Investigating war crimes in the Israel-Gaza conflict

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Nearly a year into the Israel-Gaza war,

how can the International Criminal Court move forward

with its investigation into the conflict?

Welcome to The Law Report. I'm Kristina Kukola.

Last month, Chief Prosecutor Karim Khan urged ICC judges

to urgently rule on his request for arrest warrants

for Israel's Prime Minister Benjamin Netanyahu,

Defence Minister Yoav Galant and three senior Hamas leaders

that were made in May.

They're wanted for their alleged involvement in war crimes

and crimes against humanity.

Graham Blewett is the former Deputy Chief Prosecutor

at the International Criminal Tribunal for the former Yugoslavia.

How would you describe the task ahead of the ICC

in investigating and prosecuting war crimes

and crimes against humanity in the Israel-Gaza war?

The task confronting the prosecutor is not an easy one,

but it's not an impossible one.

The current problem confronting the prosecutor

is gaining access to what is happening in Gaza.

He has made attempts.

He has made attempts to enter Israel and enter Gaza,

but those attempts have been foiled by the Israeli government,

which is not allowing the prosecutor to enter those regions

where the crimes that we see on our television every night

are being committed.

So it's not impossible for the investigations to be undertaken,

but it's doubly difficult where his attempts to do so

are being...

met with criticisms, particularly from the United States,

which, as you know, has threatened in the past

at least some elements of the administration,

has threatened to impose sanctions on the court

and on the individuals within the court.

In the face of that, you know, these are difficulties

that he will confront in bringing these cases

against perpetrators of the crimes in Israel and Gaza.

Was the request...

Request for arrest warrants in any way meant as a warning

to curb certain behaviour and doesn't seem to have worked at all.

Well, you would hope that that would be one of the aims

of bringing the application for the arrest warrants,

that it would certainly put the offending parties on notice

that the court is engaged in its investigations and is taking action.

And that alone should, I would have thought, act as a deterrent.

I must say, when I left the International Criminal Tribunal

for the former Yugoslavia in 2004, having seen the creation of the ICC,

that my thought was that at last there is a permanent deterrent

to prevent future war crimes, crimes against humanity and genocide.

But that feeling of elation and optimism,

has since been shattered by what's been happening in the world since then.

It would appear that the very existence of the ICC has not had any impact

on deterring those who are hell-bent on committing war crimes

and crimes against humanity.

So that's a huge disappointment.

And what are the implications of that?

It's a process.

I'm fairly optimistic that in the future, and hopefully the near future,

that those people who are indicted by the ICC, if they remain alive,

will find themselves in The Hague, facing the charges brought by that court.

I refer in this regard to the situation in the Tribunal for the Former Yugoslavia

when we indicted Slobodan Milosevic, the President of the Federal Republic of Yugoslavia.

We were told then, when he was indicted, that we would never see him in The Hague.

But, of course, those criticisms or those comments did not pan out

because when Milosevic lost power politically,

it was in the interest of those who defeated him in the elections

to get rid of him because he was a thorn in their side.

And we then saw Milosevic being handed over to the court in The Hague.

The same things can be said about Putin and Netanyahu,

and to a lesser extent, the Hamas leaders that are involved in the crimes

committed on the 7th of October last year in Israel.

And since, it's more difficult to see how they may end up in The Hague.

You say that you hope to see the accused brought to trial.

But it's fair to say, and you've alluded to this at the beginning of our conversation,

that the ICC does not have the kind of unified international support,

not at least for this.

The ICC does not have the kind of unified international support,

as the Yugoslav Tribunal had for its work

and the prosecution of crimes in the former Yugoslavia.

Is that right?

No, that's quite an accurate statement, and in particular the US.

But the first thing that needs to happen, I think, for Netanyahu

and those around him who are going to find themselves indicted eventually,

to be handed over to The Hague is going to be his defeat at an election

and his victory.

Becoming a liability within the country for a new government.

