I'm Elliot Shotoff and welcome to Conflict Uncovered, your go-to podcast for in-depth analysis on the complex and dynamic conflicts shaping the Middle East, Israel, and the world. Join us as we delve into the latest developments, historical contexts, and the geopolitical forces at play. We bring you the insights you need to understand the issues that matter most. Stay informed, stay engaged, and uncover the truths behind the headlines. Hi and welcome. It's November 26th, late in the afternoon here in Israel. We're on the verge of a ceasefire, but I'll be dealing with that in a different conversation. Well, I'm joined once again by my son, Dove, the other major Shotoff. And what we're going to be talking about today is the ruling by the International Criminal Court to reject Israel's protests and appeals and to issue arrest warrants for the arrest of Prime Minister Netanyahu and former Defense Minister Galant for war crimes, crimes against humanity, and assorted other various things. So with that, let me begin by saying there are a few categories here that are issues that we need to approach. One of the, as the accusation itself, we'll talk about, why are they accused of what they're accused of? Second, the arrest warrants and the procedural issues that Israel brought and were rejected by the court. And third, the response of the countries of the world, including the United States, to the issuing of the warrants. And these are related, but put separate, separate topics. So first of all, to clarify something that's been, I think, reasonably confused in conversations of conversations that I've had as well, although not by me, and that is that the arrest warrants were issued by the ICC, the International Criminal Court, for particular crimes, which we'll talk about in a moment, not for the genocide that's being investigated by the International Court of Justice, the ICJ, on charges that were brought by South Africa, instigated by Iran, and Qatar, and Hamas, and also some other bastions of liberal democracy. But the genocide charge is not what we're talking about here, but rather very, very specific charges of war crimes and crimes against humanity. So why don't we start with that? What are the charges and what's a little problematic about the charging? So I actually have the page open here that the ICC put out after the arrest warrant, and they talk about two cases, and while one of them is the case that everybody's talking about, it's the one that I think will ignore today, and that is they're accusing the Prime Minister and the former Defense Minister of using starvation as a weapon. And the only reason I say not to talk about it today is while I don't think there is such a case. I believe it is a legitimate, investigateable crime that if starvation was used as a way against civilians in a way that is against international law, then potentially there is a war crime that took place. Once again, I don't believe that to be the case. All evidence that I've seen, and I'm not a lawyer, but I've watched a scene or two and noticed trucks and trucks and trucks and aid and aid coming into Gaza from day two or three and ignoring the fact that Israel is not the only place where aid could come in. There's this other country, Sarge with an E, I keep forgetting what his full name is, to the South. Egypt, Egypt, Egypt, Egypt, Dias, geography, you know, it's difficult these days. The other one that kind of falls into one area. Let me interrupt you for a second, you know, Israel could be accused of not preventing Hamas from stealing the aid and therefore using starvation as a result of that. After all, Hamas steals it, but Israel is responsible for getting there. So if Israel doesn't prevent Hamas from stealing it, then it's using starvation. I'm trying not to be too facetious, but it's difficult in these days. It's funny you should mention that because I've already seen Israel being accused of not preventing the gangs that stole the 98 trucks last week. And the answer was, well, but Israel saw them. Why didn't they attack them when they saw them? So after a year of telling us that everybody who's killed are women, children, and journalists, why are we not going after people who are raiding the aid trucks? And then we can accuse you of killing civilians. There you go. So go on. Let's get to that. But the other one was an interesting one. And I'm going to partially read through here just to get to get the point across and says, finally, the chamber assessed that there are reasonable grounds to believe that Mr. Netanyahu and Mr. Gulant bear criminal responsibility as civilian superiors for the war crime of intentionally directing attacks against civilian population. Okay, so that makes sense. In this regard, the chamber found material provided by the prosecution only allowed it to make findings on two incidents that qualify as attacks that were intentionally directed against civilians. So this is the line that I really am kind of trying to have in trouble with here. What the ICC is saying is that in all the thousands and millions of crimes that have taken place in the last year, and every child, journalist, woman, elderly, civilian with an RPG, and so on and so forth, they could only find two incidents and they're prosecuting the international criminal court is prosecuting the prime minister and the former defense minister for two murders. Let me just make sure I understand this. Basically what that means is that potentially, if we follow that litmus test to the world, any military that causes the death of a civilian in a war could potentially bring their leaders to the ICC. And I'm going to ask that sometime in the last 20 years, you're telling me that's never happened before, other than the four or five cases the ICC has done, that the coalition in Afghanistan, that the war in Iraq, that other incidents where England or sorry, Great Britain, France, Germany were involved, none of them had an incident where a civilian was purposely targeted. Well, first of all, let me just clarify some terminology. They're not prosecuting, they're investigating, but what they want to do is arrest them during the investigation and hold them until the investigation is complete. Now these investigations typically take