Lawfare Daily: Prosecuting the Gaza War Before the International Criminal Court with Chimène Keitner

[Introduction]

Chimène Keitner: The decision to name, you know, these three and to link them to these crimes, I think it's not surprising. Notably absent from both sets of defendants are any charges at this point of genocide.

Scott Anderson: It's the Lawfare Podcast. I'm Scott R. Anderson, General Counsel and Senior Editor here at Lawfare.

Chimène Keitner: One could ask whether Khan would have felt moved to, to act publicly when he did, if the United States had more clearly and more forcefully tied weapons shipments, for example, to concrete deliverables in terms of humanitarian aid and its distribution.

Scott Anderson: Today, I'm joined by Chimène Keitner, Professor at UC Davis School of Law and former counselor on International Law at the U.S. Department of State to discuss the prosecutor for the International Criminal Court's recent decision to seek arrest warrants for several senior figures involved in the October 7th massacre and subsequent conflict in Gaza, including Israeli Prime Minister Benjamin Netanyahu.

[Main Podcast]

So Chimène, we saw a pretty dramatic step happen today in the International Criminal Court relating to the conflict in Gaza. And that is of course the first set of actions that could result in the criminal prosecution of individuals involved both in the side of Hamas and on Israel in that conflict. Before we dig into today's action though, let's give it a little historical context. How did we arrive at this point that the International Criminal Court, the ICC, is exercising jurisdiction or believes it can exercise jurisdiction over the Gaza conflict and over the conduct that's at the root of the allegations here?

Chimène Keitner: Well, Scott, it's great to be with you. And anytime you use the word historical context in this situation, you know, one wonders if you have to go back to biblical times, but I assume you have something on a little shorter timeframe in mind. I mean, the International Criminal Court has been, you know, in operation since 2002. It's a treaty-based court, which means that states sign on to be part of the treaty regime for the court, as I'm sure your listeners will know that the treaty that founded the court is often referred to as the Rome Statute. And the Rome Statute is pretty clear about when the court can exercise jurisdiction over the core crimes in the statute, which are war crimes, crimes against humanity, and genocide. So, we're bracketing a fourth crime, the crime of aggression that has a, a special jurisdictional regime attached to it.

But those core crimes come within the jurisdiction of the court under the terms of its founding treaty, when sort of one of three situations arises. One is that the Security Council of the United Nations refers a situation to the ICC. And so the ICC is meant to be sort of a standing court that replaces the need to create ad-hoc international criminal tribunals like the tribunals we saw the Security Council create in the 1990s in response to atrocities in Rwanda and the former Yugoslavia.

Another circumstance in which the court would have jurisdiction is if a country that has explicitly accepted the jurisdiction of the court, either by filing a special declaration to that effect or more commonly by simply joining the treaty that creates the court, when nationals of that country are alleged to have committed those three core international crimes. And then the third scenario is a scenario in which a country that has submitted itself to the court's jurisdiction has international crimes that occur on its territory. And so those two predominant methods you know, territorial jurisdiction and nationality jurisdiction are the ones by which the ICC acquires authority in the vast majority of its cases. And indeed, both nationality and territorial jurisdiction are in play in the warrants that the prosecutor is seeking here.

Scott Anderson: We know the status of Palestine as a state is a contested concept in a lot of quarters, a lot of capacities. The United States has been openly critical, at least multiple past administrations, of the idea that Palestine is a state or be in a position to consent to the jurisdiction of the ICC. But it's not necessarily a surprise the ICC thinks that Palestine has consent to that jurisdiction, right? That's been a settled issue at least for the last two or three years. Is that right?

Chimène Keitner: Correct. So Palestine, as you say, sits as an observer in the United Nations behind a placard that says state of Palestine just to emphasize the point. And it's entitled to do that because the UN General Assembly in 2012 voted overwhelmingly in favor of giving the state of Palestine nonmember observer state status. A core reason why Palestine isn't a member of the United Nations, which isn't required in order to be a state under international law, but which certainly puts statehood sort of beyond question, is that that would require the recommendation of the UN Security Council on which, of course, the United States and other permanent members have a veto.

So I think it's, you know, there's a very strong argument that since 2012 at least, Palestine has had the capacity to act like a state in a range of circumstances. And as you mentioned, Scott, one of those circumstances is its decision to accede to the Rome Statute, which did again, create a lot of controversy, pushback. But the court itself, which as you indicate, probably you know, wouldn't be expected to decide otherwise, but has indeed ruled and did come up with an opinion in 2021 saying that at least for Rome Statute purposes this entity, the state of Palestine has the capacity to join the treaty and thereby the capacity to confer jurisdiction on the ICC, not only over nationals of the state of Palestine, but also over international crimes within the court's statute committed on the territory of the state of Palestine which would include, in this definition, the West Bank, Gaza, and East Jerusalem.