Whilst things stand today, it's very difficult to see that the US

is going to put such pressure on Israel.

But others may, and it depends what sort of sanctions are being applied

to Israel for not doing so.

You can't predict what's going to happen in the future,

and I would not say that it's impossible.

What will ICC investigators and prosecutors be looking for?

What will they be looking at in Gaza and Israel

to determine which events and evidence to include in the cases

they build against the accused,

and how they build the cases against the accused?

That's a difficult question to answer because the abuses that have occurred

and the crimes that have been committed since the 7th of October

and even before then are vast, and every single day

there are additional incidents.

There are incidents that could give rise to charges.

How the prosecutor is going to determine which of those warrants

and indictments, it's difficult to say.

I can foreshadow that there may be what I would call sort of rolled-up charges

that would charge, for example, that between the 7th of October 2023

and whatever date the indictment was brought,

that there were incidents.

There were incidents.

There were incidents that amount to crimes against humanity,

war crimes, et cetera, and perhaps even genocide.

And the prosecutor would select a sample of incidents

that would prove the overall allegation

that between certain dates these crimes were committed,

and the prosecutor would not have to call evidence

in relation to every single incident that amounted to a war crime,

but rather,

select those that are most egregious,

perhaps amounting to those attacks

where a greater number of innocent civilians were killed

and destruction of homes and hospitals and schools.

So that's one way it could be approached,

and that's the way I would approach it if I was in Karim Khan's shoes.

And there's a legal term that comes up time and time again,

proportionality.

What does that mean in the context of this conflict?

Well, that, to me, is the main focus of any indictment

to be brought against the Israelis for what has happened in Gaza.

It's been said, and I agree,

that Israel does have the right to defend itself.

But as Karim Khan has said, hospitals, schools,

religious institutions like churches and mosques,

and residential buildings,

are precluded from being attacked,

and they're protected by international law.

And if that protection is lost because, for example,

that Hamas is occupying such institutions or such places,

giving rise to the Israelis attacking those institutions

to attack their enemy,

then they have to establish,

establish that what they're doing is not disproportionate

to the number of people killed, injured,

or the destruction of those buildings in their attacks.

And Israel has said repeatedly that in all of their attacks,

they're going after Hamas combatants,

and that the killing of civilians is just a by-product

that is, they say, proportionate to what they're trying to achieve.

But it's going to be for a court to determine

whether or not those attacks are disproportionate.

In my view, the court will have no difficulty

in determining that many of the attacks

involving the death and destruction

of innocent Palestinian civilians

is totally disproportionate to the military objective

that the Israelis are trying to achieve.

Late last year,

Karim Khan visited Israel and the West Bank

in the aftermath of the attack on October the 7th.

It was widely reported that Israel did not allow

the chief prosecutor to enter Gaza.

He ended up delivering a statement from Egypt after the visit.

Here's some of what he had to say.

Israel has a professional and well-trained military.

They have, I know, military advocate generals

and a system that is intended to ensure

their compliance with international relations.

They have international humanitarian law.

They have lawyers advising on targeting decisions.

And they will be under no misapprehension

as to their obligations

or that they must be able to account for their actions.

That's Karim Khan speaking late last year.

Does the existence of these accountability systems

in Israel's army, does it affect how Israel's actions in Gaza

are scrutinized by the ICC?

Yes, clearly.

And it's any defense that,

an Israeli accused is going to put up

will be that their actions were legal,

were based upon legal advice from their legal advisors

as to whether or not any attack on an Hamas target

was proportionate given the circumstances in Gaza.

So that will be their defense

and the court will no doubt take that into account.

But,

from my point of view,

I would suggest the Israeli government needs new lawyers.

Because clearly, in my view at least,

the targeting of Hamas operatives that involves

the death and destruction of innocent civilians,

when the major victims are children and women,

clearly people who are not combatants.

And we've seen time and time again,

that the death toll on these attacks goes into 10s, 20s, 30s, and more.

