International Law, the ICC, the US and Israel
Transcript
Briefing with Dr Frank Romano
Friday March 11th 2021
Transcript
Briefing with Dr Frank Romano
Friday March 11th 2021
Ian Williams: Hello, everybody, and welcome to yet another Zoom webinar for the Foreign Press Association of New York. Welcome to all of you on the Zoom and welcome to the others who are on Facebook live or on YouTube live. We welcome your participation. You can email questions. The rest of you can go into the chat and put it into the Q&A's as we go. We have to do it this way, as people know, because of the threat of Zoom bombing and similar things. And Dr. Frank Romano has played a part in drafting the complaints that the state of Palestine brought against Israel and to the ICC and has watched the ICC develop as it goes. It's been complicated because we recently have a new prosecutor for the ICC replacing his Gambian predecessor. This is controversial because he was British, but he was of British of Third World origins, which might sort of mitigate the problems. I suspect it's why he got a majority. I think you've been a pukka Etonian or someone from the British upper classes he wouldn't have got the job. They wouldn't have voted for it because he did get in on the second ballot on a majority and people were prepared to overlook his Britishness and see his other qualities. Prosecutor as a record with the ICC. The problem is, of course, that everybody with the ICC has a record as far as Washington is concerned, they're all on the wanted list. His predecessor was on the wanted list, I don't know whether he's made the wanted list under the new administration yet. And it's something that we will look at and I hope Dr Frank Romano can indicate to us. I have been personally covering the International Criminal Court from the time of the Rome Convention when I was president of the UN Correspondents Association, and they were very intricate negotiations. It's worth remembering at this stage of the proceedings that initially the Clinton administration was 100 percent for it. It put lots of caveats to protect its rare politically back home. But if there were any awkward squads involved, it was the French who eventually negotiated a seven-year deferment. But no French person could be prosecuted for seven years after they signed, which made me wonder what the French were going to plan for the next seven years. You know, if I had been an enemy of La France, I'd have hidden under the bed for seven years until the French Foreign Legion had stood down. But they never invoked the actual provisions of the seven-year thinking as far as I remember. But it was only later on when the Iraq war came. And once again, such a perspective. The Clinton administration and all of its lawyers really were proud of the US contribution to international humanitarian law. They point to lots of examples, they pointed out the laws of war as we know them had been drawn up by the American Civil War, the proud tradition of JAG's in the American army. They overlooked the My Lai massacre and a few other little things, but they were rightfully proud in many ways of what was going on. And then came the Iraq war. And it's never been the same since, of course. So, the ICC is now contemplating prosecuting crimes committed in Afghanistan, which gets us to something perhaps you can explain, Frank. The ICC, the US and Israel withdrew from the treaty. They unsigned it. And in fact, they unsigned the Vienna Protocol to allow them to unsign the treaty. And one of the points about the treaty is that you don't have to be a member for it to apply to your citizens. It can be the Security Council can mandate an investigation and prosecution or it takes place on the territory of a signatory state, which was why there was so much US pressure against Afghanistan and Iraq not to sign and ratify the treaty as I understand it. And this is the controversy about Palestine. Is it a state? Is it allowed to sign and then having signed, does this apply to Israel, which refuses to sign? Perhaps you could elucidate these points for the audience?
Dr Frank Romano: I'd be glad to Ian. First, let me make it clear that the ICC did not make a determination as to statehood in its decision that it has jurisdiction over the occupied Palestinian territories, West Bank, Jerusalem and Gaza. It simply stated in the decision that the decision for statehood of Palestine being out of our control was manifested by the UN resolution that Palestine had non-member status but as a state and also a depository the UN general, the head of the UN, as a depository, accepted the state of Palestine and with all the procedure, treated it as a state. That's another indication.
Ian Williams: Perhaps we should explain that all international treaties, if they are to be recognized, have to be deposited with the UN.
Dr Frank Romano: That's right. They all go right up the pyramid to the general secretary and what he does with the treaties and what he does with the application of I wouldn't even call at that point Palestine, a country but when he manifests the reception of the document from allegedly a state, Palestine, so far it's still alleged and then handles it like a state, recognizes Palestine as a state and goes through the procedures. That is an indication of statehood that by itself may be not enough. Then you have the OECD claiming that - are making a document and claiming that Palestine is a state. And then you have the implied statehood by the actions of Palestine that was thrown into the hopper of the definition of a statehood. In other words, when Palestine submitted its application for statehood in 2014 and was finally accepted in 2015 by the ICC to see what it did after that, did it participate in the General Assembly meetings, the state assembly meetings of the ICC? Did it give it opinions about what was going on? And there's a whole record of Palestinian involvement. All those put together indicated to Madam Bensouda, Saeed Bensouda, the prosecutor, that this is an indication of statehood and of course, the resolution in particular by the UN that says that Palestine benefits from non member state status like the Vatican. All that put together led Mrs Bensouda to the belief that this is a state and the ICC did not feel that it had competence or jurisdiction to decide to statehood. It had been, for all intents and purposes, already decided.
Ian Williams: Apart from the Vatican the other example until recent years was Switzerland, which was manifestly a state but not a member of the UN, even though it participated.
Dr Frank Romano: Exactly, so the state, we still see, however, I was looking on the Internet, several international law experts that are in defense of Israel saying this is preposterous, Palestine is not a state. They're still hanging on to the argument, the Israeli state argument. And let me correct a little bit. Ian, I filed a complaint not against, the state, it's against individuals. So, my complaint was initially against Prime Minister Netanyahu, and former defense minister Lieberman, those two. And now I'm adding, but we'll talk about that later. So, this idea of statehood, it still can come up later, for instance, we're in a procedure now, which is now the investigatory procedure. The preliminary investigation is finished. The investigative investigatory stage right now, which is final final investigation. That is when the court will identify suspects and will issue a summons to appear. And if they don't feel that that person is going to appear and testify and they'll get more information, they will issue arrest warrants. This is sort of the stage we're in now. And that then will come up when an arrest warrant, for instance, is issued for Netanyahu in Israel being a non-member state, the issue comes up again, jurisdiction and the issue comes up again on whether Palestine could be a member of the ICC because it hasn't, according to Israel it's not really a state, that could come up again, Israel can complain. So, you cannot issue an arrest warrant that has been suggested by a non-state to adjudicate an issue with a non state before the ICC in Israel. And then there's an issue with Oslo. Oslo Accords, as we know, decided, you know, sort of giving the Palestinian Authority some jurisdiction over a lot of land in Israel, kind of dividing things up. But it said in Oslo, and Israel has noted this, that under Oslo, the Palestinian courts have jurisdiction over Palestinians, not over Israeli Jews. And so what is this? What, how does the Israeli use this as an argument that, well, because the ICC does not take over jurisdiction, the ICC will adjudicate a case if the state is incapable or unwilling or for other reasons cannot prosecute the case. And under Oslo, theoretically, the Palestinian courts cannot prosecute Israeli Jews or Israelis. So, but this court made a decision clearly that Oslo does not apply. And I think it's not clear here, but I think it's because Israel committed, according to Bensouda and others, war crimes in Palestine. And that is what sort of follows up what you said that gives, since Palestine is a state that gives the ICC court jurisdiction and therefore, when it comes to adjudicating cases against Israelis that it's a non state since the war crimes are committed in the West Bank, in Palestine, in Gaza and East Jerusalem, then the ICC court said, well, we go beyond the Oslo Accord and we claim jurisdiction, Oslo is irrelevant for the jurisdiction of the ICC in this matter, in the jurisdiction matter.
Ian Williams: It's interesting that Washington and Israel, their arguments on this are almost entirely procedural. About whether or not the court has jurisdiction, but there is a sort of relative silence about the substance of the complaints, are Israeli officials carrying out war crimes in the occupied territories, which is the key issue evaded to some extent by the jurisdictional issues? Would you comment on this, whether it's a deliberate and effective tactic to take your mind or take people's mind off the prize?
Ian Williams: It's hard for me Ian sometimes to really put my finger on certain things truthfully. But here I must admit, I think this is a systematic attempt by the Israeli officials and American officials to ignore the most important issue of all and and befuddle the whole thing up into procedure and the focus on procedures so much that they are thinking, well, maybe people will kind of ignore the substance which those officials in the United States know clearly, and so do the Israelis, the atrocities and the war crimes being committed and try to evade that, such as the type of mentality that I heard from Greenblatt recently before he left along with the Trump people from the American government. He was in Israel, and they're talking, this is sort of a convergent idea and it gives you an idea of what really is going on here, the type of subterfuge. He's standing in a settlement or nearby saying when people are talking about illegal settlements, I don't like the word settlement. It's derogatory. Let's just say Israeli communities, Israeli regions. Let's not and I'm thinking, here's the new subject, Let's change the vocabulary, let's make this kind of sugar-coated and not get down to the fact that these are settlements. They are being maintained as illegal by the International Court of Justice, by many other organizations, and they are taking Palestinian land almost on a daily basis. The settlers are attacking Palestinians almost with impunity with the help of Israeli soldiers. They say no these are not settlements, no, no, these are just Israeli communities claiming their land type of sugar coating. And I think this is part of the scheme to ignore the atrocities, ignore the war crimes at work, someone convicted from Israel as a war criminal. Keep in mind, it's the same crime that the Nazis were convicted of. This really brings in the red flags waving over.