And so, it's on that basis that the prosecutor has been investigating the so-called situation in the state of Palestine. The ICC prosecutor begins by investigating what the court calls situations. And it's in the context of that situation that in fact, reaches back to 2014 when Palestine sort of, you know, definitively, at least in the court's own interpretation, joined the treaty. It's in the context of that investigation that the current prosecutor, Karim Khan, has been looking more closely at whether or not international crimes committed, have been committed that fall within the court's jurisdiction.

Now, as you mentioned, a couple of interesting things have happened. There's been a lot of pushback, I think, on the prosecutor for not acting more quickly in the situation in Palestine generally. And now that he has acted, as you indicated, taken steps to seek authorization for the court to issue arrest warrants, it has been in the much narrower context of the Hamas attacks of October 7th and the subsequent Israeli military campaign in Gaza. And so although the court's jurisdiction under its interpretation does date back to 2014, this current request, which is the first request, you know, within the parameters of this broader situation, does relate to the much more recent events that have been preoccupying everybody since October.

Scott Anderson: So now we have a sense of kind of where the court views its jurisdiction and why the prosecutor at least believes the ICC should take action here and is petitioning that. Let's talk about what the past few days recent action actually is procedurally. What we have so far really is limited to two documents, a press release, a statement from the prosecutor and then a related opinion or statement by a panel of experts the prosecutors assembled. The prosecutor is essentially declaring, saying, I am petitioning the court for an arrest warrant. Where does this put us in this procedural posture? What is the standard of review that the prosecutor is exercising here? And, and what does it mean in terms of where we actually are at, getting those arrest warrants? What does it mean in terms of the point where there's actually a threat to the liberty or a risk of prosecution for the people being included in the statement that we have?

Chimène Keitner: So we're far away from any potential arrests. But as you indicated, the process has been set in motion. And so what the prosecutor has announced, and as you indicated, we don't have public access to these underlying documents that were reviewed either by this panel of experts you mentioned or that will be reviewed by the pretrial chamber, they call it, of the court. But it's essentially a compilation of evidence that the prosecutor has amassed both through on the ground investigations and interviews, also video evidence, witness testimony and so forth. So there's a couple of interesting things to note.

First of all, the Rome Statute is very clear about the procedure for seeking arrest warrants. The prosecutor has to determine to his or her satisfaction that there are reasonable grounds to believe that a particular individual named in the warrant has committed the enumerated international crimes that the warrant would, would list. And in addition, that determination needs to be corroborated by a majority of a specially constituted pretrial chamber from among the sitting ICC judges. So it's essentially a sort of two step or two layer inquiry, but based on this same legal standard of, of reasonable grounds to believe. Now, the prosecutor in various prior statements has also introduced this idea that's not in the Rome Statute, that he wouldn't proceed unless he sees sort of a realistic prospect of, of actual conviction. And so that's something that may be a gloss on the standard but that has to do more with sort of allocation of scarce prosecutorial resources as opposed to any threshold legal requirement.

So, what we're really looking at is this idea of reasonable grounds to believe. And again, under the terms of the Rome Statute the prosecutor has to make that determination, and then the court has to make that determination before a warrant is even issued. The ICC, of course, does not have its own police force. It can't go grab anybody off the street. It relies on cooperation from member states. And so what an eventual warrant would do would essentially direct member states to arrest and surrender the named suspects to the ICC if they come within the jurisdiction of a member state, most notably by entering that state's territory.

The interesting additional step that, that Khan took in this case, which I think was maybe not evident that it was happening until the press release and statements that have come out, is he constituted an expert panel solely for the purpose of reviewing his reasonable grounds to believe determination with respect to these particular warrant requests. And so that is something that to my knowledge has not been done, or certainly not been publicized, before.

The, the prosecutor has kind of a standing group of academic and, and other experts who weigh in and advise in various capacities, but the decision to, to constitute this particular group of six experts and two, also experts, but academic advisors, and to publish, you know, a fairly concise, but nonetheless sort of unanimous document with their conclusions and assessment, really is, again, not something that that's required or contemplated by the Rome Statute. But something that the prosecutor obviously did to help insulate him from criticism, or at least attempt to, since of course he's going to be subject to a ton of criticism no matter what he does, but to insulate him from criticism that, that these charges are somehow not well founded. And so as you said, we do have those documents now in the public domain. And that is sort of the universe at the moment of, of public knowledge about what these charges entail and what evidence they're based on.