I can't see how any legal advice to the Israeli government

would be that that amount of civilian casualties,

including women and children,

is any way proportionate to what they're trying to do with Hamas.

Now, we've seen growing protests in Israel,

and outside of Israel,

calls for the Israeli government to secure a deal

for the release of the remaining Israeli hostages taken by Hamas.

Last October,

certainly calls have been continuing throughout the war

for the hostages to be released.

Do you believe that progressing the ICC investigation,

or even just the arrest warrants,

could influence ceasefire talk,

or perhaps increase pressure for the remaining hostages to be released,

or for the more than 8,000 hostages to be released,

or for the more than 8,000 Palestinians that the UN says

are being detained by Israel to be released?

It seems to me that both the Israelis and Hamas

are operating as if the ICC did not exist.

Therefore, I can't see that any actions taken by the ICC

to bring about indictments or seek arrest warrants

is going to change that situation at all.

We've seen from the Israelis that they just bunker down

and say that the court has got no jurisdiction.

And they're determined not to change their mind.

It's difficult to determine what Hamas thinks about the ICC.

My guess is that they would be more worried

about what the Netanyahu government is doing

to eliminate Hamas operatives.

So I don't really see that the ICC is going to be an impediment

for the release of the hostages

or the Palestinian prisoners being held by,

by Israel.

The hostages and the prisoners are mere bargaining chips,

as I said.

You're listening to The Law Report on ABC Radio National.

Today I'm speaking with Graham Blewett,

the former Deputy Chief Prosecutor

at the International Criminal Tribunal

for the former Yugoslavia,

about the ICC's investigation into the Israel-Gaza war.

Graham, the advisory opinion issued

by the International Court of Justice in July

orders Israel to,

end its occupation of the Palestinian territories,

declaring it unlawful.

Do you expect that advisory opinion to have any bearing

on how potential ICC cases are prosecuted

or how judges consider the evidence?

Not directly, but certainly indirectly,

the ICJ's position will, I believe, assist the prosecutor.

It enables the prosecutor,

when presenting legal arguments

as to what the evidence amounts to,

that the ICJ has made such a ruling.

And the judges of the tribunal

in delivering their judgment

and reasons for their judgment

can quote or rely upon findings of the ICJ

in bringing about their decision.

The ICJ's decisions are not binding on the ICC.

The standard of proof in both courts

are completely different.

And that is why the ICJ's rulings

will not directly bind the ICC judges

in what they may find.

But the ICJ judgment or judgments

will certainly add strength to whatever

the ICC judges may want to determine

in their judgments.

Earlier, the Australian judge

on the International Court of Justice,

Hilary Charlesworth,

in a declaration explicitly quoting,

called for an end to Israel's military action in Gaza

so that humanitarian aid

can reach Palestinian civilians.

She says the Gaza Strip is on the brink of famine.

She talks about starvation

and the resulting loss of life in overwhelming numbers.

That was in April.

How does international criminal law

assess humanitarian circumstances in war?

Clearly, if starvation is being used

as a weapon of war,

then it's a crime.

And the arrest warrants

that the prosecutor sought back in May

specifically related to the existence

of famine within Gaza

and the Israelis' hampering

of the delivery of food aid and medical aid

and other forms of humanitarian assistance.

So that situation formed the basis

in part,

of the arrest warrants

that the prosecutor was seeking.

So it's a fairly fundamental situation

that the prosecutor has determined

will be prosecuted.

And I think he's absolutely right in doing so.

The humanitarian situation

was also one of the areas

investigated by the UN Independent Commission of Inquiry,

which delivered its first findings in June.

Here's an excerpt,

of those findings delivered

by the commission's chairwoman, Navi Pillay,

to the UN Human Rights Council in Geneva.

Israeli authorities are responsible for war crimes,

crimes against humanity

and violations of international humanitarian

and human rights law,

including extermination,

intentionally directing attacks against civilians

and civilian objects, murder, or war.

