Politicised circumstances': ICC issues 'contentious' arrest warrants for Netanyahu, Gallant and Deif

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00:00We're going to cross now to Reading in England.

00:02Rosa Friedman is Professor of Law, Conflict and Global Development at the University of

00:07Reading.

00:08Thanks for being with us here on France 24.

00:12Yes, countries lining up to say that they respect the International Criminal Court and

00:19its independence, but saying it's a little early to tell whether or not they would actually

00:24honor arrest warrants.

00:27I mean, let's be clear, these are very contentious arrest warrants.

00:32They have been issued in very contentious and politicized circumstances, starting with

00:37the Office of the Prosecutor publicly announcing that he was looking for these, seeking these

00:43arrest warrants from the judges, which obviously put the trial judges under great pressure

00:49from the public.

00:50Whichever way they decided, they were going to be heavily scrutinized rather than this

00:53being the kind of decision that is made independently within the court.

00:58This announcement has been made two weeks after allegations of sexual misconduct against

01:03the prosecutor, which again suggests some form of politicization of the process.

01:09And it's the first time, as your correspondence said, that a democratically elected prime

01:14minister or official, because we don't count Putin as democratically elected in terms of

01:18free and fair elections, has had an arrest warrant issued for them.

01:22What your correspondent did not mention when she talked about the Chilcot Inquiry in the

01:27UK, for example, into the Iraq war, is that it happened years after the war ended.

01:32Israel is currently investigating allegations of crimes, potential war crimes and crimes

01:37against humanity, against specific individuals in national investigations.

01:42But it cannot do an independent or national investigation while the war is ongoing.

01:46So clearly there needs to be a ceasefire, the release of hostages, the end of the war

01:50before Israel can open up that type of investigation.

01:54And it's that issue and the issue of jurisdiction, whether or not the court can even investigate

02:00what's going on within Israel and Gaza, given that Israel is not party to the court and

02:04Gaza is not a state, that has meant that the 124 member states of the ICC are not yet sure

02:11whether they would arrest one of these, Gallant or Netanyahu, if they come into their jurisdiction,

02:20into their territory, because they're not yet sure whether or not these arrest warrants

02:23are robust and would stand up in international law.

02:26So clearly a rushed decision by that British head of the prosecution team at the ICC, you

02:33say.

02:34I'm not sure that it was rushed.

02:36It just was done in a way that has not been done before for any of the other arrest warrants,

02:42the many arrest warrants that have been issued.

02:44So for example, he commissioned an independent group of academics and scholars and practitioners,

02:50most of whom have been trained in Britain or work in Britain, to write an independent

02:54report to support his request for arrest warrants and then published that.

03:00He then made a very public statement flanked by two officials live on the news to say that

03:07he was seeking these arrest warrants.

03:08These are not the usual ways that the ICC operates.

03:12And it obviously then garnered a great amount of international attention, which would then

03:16place the judges under a great amount of pressure.

03:19So whatever way they decided, there would already be grounds for appeal from one side

03:24or the other.

03:25And then again, the arrest warrants being issued now, very soon after the American elections,

03:31when there's been all sorts of speculation about how President-elect Trump might or might

03:36not engage with international organizations generally, and specifically the ICC, makes

03:40it seem as though it's political.

03:42And what we know about justice is that justice doesn't just have to be done.

03:46It has to be seen to be done.

03:48It has to be perceived as fair and just by the public.

03:52And there are just very many questions that arise in this situation where the perception

03:57is that perhaps this isn't fair or just.

04:02So you allude to that inauguration in the United States coming in two months' time.

04:12The way in which this case has been rolled out, you're worried that it could further

04:16undermine the concept of rule of law at the international level?

04:21Well, it's clear the United States takes a unilateralist and exceptionalist approach

04:26to international law.

04:27It very often encourages other countries to ratify and sign treaties while it doesn't

04:31do so itself.

04:33But the message coming out of the United States is now about things like sanctions on the

04:40ICC and on its staff.

04:42And these are really concerning.

04:44There are obviously problems with the International Criminal Court.

04:46And from the outset, there have been problems.

04:49It's been alleged to be a racist court that only went after sort of African heads of state

04:53at the beginning.

04:54There's been all sorts of allegations about the ways in which it issues arrest warrants,

04:59the fact that sometimes people who are under arrest warrants go into state parties and

05:04are not arrested by those countries, even though they're under a legal obligation to

05:08do so.

05:09But just because there are criticisms of the court doesn't mean that we should be looking

05:12to disband it.

05:14These arrest warrants may well feed into, and the messaging coming out from the United

05:18States in the last two hours from the administration in waiting that President-elect Trump has

05:23said will be his administration, the messaging coming out is that they will use this as yet

05:28another reason to try to either disband the court, disparage the court, or look to put

05:35punitive sanctions on people who engage with the court.

05:38And that is very concerning for any of us who care about international law and about

05:42international organizations.

05:44Rosa Friedman, I'd just like to ask you a question, in your opinion, if these arrest

05:50warrants are not carried out by any member states in the foreseeable future, what implications

05:55would that have, in your opinion, for the future of the ICC itself?

05:59Well, we've seen in the past arrest warrants being issued and people not being arrested

06:06from Sudan, for example, when they traveled through South Africa and other places.

06:11So the implications then was simply that pressure was put onto these states to comply in future.

06:19But we have to understand that international law is different to national law.

06:23You can't put states in prison.

06:24You can't send the bailiffs around.

06:26You can't fine them.

06:28And these will be political decisions for each member state of the ICC to determine

06:33whether or not they will conduct an arrest should Gallant or Netanyahu arrive on their

06:39territory.

06:40International law really is about having political pressure and political sanctions if people

06:46breach the law.

06:48Now we've heard from the European Union that they will comply with the ICC.

06:52But then, as you said earlier, individually, different states are alluding to the fact

06:58that they may not carry out these arrest warrants.

07:00I think that countries are waiting to see what will happen, whether or not these arrest

07:05warrants will push Israel towards either doing its own independent investigation after the

07:11war ends and having a ceasefire, a return of the hostages, or whether this is going

07:15to actually push Israel further to the right and America further to the right in terms

07:20of the continuation of the war.

07:22So I think they're hedging their bets currently.

07:25Rosa Friedman of the University of Reading Law, I want to thank you so much for being

07:31with us here on France 24.

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