Ian Williams: The comparisons are odious and that one of the most of all of course. One of the other issues here, what is Palestine? There's the Palestine Liberation Organization, and there is the Palestinian Authority. Now bringing the sort of the nature of the Trinity, how do they relate to each other? Which is the father? Which is the son, which is the holy ghost?
Dr Frank Romano: I think the short answer to that is there's no father, there's no son and I don't know where the Holy Ghost is here.
Ian Williams: Ok.
Dr Frank Romano: But with the tradition of the Palestinian people through Arafat, who brought some type of heritage together, he is the one who signed Oslo with the Israeli officials, gave an identity to bring all the Palestinians together, the West Bank, Palestinians, the Gazan Palestinians and the East Jerusalem and the Israeli Palestinians and those that are in the diaspora as refugees that became refugees in particular since 1948 that has become the definition of Palestinian. But it's not so clear as people think, just like it's not really clear, look at the other side of it. It's not really clear often in who is Jewish and who is not. There's this issue as well. There are roots that have been verified that come from there's a Sephardic Jew, Ashkenazi Jew, I have Sephardic Jewish... what does that mean, becoming a Jew? It's not just the subterfuge that we hear often. Oh, there's no Palestine, these people came from Saudi Arabia. If we've heard this so many times and they're claiming land, that's not theirs and we were here, the Jews were here earlier, and we have a superior right anyway to this land... What are they talking about? It's not so clear. I mean, people can say, well, in 2000 B.C, that's when Abraham came in from Mesopotamia, but, Jews and Arabs, Muslims in particular, seek identity and Christians also, through Abraham. And so, we could say theoretically, they all came in at about the same time that they seek heritage through Abraham, 2000 B.C, then people say, well, they were here before then. Well, the question is, this is just a lot, I think, of rhetoric that kind of evades... the problem, there's lots of Palestinians there anyway, and there's lots of Jews and lots of Christians, let's work together. What are we going to do with what we got? Let's not think about what we should have or what we've got this so we're going to do, just eliminate these non-Jews from from the from the whole map here? You know, just push people away? This is their land. They've been here for hundreds, thousands of years cultivating the land. So I believe in this equal right to this land, Jews, Muslims, Christians and others. But this all gets into that schematic subterfuge that you referred to about ignoring the war crimes, the atrocities and categorizing to make it convenient to get rid of people just to to justify getting rid of these non-Jews from the Holy Land.
Ian Williams: You are arriving where we're dealing with the ICC case and good luck to the ICC and the ICJ if they start adjudicating the land claims based on Abraham, on the marble tablets -I want them notarized if I see a marble tablet. But it does get so many threads spinning off. The key point that the ICC is considering is not who's got rights to it and who doesn't. It is whether war crimes have been committed. And secondly, whether there's a jurisdiction for the complaint and they've established, as we've seen pretty much established, that there is. Now getting back on to the war crimes, we now have a new administration that sort of seems to be thinking, well, maybe the settlements aren't totally kosher and the annexation isn't totally kosher, but it hasn't actually... the Biden administration, it hasn't gone the whole hog yet. So, how much resistance do you expect the prosecutors to get from this administration as compared to the previous one? They haven't issued arrest warrants yet, as far as I know.
Dr Frank Romano: I don't think so. I really think it could be just as much as the Trump administration. I think it will be more subtle but then I think almost any president is more subtle than Trump is, sort of like as subtle as a lead balloon. But what's interesting is of all the priorities of things that President Biden has been doing, one of them is not addressing the executive order that Trump signed to punish the judges, the prosecutor and anyone linked with the ICC that would have anything to do with the case against the United States involving Afghanistan. And number two, and perhaps number three or four, any of the cases that ICC is engaged in to prosecute any of the allies of the US, we mean Israel, he even said in this executive order, which has the power of law in the United States and it's still valid, is still the law, has not been set aside yet by the Biden administration, allows also the United States to confiscate land, property of members of the ICC, the prosecutor and other types of things. In fact, I looked at the definition of this and I realized I could fall into that. Fortunately, I don't have holdings in the United States to tell you about. But I have kids in the United States. I was raised part of the time there, but I would theoretically fall under that executive order as punishing anybody linked with the ICC, including, there were three, however, professors who also did research with the ICC and they filed a claim against the US government for this executive order and they won. In other words, this executive order cannot apply to them. And I'm not sure exactly what the relationship was and you did research, they were hired to do research for the ICC and worked on behalf of I don't know what country or what issue, but this is a good sign. But the bottom line is it's a bad sign, though the Biden administration has not addressed this. And this is a flaming issue right now. The ICC jurisdiction investigation, the executive order is still law in the United States.
Ian Williams: And, of course, it puts the United States on the Biden administration at loggerheads with everybody else because we now have a British prosecutor. So, are they going to, are they going to pursue a British prosecutor of the ICC to the ends of the earth? How is that for the other special relationship?
Dr Frank Romano: You know, I didn't, I never thought of that Ian, you're really enlightening me about thinking about other things. But absolutely.
Ian Williams: We think outside the box at the Foreign Press Association.
Dr Frank Romano: I understand that and this could be like almost a domino effect type of a thing unless this is addressed. And I know Al-Haq, you know, is a very active Palestinian NGO out of Ramallah. I met with the director and they sent very serious messages to the Biden administration and requesting to set aside this executive order to no avail, right now, it's still early.
Ian Williams: It does test the Biden administration's commitment to international law because it's in flagrant disregard of lots of treaties, not just this one. We're talking about the inviolability of the United Nations and its institutions. We're talking about the Vienna Convention on International Organizations. It violates international law in so many different ways. And yet the Biden administration is sort of patting itself on the back as returning the US into the fold of law.
Dr Frank Romano: This is very true Ian and what is systematic that the United States has done is it supports international law fully when it's in its interest, and yet that's not what international law is all about and what the ICC does it's not about vengeance. It's not about even prosecuting, it's about setting a precedent at least to have a deterrent value, and this is very important, and yet to ignore the value of this court that someday will be important to the United States, whether it conforms with its interests or not, is serious. It's really serious and the United States in the beginning of the ICJ really supported it, like you said. And then I think Mr. Bolton came down and was excited about withdrawing our signature and making it a big deal. I thought that's sort of an ignominious moment in the United States. But again, it's that's profiting from plurilateral organizations when it conforms with the United States and when it doesn't, then there is the opposition.
Ian Williams: Precisely what African states have been saying. I mean, it is true there are more atrocities in Africa than there should be, but they say there are a disproportionate number of prosecutions there. And I'm just thinking aloud here, it is true they set up a special tribunal for Yugoslavia.
Dr Frank Romano: And Rwanda as well.
Ian Williams: I remember that was set up by the law professor, Cherif Bassiouni, as I remember, I knew him well, who conducted a massive investigation into Yugoslav war crimes that really got the impetus for the tribunal to be set up. He plunked down several telephone directories that these are the crimes, do something about them and people had to. So, what are the crimes here? What exactly is the complaint alleging and against whom is it alleging it?
Dr Frank Romano: My complaint, and then I'm expanding it now and we'll talk about it to other suspects or other people that are accused of war crimes, but basically under the Rome Statute, you've got Article Eight, which is war crimes, and then Article Seven, which is crimes against humanity and basically it focuses on any time, not necessarily in war time, but any civilians of a state that are or that have been subject to destruction of their property in a ruthless destruction of their property, transfer of any of them to other parts of their country or outside the country as part of a conflict. And also, the confiscation of land, that's also part of the war crimes resolution of the Rome Statute. It conforms also with the fourth convention of the Geneva Convention, which has been ratified. It was basically part of the Rome Treaty that also talks about these types of crimes. Then you have crimes against humanity, which focuses even more so on one state violating the rights of people of another state. Civilians, directly targeting civilians that have nothing to do almost with the military, you have crimes against humanity. Which is also covered by the Fourth Geneva Convention. People understand and a lot of people that have opposed any type of jurisdiction over this matter, over the occupied Palestinian territories, they said, well, how can you say they committed war crime? There's no war here. Well, this is a delicate issue, but when you really dissect the law, it shows that you don't need to have an ongoing war to have victims of conflict or even of a war in the past. It could be ongoing, but it also could be any type of a moment and this is subject to the Rome Treaty, as you said, articulated, if one group of people, a country, occupies another, the occupation itself is subject to the Rome Treaty as well as the Geneva Conventions. It's not just about an ongoing war and protecting people that have been arrested, as we know more about the Geneva Convention and the prisons and stuff, especially for World War Two. And it's far broader than that.
