Will Netanyahu ever face court for alleged war crimes?

ABC Listen, podcasts, radio, news, music, and more.

Hi there, it's Sam Hawley here from ABC News Daily.

Is it a reasonable act of a loving father saving his son or a president abusing his power to get a family member off the hook?

As one of his final acts from the White House, Joe Biden has pardoned Hunter Biden from gun and tax charges.

Find our episode on what it means for the outgoing president's legacy on the ABC Listen app.

This podcast is recorded on the lands of the Awabkal, Darug and Iora people.

If the Prime Minister of Israel comes to your country, would you arrest him?

That's the question that dozens of governments around the world are wrestling with at the moment after this announcement last month.

The International Criminal Court has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his former Defence Minister Joav Galant for alleged war crimes in Gaza.

This technically makes Netanyahu a fugitive from international justice.

The ICC's prosecutor urging the more than 120 countries who are members of the court to cooperate with the warrants.

Australia is among them.

So, would you arrest him?

Already multiple nations have said they will follow their obligations for arrest, including the Netherlands, Ireland and Canada.

Australia hasn't gone that far, issuing a vague statement saying saying it respects the independence of the court.

A vague statement.

We love those.

But there are plenty of countries around the world that absolutely would not arrest him, like the United States.

We fundamentally reject the court's decision to issue arrest warrants for senior Israel officials.

And yet, here's the tricky thing.

Would those countries that wouldn't arrest Netanyahu be happy to arrest this guy?

The International Criminal Court has accused Vladimir Putin of being responsible for the forced deportations of children following his invasion of Ukraine and has issued a warrant for his arrest for war crimes.

Yeesh!

Tricky one, huh?

But, well, maybe not for you, but it's clearly tricky for some.

France, for example, says it would absolutely arrest Vladimir Putin if he was to visit Paris, but Netanyahu?

Maybe not.

Well, what about the arrest warrant for Hamas leader Mohamed Death that was issued at the same time as the one for Netanyahu?

Would you follow through with that one?

Not sure?

So, what is that about?

The idea behind the ICC is that the world needs an independent international court to prosecute war crimes, genocide, stuff like that.

Crimes so horrific that they harm not only their victims, but humanity itself.

The international community kind of agrees on this idea, but agreeing on a universal approach to justice that could actually address these crimes,

that part is harder.

Why is it that until now, anyway, the court has failed to convict any world leaders of anything?

And what does that mean for Netanyahu and his allies?

I'm Matt Bevan.

And this is if you're listening.

Okay, I'll come back to war crimes in just a minute, I promise.

But just quickly, I have a short survey about the show and it'd be really helpful to us if you did it.

It's not about promoting something.

We're literally just trying to make the show better next year.

It's how we know if we're on the right track or if we're doing something that annoys you.

There's a link in the show notes and on our website.

Thank you.

Okay, now.

War crimes.

Captured at last, one of the world's most feared and elusive dictators.

In the middle of 1997, an extraordinary event took place at a jungle clearing in northern Cambodia.

After 18 years in hiding, these first pictures show an aging, ill and abandoned despot.

Communist dictator Pol Pot orchestrated the genocide of around a quarter of Cambodia's population before being overthrown in 1979.

He and his supporters retreated into the jungle for 18 years until suddenly, after years of die-hard loyalty his followers seem to have turned against the man who engineered the horror of cambodia's killing fields in an extraordinary trial at his jungle base on the thai cambodia border polpot is publicly humiliated and denounced looking forlorn and occasionally disinterested pol Pot sat in a wooden chair on a dirt floor as local villagers chanted denunciations.

Condemned for treason and genocide, this court sentences Pol Pot to life imprisonment.

The trial wasn't the result of a sudden change of heart, but a power shift.

His supporters wanted to come out of the jungle, but to do that, they had to purge their genocidal leader.

Now he's appeared, it's hard to see Cambodians or the world letting him die peacefully in the jungles of northern Cambodia.

And yet that's exactly what happened.

Less than a year later, Pol Pot died of a heart attack while under house arrest.