five, six, seven years. So hold them for five or six or seven years and then decide whether they're something to prosecute and if there is then prosecuted and if there isn't, then let them go with an apology and say, well, you know, do process and all of that. So that that's just issue number one. Number two, the application of what you're talking about is what is known as the principle of command responsibility. Here it's also a bit problematic because the prime minister of Israel is actually not the commander in chief of the IDF. The defense minister is in a weaker form than the president is of the United, president of the United States is of the US military. The president of the US is actually a military officer by law is the highest ranking officer in the military. And he can actually issue orders directly to other officers by passing the chain of command if he wants to as the highest ranking officer, the commander in chief of the US military. And those orders are actually amended or annotated DP direction of the president and they are absolute orders. The prime minister of Israel does not give orders to the IDF. The prime minister of Israel gives orders to the defense minister who must pass them on to the chief of staff. In other words, the defense minister is a civilian, not a military officer and therefore his responsibility authority is somewhat truncated. But nonetheless. Right. So the just to clarify the defense minister in Israel cannot, I mean, obviously impracticality that's not the case, but legally speaking, cannot walk up to the brigade commander up in the northern border and say, Oh, I want you to go in now. I'm giving you an order. If he does that, first of all, the brigade commander correctly would say you don't order me. Right. I don't take orders from you. Right. I take orders from my commander. If you have an issue, take it up with my commander's so to speak. Correct. And that goes way up the line. The president can do that legally. All right. I was clarifying that distinction, right? Yes. Yes. Absolutely. The ability to do that. The Israeli defense minister, not the prime minister has no authority over the military. Correct. Correct. Correct. Correct. He needs to tell he slash the government, especially to parliamentary system needs in certain cases approval from either the cabinet or the government or the fines depending on the scope of operation to actually give orders. Correct. But even now, assuming that you wanted to apply it up the line, there is this question of what is this command responsibility? And it actually dates back to World War II in a case that was prosecuted by the United States in the Philippines against a Japanese general named Yamashita. And by the way, here, the application of prosecution and law in against Japan was much looser than it was against the Nazis. In other words, the Nazis who were prosecuted were prosecuted for particular acts that they took, including giving orders, but never in the passage. There were minor prosecutions, but I'm talking about the high end prosecutions that ended in life and death on the nations. So Yamashita was a commander in the Philippines and under his command, which by the way he claimed in his trial was about the size of MacArthur's command in the Pacific in terms of scale, but under his command, it's estimated that some 350 to 450,000 civilians were murdered by his troops. He claimed that he knew nothing about it. He didn't give the orders. He never heard about it, he never knew about it, and therefore he wasn't responsible for it. What's interesting in that case is that, and what sets the president, is that the prosecution never attempted to contradict his claim. In other words, they never tried to prove that he either gave an order or was aware of what happened, it simply argued that by being the general and command of the area, he was criminally responsible for what his men did, hence command responsibility. And as a result, he was convicted and executed. Now, gone. So, and I just want to make sure I got that number correctly, you said 450,000 people. Correct. Civilian. Correct. Specifically. Civilians. So, just to make sure I'm getting the scale right, in this case where they're going to arrest the Prime Minister of Israel and his former Defense Minister, we're talking about two incidents that qualify as an attack, with two other incidents that qualify for investigation. It doesn't actually say that anybody was actually killed here, or murdered, I guess. It's just that they were potentially directed against civilians, versus 450,000 civilians. Who were killed? Who were killed. And so, I will, I will, I'll repeat the question again, based on that, if it only requires a single or two incidents, where civilians were intentionally targeted, is there any country in the world that hasn't violated that? Where a soldier on the ground, right, because all it takes, according to this, is a soldier on the ground deciding on his own to go ahead and fire at a civilian, whether he hits him or not. Correct. So, a German soldier or a German soldier in Afghanistan, Air Force, who fires at a building that has knew he had that were civilians in it, and he directed it at those civilians. The Chancellor of Germany should be investigated for the war crime. Correct. How many times has that happened? Zero. Okay. Correct. So, here's- I'm just making sure that we are applying the law equally across the board to all nations as the ICC is supposed to do. Okay. So, being impartial is a very important piece in legal, in a legal system, in a judicial system. But you have to start somewhere. You might as well start with the Jews. It always starts with the Jews. It never ends there. So, look, to the point, and before we move on to the structural stuff, to the point, this is very similar in parallel to the genocide accusation. Since the law, in neither case, the definition of genocide, nor this particular case, quantify the crime. In other words, to go back to the Mashita case, one could possibly argue implicitly that a general should probably know if 450,000 civilians were murdered under his command. Yes. And not knowing is almost willful ignorance, and therefore carries a certain command responsibility. You've been a