Scott Anderson: And to drill down a little bit further, from what we know so far, we don't have a vision into the underlying evidence except as described into these two documents, which I think is notable because we are already beginning to hear a lot of people, frankly, on both sides of the equation say this is an open and shut case versus this is a baseless case. And I think the honest truth is we, we don't actually know. We do know what this panel of experts viewed it as, and the standard they seem to apply was a kind of reasonableness basis. Is it a reasonable standard that the prosecutor would petition forward? And then my understanding of the basis for the actual issue into the arrest warrant is essentially a probable cause standard. Is that right? Is that the line that we're looking at here, which is, which is obviously a shorter from what would be required for, for a conviction, certainly.

Chimène Keitner: Yeah, I mean, it's always hard to kind of try to find domestic law analogies in international criminal law or in international law at all for that matter. But I, my understanding is that the reasonable grounds to believe standard has essentially been analogized to a probable cause standard, which is different, for example from the ICJ’s standards in terms of determining whether or not to issue provisional measures and so forth. But I think that the criminal law threshold for, for issuing a warrant is sort of more consistent with what, you know, we in the United States or in other common law countries, and civil law countries for that matter, although they may use different terminology, are looking at.

So it's certainly not, you know, anything approaching a preponderance of the evidence, let alone, you know, beyond a reasonable doubt standard. But there needs to be a there there. And I think that's what these experts unanimously concluded. And, and what I expect, although of course we don't know, a pretrial chamber would eventually conclude as well.

Scott Anderson: So, let's get into what the actual allegations, as we understand them as spelled out by these bodies, are. There are five different suspects named here. Three are members of Hamas. Two are very senior Israeli officials, including Prime Minister Netanyahu. I think legally, the issues around the Israeli suspects are more complex and, and challenging and interesting.

But let's, let's talk about the Hamas suspects who are, who are obviously very interesting, important figures and have played a very central role in the October 7th massacre and the conflict that's come afterwards. These are essentially Yahya Sinwar, who's kind of the head of Hamas, Mohammed al-Masri, who is the head of the Qassam Brigades, you know, one of the most prominent kind of militant components of Hamas, and Ismail Haniyeh, who's the head of Hamas's political bureau, the kind of political wing. And all three of them have a number of allegations leveled against them as crimes against humanity and war crimes. Two of those categories you mentioned about where we see different sorts of violations spelled out.

What stands out to you about the allegations here? What should we be taking away from this? It's a pretty wide range of crimes against humanity and war crimes that are included here. Does anything jump out at you as particularly notable or interesting from these allegations? Or is it kind of what we would expect if the ICC were to exercise jurisdiction over this particular conflict, given what we know is widely believed to have been, that Hamas is widely believed to have done?

Chimène Keitner: Yeah, well, taking a step back, I think, as you mentioned, there's lots of criticism and pushback on both sides, and one of them is, you know, putting these five people together in, in sort of a single grouping. But taking each in turn, the, the prosecutor began his statement by laying out the allegations against these three Hamas leaders. And, you know, connecting that back to, I think the, the real desire, particularly of families, not only of those killed and injured on October 7th and 8th, but also those who remain hostages. I think that those families have really, many of them, not all of them, of course, viewed the ICC and viewed the prosecutor in particular as a way to get the attention and pressure they feel has been lacking from their own government. And so I see the charges against these three as very much responding to this notion, this, this really much more kind of emotional connection almost it seems that Karim Khan has forged with some of these families.

And again I think if one is to look at the Hamas attacks, you know, through the prism of international criminal law, we have not only an armed conflict of some flavor, and I know this is an area of expertise of yours as well, and there's lots of slicing and dicing to do but we certainly have, you know, violations of the law of armed conflict to the extent and in the variation or variations in which it applies. And I think the prosecutor made clear and the expert panel agreed. We have a widespread or systematic attack on a civilian population pursuant to a state or organizational policy, which is the requirement for crimes against humanity. So I think, although again, taking a step back, the decision to name these particular suspects at this particular juncture relating to this particular situation, given that the prosecutor is currently investigating 12 different situations. I mean, there, there are many choices, of course, that led to this week's announcement, but the decision to name, you know, these three and to link them to these crimes, I think is not surprising.

Notably absent from the both sets of defendants are any charges at this point of genocide. And as we know South Africa has been arguing strongly to the International Court of Justice that Israel has been committing genocide. The International Court of Justice has not determined that it has. But that is the register in which South Africa's arguments have been made. And in addition, I think most Israelis and many outside observers would view Hamas’s October 7th attacks as genocidal in nature as well. So, we do not currently have allegations of genocide, which do require specific intent, although that intent can be proved by things, including statements made by these various leaders. But we do have the war crimes and crimes against humanity charges, which are, you know, extremely serious and well documented at this point.