They have been accused of acts of domestic violence,

misdemeanor, or willful killing,

using starvation as a method of war,

forcible transfer,

gender persecution targeting Palestinian men and boys,

sexual and gender based violence amounting to torture,

and cruel or inhuman treatment.

The commission also found that Hamas

and other Palestinian armed groups

were responsible for war crimes, including,

intentionally directing attacks against civilians,

civilians, murder, torture, inhuman or cruel treatment and taking hostages. Are the findings

of that investigation relevant? Would they be of interest to the ICC? First of all the commissioners

Naveh Pillay and Chris Zedoti both recognised legal experts in their field and the fact that

they were appointed by the United Nations to head this independent international commission of

inquiry into the occupied Palestine territory will be relevant and no doubt the prosecutor

will seek to rely upon it. I think the second aspect will be the denial of the Netanyahu government

in allowing the commissioners entry into Israel into Gaza so that they can continue

the work mandated to them by the United Nations. So that failure any defendant in court will have

to overcome and

explain why it was that they refused to allow access to Israel and Gaza. And the prosecutor

no doubt will be saying well that's because they denied entry because they didn't want

further discovery of any potential crimes that their forces had committed. So I think that's

something that the prosecutor can rely upon. Again like the ICJ advisory opinion it's nothing that

the court has to do with. So I think that's something that the prosecutor can rely upon.

You're listening to the Law Report on ABC Radio National. I'm Kristina Kukola. Today I'm in

conversation with Graeme Blewett, the former Deputy Chief Prosecutor at the International

Criminal Tribunal for the former Yugoslavia about the ICC's investigation.

into the Israel-Gaza war.

Last month, the brother of Australian aid worker Zomi Frankom,

who was killed in an Israeli airstrike on the aid convoy she was part of,

spoke to the ABC.

He said those responsible should be brought to justice.

That's after Israel said an investigation had led to soldiers

being reprimanded and dismissed.

Here's what he told 7.30.

To see them go to court and to be tried and convicted and punished,

I would be disappointed if it was left purely just at their dismissal.

Do you agree with what Malcolm Frankom wants to see happen?

Yes, I do agree with what he says,

to the point that it needs to be investigated.

I think all that could be hoped is that those responsible for the crimes,

and clearly in my view they were crimes,

should be brought to justice.

And what Israel has done,

so far,

is totally inadequate.

I also believe,

from what Zomi's brother has said,

that there needs to be a release of the transcripts

of the interaction of those who were involved in attacking the WCK's convoy.

That needs to be made public,

and Israel is not prepared to release those.

So I agree with Zomi's brother, Mal,

that those who were involved in the,

decision making,

and those who were involved in the actual attack,

need to be held to account.

There's a lot being said about Australia's international obligations.

In terms of what the country,

the government can do in response to the Israel-Gaza conflict,

do you believe Australia is fulfilling its international obligations?

And if not, what more could it do?

I think one clear thing that the Australian government could do

would be to create a policy of,

a permanent investigation unit to investigate any allegations

that there are war criminals living in Australia.

It's going to be inevitable that in the future there are going

to be allegations that there are Israelis and Hamas operatives

that have made their way to Australia who were involved

in the commission of the crimes that are being committed at the moment.

But such allegations are going to come and the current situation

in Australia is that without a permanent investigation body,

those investigations are likely to fail.

The responsibility for bringing such investigations

and bringing any charges rests with the Australian Federal Police

and that has been the situation since the special investigations unit

that was set up.

In the mid-1980s to investigate allegations that there were

Nazi war criminals living in Australia, when the SIU was disbanded,

the advice was that any future allegation of war criminals living

in Australia would fall to the AFP to investigate

and to recommend charges.

Since that situation in 1993, early 1994, not one investigation

has resulted in anyone being indicted, despite the fact

that there are numerous instances of allegations being made,

serious allegations, that there are war criminals living in Australia.