Ian Williams: We should elaborate on that point. I don't think since Hitler declared war on the US in December 1941, I don't think we've had an official war.
Dr Frank Romano: I think, you know, I don't know of one either.
Ian Williams: Afghanistan wasn't a war, Iraq wasn't a war, Vietnam wasn't a war.
Dr Frank Romano: Vietnam, I don't think we made an official declaration of war. I don't remember either. That's interesting. That's interesting.
Ian Williams: We don't declare wars anymore. But I mean, that that heightens the distinction here because you can cause an awful lot of death, destruction and suffering without having a war.
Dr Frank Romano: Without having an official war anyway. But again, fortunately, under the Rome Treaty, the Rome Statute and the Geneva Convention, it's very clear and it says it does not have to be an official type of a military confrontation and which would mean for this treaty, for this statute to apply for the Geneva Convention, to apply.
Ian Williams: The criminal court, the Rome Convention had to set off two opposing sorts of factions was the concern for State sovereignty, which was sort of very zealous in the UN members who were very wary that the U.S. and Britain and France would intervene in the name of international law, and so that would be, you know, this is something that, we really would be up the swanny if we relied upon official definitions.
Dr Frank Romano: Yes. And systematically, the United States has opposed to plurilateral, plurilateral, as opposed to bilateral means more than two states, organizations. The ICC we see that as a prime example of how we withdrew our signature from it. And another one of my specialties was international antitrust law. I tried to establish a tribunal like the ICC for antitrust violations, as opposed to having the European Union adjudicate their cases, the US cases, they overlap sometimes. There's no cooperation, no coordination, these big businesses, you know, fly around the world with impunity. I want to establish something like that. And the main country that sabotaged it was the United States.
Ian Williams: Frank Gomez comes in with some, let's say the semantics of it, he's referring to the anti-historical, anti-ethnic geographic reference, the West Bank, which disguises the fact it's Palestine. And Frank has sort of brought my memory back to, The West Bank of what? This was the West Bank of the Jordan in mandatory Palestine originally. It was all of Jordan plus what is now mandatory Palestine and the West Bank was the Israeli and what we now consider the Palestinian side of that mandate. Of course, the Israelis realize this, this is why they call it Judea and Samaria, isn't it? It comes back to the point you were making about the applicability. Where is it, the Area C? Now, does from your reading of it, is the applicability of the ICC strictly to the Area C or any of the other zones within the Oslo agreement? Or does it apply to the whole of mandatory Palestine or does it apply to the 1967 boundaries? Has anyone adjudicated or argued about this yet?
Dr Frank Romano: In fact, the ICC did in its judgment, on jurisdiction. It stated that it had jurisdiction over all the territory that was occupied in the state of Israel after the Six-Day War in 1967. And so, it specified it includes the West Bank, East Jerusalem and Gaza. The question always remains, what is the West Bank still, absolutely right and it's not really clear. Palestinians don't like to hear that Samaria, Judea, because it refers to the biblical region and the chosen few were taken. So, they don't want it referred to the West Bank because what it means is you're excluding a part of who we are. We are Palestine. What's Palestine then? Well, that whole area, uh, you know, that part east of Jerusalem, that whole area that you call the West Bank, East Jerusalem, which is supposed to be our potential capital, and Gaza.
Ian Williams: Very often I can make myself unpopular in East Jerusalem. None of the, the UN partition resolution didn't say it was to be the capital of Palestine, it said it was to be a corpus separatum and run by the United Nations. Luckily, they've been spared municipal authority by the United Nations, but it's still anomalous. It's not... the Russians use some arguments like this about whether they move their embassy to Jerusalem, that it was not officially an occupied territory, as I understand it.
Dr Frank Romano: I think that's absolutely right. And I think that it was like you say, it was considered international territory under the theoretical jurisdiction of the UN, but then things were added to it. I'm not sure what the sources are. And addition to that definition of what is Jerusalem was well, that decision then of what part of what country will Jerusalem be a part of, will that be Israel or Palestine will be determined after the final determination of the final negotiations between the Palestinians and the Israelis.
Ian Williams: I think the Security Council also added East Jerusalem to its roll call of occupied territories. It's sort of snuck in by the back door in that way. So, it's once again, it's an interesting theological superposition. At one time it's a UN territory and also which is why people won't move their embassies there. And at the same time, it's occupied territory as far as the other parts are concerned. Now, a question from Kieran Baker from Palestine Deep Dive. He said, Israel, you've specified it was individuals have been accused of three separate crimes. Can you elaborate on your legal strategy? What specific crimes were alleged against whom? And what would the consequences be if they were found guilty?
Dr Frank Romano: Ok, let's just take Prime Minister Netanyahu for an example, and this is not just an example coming from a lawyer, it's an example that I actually saw with my own eyes as I was living in Khan al-Ahmar, which is the Bedouin village near Jericho, which centralized a lot of issues when I was there, and that's when I got arrested and so forth. But as an example of systematic confiscation of property, they had solar panels there because they had no electricity that was provided by a European source and they were setting them up so they could at least have electricity, the source of electricity, and they were confiscated. There have been buildings confiscated. When I was there, there was a building that was set up for lodging next to Khan al-Ahmar, which was destroyed and the parts were confiscated. So, this is just an example. There have been many schools in the Area C area and Area C area is the part under Oslo that Israel has administrative and military control over. And it's a vast area of the West Bank, if you can call it that. And there have been many schools that have been destroyed near Khan al-Ahmar and in the Jordan Valley area. And it's you know, it's part of the idea coming from the Israeli government that, well, you haven't received a permit for these schools, sorry about the fact that now you have hundreds of kids that don't have their elementary school now, but you're supposed to have a permit. The problem is they don't authorize these permits. We see as the destruction then, just the destruction of property and housing and so forth. And we see demolishing of property, apart from the collective punishment idea of those that have been accused of terrorist activities as become systematic by the Israeli government. And people are saying this is part of the idea of taking over this area, as they're doing in East Germany, to Judaize, the East German area, the one way to do it, to change the proportion of Jews to Palestinians, one way to do it is to demolish their land and their property and remove them so they become homeless. And then we can create settlers to construct buildings or have settlers move into those structures in East Jerusalem. So, this destruction is one thing. And so, under Netanyahu's administration has, especially before elections, you see more and more buildings being destroyed, more and more Palestinians being transferred out of the area, more and more property being confiscated, more and more settlers, outposts being ratified by the state of Israel to appease the right side of the cabinet. Just focusing Prime Minister Netanyahu's involvement and his ordering of these things, his involvement and even if he might claim he didn't know about the tactics of destruction and maybe some of the violence committed by the Israelis, he is still ultimately responsible. So just focusing on the three things... transferring by force people in an occupied territory, destruction of their property and confiscation of their property are part of the war crimes that I'm talking about. And also, we see a very strong kind of apartheid state. That's another matter. In any case, just focusing on those crimes and what could happen to Mr. Netanyahu, he could receive a summons, according to this news, this next stage, which Mrs. Bensouda has claimed now we're starting the investigatory stage because we have jurisdiction during this stage. He could receive a summons to appear. If he doesn't appear to testify... they're getting more facts but if he fails to do this, they could issue an arrest warrant and he could well, while he's in Israel, of course, he's protected but if he were to leave and I recall what happened to Mr. Pinochet, he could be arrested, taken to a detention center in The Hague and then questioned there while he's at least a temporary prisoner. But the court has adopted a ruling that I don't think is the same criminal law procedure in England, nor in France, where I'm a lawyer here, nor in the United States where I'm also a lawyer, is there cannot be any judgments in absentia. And I don't know why they adopted this, I guess it was because, well, we're talking about the most serious crimes and we've got to have that person there or it just wouldn't be fair. In any case, I think there's an exception, but I don't think it would apply to Mr. Netanyahu and Mr. Lieberman. So, OK. So, is it over then? No, they're not going to obviously... Mr. Netanyahu, who's recently filed a bill before the Knesset, to make it illegal for anyone to help the ICC in their investigation, I think it's up to a five-year sentence and maybe whatever, but that has been submitted. So, it looks like he won't cooperate with the ICC. I think we're being naive to think that he's going to do that.
Ian Williams: That might affect his vacation options...