Scott Anderson: And it's worth noting something that, that stood out to me a little bit is some of the discussion of allegations of rape and sexual assault, which obviously have been a flashpoint of a lot of controversy around the conflict. It does include charges, but it seems specifically relate to allegations of sexual assault and rape against the hostages that have been held by Hamas. But notes in there, in the public statement, the prosecutor released they're continuing to investigate allegations of sexual violence around October 7th itself suggesting that there may yet be charges. No conclusion has been reached one way or the other in that regard.

So the, the Hamas allegations strike me as, as kind of expected, as you note. I mean, what Hamas did on October 7th and has done since, particularly in treating, how it treats civilians, Israeli civilians, is pretty, in some ways, bread and butter crimes against humanity, war crimes sort of actions. The allegations against the two Israeli suspects is much more novel and interesting in my mind.

Chimène Keitner: Yeah, and just before we get there, Scott, you know, just because you raised the sexual violence issue. I think our extraordinarily important particularly because there is this wave of denialism, or what to my mind is denialism, both as sexual violence was used as a method of warfare on October 7 and that, that October 7, was, in fact, an attack planned and executed by Hamas to begin with. I think one of the functions of an international criminal trial, and we've seen this over the years, can be to, you know, very painstakingly document atrocities in addition to creating or identifying areas where there's individual criminal responsibility and punishing individuals accordingly.

And, you know, we've all read competing accounts, both of October 7th and the aftermath. And it is very clear that the prosecutor's office is proceeding very cautiously on the basis of what they feel is sort of airtight evidence. And with respect to sexual violence against hostages who have been released, of course, you have their firsthand accounts and testimony. With respect to the atrocities on October 7, there is ample documentation as well but a little bit more back and forth for various reasons that we don't need to get into here, including failure to preserve crime scene evidence in the midst of a really chaotic and traumatic couple of days. And, and so that will, I think, take more time to put back to the pieces all together. But I think that the ICC, you know, importantly has recognized, for example, you know, rape, both as a crime against humanity and a war crime. And this is something that, you know, in World War II, for example, we couldn't have taken for granted. So I'm glad that you highlighted that. And I think it is really important to emphasize that.

Scott Anderson: Now that's really useful. Thank you. Let's pivot and then now talk about the Israeli suspects who it's worth noting are Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Galant. And they're both essentially accused of a number of crimes and crimes against humanity and war crimes, but that center around a particular nexus of facts and conduct. Most of which relates to starvation, the use of starvation against civilians and deprivation of core goods. Starvation itself is a crime under the Rome Statute that can be prosecuted, but only in certain contexts, which we'll get to in a second about that international armed conflict versus non international armed conflict sort of divide.

But it also, they pull in a couple other allegations for similar conduct. Essentially, the fact that these individuals are alleged to have been knowingly and intentionally used policies to impact civilians, harm civilians as part of their broader strategy here, qualifies as crimes against humanity and war crimes in other contexts about separate from starvation itself as, as a crime.

Talk to us a little bit about what this tells us about the prosecution strategy and about this sort of crime. To my knowledge, I think this is the first time we've seen starvation as a crime prosecuted by the ICC. I don't know about ICTY or ICTR, but I'm not, I don't believe it's been used there either. I'm not even sure it was a crime under those statutes. So, this is probably a pretty novel case. Does, am I right about that? And, and what stands out to you about these allegations that makes them interesting and particularly the overlapping nature of them?

Chimène Keitner: Yeah. I mean, it's so interesting, right? Because again, just taking a step back, I think our understanding of famine as an international crime is something that has really evolved in recent decades and, and in particular starvation as a method of warfare. And as you say, when it comes to both intent, but then also Israel's different obligations under the laws of war with respect to the provision of humanitarian aid, you know, from a legal perspective, and of course, I'm sure your listeners don't need reminding that we are kind of slicing and dicing because especially in the criminal law realm ,you know, we need to be extraordinarily precise about the requisite elements of particular crimes in order to convict individuals of them, but it can become a very technical lawyerly discussion. And at the end of the day, we are talking about, you know, beyond horrific attacks in October, followed by catastrophic destruction of civilian infrastructure and devastation of civilian lives. So it is always, I feel at least, there's always some cognitive dissonance that sort of accompanies these technical lawyerly conversations.

But I think your point is very well taken that the prosecutor here, I think also as he did in the Russia-Ukraine situation, is choosing interesting charges to lead with. So as your listeners will recall, the charges against Vladimir Putin related in the first instance to the forced transfer of children out of Ukraine, which might not have been the first thing to come to people's minds when you think of Russian war tactics, let alone the invasion as a whole. Here as well, I think that the focus on harm to civilians, and again, intentional, not just incidental harm to civilians, but connected to their inability to access fundamental things, you know, clean water, food needed for daily survival, really kind of works in tandem in a way with the pressure that the International Court of Justice has been placing on Israel with respect to its humanitarian obligations to show that there's, there are more responsibilities and restrictions on the conduct of states in war than simply doing a collateral damage assessment every time you choose a military target. And ensuring that your concrete and direct, you know, military advantage anticipated is, is not disproportionately outweighed by the, the civilian harm that will ensue.

