re patriotic front killed huge numbers of people no one looks at that and go and well that self-defense then you would never you would never obviously that you know and I guess obviously you know because there you had people being macheted to death it was a different but in this case it's bombs and starvation but I mean that's the point isn't it it's people don't people don't often understand how genocide is often play out where it is a case of atrocities can be committed against the group which represent all the civilians of a group which then commits genocide I mean because hootus were killed and they were their their rights were violated but that doesn't yeah people don't and it's the same in Bosnia Bosnian Serb civilians thousands of Bosnian Serb civilians were killed yeah that doesn't yeah and we often talk too about like the Rwanda case as though it was limited to those three months of of horrific kind of um you know expedited murder um where whereas you know that armed conflict continues across you know a variety of borders Democratic Republican Congo yeah the the other point there is incitement really comes in doesn't it that I mean because the other point I just other point I want to make is Israel has been told you have to take Criminal action you have to take action against those who inight genocide and they just carried on inciting genocide across because this is the point sometimes you'll see a figure on national television and they and the point is Israel has a a responsibility under the genocide convention which it put into its own law statute books in 1950 to prosecute those people and it hasn't done so it hasn't prosecuted any of these ministers or politicians or media Outlets yeah absolutely and so a couple this will come up not only with respect to South Africa's genocide case but also to the IC arrest warrants um part of what we're going to see in terms of um Israeli objections to both the jurisdiction of the IC and also the admissibility of this particular case is this argument around something called complimentarity um that's a principle that undergirds the ICC institutional system it just means essentially that uh the ICC needs to be a court of last resort primary jurisdiction for prosecuting genocide but also war crimes and crimes against humanity lies with the domestic system and we've seen Israel um making a its case already at the icj in this respect saying look we know the difference between hate crime and incitement we have an excellent Supreme Court uh you know fabulous jurist Prudence judge Barack uh we're able to take care of this ourselves right we see Matt Miller like the other day saying the same thing the US position is that is's legal system is you know very sophisticated Israel has jurisdiction here International jurisdiction isn't warranted but the thing about complimentarity is that it only comes into play as a um as a means through which the admissibility of a case at the ICC um uh can be uh rejected if that state is pursuing uh charges against the same individuals that have been named and for the same conduct so we in general we don't see um prosecutions either for incitement or other violations of IHL in Israel right now but we certainly don't see cases against uh you know Netanyahu and G himself and so that's the quick yeah yeah Israel would have to prosecute Benjamin Netanyahu and Joe Galant for war crimes and crimes against humanity for that to work as a defense yeah brilliant Heidi I think we've gone through so much there it's been um we've T of force um you can see why I've I've been looking to hiid his wisdom and knowledge all the way through this we went to a lot of great granular detail uh so do like press subscribe and leave your comments um but Heidi that was great thank you so so much great thanks so much for having me and

Channel: Owen Jones

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Length: 39min 44sec (2384 seconds)

Published: Sat May 25 2024