“A Watershed Event”: ICC Charges Against Netanyahu First Time Court Has Gone After Western Leader

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.

President Biden has condemned the International Criminal Court’s decision to pursue arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant on war crimes charges over the assault on Gaza. On Monday, ICC chief prosecutor Karim Khan outlined specific charges against Netanyahu and Gallant, including starvation of civilians as a method of warfare and, quote, “extermination.” The ICC also sought arrest warrants for three leaders of Hamas — Yahya Sinwar, Ismail Haniyeh and Mohammed Deif — for war crimes, including extermination and murder, the taking of captives, torture, rape and other acts of sexual violence.

Speaking at a Jewish American Heritage Month event at the White House Monday, President Biden defended Israel and called the charges against Netanyahu and Gallant “outrageous.”

PRESIDENT JOE BIDEN: Let me be clear: We reject the ICC’s application for arrest warrants against Israeli leaders. Whatever these warrants may imply, there is no equivalence between Israel and Hamas. And it’s clear Israel wants to do all it can to ensure civilian protection. But let me be clear: Contrary to allegations against Israel made by the International Court of Justice, what’s happening is not genocide. We reject that.

AMY GOODMAN: Israel is also facing a separate case brought by South Africa at the International Court of Justice, in which the court ruled in January there was a plausible risk Israel is committing genocide in Gaza.

Meanwhile, Israeli Prime Minister Benjamin Netanyahu called the ICC announcement a “disgrace,” saying, quote, “I reject with disgust The Hague prosecutor’s comparison between democratic Israel and the mass murderers of Hamas,” unquote.

Hamas issued a separate statement denouncing the request to arrest its leaders, accusing the ICC chief prosecutor of trying to, quote, “equate the victim with the executioner,” unquote. Hamas said it has the right to resist Israeli occupation, including armed resistance.

In Europe, both France and Belgium released statements supporting the ICC and the request for arrest warrants for the leaders of both Israel and Hamas. However, British Prime Minister Rishi Sunak criticized the ICC’s decision, calling it “an unhelpful development” and saying, quote, “There is no moral equivalence between a democratic state exercising its lawful right to self-defense and the terrorist group Hamas.”

For more, we’re joined by Reed Brody, war crimes prosecutor, author of To Catch a Dictator: The Pursuit and Trial of Hissène Habré. His recent piece for The Nation is headlined “Who’s Afraid of the International Criminal Court?” He’s joining us here in New York. And joining us from Doha, in Qatar, is Ilan Pappé, professor of history at Exeter University and director of the European Center for Palestine Studies, author of 19 books, including The Ethnic Cleansing of Palestine and Gaza in Crisis, which he co-wrote with Noam Chomsky.

We welcome you both to Democracy Now! Reed, we’re going to start with you. If you can talk about the significance of Karim Khan pursuing these war crimes charges — Karim Khan really supported, is the choice by Israel in 2021 as the ICC prosecutor — and also what President Biden had to say, as he called this, basically, an atrocious decision?

REED BRODY: Sure. I mean, this request for indictment is really a watershed event in the history of international justice. You know, in over 20 years, the International Criminal Court has never prosecuted or requested the indictment of any Western official, pro-Western government. Indeed, since Nuremberg, the instruments of international justice to protect atrocity victims have only been used for opponents of the West, like Vladimir Putin and Slobodan Milošević, for defeated adversaries, as in Nuremberg and in Tokyo, or for outcasts, say, you know, African warlords. And this is the first time that a Western leader or a pro-Western leader is subject of an indictment request.

Even the Palestine dossier has been on the desk of the international prosecutor for the last 15 years, and we’ve seen this slow walk that three prosecutors have treated these complaints. Even after October 7th and the terrible attacks by Hamas and the disproportionate response by Israel, there was a feeling that this prosecutor, Karim Khan, a very savvy British prosecutor who came into office with the support of Britain and the United States, was never going to cross that red line, that we were never going to see an indictment of Israeli officials, no matter how bad the crimes became. And I think that we were wrong. I think the magnitude of the crimes that were committed, the growing international consensus around the criminality of Israeli behavior, and also the decision by the other court in The Hague, by the International Court of Justice, that Israel has a case to answer, all made it untenable for the prosecutor not to move forward.

And I think the reaction from the United States is — you know, the United States has always had this very conflicted relationship with international justice. The United States supports, you know, the war crimes tribunal on Yugoslavia, the war crimes tribunal on Rwanda. I’ve worked hand in glove with American war crimes ambassadors on a number of cases in Africa, in Guatemala and elsewhere. But the line stops when there’s a possibility that an American or an Israeli could be brought up on charges.