I mean, this is really saying, again, without using the, the specific intent requirement of genocide, this is saying, look, given what we're seeing on the ground in Gaza and notwithstanding the deconfliction efforts that you have referenced both in your ICJ pleadings and in the public domain, notwithstanding the fact that, you know, the United States is building this pier and deliveries of humanitarian aid have you know, ebbed and flowed, but overall increased since those very first weeks of October and November. Israel, and in particular, you know, Netanyahu and Galant you, you have not been conducting this campaign in a way that is consistent with the requirement to make sure that as much as possible and understanding that in this kind of urban tunnel warfare setting, you know, everything is, is sui generis almost. You are not acting not only consistently with your obligations towards civilians, but that we can infer, or the office of the prosecutor can infer that there has been, you know, an intent to deprive the civilian population of, of what it needs to survive.

And, and I think, again, if we're looking at a you know, reasonable grounds to believe standard, and Khan, in fact, in his statement, you know, is, is very explicit, basically saying, you know, I've, I've been talking about this, Israel, you know, for months now, kind of putting you on notice, right? And the, the efforts that you have made, whether on your own or in response to international pressure or in response to the ICJ's orders, you know, they haven't been enough. And, and he really uses the language, as you know, of, you know, that day has come, the day I told you that was going to come. And so, so I, that is, as you know, as you said, that is the focus and I think it tries to also sort of get around some of this, you know, you're not in a position and there's not enough information to second guess every military strike that we've made, right?

The report and the statement make clear that that may be coming. In other words, sort of, war crimes involving excessive collateral damage and/or intentional targeting of civilians these 2,000-pound bombs we've been hearing about and so forth. But I think there's, there's just something to Khan's modus operandi, as it were. And I really see a sort of a through line from focusing on, on the forced removal of and transfer of children in Ukraine. And now this focus, as you say, Scott, on starvation as a method of warfare that basically says, look, you know, yes, this is an armed conflict. Yes, hindsight is 20/20. Yes, you know, after the dust has settled, we can figure out, you know, whether you were excessive with respect to the prosecution of your military campaign, but we don't need to wait for the end of the fighting to say that right now there are civilians who are suffering who shouldn't be. And I think that's the message that, that this statement tries to send.

Scott Anderson: So, I want to get back to this question of Khan's motivation and why he's doing this now, in a second. Before we do that, let's handle two more kind of technical aspects, or maybe three of this. The first is that this international armed conflict versus non international armed conflict divide. This is a kind of interesting thing that's happening in this document where he's saying there's actually two armed conflicts happening here. There's an international armed conflict between Palestine and Israel, state to state. That's what international armed conflict is, for folks who might not be familiar or listening. And then there's a non-international armed conflict between Israel and Hamas, and that these two can exist simultaneously, which is kind of a novel proposition. Although one that I think kind of makes sense to my mind and isn't totally a surprise, I don't think, but as far as I know, it's not something that's been put forward there before.

But it helps him cover his bases because it, it says, even though starvation, which is a crime and only international armed conflict, mostly because of a, what a lot of people think is a scrivener's error in the Rome Statute. There's actually, as I understand, an effort that's underway to correct and incorporate starvation into non-international armed conflicts. Just none of the parties involved here have joined that effort as of yet. That you can charge starvation in an international armed conflict, if for some reason that people didn't think that applied, there isn't one here, then you still have war crimes and crimes against humanity covered through those starvation like war crimes and crimes against humanity allegations. So you kind of have both universes of potential charges involved here in both types of conflict. So you're, you're covering your bases for all the different ways you might conceive of what is a very complex and kind of contested legal categorization of this conflict.

A second technical issue that I'm curious about your thoughts because it's something I know you've done a lot of work on, is the question of head of state immunity. You know, we have an idea that heads of state usually are immune for just about anything, most of the time, and certainly for official acts, not to mention, you know, other senior officials often have immunity for different types of official acts. So how does that fit in here? Do we know how the prosecutor is likely thinking about the immunity question for certainly Netanyahu in this particular case?

Chimène Keitner: I'm going to actually answer the first question that you didn't ask and then the second question that you did ask. So, because I think this distinction between international and non-international armed conflict is, is often a very puzzling and perplexing one. And as you note, the Rome Statute, which was drafted, or came to fruition in the late 1990s continues to preserve this distinction and, you know, almost looks, although as you indicate with some important differences, almost looks like the drafters kind of put the same article in the statute twice because they've got conduct that is unlawful in an international armed conflict enumerated separately from conflict that is unlawful in a non-international armed conflict. And this, again, is because of this idea that, you know, particularly with respect to criminal prosecutions, one does need to be extraordinarily meticulous about documenting both the required surrounding circumstances of the crimes and their both mental and sort of action elements that we call mens rea and actus reus.