So my level of confidence that the AFP are willing to bring

such investigations is pretty low.

I think the AFP has the capacity to do so if there's the political will

to do so, but it's the political will that is lacking.

The advantage of having a permanent body to investigate

is that you build up a level of expertise and those experts involved

in such a process have international contacts and can achieve

much more through channels that don't involve formal applications

going through courts.

So in my view, there's a dire need for the creation of such

a permanent international investigation body in Australia.

Do you agree with Professor Ben Saul, the UN Special Rapporteur

for Human Rights and Counter-Terrorism, that Australia should prohibit

Australians from serving as foreign fighters for Israel

in the occupied territories, just as Australians are prohibited

from fighting with terrorist groups?

Yes, I do.

I very much support such a position.

When you refer to my book, there are explanations there

as to how when the war erupted in the Balkans,

young Australians of Serb or Croatian background,

people in their early 20s, went to Yugoslavia to exact vengeance

and to seek justice for crimes that had happened in the Second World War.

And the ICT-wise investigations reveal that there were, in fact,

young Australians who had joined the paramilitary forces

on the Croatian side and the Serbian side and took part

in some of the bloodiest atrocities that occurred during the conflicts

in the Balkans.

At the end of their time in those paramilitary units,

these Australians returned to Australia and just resumed

their normal life, having committed serious crimes.

All of those situations should have been followed up

and prosecuted, and they were not.

So I believe that there must be a law that prohibits

Australian citizens from joining international terrorist groups.

Or those involved in the commission of war crimes.

And any Australian citizen that is involved in such a process

should be prosecuted under Australian law.

Now, your book is Justice and War Crimes,

documenting the first 10 years of the ICTY,

the International Criminal Tribunal for the former Yugoslavia.

You said this tribunal was a test to see if a court like the ICC could work.

So how do you now,

reflect on the overall effect of the ICC

and other international tribunals

in influencing the worst of human behaviour?

Is it what you had hoped?

At the moment, no.

But I believe it's a work in progress.

And what I do hope for the future is that

any person accused of war crimes,

crimes against humanity or genocide who was brought before,

the court will be punished.

And those punishments and any sentences

flowing therefrom will, in fact, act as a deterrent.

The more world leaders that are brought before the court

and convicted and sentenced

will start to send the message that

no one is immune from prosecution.

And that's what the ICC is currently trying to do.

It's a work in progress.

And I think it's very important that the work continues

and that every country in the world

supports the work of the ICC

so that there is, in fact,

at last a permanent deterrent

for those who want to commit to such atrocities.

Graham Blewett, it's been a pleasure.

Thank you for speaking to The Law Report.

Thank you. It was my pleasure.

You're listening to The Law Report on ABC Radio National.

I'm Christina Kukola.

What could proposed changes to evidence law in Western Australia

mean for victims and witnesses

in cases involving family and domestic violence?

Aidan Richardo, a lecturer

at the University of Western Australia Law School,

conducted a report,

a review of the government's bill

to amend the State's Evidence Act.

He says one of the most significant changes

is the introduction of what are known

as witness intermediaries.

Essentially, they're experts in communication.

They facilitate communication between the witness

and the court for the purpose of ensuring

that any evidence given by the witness

is as complete, as accurate

and as coherent as it can possibly be.

So they're trained, they're skilled,

they're professionals.

And under the new legislation,

they'll be regarded as witnesses.

They'll be regarded as officers of the court.

The bill also would allow for courts to admit

as evidence statements that are recorded digitally by police.

And if I understand correctly,

potentially at the scene of an alleged crime,

as early as that.

Does that mean that a witness or a victim

may not need to then testify in court?

So, yeah, it goes part of the way to doing that.

Essentially, these provisions relate

to family violence proceedings.

And really, the purpose of these provisions,

I mean, it's kind of twofold.

It can help to secure convictions in these cases.

First, because the giving of evidence in these cases

can be quite traumatic for victims of family violence.