It was more punishment than some dictators get, but one afternoon of jungle shouting followed by a few months of house arrest hardly seems like justice being served for genocide.

That was certainly the opinion of the UN Secretary General at the time, Kofi Annan.

Today,

a man is much more likely to appear before a court if he kills one person

than if he kills 100,000.

The case in example is Cambodia.

This question of how to achieve anything close to justice for the killing of thousands of people was a question the world had been asking long before Pol Pot, but it was always solved with an ad hoc solution, reinventing the wheel after each genocide.

And there's something else that these tribunals had in common.

They happened after the event when those on trial had lost power.

Take World War II.

After the war, international military tribunals were set up in occupied Germany and Japan.

Officials from both defeated countries were prosecuted, convicted, jailed, and executed for war crimes and crimes against humanity, including the genocide of six million Jews in the Holocaust.

But the winners of the war, the Allies, weren't interested in investigating the war crimes they themselves had committed.

While every leader wants the other guys to be prosecuted for war crimes, very few leaders want to risk being prosecuted themselves.

And so when the prosecutions of Germans and Japanese were complete, the courts were disbanded.

But in the 50 years that followed, crimes against humanity kept on happening.

At the end of the Second World War and following the exterminations of the Holocaust, we all said, never again.

This should never happen again.

But it has.

In the 1990s, an attempt was made to do something that had never been tried before.

Investigate and prosecute crimes against humanity while they were happening.

On May 22nd,

I presented an indictment for confirmation against Slobodan Milosevic and four others, charging them with crimes against humanity.

This temporary tribunal was set up by the UN Security Council, but the big news was that Milosevic was the sitting president of Yugoslavia at the time.

Yugoslavia had previously been a federation federation of six multicultural republics including Milosevic's homeland of Serbia and the state of Bosnia and Herzegovina.

Throughout the 1990s the federation had been collapsing and the dominant ethnic groups in several republics had been trying to push other cultures out.

If you're going to tidy up the map in an ethnic way with the type of intermingling that history has created in Europe,

you can only do it in one way and that is getting rid of people.

The results were horrific.

These wars, we've seen, tend to have a level of atrocity that is quite extraordinary.

So the tribunal had heard evidence about these atrocities and sent out a lot of arrest warrants, including the one for Milosevic.

But it had no power to enter Yugoslavia and capture people.

It means Mr.

Milosevic faces arrest if he travels outside Yugoslavia.

There wasn't a lot of optimism at the time that Milosevic would ever face justice.

Radovan Karadcich and General Ratkom Ladic, charged nearly four years ago for war crimes in Bosnia, have yet to be prosecuted.

Very pessimistic, Phil's very 2020s.

But let's just jump forward to the night of March 31st, 2001.

It's quite a wild scene in Belgrade tonight.

I think it's chaotic.

By this time, Milosevic had lost power, but he was still living in the presidential complex.

Millions of Yugoslavs still supported him.

But the international community was demanding justice, and it was willing to cut off aid to Milosevic's successors if they didn't arrest him.

The Yugoslav government is hoping to secure a billion dollars in reconstruction aid, and without America's support, it knows it's unlikely to get it.

Finally, the new leaders were turfing him out.

The police arrived at the presidential residence where Slobodan Milosevic is still living at around seven in the evening.

They were met by several thousand pro-Milosevic demonstrators.

The police were there to arrest him, but he wasn't coming out.

Formal charges have now been laid and police are now trying to remove him from the presidential residence.

Earlier rumors around the house suggested that Milosevic was threatening to shoot himself.

As the police tried to smash their way in through the front windows of the house, Milosevic called into a radio station on his mobile phone.

Absolutely, I'm just sitting in my house drinking coffee with friends with a lot of citizens around.

So, that is the truth.

And I want to send regards to your audience.

The eyes of the world on them, police, demonstrators, and Milosevic's bodyguards settled in for a siege.

This wasn't just about Milosevic.

This was about the entire idea of international justice.

The experiment in Yugoslavia and a similar tribunal in Rwanda were being held up as examples of what was needed after crimes against humanity were committed on a massive scale.