So that said, the standards of conduct in those two different kinds of conflicts have been converging substantively, right? And that convergence has continued sort of in the decades since the Rome Statute was drafted. And the reason really that non international armed conflicts historically have had sort of less robust international law regulation is because of this notion, right, that things that went on within states weren't really the, the business of international law, whereas things that went on between states more appropriately were. And so just wanting to put kind of in context why it would make a difference.

And, and the other really technical but important thing for, for lawyering purposes is of course figuring out, you know, the extent to which Gaza, you know, was or wasn't occupied by Israel at particular points in time. And that's important with respect to Israel's humanitarian aid obligations, because to the extent Israel could claim that it did not occupy Gaza, even though it controlled sort of entrance to and exit from the territory. It could say, well, we just had an obligation not to interfere with the delivery of humanitarian aid, whereas when you are an occupying power, you have much more proactive obligations to provide aid. And so all of these, you know, again, the slicing and dicing does actually impact kind of what legal obligations a country has and importantly, what alleged violations individuals can be held criminally responsible for.

The people who are kind of making those decisions generally tend to be leaders. And so, and so it's not surprising again that we would, by various theories, including something in international law, we call command responsibility or superior liability, that those are the folks who the International Criminal Court, which is specifically charged with prosecuting, you know, the most serious international crimes and those most responsible for those crimes. You know, it's not surprising that they're going to have, you know, powerful people, including heads of state kind of in their sights.

Now this was not necessarily the way the court initially proceeded. So back in the time of the first prosecutor Luis Moreno Ocampo, I think the court was perhaps more cautious in its approach to indicting heads of state with respect to official acts immunity generally, the idea that because you were acting on behalf of a state, you do not bear individual criminal responsibility. That proposition was, I think, quite summarily negated, both in the Nuremberg trials and in pretty much every international criminal trial since then. And so, Galant, for example, and Sinwar, for that matter, to the extent that he's determined to have been acting on behalf of the Palestinian state, again, more complicated in that case, you know, couldn't say, well, I was acting on behalf of the state, so whether or not the state has responsibility, I don't get prosecuted. However, they could at least with respect to a recognized state, make that argument if a foreign court tried to prosecute them. The majority, I would say, of foreign courts at this point, when countries are engaging in war crimes prosecutions have not tried, generally been recognizing this official acts defense either.

In other words, both in international criminal tribunals and in foreign tribunals conducting criminal proceedings this idea that, well, you know, I was a military commander or as an important political official is not going to shield you from prosecution. The question whether being a sitting head of state has that shielding function is one that, that remains contested, I think, with respect to, again, foreign tribunals. Generally speaking heads of state, sitting heads of state, once they leave office, they’re fair game, have, you know, the proposition that they have immunity, what's it called, status based immunity from prosecution is, is quite robust for, for the obvious reasons that it would be difficult to conduct diplomacy if you can't do travel, which is one of the arguments, by the way, that Netanyahu is, is making now with respect to the, the threat of these warrants. That said, you know, some countries are pushing that envelope, notably France right now in some proceedings involving Syria.

With respect to international tribunals, to the extent that they are constituted based on state consent, and or to the extent the UN Security Council has referred a case. Again, I think the prevailing view is that head of state immunity is not a barrier to prosecution. So for a state that has ratified the Rome Statute or submitted a declaration giving the ICC jurisdiction or in a case where as with respect to Sudanese President Omar al-Bashir, the UN Security Council has referred a case, I think the idea is that that is sufficient to sort of overcome head of state immunity. Of course, here we don't have a Security Council referral and Israel is not a state party, so there really isn't anything that I can discern from these fairly threadbare documents that we have relating to the arguments that the prosecutor would eventually make, other than we're an international tribunal, we don't recognize head of state immunity defenses, but one can assume that they would anticipate such a defense and that the decision to, you know, announce this intention to seek arrest warrants means that internally, at least they have concluded that along with jurisdiction comes the ability to overcome an immunity defense by virtue of your status as an international prosecutor, rather than a foreign court.