Dr Frank Romano: So, he'll stay in Israel. That will kind of put a cramp on his flight plans for the future, especially when he's no longer prime minister. But what can that do? Well, the arrest warrant, there is no statute of limitations on it. So, he's always subject to the arrest warrant. I mean, if he were to leave Israel after an arrest warrant, that he did not comply with and go and testify and so forth and didn't go through the trial, if there would be one against him, he could any time after leaving Israel be subject to arrest by Interpol or the police in another country. He'll be probably, have several layers of protection when he travels, but he is subject to that. So that is in itself a type of deterrence, that's serious stuff to have no statute of limitations and that arrest warrant is applicable until he would pass away.
Ian Williams: This is something that I understand the Israeli foreign ministry and Justice Ministry are already sort of deeply concerned about, and they have panels of advice for army officers and civil servants traveling abroad.
Dr Frank Romano: I see that. I see Mr. Gantz has come out publicly to say there are virtually hundreds, I'm thinking, wow, that's an interesting acceptance of this in a way, an admission in a way, if there are hundreds of people liable under this ICC procedure against Israeli officials, including himself. That's when he made the statement, but I'm not sure exactly what type of advice he's giving these people right now because there have been no, as far as I know, no arrest warrants have been issued or summons to appear.
Ian Williams: There have been cases like the Israeli officer who landed at Heathrow and was warned by sympathizers in the British police that there was an arrest warrant waiting for him if he stepped on the ground, so he never got off the plane.
Dr Frank Romano: I didn't, I've never heard of that.
Ian Williams: Well, that was two years ago.
Dr Frank Romano: It sounds incredible, if that is true, because there has to be a procedure. Well, the arrest warrant coming from whom?
Ian Williams: I think it was a case of universal jurisdiction. Somebody had sworn a complaint in the British courts against him for universal crimes. And I do know Henry Kissinger was arrested in Paris.
Dr Frank Romano: Yeah, that's a different procedure.
Ian Williams: U.S. officials had to go and get him out because under the same jurisdiction, he was as upset as you would expect Henry Kissinger to be if he was arrested.
Dr Frank Romano: I think that's exactly on what basis Pinochet was arrested.
Ian Williams: Exactly yes universal jurisdiction.
Dr Frank Romano: Someone from Spain or Italy filed the original complaint, realized he was going to travel to England. Then he was arrested there. And then, you know, he was to stand trial. But according to his health, some kind of dubious type of thing, he was released and returned to Chile. So this was something else. This universal jurisdiction is something else. Yes.
Ian Williams: But it's similar because it shows that this isn't just, you know, it's a urination in the face of adverse wind conditions. It looks like when you go around this type of stuff to people on the ground. But, you know, it shows that there are consequences and that there are consequences for those who commit these crimes or certainly are accused of these crimes.
Dr Frank Romano: But Ian, you're absolutely right. The Israeli government and Israelis and their allies, I mean, I'm not, I call myself an ally of the concept of Israel. I'm not against the state, but the allies of this administration are very concerned. And one example is, what a week and a half ago, I was a part of a Zoom conference out of New York and about 20 minutes...I was interviewed about some of the ICC stuff and my activist work, it was Zoom bombed as you referred to earlier, literally was Zoom bombed, people hacked into different people and for about 10 or 15 minutes, there were obscenities and everything else going back and forth. Finally, I was able to calm things down and proceed. But it showed amount of concern that in spite of the pooh poohing or anything of this, is the ICC, he said immediately after the decision was rendered, this is pure anti-Semitism. You know, it's an age-old depiction of anything that opposes Israel or the government is anti-Semitism, right? And a lot of people believe that. And it's worked up until now so shouldn't we keep using it? In my mind, it has nothing to do with anti-Semitism. But these types of pooh-poohing things appear to me that he's quite concerned, he knows this is a legitimate thing for the court, have decided they tried so, you know, tooth and nail to resist and to convince the court that it had no jurisdiction, in spite of all their lawyers and everything involved in this case. The ICC has claimed jurisdiction.
Ian Williams: Is there any idea I mean, here we have the United States and you just said the Knesset has just passed legislation deliberately designed to frustrate the execution of an international treaty. Isn't this a matter for the ICJ, for the International Court of Justice?
Dr Frank Romano: Interesting. Well, actually, I think I might have not been clear about... Netanyahu filed, a bill that has, as far as I know, maybe, you know, I don't think, it might not have been passed yet. The Knesset has not passed this bill and it hasn't become law to punish anyone that's going to help the ICC. But assuming that that does, and I'm almost thinking that it probably will pass the Knesset, there are a lot of people worried in the Knesset, about being part of the ICC procedure and to be accused of war crimes. So, they're not really disinterested, they have a conflict of interest. In that case it could very well be that this could expand the jurisdiction. I'm not sure however, the International Criminal Court, the International Court of Justice, I'm not sure on what basis it could now get involved in this, other than simply there's a treaty that's been violated in. Even though we're talking about a nonmember, but the non-member action inside a member of a treaty, there are also treaties that Israel has signed with the UN that might be affected. I'm not sure, this is way beyond the box. I find this is very interesting, but I'm not sure how the International Court of Justice...
Ian Williams: We should also mention, you were actually arrested in Israel, in not quite a honey trap, but a pseudo Le Monde reporter invited you to do an interview and it turned out to be the bait in a trap for the IDF. Please explain this, because it's some sort of ethical war crime for journalists to act as bait for governments, I think.
Dr Frank Romano: I think that's a good point. I was stupid to put it bluntly. Here I was living in the Khan al-Ahmar community, involved in this action, because the state of Israel just got a decision by the Israeli Supreme Court that the soldiers could destroy this village. I was there inside the village trying to figure out a way, a non-violent way to oppose it and getting all these interviews. And, you know, Al Jazeera, there were American journalists, French journals, French press. I speak obviously French. And so I was able to do that. And I speak Spanish as well. So, I was able to welcome everyone. I never had the antenna up that there could be people that might want to betray you. So when I was underground in Ramallah, after I was put in jail in Jerusalem, and then the judge was livid that the police had Shanghaied me, instead of taking me to court next to the jail, which is the Moscobiyeh, the infamous Moscobiyeh prison, the police took me to Tel Aviv and they had a judgment by the military court, which is normally reserved for Palestinians, that I committed two felonies and I was to be deported if I signed. Fortunately, I didn't. The judge found out that's where I was and brought me back to Jerusalem. So, this is the sort foundation for what happened was after that decision, I was ordered to return to France and I didn't. I went underground in Ramallah and here I am in Ramallah. And this is the first time that I'm actually working on the legal issues. I'm an activist. I'm a positive in the face activist. I teach and I practiced law in France, in international and local law and the United States. I'm a professor, but I've never really did a lot of research on the international, on the ICC stuff. What else can you do when you're underground? So, the Palestinian government found out that I was around and hired me for that for that month. And during that time, I was pretty isolated. I was working on my Arabic, which has become conversational and sometimes fluent now, it's good. But then I get this call. I don't know how this person got my number. Olivier Pironet, a very famous journalist from Le Monde who has done a lot of Middle East work like you have wanted to interview me. It's not about the glory. I just felt, this will work, this will cast the light back on the Palestinian issue now for the French speaking people through Le Monde. But they wanted to interview me in Khan al-Ahmar. I said I can't go back to Area C, I'll get arrested. I'll go back to jail. I'm hiding here. And when he suggested I go to Area C, I should have had the antenna up immediately, because he said, let's get the interview in a gas station next to Khan al-Ahmar. I should have figured if a journalist wants to interview me, who wants to get me nailed? It was so idiotic that I actually trusted this person. I said, why don't you come to Ramallah? He said, no, I can't really go to Ramallah. But he said it in such a very credible way. He said I can't come to Ramallah. And his reason was legit. A lot of journalists can't go into the West Bank or into Ramallah, they're not covered. So that sounded OK. But he said I'll tell you what, let's have the interview in front of Khan al-Ahmar. I figured, well, OK. So, I take a midnight, one night, I take and I tell the journalists the so-called journalist, listen, I'm going to go I'm going to be there. I went there and slept in the camp, The Bedouin camp Khan al-Ahmar. In the morning, I got a call that he was waiting for me, the journalist was waiting for me on the other side of the highway. That should have been another sign that this is a setup. He's didn't want to come into Khan al-Ahmar, he wanted me to set up on the other side of the highway, which has a lot of police who go by there all the time. And so, he said, I'm waiting for you. I look across kind of like with binoculars and I see there's a limousine, it looks legit. A couple of people there, they look legit. It looked like this must be Olivier Pironet for them to go to this type of expense. And so, I walk across the highway and within two minutes of talking with this person, five Israeli police cars show up and then I'm arrested and then taken back to jail. So that's how that worked.