But the argument went that setting up a new tribunal for every new genocide was too time-consuming.

So they were used as models for this.

The agreement to set up the world's first permanent war crimes tribunal was greeted with cheers.

and from some delegates tears of relief.

That agreement led to the creation of the International Criminal Court.

Operating from The Hague, the court will deal with genocide, aggression and crimes against humanity, as well as war crimes.

And yet there was a very serious question about whether or not it would actually work.

International law relies on countries agreeing to be part of it.

And the list of countries signing up to be within the court's jurisdiction had some very conspicuous absences, like China, Russia, India, and...

The final document was opposed by the US because of fears that its troops in the world's hotspots could become the target for politically motivated charges.

But these weren't the only sceptics.

It seems to me impossible that an Australian government could, by a treaty,

subject its own citizens to the jurisdiction of a non-Australian court.

It's already drawing fierce criticism for being undemocratic and unaccountable.

The United States has said that the risk is too great to take.

That's basically what they're saying.

And I agree with that 100%.

As the Belgrade police tried to push their way into the presidential villa and Milosevic sipped coffee with his friends, the founding members of this new court were trying to convince the rest of the world that the whole thing could really work.

The Americans were supportive of prosecuting Milosevic specifically.

Well, we've always said that Mr.

Milosevic ought to be brought to justice.

So if this whole thing went well, Maybe they would change their mind about the International Criminal Court.

26 hours into the standoff, after finishing his coffee and threatening to kill himself and his family, Milosevic surrendered.

As he did, his distraught daughter fired five gunshots into the night sky, which, I am reliably informed, is a very Serbian thing to do.

Eventually, Milosevic was extradited to the ICC's headquarters in The Hague.

Yes, Mr.

Milosevic.

I consider this tribunal false tribunal and indictments false indictments.

But the trial dragged on for four years and before it was complete, it ended very suddenly.

The first head of state to be put on trial by the world and he died alone in his cell.

It was a heart attack.

A predictable one.

He'd been having heart problems for years.

Back home in Belgrade, bells rang as a mark of respect.

There were extremely mixed feelings.

The victims felt robbed of justice.

His supporters thought that he'd been murdered.

The government, which had allowed him to be extradited, was disappointed with the whole saga, calling it an expensive circus with insignificant witnesses.

By the time of Milosevic's death in 2006, around 100 countries had signed up to be part of the International Criminal Court.

Most of the NATO countries, all of the European Union, many of the Commonwealth countries, Great Britain, France, Germany, Canada, New Zealand, and, slightly later than a lot of our friends, Australia.

But Russia, India, China and America still refuse to be part of it.

The US's attitude to international law for the last 50 years, since the UN was created, is that international law is for everybody else and not for us.

I mean, we've got the US Constitution, we've got the Bill of Rights, we don't need international law.

And that's pretty much what the International Criminal Court looks like today.

With a third of UN member states still refusing to sign up, the court's jurisdiction is extremely weird.

The court can only prosecute people who are citizens of its member states, or who have committed alleged crimes in the member states, or if the UN Security Council refers a case to the ICC.

And it's up to the member states to arrest people who've been indicted by the court.

Of 67 indictments over 19 years, nine people have been given prison sentences.

Five trials are ongoing, 30 people are fugitives, the others are dead, or just had their charges dropped.

There have been allegations made that the ICC has a racial bias, with most prosecutions focusing on African conflicts.

Despite all of this, the existence of the ICC has given at least the illusion of international justice.

But that has become more complicated recently, when two friends of the pod became international fugitives.

For only the third time in the history of the International Criminal Court, a serving president has been targeted by an arrest warrant.

The International Criminal Court has accused Vladimir Putin of being responsible for the forced deportations of children following his invasion of Ukraine and has issued a warrant for his arrest for war crimes.

Ukraine had invited the court to investigate crimes that had happened on its territory since 2013.

Kiev estimates that more than 16,000 children have been illegally moved to Russia or Russian-occupied territories.

While there are many allegations of war crimes in Ukraine, this is the one that the ICC prosecutor Karim Khan feels is most likely to lead to a conviction.