Scott Anderson: Well, let's turn back to this question about why Khan is taking the step now because I think it actually brings into the scope of kind of the third kind of, technical, legal question that I want to, to think about a little bit here. And that's this question of complementarity, that is kind of a foundational principle underlying a lot of the court's action. And the idea that the court is really, to put the, to way oversimplify it, the court is essentially only supposed to step in where a state's own domestic accountability mechanisms have, have failed or fallen short, or at least traditionally, that is where the court sees it as most appropriate for a step in. Maybe that's a better way to describe it. Because that is, that is the criticism we have heard from Secretary of State Anthony Blinken in statements reacting to this I think most squarely. And a few other quarters saying that, setting aside, you know, the merits of these arguments and things along those lines, if nothing else, it seems premature because, you know, ICTY, ICTR, these kinds of precedent bodies, a lot of the ICC's prior cases, you're talking about conduct that happened years ago, where it becomes very clear there's a huge gap in accountability.

And here, this is very much something ongoing where Israel very well might in a few months or a few years choose to hold Netanyahu or Gallant responsible in some way. It might seem really unlikely now, but politics are weird and things can happen, right? And it's not a foregone conclusion any more than it is in any other national context, necessarily. At the same time, you raised the point that really the prosecutor seems to be strongly signaling and has signaling that he's actively looking at what Israel is doing right now. That, that what he's talking about is in dialogue with Israel's ongoing conduct of this war. And having said like, I've, I've told you before about this conduct that I'm looking at these issues and yet we're still hitting this. And perhaps it isn't a coincidence that, you know, we're seeing these applications drop just two or three weeks, less than three weeks I think, after we've seen the Israeli government shut down border crossing at Rafah. Again, you know, cutting off supplies of aid and support that had been coming into the country, not entirely, but substantially.

Chimène Keitner: No, there wasn't, I mean, again, there was an attack there, so it's really difficult to, on a case by case basis. It's, you know, it's clear, I think, that Israel has not been doing everything it can to, to ensure aid. And I, what I thought you were going to say is actually that it's interesting that it's coming in the midst of these continued reports about sort of start and stop diplomacy to try to secure some sort of long term, if not indefinite, ceasefire in exchange for the release of hostage prisoners, right.

Scott Anderson: That as well. Absolutely. No, absolutely. I mean, that's part of the context as well. I mean, there's this real question as to say, what is the wisdom? What is the role of the prosecutors in an ongoing conflict like this, which isn't really a scenario where the ICC, and other sort of bodies like the ICC that have proceeded it, is usually operating in? Do we have a sense of, what, what is your read on that? How is he balancing his role and how much does it stand out from how prior prosecutors have done this or how states envisioned the role of the prosecutor being when they, you know, authored and signed onto the Rome Statute?

Chimène Keitner: So, urely as an outside observer, Karim Khan does not strike me as a shrinking violet and it's pretty clear-

Scott Anderson: To say the least.

Chimène Keitner: -that he, he wants to be involved. And for example, when he issued the Putin arrest warrant or announced it, that was very much at a time when there were, you know, active, they're now still continuing, but at that time, very active discussions about creating a special tribunal for the crime of aggression, which lies outside the jurisdiction of the ICC. And I viewed that, at least in part and in my view, significant part, that decision and the timing of that decision as sort of a, a very clear signal that the ICC wanted to remain sort of the, the core international tribunal dealing with Russian crimes in Ukraine.

And here as well I think, the ICJ has certainly been seized with the South Africa case and has been issuing provisional measures orders that I've blogged about on Lawfare in response to South Africa's requests. And I think issuing warrants at this juncture is also a way for Khan to remind people that the ICC is also an important player in this landscape. I think the problems with that are precisely that courts do not have the same incentives and imperatives and interests that politicians and diplomats do, right? And, you know, as I suggest in, in my most recent post for Lawfare on this particular installment in, in the long running saga. One can, I think, very credibly take different views on, on the propriety of courts acting sort of in parallel with diplomatic efforts from which they are completely separate, right?

And so there's, there's a possibility to, to interfere with or to disrupt promising diplomatic efforts at the same time. One can certainly take the position that accountability should not be put on hold indefinitely in the name of diplomacy that has not borne any, you know, fruits.

So, it's, it's clear, again, I do think this is very much a function of the personalities of individual prosecutors. That said, obviously, prosecutors are also constrained by these requirements, for example, of pretrial chamber approval. They can't just do whatever they want. But it is, it is clear that Khan feels not only that the ICC should be operating and responding quickly to those conflicts that are, are most in the public's attention, which again, is a choice one can make, but go, you know, I urge your listeners to go back and look at those other 12 other situations in which there are ongoing investigations, all of which I think involve, you know, extreme human suffering and really high stakes. And so I can see, I can see why the diplomats would be frustrated. Let's put it that way.