The courtrooms are a pretty intimidating place

and many witnesses might be quite traumatised

by the prospect of giving evidence

against their perpetrators in these cases, right?

But also, these provisions recognise

that family violence is cyclical and it's entrapping.

And there are many reasons, you know,

quite apart from the trauma induced by the courtroom itself,

why by the time of the trial,

a family violence victim might not be willing

to give evidence against their abuser.

So, these provisions ensure that these prosecution cases

don't fall down because of a lack of evidence

against the accused.

Interestingly, one of the other changes that are proposed

relates to evidence given by experts

and opinions given by experts at trial.

The West Australian government says

the bill extends the ability for expert evidence

to be given to a trial.

It addresses stereotypes and myths and misconceptions

of family and domestic violence to civil cases.

What does that mean?

So, this is referring to some quite uniquely

Western Australian provisions.

They have some similarities to some provisions

in Victoria and Scotland,

but they go quite a bit further than those provisions

in those other jurisdictions.

So, essentially, these provisions aim to dispel

common misconceptions about the nature of family violence.

They expressly enable expert evidence

to actually be given about the nature

and the impact of family violence.

And in particular, around the fact that it actually

entraps the person who's subject to that violence.

So, about understanding their responses

and how they might think, feel and experience

that family violence.

So, these provisions that we already have

that are being carried across,

they require certain directions to be given by judges

to juries upon request in criminal cases.

Now, this new bill,

extends the operation of these provisions

around expert evidence and around these facts

to civil proceedings.

And it does so by allowing judges to treat those matters

as issues which the judge can accept as facts

without actually requiring these facts

to be proved by evidence.

Could it change potentially the way that courts

and judges assess the credibility of claims

in cases of violence or assault or abuse?

Yeah, it can change.

It can change perceptions of credibility.

But really, it can change whether the stories are believed

or not in general,

quite apart from general perceptions

of witness credibility.

I mean, there are a lot of misconceptions

that exist about family violence, still exist.

And these are proven by research

that people still expect

that someone who's experiencing family violence

to be able to leave,

still expect people who are experiencing family violence

to act in a way that someone

who's perhaps not experiencing that family violence

might regard as rational.

And these things aren't always the case.

So by having these matters expressly required to be

or allowed to be the subject of expert evidence

and direction by the judge

helps to dispel these myths

and might enable juries and judges

to actually regard the evidence

coming from victims of family violence

as more truthful or more believable.

Interestingly, the bill would also lower the bar

for what's required for a person to be declared

a hostile witness at trial.

Yeah, and this is quite interesting

because I think it speaks to the inherent tension

between on the one hand,

treating victims of family violence

with respect in giving evidence

and on the other hand,

securing conviction in cases involving family violence.

And these things, they don't always go hand in hand.

So generally in a trial,

when a witness isn't giving evidence properly

or truthfully,

then the party that's actually calling that witness

can seek to have the witness

declared hostile.

And what that enables them to do

is essentially cross-examine them

and tender prior statements that they made

that are inconsistent with their current testimony.

You can't normally do that with your own witness.

Now, currently in the common law jurisdictions

in which WA is currently one,

the test to actually prove

that someone's a hostile witness is quite high.

It's difficult to establish.

The bar's significantly reduced actually in the new law.

And this only requires a witness

to be unfavourable

instead of actively hostile.

Essentially allowing the prosecution

to seek unfavourable witness declarations

in relation to family violence victims

who are now unwilling to properly give evidence.

So that'll enable the prosecution

to essentially cross-examine them

and bring evidence of their prior statements,

which might now be contrary to the evidence

that they're willing to give.

Aidan Ricciardo there

from the University of Western Australia's law school.

And that's all.

That's all we have time for this week.

To never miss an episode of The Law Report,

just follow us on the ABC Listen app.

Thank you to sound engineer Kerry Dell.

Damien Carrick will be back again with you from next week.

I'm Christina Kukola.

Till next time.

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