It is forbidden by international law for occupied powers to transfer civilians from the territory they live in to other territories.

Children enjoy special protection under the Geneva Convention.

The ICC can investigate Putin.

It can issue a warrant for his arrest, but then...

The execution depends on international cooperation.

Russia obviously won't arrest him, and neither will friendly countries like China or Belarus who haven't signed on.

But what if he travels to a country that has?

As an ICC member, Mongolia was obliged to arrest Vladimir Putin when he touched down.

Instead, he's been given the red carpet treatment.

There is absolutely no penalty for ignoring an ICC arrest warrant.

That's not great.

And there's also no penalty for just bailing out of the agreement altogether.

That's the move that former Philippines President Rodrigo Duterte pulled when the ICC started investigating him for crimes against humanity committed during a drug war.

President Duterte is rejecting the investigators' authority in the country, citing the fact the Philippines had cancelled its membership in 2018.

I mean, if that's true, it seems like a pretty serious loophole.

You can't investigate me.

I quit.

It's now seemingly up to Duterte's successor as president to decide whether the ICC can investigate or prosecute him.

We've done a whole episode on this, by the way.

The story of that relationship is actually

wild.

But now there's also Benjamin Netanyahu.

Israel is not a member state of the ICC, but Palestine has been a member since 2015.

And last month, the ICC accused Netanyahu and the former Israeli Defence Minister Joav Galland of war crimes and crimes against humanity during the war in Gaza.

The arrest warrants issued say the pair used starvation as a weapon of war.

It said they directed attacks against civilians, deprived them of basic supplies such as food and water, and inflicted great suffering upon people who needed medical treatment.

Netanyahu reacted angrily.

What in God's name are they talking about in The Hague?

He personally attacked the people who issued the warrant, including the ICC prosecutor.

Who's trying to extricate himself from sexual harassment charges and by biased judges were motivated by anti-Semitic sentiments against the one and only Jewish state.

Netanyahu is the first Western allied leader to be subject to an ICC arrest warrant.

Israel's allies around the world are wrestling with what to do if he wants to visit them.

France, nonsensically, says that they would arrest Putin but wouldn't arrest Netanyahu.

This,

of all the responses, really shows you that this is a system that is very broken.

Courts are supposed to be independent, and the ICC be independent at its heart, but it's totally powerless to do anything without the cooperation of the rest of the world, and the rest of the world isn't independent at all.

World leaders get to decide if they recognize the court's authority.

They get to decide if they'll arrest people or not.

The only way any of these guys are going to find themselves in The Hague is if they lose power and their successor decides to send them there, just like with Milosevic.

The ICC is an idea that a lot of people around the world want to believe in, but like so many other well-intentioned international bodies, it's hamstrung by politics.

It's been more than 25 years since Kofi Annan said this.

Today,

a man is much more likely to appear before a court if he kills one person

than if he kills 100,000.

And since then, very little has changed.

If you're listening, is written by me, Matt Piven.

Supervising producer is Jess O'Callaghan.

Audio production this week is by Tegan Nichols.

I know we mentioned this earlier, but I'd really appreciate it if you fill out our survey.

After the great feedback that we got from our Hello America travel diary episodes, we're looking at ways we can potentially put out more episodes each week next year, and we want your feedback on what you'd like to see from those.

The link is in our show notes and on our website.

Of course, you can always just send us feedback even when we're not running a survey.

Our email address is ifyoulistening at abc.net.au.

That's if you're listening, not are you listening.

Although, honestly, at this point, it might be worth us just setting up that account too.

Seven years we have been making this show, and still nobody really knows what it's called.

I'll catch you next week.

When a banana farmer in far north Queensland claimed to have seen a flying saucer and said it had left behind a mysterious mark, it unleashed a firestorm of hysteria.

Did you see it?

What do they look like?

Are they aliens?

That moment would haunt him for decades.

Not to mention inspire an international hoax.

I'm Danielle O'Neill and this story from Australia was where the modern crop circle phenomena all started.

Search for expanse on the ABC Listen app.