Ian Williams: Speaking of going to jail, we have a question from Alex Bustos. What should Palestinian supporters do if an arrest warrant is issued, what can they do to help? But I also have another question. We tend to forget about this and it will certainly be forgotten, but this applies to Palestinians as well. The investigation includes, you know, people in the Palestinian Authority who are not known to be gentle with their opponents or with the Hamas, who are notoriously ungentle with their opponents. So, there's a strong chance that the ICC prosecutors might well decide to show that they're not biased, they have to arrest Palestinians as well. So, what's the attitude going to be of the various sides to this? What can be done to support the work? I hate the word activists, but, yeah, by those that those who are active in human rights work.
Dr Frank Romano: What can be done is, let's go to Hamas right now, Hamas is part of this jurisdiction because we only talked about the ICC claiming and deciding it has jurisdiction over the West Bank, over Gaza and East Jerusalem, but also it has jurisdiction over Hamas and the rockets that shot and allegedly targeted civilians, Israeli civilians. They could also receive a summons to appear and arrest warrants, just like the Israeli officials in the next month or two. And your question is, what can activists do to to enforce the arrest warrant?
Ian Williams: I think possibly even to build popular support, for example, in Palestine, how would you persuade the Palestinian authorities to hand over those who have been named for investigation? Because if they're not, then it gives ammunition to the other side to disregard the summonses, the warrants.
Dr Frank Romano: That's a very good point. And I think I'm going to have to talk then about, what about the Hamas members that are in the West Bank and there are some in the West Bank, that are allegedly a part of this whole operation sending thousands of missiles into Israel during Operation Protective Edge in 2014, but the ICC wouldn't apply there and other altercations. I believe that the P.A., the Palestinian Authority, which is pretty well controlled by the PLO, Fatah, Arafat's former party, I believe they're going to cooperate. I believe they will cooperate. I think they're quite as much, as I experienced this when I was living in downtown Ramallah, working in the Mukataa, with lawyers that we're working with the Palestinian Authority on this ICC case and viewing things and hearing things, they are very much of a collaborator and they are very much a rival for Hamas. Look what happened in Gaza. They they were instrumental in reducing electricity access, among other things, in Gaza, to try to punish Hamas, to try to get the people to revolt and try to get Fatah or the P.A., back in control in Gaza. I think they'll cooperate.I don't think Hamas will cooperate with the ICC knowing full well that, you know, this could be reciprocal simply because it probably is going to make a statement, which is absolutely true. But if there is an arrest warrant and this is to the benefit of the Palestinians in particular, if there's an arrest warrant issued against Netanyahu, Lieberman or Gantz and other high Israeli officials, they're going to have to cooperate on their end. But at the end of the day, as someone who does active work, I would advise, at least in messages or whatever, that Hamas does comply, because at the end of the day, there's an article of the Rome Statute that says a country can defend itself. And Israel claims all the time this is just self-defense, bludgeoning Gaza and destroying all these buildings and sending these missiles out. OK, there are about six Israelis that were killed as opposed to thousands of Gazans, there were only a few buildings that were destroyed compared to Gaza and buildings and hospitals. There were sixty-six soldiers destroyed and I'm talking about the Operation Protective Edge in 2014 that were killed. My advice to Hamas would be at the end of the day Israel's claim for self-defense it says in that article, I believe its article twenty-one or twenty-five of the Rome Statute, that it must be proportional, their response must be proportional to the attack, proportional to the danger that they are involved with. So, in other words, if someone comes around and hits you in the face in the subway if you turn around and take a machine gun and blow them away, that's disproportionate. And I think at the end of the day, the court will make that decision. And yes, there will probably be some Hamas officials that will be subject to a sentence. But the Israeli officials can be subject as much as to a life term. Normally, it's 30 years maximum, but a life term. So, this could be said that cooperating will help get this adjudicated and probably give you a working card for some type of negotiation with Israel as well, but you must cooperate because at the end of the day, those that are convicted under the law probably will not have the same sentence.
Ian Williams: Well, coming to the end now, this is Ian Williams, President of the Foreign Press Association. I've been speaking to Dr. Frank Romano about the ICC. Our next event is next Thursday, March the 18th at 2:00 pm Eastern Time. And we're discussing Myanmar, where we'll be joined by Brad Adams the Asia director for Human Rights Watch, broadcaster and correspondent Chris Gunness. Thank you very much for your time today Dr Romano.
Dr Frank Romano: Thank you very much.
Dr Frank Romano: I'd be glad to Ian. First, let me make it clear that the ICC did not make a determination as to statehood in its decision that it has jurisdiction over the occupied Palestinian territories, West Bank, Jerusalem and Gaza. It simply stated in the decision that the decision for statehood of Palestine being out of our control was manifested by the UN resolution that Palestine had non-member status but as a state and also a depository the UN general, the head of the UN, as a depository, accepted the state of Palestine and with all the procedure, treated it as a state. That's another indication.
Ian Williams: Perhaps we should explain that all international treaties, if they are to be recognized, have to be deposited with the UN.
Dr Frank Romano: That's right. They all go right up the pyramid to the general secretary and what he does with the treaties and what he does with the application of I wouldn't even call at that point Palestine, a country but when he manifests the reception of the document from allegedly a state, Palestine, so far it's still alleged and then handles it like a state, recognizes Palestine as a state and goes through the procedures. That is an indication of statehood that by itself may be not enough. Then you have the OECD claiming that - are making a document and claiming that Palestine is a state. And then you have the implied statehood by the actions of Palestine that was thrown into the hopper of the definition of a statehood. In other words, when Palestine submitted its application for statehood in 2014 and was finally accepted in 2015 by the ICC to see what it did after that, did it participate in the General Assembly meetings, the state assembly meetings of the ICC? Did it give it opinions about what was going on? And there's a whole record of Palestinian involvement. All those put together indicated to Madam Bensouda, Saeed Bensouda, the prosecutor, that this is an indication of statehood and of course, the resolution in particular by the UN that says that Palestine benefits from non member state status like the Vatican. All that put together led Mrs Bensouda to the belief that this is a state and the ICC did not feel that it had competence or jurisdiction to decide to statehood. It had been, for all intents and purposes, already decided.
Ian Williams: Apart from the Vatican the other example until recent years was Switzerland, which was manifestly a state but not a member of the UN, even though it participated.
Dr Frank Romano: Exactly, so the state, we still see, however, I was looking on the Internet, several international law experts that are in defense of Israel saying this is preposterous, Palestine is not a state. They're still hanging on to the argument, the Israeli state argument. And let me correct a little bit. Ian, I filed a complaint not against, the state, it's against individuals. So, my complaint was initially against Prime Minister Netanyahu, and former defense minister Lieberman, those two. And now I'm adding, but we'll talk about that later. So, this idea of statehood, it still can come up later, for instance, we're in a procedure now, which is now the investigatory procedure. The preliminary investigation is finished. The investigative investigatory stage right now, which is final final investigation. That is when the court will identify suspects and will issue a summons to appear. And if they don't feel that that person is going to appear and testify and they'll get more information, they will issue arrest warrants. This is sort of the stage we're in now. And that then will come up when an arrest warrant, for instance, is issued for Netanyahu in Israel being a non-member state, the issue comes up again, jurisdiction and the issue comes up again on whether Palestine could be a member of the ICC because it hasn't, according to Israel it's not really a state, that could come up again, Israel can complain. So, you cannot issue an arrest warrant that has been suggested by a non-state to adjudicate an issue with a non state before the ICC in Israel. And then there's an issue with Oslo. Oslo Accords, as we know, decided, you know, sort of giving the Palestinian Authority some jurisdiction over a lot of land in Israel, kind of dividing things up. But it said in Oslo, and Israel has noted this, that under Oslo, the Palestinian courts have jurisdiction over Palestinians, not over Israeli Jews. And so what is this? What, how does the Israeli use this as an argument that, well, because the ICC does not take over jurisdiction, the ICC will adjudicate a case if the state is incapable or unwilling or for other reasons cannot prosecute the case. And under Oslo, theoretically, the Palestinian courts cannot prosecute Israeli Jews or Israelis. So, but this court made a decision clearly that Oslo does not apply. And I think it's not clear here, but I think it's because Israel committed, according to Bensouda and others, war crimes in Palestine. And that is what sort of follows up what you said that gives, since Palestine is a state that gives the ICC court jurisdiction and therefore, when it comes to adjudicating cases against Israelis that it's a non state since the war crimes are committed in the West Bank, in Palestine, in Gaza and East Jerusalem, then the ICC court said, well, we go beyond the Oslo Accord and we claim jurisdiction, Oslo is irrelevant for the jurisdiction of the ICC in this matter, in the jurisdiction matter.