commander, I've been a commander, you don't know everything that's going on down there below you, you hope that your subordinates are doing their jobs. But there's a certain scale at which not knowing what's happening really is your responsibility. Right. And I will actually, I'm going to take that one more step, and it's going to lead us to the second point. In a situation where one of my soldiers did something like that, and I'm not going to go into the details of the example, but nowhere near this level, we tried the soldier in, I mean, in a military, not military court, it was a military court martial disciplinary court martial in a court martial, he was found guilty. And he was sentenced to, I think, a week in prison for it, and it was for damaging property. Right. So I think that leads actually leads me to the next point. No word, it implies by this that the that the crimes that were committed were not invested in. Correct. And therefore the SEC needed to jump in and save humanity against the lack of investigation prosecution by the Israeli judicial system. Correct. And that brings us to the Israeli appeal and its rejection on a number of grounds. And I don't want to get into the jurisdiction, whether the state of Palestine has the right to complain to the ICC against Israel, because there is no state of Palestine. It depends on which way you want to swing because if it comes to responsibility, they have no responsibility. But when it comes to correct anything else, or again, going after Israel, they are equal saying they do correct. So let's leave that for a moment, because that's a whole sticky issue in and of itself. But rather an internal issue of the Rome statute from which the ICC draws its authority. And that is the sense, the principle of supplemental justice. In other words, the ICC steps in only when a crime is committed and the state, the sovereign state either is unwilling or incapable of investigating and prosecuting for itself. Right. Now, by I want to bring it in because I think it's worth and I'm going to read once again from the ICC statement, because it just brings in exactly what you're saying. And we talk about the time travel element of this in a second. I'm reading it again. The chamber also rejects Israel's request under article 18.1 of the statute, which is what you just mentioned. The chamber recalled that the prosecution notified Israel of the initiation of an investigation in 2021. Okay, great. On the on the ward itself, one paragraph beneath it, it says the chamber issued warrants for arrest for two individuals in Netanyahu in Galant for crimes against humanity and war crimes committed from at least October 8 until May 20, 2024. So I'm just I'm I understand that Jews control everything, including space and time. But how is lasers? And while I loved the movie minority report, I don't know that pre crime still qualifies under the legal system, ie, we didn't investigate a crime that hadn't been committed yet in 2021. Therefore, we don't have the right to invest that therefore the ICC needs to jump in today to be any notified us that they're investigating crimes that took place that could have taken place starting in 2021. And correct me wrong, it would be the equivalent of saying we are putting a police car behind you on the road. And he's going to follow you all day. And if you even forget to put your turn signal on, well, we've been we've been following you all day. You change lanes without us without putting on your turn signal. Therefore, we're going to pull you over now. So this is much worse than that. This is much worse than that. This is a court that says we're investigating a crime that took place allegedly in 2024. We warned you in 2021 that we were investigating. And therefore, the crime that we're investigating 2024 falls under the 2021 warning. And since you didn't investigate this crime, which we didn't inform you off because we informed you in 2021, you are derelict in your duty. And therefore, it falls upon us to investigate arrest and ultimately prosecute for the crime that had not yet been committed. Correct. Because you were put on notice, you were put on notice. And by the way, what they said was that the investigation in 2021 was based on this situation. Correct. And and and this in the ruling now, the ICC says, well, the situation hasn't changed. So it's the same situation. And therefore, you should know that you were under investigation and you should have acted accordingly to prosecute the crimes or investigate the crimes that hadn't taken place yet. But you should have known about anyway. So if you can follow any of that convoluted logic, you're better than I am. Guys, I said time travel is a wonderful thing. And while Jews have been accused of controlling both space time and the weather, of which if you did control the weather, we would never rain over so cold. I'm just saying, fair enough, the concept here of we're, we're bypassing the legal procedure because we already put you on notice. Once again, I'll play that list of litmus tests on the world, but it was an open ended investigation, which in and of itself, right? It was no timeframe. I remember correctly, 2021. So they just opened an investigation, basically saying anything that goes that you do going forward can be used against you, no matter what. And you've lost your right because, sorry, because in 2021, we rejected and you said that this is that you don't, we don't have jurisdiction. We don't feel that we need to now let you follow our own procedures. Correct. Because of this situation, which is the title of the entire piece. And it still says the situation in the state of Towson because it's falling under that 2021 open investigation. And of course, nothing happened on October 7th, 2023 that might somehow alter the state of the situation. Right. Well, they only started investigating on October 8th. So it's okay. Of course, because history begins when it suits those who wanted to. Yes. All right. Let's move to it. Right. Well, it would be difficult for them to investigate crimes on October 7th without getting all sorts of other characters possibly involved. We wouldn't want that to happen. You mean like those who might be either in Qatar or in Turkey these days? For