And 25 years ago, when we were in Rome drafting the statutes of the International Criminal Court, the United States’ position was that the International Criminal Court had no jurisdiction over the citizens of countries that had not ratified the ICC treaty. And that position was defeated, and the ICC has jurisdiction not only over citizens of countries that are states parties, but on the territory. When crimes are committed, if Americans commit crimes in Afghanistan, if Israelis commit crimes in Palestine, if Russians commit crimes in Ukraine, the ICC has jurisdiction.

And the position of the United States, because they lost that fight in Rome, because they lost the idea that a nonstate party could be prosecuted, the United States voted against the International Criminal Court. It’s one of seven countries that voted against the court. And under the Bush administration, they waged a war against the International Criminal Court. They got countries to sign agreements that they would never hand over an American to the International Criminal Court. They passed a law called — colloquially known as The Hague Invasion Act, that gave the president of the United States the power to actually invade the Netherlands to protect Americans who would be brought up before the International Criminal Court. When the previous prosecutor sought to — took up these complaints on Israel-Palestine and started to investigate crimes in Afghanistan potentially committed by Americans, the Trump administration sanctioned the International Criminal Court. They sanctioned the prosecutor and her family personally. And even when the Biden administration lifted those sanctions, Secretary Blinken repeated the American position that the International Criminal Court does not have jurisdiction over the nationals of nonstate parties like the United States and like Israel.

So this is an expected reaction by the United States. Secretary Blinken put forward the idea of complementarity, which is also an important principle, because the International Criminal Court only kicks in when a country is unwilling or unable to carry out prosecutions. And Israelis are saying, “We are a democracy. We have a” — and that’s what Blinken is saying. “We have a democracy. We have a functioning judiciary. We can investigate these crimes, the crimes.” But the prosecutor addressed that yesterday in his warrant request. He said it’s not a question of whether you have a functioning judiciary; it’s a question of: Are you investigating these very crimes? And they are not.

And so, I think we’re seeing around the world — and you mentioned some of them — a vast majority of countries around the world have come to the defense of the International Criminal Court and to the defense of these requests for indictments.

JUAN GONZÁLEZ: And, Reed, I wanted to ask you, in terms of the — several Republican members of Congress have threatened the prosecutor, Khan, saying that the U.S. would, quote, “sanction your employees and associates and bar you and your families from the United States.” Your response to this kind of overt threat from officials in the U.S. government toward the International Criminal Court?

REED BRODY: This is like, “You have been warned. You come after us, we will come after you,” like the Mafia. And I have to say, Karim Khan said, in his statement yesterday, that this could potentially constitute obstruction of justice. And under the — actually, half of the prosecutions, successful prosecutions, by the ICC, half were against warlords, and the other half were for people — were for obstruction of justice charges. So, I don’t think that, you know, the ICC prosecutor is going to be impressed by this.

But I do think it’s really par for the course. You know, two years ago, when the ICC prosecutor indicted Vladimir Putin, all of a sudden you saw this change in American position. You saw the United States getting behind the prosecution. You saw congressional delegations to the ICC. You actually passed a law for the first time in history that allows the United States to cooperate with the International Criminal Court, even to provide funding. But it’s all because the ICC was then going after an American adversary. And now that the ICC is taking up cases, Hamas, but also Israel, we see a reversion to the previous position: “You can’t touch us. You can’t touch Israel.”

AMY GOODMAN: On Monday, Israeli Prime Minister Benjamin Netanyahu denounced the ICC chief prosecutor, Karim Khan.

PRIME MINISTER BENJAMIN NETANYAHU: He’s callously pouring gasoline on the fires of antisemitism that are raging across the world. Through this incendiary decision, Mr. Khan takes his place among the great antisemites in modern times. He now stands alongside those infamous German judges who donned their robes and upheld laws that denied the Jewish people their most basic rights and enabled the Nazis to perpetrate the worst crime in history.

AMY GOODMAN: That’s Netanyahu. I wanted to put this question to Ilan Pappé, professor of history and director of the European Center for Palestine Studies at the University of Exeter. Professor Pappé, your response to your prime minister? I know there’s a long delay. He is in Doha, Qatar. Professor Pappé?

ILAN PAPPÉ: Yes. Thank you, Amy, for having me.