Ian Williams: It's interesting that Washington and Israel, their arguments on this are almost entirely procedural. About whether or not the court has jurisdiction, but there is a sort of relative silence about the substance of the complaints, are Israeli officials carrying out war crimes in the occupied territories, which is the key issue evaded to some extent by the jurisdictional issues? Would you comment on this, whether it's a deliberate and effective tactic to take your mind or take people's mind off the prize?
Ian Williams: It's hard for me Ian sometimes to really put my finger on certain things truthfully. But here I must admit, I think this is a systematic attempt by the Israeli officials and American officials to ignore the most important issue of all and and befuddle the whole thing up into procedure and the focus on procedures so much that they are thinking, well, maybe people will kind of ignore the substance which those officials in the United States know clearly, and so do the Israelis, the atrocities and the war crimes being committed and try to evade that, such as the type of mentality that I heard from Greenblatt recently before he left along with the Trump people from the American government. He was in Israel, and they're talking, this is sort of a convergent idea and it gives you an idea of what really is going on here, the type of subterfuge. He's standing in a settlement or nearby saying when people are talking about illegal settlements, I don't like the word settlement. It's derogatory. Let's just say Israeli communities, Israeli regions. Let's not and I'm thinking, here's the new subject, Let's change the vocabulary, let's make this kind of sugar-coated and not get down to the fact that these are settlements. They are being maintained as illegal by the International Court of Justice, by many other organizations, and they are taking Palestinian land almost on a daily basis. The settlers are attacking Palestinians almost with impunity with the help of Israeli soldiers. They say no these are not settlements, no, no, these are just Israeli communities claiming their land type of sugar coating. And I think this is part of the scheme to ignore the atrocities, ignore the war crimes at work, someone convicted from Israel as a war criminal. Keep in mind, it's the same crime that the Nazis were convicted of. This really brings in the red flags waving over.
Ian Williams: The comparisons are odious and that one of the most of all of course. One of the other issues here, what is Palestine? There's the Palestine Liberation Organization, and there is the Palestinian Authority. Now bringing the sort of the nature of the Trinity, how do they relate to each other? Which is the father? Which is the son, which is the holy ghost?
Dr Frank Romano: I think the short answer to that is there's no father, there's no son and I don't know where the Holy Ghost is here.
Ian Williams: Ok.
Dr Frank Romano: But with the tradition of the Palestinian people through Arafat, who brought some type of heritage together, he is the one who signed Oslo with the Israeli officials, gave an identity to bring all the Palestinians together, the West Bank, Palestinians, the Gazan Palestinians and the East Jerusalem and the Israeli Palestinians and those that are in the diaspora as refugees that became refugees in particular since 1948 that has become the definition of Palestinian. But it's not so clear as people think, just like it's not really clear, look at the other side of it. It's not really clear often in who is Jewish and who is not. There's this issue as well. There are roots that have been verified that come from there's a Sephardic Jew, Ashkenazi Jew, I have Sephardic Jewish... what does that mean, becoming a Jew? It's not just the subterfuge that we hear often. Oh, there's no Palestine, these people came from Saudi Arabia. If we've heard this so many times and they're claiming land, that's not theirs and we were here, the Jews were here earlier, and we have a superior right anyway to this land... What are they talking about? It's not so clear. I mean, people can say, well, in 2000 B.C, that's when Abraham came in from Mesopotamia, but, Jews and Arabs, Muslims in particular, seek identity and Christians also, through Abraham. And so, we could say theoretically, they all came in at about the same time that they seek heritage through Abraham, 2000 B.C, then people say, well, they were here before then. Well, the question is, this is just a lot, I think, of rhetoric that kind of evades... the problem, there's lots of Palestinians there anyway, and there's lots of Jews and lots of Christians, let's work together. What are we going to do with what we got? Let's not think about what we should have or what we've got this so we're going to do, just eliminate these non-Jews from from the from the whole map here? You know, just push people away? This is their land. They've been here for hundreds, thousands of years cultivating the land. So I believe in this equal right to this land, Jews, Muslims, Christians and others. But this all gets into that schematic subterfuge that you referred to about ignoring the war crimes, the atrocities and categorizing to make it convenient to get rid of people just to to justify getting rid of these non-Jews from the Holy Land.
Ian Williams: You are arriving where we're dealing with the ICC case and good luck to the ICC and the ICJ if they start adjudicating the land claims based on Abraham, on the marble tablets -I want them notarized if I see a marble tablet. But it does get so many threads spinning off. The key point that the ICC is considering is not who's got rights to it and who doesn't. It is whether war crimes have been committed. And secondly, whether there's a jurisdiction for the complaint and they've established, as we've seen pretty much established, that there is. Now getting back on to the war crimes, we now have a new administration that sort of seems to be thinking, well, maybe the settlements aren't totally kosher and the annexation isn't totally kosher, but it hasn't actually... the Biden administration, it hasn't gone the whole hog yet. So, how much resistance do you expect the prosecutors to get from this administration as compared to the previous one? They haven't issued arrest warrants yet, as far as I know.
Dr Frank Romano: I don't think so. I really think it could be just as much as the Trump administration. I think it will be more subtle but then I think almost any president is more subtle than Trump is, sort of like as subtle as a lead balloon. But what's interesting is of all the priorities of things that President Biden has been doing, one of them is not addressing the executive order that Trump signed to punish the judges, the prosecutor and anyone linked with the ICC that would have anything to do with the case against the United States involving Afghanistan. And number two, and perhaps number three or four, any of the cases that ICC is engaged in to prosecute any of the allies of the US, we mean Israel, he even said in this executive order, which has the power of law in the United States and it's still valid, is still the law, has not been set aside yet by the Biden administration, allows also the United States to confiscate land, property of members of the ICC, the prosecutor and other types of things. In fact, I looked at the definition of this and I realized I could fall into that. Fortunately, I don't have holdings in the United States to tell you about. But I have kids in the United States. I was raised part of the time there, but I would theoretically fall under that executive order as punishing anybody linked with the ICC, including, there were three, however, professors who also did research with the ICC and they filed a claim against the US government for this executive order and they won. In other words, this executive order cannot apply to them. And I'm not sure exactly what the relationship was and you did research, they were hired to do research for the ICC and worked on behalf of I don't know what country or what issue, but this is a good sign. But the bottom line is it's a bad sign, though the Biden administration has not addressed this. And this is a flaming issue right now. The ICC jurisdiction investigation, the executive order is still law in the United States.
Ian Williams: And, of course, it puts the United States on the Biden administration at loggerheads with everybody else because we now have a British prosecutor. So, are they going to, are they going to pursue a British prosecutor of the ICC to the ends of the earth? How is that for the other special relationship?
Dr Frank Romano: You know, I didn't, I never thought of that Ian, you're really enlightening me about thinking about other things. But absolutely.
Ian Williams: We think outside the box at the Foreign Press Association.
Dr Frank Romano: I understand that and this could be like almost a domino effect type of a thing unless this is addressed. And I know Al-Haq, you know, is a very active Palestinian NGO out of Ramallah. I met with the director and they sent very serious messages to the Biden administration and requesting to set aside this executive order to no avail, right now, it's still early.
Ian Williams: It does test the Biden administration's commitment to international law because it's in flagrant disregard of lots of treaties, not just this one. We're talking about the inviolability of the United Nations and its institutions. We're talking about the Vienna Convention on International Organizations. It violates international law in so many different ways. And yet the Biden administration is sort of patting itself on the back as returning the US into the fold of law.
Dr Frank Romano: This is very true Ian and what is systematic that the United States has done is it supports international law fully when it's in its interest, and yet that's not what international law is all about and what the ICC does it's not about vengeance. It's not about even prosecuting, it's about setting a precedent at least to have a deterrent value, and this is very important, and yet to ignore the value of this court that someday will be important to the United States, whether it conforms with its interests or not, is serious. It's really serious and the United States in the beginning of the ICJ really supported it, like you said. And then I think Mr. Bolton came down and was excited about withdrawing our signature and making it a big deal. I thought that's sort of an ignominious moment in the United States. But again, it's that's profiting from plurilateral organizations when it conforms with the United States and when it doesn't, then there is the opposition.
Ian Williams: Precisely what African states have been saying. I mean, it is true there are more atrocities in Africa than there should be, but they say there are a disproportionate number of prosecutions there. And I'm just thinking aloud here, it is true they set up a special tribunal for Yugoslavia.
Dr Frank Romano: And Rwanda as well.
Ian Williams: I remember that was set up by the law professor, Cherif Bassiouni, as I remember, I knew him well, who conducted a massive investigation into Yugoslav war crimes that really got the impetus for the tribunal to be set up. He plunked down several telephone directories that these are the crimes, do something about them and people had to. So, what are the crimes here? What exactly is the complaint alleging and against whom is it alleging it?