At the same time, to the extent that we believe in, in prosecutorial independence, judicial independence, you know, we wouldn't expect, for example, in a domestic setting for courts, particularly in the criminal context, to, oh, for example, draw out proceedings for the purposes of achieving certain timing goals vis a vis important domestic political events. So, you know, that really comes down to a broader, a broader question about which I think reasonable minds can differ

Scott Anderson: This question about the political context obviously has ramifications for a lot of states. States party to the Rome Convention, and this includes a lot of European states a lot of other countries around the world, if these arrest warrants are issued, they're gonna have an obligation to you know, arrest Netanyahu and Galant if they were to be arrested to set foot there. Maybe it happens, maybe it doesn't happen, but it's certainly gonna make travel for them much more difficult. Could prove to be a major irritant with those countries and Israel in a variety of contexts. But in a lot of ways, particularly because it's not clear those individuals will be traveling anytime soon, really, regardless, for a number of reasons, the real question comes down to kind of the Israeli reaction and to some extent the U.S. reaction as well as, as a, as a leverage on, on Israel potentially, or, or at least as a, it, it serving as an irritant and what is an essential relationship for Israel, or at least it's often viewed that way.

In Israel, it's, it's kind of notable that this isn't just Netanyahu included in this. You also have Galant, who's a figure who is not part of, the same way, of the Netanyahu coalition, who's part of the government, but has often come to heads with Netanyahu over issues like judicial reform, and more recently over the long-term conduct of the Gaza conflict. And so, I'm curious whether that's going to impact how this action is viewed or received in Israel. And also in the United States, we've seen the Biden administration come out very strong armed against this, in rhetorically so far. But do we think this might undermine the relationship with the ICC even further, particularly after a few years where in light of action in Ukraine that ICC has taken, the United States is strongly supported, there seemed to be a budding rapprochement between the United States and the ICC.

Chimène Keitner: So Beth Van Schaack is Ambassador-at-Large for Global Criminal Justice. And again, from an outside perspective, there's no doubt in my mind that the prosecutor’s announcement, while again not surprising, is going to make her job a lot harder because I think that in particular the support that we saw, both from the Biden administration and also from a wide cross section of members of Congress of the ICC's investigation of Russian crimes in Ukraine really was a turning point in a lot of respects. I think both with respect to attitudes toward the ICC more generally and kind of begrudging acceptance, at least in some circumstances, of the possibility that the ICC could exercise jurisdiction over the nationals of a nonparty state.

I also think that Biden is clearly dealing with diametrically opposed domestic views on what the United States’s role should be vis-a-vis Israel. And what I think is sometimes lost for some observers in the United States is the extent to which U.S. policy towards Israel really has in my view again, and speaking as a complete outsider, much less to do with Israel than it has to do with Iran. And so I think that broader focus needs to be borne in mind when, when we look at for example, you know, weapons shipments to Israel. At the same time, one could, one could ask whether Khan would have felt moved to, to act publicly when he did, if the United States had more clearly and more forcefully tied weapons shipments, for example, to concrete deliverables in terms of humanitarian aid and its distribution.

Right, so, if you think, I think you've used the word, levers, at kind of a few points. If you think of the different available levers, certainly the United States holds many of them. And the ICJ and the ICC can sort of do what they're doing. But at the end of the day, the United States, while it, it may not have the ability, the persuasive ability in terms of sort of soft power that it, that Biden maybe thought he held vis a vis Netanyahu and other members of the war cabinet. You know, you, you can put weapons on a, a plane or a boat or not, right? So I think this is hopefully not going to take the U.S. off the hook in terms of continuing to exercise or, or rather than continuing, starting to exercise even more forceful leverage vis-a-vis Israel.

I think from the perspective of Israeli society and again, I'm not an expert by any stretch. It's hard to see how it will play because there is, and I've written about this in some of my Lawfare posts, a siege mentality, in my view, an understandable siege mentality based on the country's history and surroundings that, you know, the international community is not supportive, that they're just out to get Israelis. And certainly if you have that narrative in mind these arrest warrants will simply reinforce that.

At the same time I do think that's one of the reasons that Khan used this panel of experts. I don't know that the average Israeli in the street will care much what Amal Clooney thinks about whether or not Netanyahu is a war criminal, but at the same time, I think the idea was, you know, that this, this isn't just, you know, a rogue international court. You know, we, we've run these theories and we've run this evidence by people who are, who are extremely credible and, you know, it's easy to pick on Amal, but you think about, you know, Ted Meron, who was an Israeli foreign ministry legal advisor and is really the guru of international humanitarian law, Elizabeth Wilmshurst who's extraordinarily well respected and steeped in these issues.

Scott Anderson: Well, that is certainly a lot to think over. There's going to be a lot to watch as we see the ripple effects from the prosecutor's decision ripple out over the next several weeks and months and potentially years. But that is unfortunately all the time we have to talk about it today. Chimène Keitner, for joining us here today on the Lawfare Podcast.

Chimène Keitner: Thank you, Scott.

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