example, for example, I don't want to. Random example. Random example. Random example. It's the same that same turkey that cut off water to a million curbs last year. But that has nothing to do with starvation. It has nothing to do with Jews either. That's right. And therefore, it doesn't really matter. Let's move on to the to the response of the world in general in the US in particular. OK, so as disturbing as the ruling and the arrest warrants, the world's response is at least as disturbing, not surprising, but disturbing. Two countries immediately came out and said, we won't. We want to apply it. I'm talking about countries that are signatories, the US is not. And that's the Czech Republic and Hungary. France immediately said, oh, we'll apply it. We haven't arrested Jews on somebody else's authorities since 1944. It's it's way late in the game. Let's do it again. As I said, the French level must see Jews on false charges. Not only that, somebody else's authority, well, then we can go back to Dreyfus, of course. OK, so yeah, we've got a lot of history of rounding up people and Jewish Jews and sending them off to other places to be imprisoned and prosecuted and persecuted and like that. The Netherlands shockingly not also said we'll be happy to arrest them. Yes. Germany, Italy and Britain said, well, we don't agree with it, but we'll arrest them anyway. And of course, the US, which is possibly the most important character, although the rest of them are important in their own right. So President Biden issued the exact same statement that he issued when the prosecutor said he was going to issue the arrest warrants some nearly six months ago. In other words, you simply simply pull the same thing up on the screen and read it. But what's more important here is the background, the American background to it, and I think we can wrap up with that. Under the Trump administration, the ICC was investigating American war crimes in Afghanistan. Or beginning to, and the Trump administration, not surprisingly said, go right ahead, which is going to sanction you from here to kingdom come. No visas to enter the US, we're going to shut down bank accounts, we're going to sanction banks that do business with banks that do business with you. And all of a sudden, shockingly, all these investigations has disappeared. The Trump administration or Trump issued an executive order for sanctions for any future prosecutions and investigations of that type of America and its allies. Interesting. At the very beginning of the Biden administration, that executive order was canceled. And as a result, Congress decided to make it a law. The House passed it and it could not come to the floor of the Senate because Senate majority leader Schumer who prides himself in his name being rooted in the word show mayor, which is to guard, and he is a guardian of Israel at the behest of the administration has refused to allow it to come for a vote in the Senate. So it can't move forward for a law as a law Biden has made it very clear he's opposed to it. So we're now in something of a holding period because it seems likely that in two months, slightly less now, all of this is going to change in terms of American policy. So it's going to be interesting to see Israel is still debating whether now to appeal the actual issuing of the warrants because the appeals before were to prevent the issuing of the warrants and that's there's a great debate going on here between the politicians and the legal experts, the legal experts are saying appeal, the politicians are saying just ignore it and wait until the Americans deal with it. Here I happen to agree with with with the legal people appeal and you can always slap them politically. But I think that really what we're seeing and I want to conclude with this is the breakdown of the concept of international law, which was kind of thin to begin with, but and fragile to begin with, but has now become so politicized and so one sided and so directed that it's hard to use the word law in its application except in the most cynical sense. So there's much more, this is much deeper than simply trying to take a shot at Israel. It's really a shot in the foot by of itself by itself to itself of the legal system that's making the mockery of the concept of law and jurisprudence. So on that happy note, I think we've covered the angles on this. So Doug, thanks for joining me. Thank you for having me. To our listeners, you'll be back whether you like it or not. So our listeners, also thanks for joining us. Stay engaged, stay safe, bye for now. Thank you for listening to Conflict Uncovered. As always, it's been another rough day in the Middle East. We hope you found this episode insightful and engaging. If you enjoyed this episode, please subscribe, share and recommend with your friends and review our podcast on your favorite platform. For more in-depth analysis and exclusive content, join our community and follow us on social media. Stay tuned for our next episode as we continue to explore the critical issues shaping the Middle East and the world. Until next time, stay informed and stay safe. (upbeat music)
Elliot and Dov Chodoff discuss the recent ruling by the International Criminal Court (ICC) regarding arrest warrants for Israeli leaders, including Prime Minister Netanyahu, on charges of war crimes. They explore the nature of the accusations, the procedural aspects of the ICC's actions, and the broader implications for international law and Israel's response. The discussion also touches on the global reactions to the ruling and the historical context of such legal actions against state leaders.
Takeaways
The ICC issued arrest warrants for Netanyahu and Galant.
The charges include war crimes and crimes against humanity.
The principle of command responsibility is complex in this context.
The ICC's jurisdiction is questioned regarding the state of Palestine.
The investigation timeline raises concerns about legal procedures.
Global reactions to the ICC ruling vary significantly.
The U.S. has a complicated history with the ICC.
International law is becoming increasingly politicized.
Israel's legal experts advocate for appealing the ICC's ruling.
The conversation highlights the fragility of international law.