Dr Frank Romano: My complaint, and then I'm expanding it now and we'll talk about it to other suspects or other people that are accused of war crimes, but basically under the Rome Statute, you've got Article Eight, which is war crimes, and then Article Seven, which is crimes against humanity and basically it focuses on any time, not necessarily in war time, but any civilians of a state that are or that have been subject to destruction of their property in a ruthless destruction of their property, transfer of any of them to other parts of their country or outside the country as part of a conflict. And also, the confiscation of land, that's also part of the war crimes resolution of the Rome Statute. It conforms also with the fourth convention of the Geneva Convention, which has been ratified. It was basically part of the Rome Treaty that also talks about these types of crimes. Then you have crimes against humanity, which focuses even more so on one state violating the rights of people of another state. Civilians, directly targeting civilians that have nothing to do almost with the military, you have crimes against humanity. Which is also covered by the Fourth Geneva Convention. People understand and a lot of people that have opposed any type of jurisdiction over this matter, over the occupied Palestinian territories, they said, well, how can you say they committed war crime? There's no war here. Well, this is a delicate issue, but when you really dissect the law, it shows that you don't need to have an ongoing war to have victims of conflict or even of a war in the past. It could be ongoing, but it also could be any type of a moment and this is subject to the Rome Treaty, as you said, articulated, if one group of people, a country, occupies another, the occupation itself is subject to the Rome Treaty as well as the Geneva Conventions. It's not just about an ongoing war and protecting people that have been arrested, as we know more about the Geneva Convention and the prisons and stuff, especially for World War Two. And it's far broader than that.
Ian Williams: We should elaborate on that point. I don't think since Hitler declared war on the US in December 1941, I don't think we've had an official war.
Dr Frank Romano: I think, you know, I don't know of one either.
Ian Williams: Afghanistan wasn't a war, Iraq wasn't a war, Vietnam wasn't a war.
Dr Frank Romano: Vietnam, I don't think we made an official declaration of war. I don't remember either. That's interesting. That's interesting.
Ian Williams: We don't declare wars anymore. But I mean, that that heightens the distinction here because you can cause an awful lot of death, destruction and suffering without having a war.
Dr Frank Romano: Without having an official war anyway. But again, fortunately, under the Rome Treaty, the Rome Statute and the Geneva Convention, it's very clear and it says it does not have to be an official type of a military confrontation and which would mean for this treaty, for this statute to apply for the Geneva Convention, to apply.
Ian Williams: The criminal court, the Rome Convention had to set off two opposing sorts of factions was the concern for State sovereignty, which was sort of very zealous in the UN members who were very wary that the U.S. and Britain and France would intervene in the name of international law, and so that would be, you know, this is something that, we really would be up the swanny if we relied upon official definitions.
Dr Frank Romano: Yes. And systematically, the United States has opposed to plurilateral, plurilateral, as opposed to bilateral means more than two states, organizations. The ICC we see that as a prime example of how we withdrew our signature from it. And another one of my specialties was international antitrust law. I tried to establish a tribunal like the ICC for antitrust violations, as opposed to having the European Union adjudicate their cases, the US cases, they overlap sometimes. There's no cooperation, no coordination, these big businesses, you know, fly around the world with impunity. I want to establish something like that. And the main country that sabotaged it was the United States.
Ian Williams: Frank Gomez comes in with some, let's say the semantics of it, he's referring to the anti-historical, anti-ethnic geographic reference, the West Bank, which disguises the fact it's Palestine. And Frank has sort of brought my memory back to, The West Bank of what? This was the West Bank of the Jordan in mandatory Palestine originally. It was all of Jordan plus what is now mandatory Palestine and the West Bank was the Israeli and what we now consider the Palestinian side of that mandate. Of course, the Israelis realize this, this is why they call it Judea and Samaria, isn't it? It comes back to the point you were making about the applicability. Where is it, the Area C? Now, does from your reading of it, is the applicability of the ICC strictly to the Area C or any of the other zones within the Oslo agreement? Or does it apply to the whole of mandatory Palestine or does it apply to the 1967 boundaries? Has anyone adjudicated or argued about this yet?
Dr Frank Romano: In fact, the ICC did in its judgment, on jurisdiction. It stated that it had jurisdiction over all the territory that was occupied in the state of Israel after the Six-Day War in 1967. And so, it specified it includes the West Bank, East Jerusalem and Gaza. The question always remains, what is the West Bank still, absolutely right and it's not really clear. Palestinians don't like to hear that Samaria, Judea, because it refers to the biblical region and the chosen few were taken. So, they don't want it referred to the West Bank because what it means is you're excluding a part of who we are. We are Palestine. What's Palestine then? Well, that whole area, uh, you know, that part east of Jerusalem, that whole area that you call the West Bank, East Jerusalem, which is supposed to be our potential capital, and Gaza.
Ian Williams: Very often I can make myself unpopular in East Jerusalem. None of the, the UN partition resolution didn't say it was to be the capital of Palestine, it said it was to be a corpus separatum and run by the United Nations. Luckily, they've been spared municipal authority by the United Nations, but it's still anomalous. It's not... the Russians use some arguments like this about whether they move their embassy to Jerusalem, that it was not officially an occupied territory, as I understand it.
Dr Frank Romano: I think that's absolutely right. And I think that it was like you say, it was considered international territory under the theoretical jurisdiction of the UN, but then things were added to it. I'm not sure what the sources are. And addition to that definition of what is Jerusalem was well, that decision then of what part of what country will Jerusalem be a part of, will that be Israel or Palestine will be determined after the final determination of the final negotiations between the Palestinians and the Israelis.
Ian Williams: I think the Security Council also added East Jerusalem to its roll call of occupied territories. It's sort of snuck in by the back door in that way. So, it's once again, it's an interesting theological superposition. At one time it's a UN territory and also which is why people won't move their embassies there. And at the same time, it's occupied territory as far as the other parts are concerned. Now, a question from Kieran Baker from Palestine Deep Dive. He said, Israel, you've specified it was individuals have been accused of three separate crimes. Can you elaborate on your legal strategy? What specific crimes were alleged against whom? And what would the consequences be if they were found guilty?
Dr Frank Romano: Ok, let's just take Prime Minister Netanyahu for an example, and this is not just an example coming from a lawyer, it's an example that I actually saw with my own eyes as I was living in Khan al-Ahmar, which is the Bedouin village near Jericho, which centralized a lot of issues when I was there, and that's when I got arrested and so forth. But as an example of systematic confiscation of property, they had solar panels there because they had no electricity that was provided by a European source and they were setting them up so they could at least have electricity, the source of electricity, and they were confiscated. There have been buildings confiscated. When I was there, there was a building that was set up for lodging next to Khan al-Ahmar, which was destroyed and the parts were confiscated. So, this is just an example. There have been many schools in the Area C area and Area C area is the part under Oslo that Israel has administrative and military control over. And it's a vast area of the West Bank, if you can call it that. And there have been many schools that have been destroyed near Khan al-Ahmar and in the Jordan Valley area. And it's you know, it's part of the idea coming from the Israeli government that, well, you haven't received a permit for these schools, sorry about the fact that now you have hundreds of kids that don't have their elementary school now, but you're supposed to have a permit. The problem is they don't authorize these permits. We see as the destruction then, just the destruction of property and housing and so forth. And we see demolishing of property, apart from the collective punishment idea of those that have been accused of terrorist activities as become systematic by the Israeli government. And people are saying this is part of the idea of taking over this area, as they're doing in East Germany, to Judaize, the East German area, the one way to do it, to change the proportion of Jews to Palestinians, one way to do it is to demolish their land and their property and remove them so they become homeless. And then we can create settlers to construct buildings or have settlers move into those structures in East Jerusalem. So, this destruction is one thing. And so, under Netanyahu's administration has, especially before elections, you see more and more buildings being destroyed, more and more Palestinians being transferred out of the area, more and more property being confiscated, more and more settlers, outposts being ratified by the state of Israel to appease the right side of the cabinet. Just focusing Prime Minister Netanyahu's involvement and his ordering of these things, his involvement and even if he might claim he didn't know about the tactics of destruction and maybe some of the violence committed by the Israelis, he is still ultimately responsible. So just focusing on the three things... transferring by force people in an occupied territory, destruction of their property and confiscation of their property are part of the war crimes that I'm talking about. And also, we see a very strong kind of apartheid state. That's another matter. In any case, just focusing on those crimes and what could happen to Mr. Netanyahu, he could receive a summons, according to this news, this next stage, which Mrs. Bensouda has claimed now we're starting the investigatory stage because we have jurisdiction during this stage. He could receive a summons to appear. If he doesn't appear to testify... they're getting more facts but if he fails to do this, they could issue an arrest warrant and he could well, while he's in Israel, of course, he's protected but if he were to leave and I recall what happened to Mr. Pinochet, he could be arrested, taken to a detention center in The Hague and then questioned there while he's at least a temporary prisoner. But the court has adopted a ruling that I don't think is the same criminal law procedure in England, nor in France, where I'm a lawyer here, nor in the United States where I'm also a lawyer, is there cannot be any judgments in absentia. And I don't know why they adopted this, I guess it was because, well, we're talking about the most serious crimes and we've got to have that person there or it just wouldn't be fair. In any case, I think there's an exception, but I don't think it would apply to Mr. Netanyahu and Mr. Lieberman. So, OK. So, is it over then? No, they're not going to obviously... Mr. Netanyahu, who's recently filed a bill before the Knesset, to make it illegal for anyone to help the ICC in their investigation, I think it's up to a five-year sentence and maybe whatever, but that has been submitted. So, it looks like he won't cooperate with the ICC. I think we're being naive to think that he's going to do that.