I think that there’s nothing new in Netanyahu’s reaction, in two aspects. One, his and his colleagues’ in the Israeli leadership attitude towards international law, that equates international law with antisemitism. Israel always treated international law as a threat that can disrupt its criminal policies on the ground against the Palestinians. And secondly, weaponizing once more the Holocaust, the Nazis and Hitler in order to evade the most important question that comes out of the ICC: Is Israel — and the ICJ rulings: Is Israel committing war crimes? Is Israel committing crimes against humanity? Is Israel committing genocide?

And even this tame, by the way, approach by the ICC — if you compare the allegations against the Hamas, the allegations against Israel are much tamer, and genocide is not mentioned in the ICC steps. Even that kind of clear allegations are immediately rejected without any significant rebut in terms of facts, in terms of explanation of the Israeli policies. Immediately, they go for the messengers, because they don’t like the message. So I think there’s nothing surprising in this.

What is really worrying is not Netanyahu’s response, but the fact that every Israeli politician, from the left to the right, stand by the prime minister in this hysterical and immoral reaction to an international body and to a prosecutor that Israel itself wanted as the prosecutor of the ICC. It’s part of the Israeli lack of any response to international law, to international public opinion. And this is the kind of Israel we have in 2024. It doesn’t care about international law. It doesn’t care about international opinion. And the reason is that it believes that the United States and Britain would unconditionally support Israel, whatever it does. Even if here and there they would hear some rebuke for certain actions, the ideological — the ideology of the state, its strategy towards the Palestinians, the very genocide of Gaza would continue to be immunized by the United States. And as far as Netanyahu, and even his rivals in the Israeli political system, this is really what matters.

JUAN GONZÁLEZ: Yeah, I wanted to go back to Reed Brody for a minute, because we’re going to be leaving you and then staying with Professor Pappé. Reed, your sense of, practically, what this means for Netanyahu and Gallant, from here on in the future, if these warrants are issued?

REED BRODY: Well, yeah. So, first of all, these warrants have been placed before a three-judge panel. I believe the judges are from Romania, Cameroon and Mexico. We’ve heard, incidentally, Le Monde has reported, that there has been attempts to pressure the countries from which the judges come from. Normally, it will take maybe weeks, maybe perhaps more, for those warrants to be reviewed by these three independent judges.

Then, of course, if they’re issued, Netanyahu and Yoav Gallant and the others, they become wanted men, in the same way as Vladimir Putin and Omar al-Bashir of Sudan. Now, of course, the International Criminal Court does not have a police force. It is not going to go into Israel and capture these people. But 124 countries have ratified the ICC treaty, meaning that if one of the suspects were to go to those countries, the ICC — those countries would be required to arrest them and hand them over to The Hague.

Now, we saw in the case of Vladimir Putin that, you know, he doesn’t — he goes to friendly countries like China. But he didn’t even go to South Africa last year for the BRICS summit. South Africa, which is not, obviously, an ally of Israel, which is a partner in BRICS with Russia, told Vladimir Putin very gently not to come to South Africa. Brazil, which is hosting the next BRICS summit, is telling gently Vladimir Putin not to come.

So, the world of Benjamin Netanyahu becomes very small. Also, these crimes have no statute of limitations. So, essentially, Yoav Gallant and Benjamin Netanyahu, as well as the three Hamas leaders, for the rest of their lives, assuming that they’re not previously arrested, would be unable to travel to these countries as long as the warrants are pending.

AMY GOODMAN: I just want to say, it’s very interesting speaking to the two of you, Dr. Ilan Pappé, renowned Israeli historian, and you, Reed Brody, whose father, Dr. Ervin Brody, was a Hungarian Jew who escaped from a German labor camp.

REED BRODY: Yeah.

AMY GOODMAN: Can you respond to Netanyahu saying these are simply antisemitic charges?

REED BRODY: Well, you know, I mean, for me — I mean, we’ve talked about this, Amy. I mean, my father was in German labor camps. I had family who died in the Holocaust. My father used to tell me that he would have gone and fought for the state of Israel. I mean, I understand in my bones how important the safety of Jewish people are. But I think that, you know, these actions by Israel are making Jewish people less safe. I mean, I live in Europe. I see a rise in antisemitism. I see it here, frankly, as well. And I don’t see how these actions by Israel are protecting the Jewish people, are protecting Israel in the long run.

AMY GOODMAN: We’re going to go to break and then come back to this discussion. Reed Brody, war crimes prosecutor, author of To Catch a Dictator, also wrote a piece in The Nation around the International Criminal Court. And we’re going to ask Israeli professor Ilan Pappé about what happened when he flew into Detroit airport for some meetings, why he was stopped and interrogated for hours. Stay with us.