Ian Williams: That might affect his vacation options...
Dr Frank Romano: So, he'll stay in Israel. That will kind of put a cramp on his flight plans for the future, especially when he's no longer prime minister. But what can that do? Well, the arrest warrant, there is no statute of limitations on it. So, he's always subject to the arrest warrant. I mean, if he were to leave Israel after an arrest warrant, that he did not comply with and go and testify and so forth and didn't go through the trial, if there would be one against him, he could any time after leaving Israel be subject to arrest by Interpol or the police in another country. He'll be probably, have several layers of protection when he travels, but he is subject to that. So that is in itself a type of deterrence, that's serious stuff to have no statute of limitations and that arrest warrant is applicable until he would pass away.
Ian Williams: This is something that I understand the Israeli foreign ministry and Justice Ministry are already sort of deeply concerned about, and they have panels of advice for army officers and civil servants traveling abroad.
Dr Frank Romano: I see that. I see Mr. Gantz has come out publicly to say there are virtually hundreds, I'm thinking, wow, that's an interesting acceptance of this in a way, an admission in a way, if there are hundreds of people liable under this ICC procedure against Israeli officials, including himself. That's when he made the statement, but I'm not sure exactly what type of advice he's giving these people right now because there have been no, as far as I know, no arrest warrants have been issued or summons to appear.
Ian Williams: There have been cases like the Israeli officer who landed at Heathrow and was warned by sympathizers in the British police that there was an arrest warrant waiting for him if he stepped on the ground, so he never got off the plane.
Dr Frank Romano: I didn't, I've never heard of that.
Ian Williams: Well, that was two years ago.
Dr Frank Romano: It sounds incredible, if that is true, because there has to be a procedure. Well, the arrest warrant coming from whom?
Ian Williams: I think it was a case of universal jurisdiction. Somebody had sworn a complaint in the British courts against him for universal crimes. And I do know Henry Kissinger was arrested in Paris.
Dr Frank Romano: Yeah, that's a different procedure.
Ian Williams: U.S. officials had to go and get him out because under the same jurisdiction, he was as upset as you would expect Henry Kissinger to be if he was arrested.
Dr Frank Romano: I think that's exactly on what basis Pinochet was arrested.
Ian Williams: Exactly yes universal jurisdiction.
Dr Frank Romano: Someone from Spain or Italy filed the original complaint, realized he was going to travel to England. Then he was arrested there. And then, you know, he was to stand trial. But according to his health, some kind of dubious type of thing, he was released and returned to Chile. So this was something else. This universal jurisdiction is something else. Yes.
Ian Williams: But it's similar because it shows that this isn't just, you know, it's a urination in the face of adverse wind conditions. It looks like when you go around this type of stuff to people on the ground. But, you know, it shows that there are consequences and that there are consequences for those who commit these crimes or certainly are accused of these crimes.
Dr Frank Romano: But Ian, you're absolutely right. The Israeli government and Israelis and their allies, I mean, I'm not, I call myself an ally of the concept of Israel. I'm not against the state, but the allies of this administration are very concerned. And one example is, what a week and a half ago, I was a part of a Zoom conference out of New York and about 20 minutes...I was interviewed about some of the ICC stuff and my activist work, it was Zoom bombed as you referred to earlier, literally was Zoom bombed, people hacked into different people and for about 10 or 15 minutes, there were obscenities and everything else going back and forth. Finally, I was able to calm things down and proceed. But it showed amount of concern that in spite of the pooh poohing or anything of this, is the ICC, he said immediately after the decision was rendered, this is pure anti-Semitism. You know, it's an age-old depiction of anything that opposes Israel or the government is anti-Semitism, right? And a lot of people believe that. And it's worked up until now so shouldn't we keep using it? In my mind, it has nothing to do with anti-Semitism. But these types of pooh-poohing things appear to me that he's quite concerned, he knows this is a legitimate thing for the court, have decided they tried so, you know, tooth and nail to resist and to convince the court that it had no jurisdiction, in spite of all their lawyers and everything involved in this case. The ICC has claimed jurisdiction.
Ian Williams: Is there any idea I mean, here we have the United States and you just said the Knesset has just passed legislation deliberately designed to frustrate the execution of an international treaty. Isn't this a matter for the ICJ, for the International Court of Justice?
Dr Frank Romano: Interesting. Well, actually, I think I might have not been clear about... Netanyahu filed, a bill that has, as far as I know, maybe, you know, I don't think, it might not have been passed yet. The Knesset has not passed this bill and it hasn't become law to punish anyone that's going to help the ICC. But assuming that that does, and I'm almost thinking that it probably will pass the Knesset, there are a lot of people worried in the Knesset, about being part of the ICC procedure and to be accused of war crimes. So, they're not really disinterested, they have a conflict of interest. In that case it could very well be that this could expand the jurisdiction. I'm not sure however, the International Criminal Court, the International Court of Justice, I'm not sure on what basis it could now get involved in this, other than simply there's a treaty that's been violated in. Even though we're talking about a nonmember, but the non-member action inside a member of a treaty, there are also treaties that Israel has signed with the UN that might be affected. I'm not sure, this is way beyond the box. I find this is very interesting, but I'm not sure how the International Court of Justice...
Ian Williams: We should also mention, you were actually arrested in Israel, in not quite a honey trap, but a pseudo Le Monde reporter invited you to do an interview and it turned out to be the bait in a trap for the IDF. Please explain this, because it's some sort of ethical war crime for journalists to act as bait for governments, I think.
Dr Frank Romano: I think that's a good point. I was stupid to put it bluntly. Here I was living in the Khan al-Ahmar community, involved in this action, because the state of Israel just got a decision by the Israeli Supreme Court that the soldiers could destroy this village. I was there inside the village trying to figure out a way, a non-violent way to oppose it and getting all these interviews. And, you know, Al Jazeera, there were American journalists, French journals, French press. I speak obviously French. And so I was able to do that. And I speak Spanish as well. So, I was able to welcome everyone. I never had the antenna up that there could be people that might want to betray you. So when I was underground in Ramallah, after I was put in jail in Jerusalem, and then the judge was livid that the police had Shanghaied me, instead of taking me to court next to the jail, which is the Moscobiyeh, the infamous Moscobiyeh prison, the police took me to Tel Aviv and they had a judgment by the military court, which is normally reserved for Palestinians, that I committed two felonies and I was to be deported if I signed. Fortunately, I didn't. The judge found out that's where I was and brought me back to Jerusalem. So, this is the sort foundation for what happened was after that decision, I was ordered to return to France and I didn't. I went underground in Ramallah and here I am in Ramallah. And this is the first time that I'm actually working on the legal issues. I'm an activist. I'm a positive in the face activist. I teach and I practiced law in France, in international and local law and the United States. I'm a professor, but I've never really did a lot of research on the international, on the ICC stuff. What else can you do when you're underground? So, the Palestinian government found out that I was around and hired me for that for that month. And during that time, I was pretty isolated. I was working on my Arabic, which has become conversational and sometimes fluent now, it's good. But then I get this call. I don't know how this person got my number. Olivier Pironet, a very famous journalist from Le Monde who has done a lot of Middle East work like you have wanted to interview me. It's not about the glory. I just felt, this will work, this will cast the light back on the Palestinian issue now for the French speaking people through Le Monde. But they wanted to interview me in Khan al-Ahmar. I said I can't go back to Area C, I'll get arrested. I'll go back to jail. I'm hiding here. And when he suggested I go to Area C, I should have had the antenna up immediately, because he said, let's get the interview in a gas station next to Khan al-Ahmar. I should have figured if a journalist wants to interview me, who wants to get me nailed? It was so idiotic that I actually trusted this person. I said, why don't you come to Ramallah? He said, no, I can't really go to Ramallah. But he said it in such a very credible way. He said I can't come to Ramallah. And his reason was legit. A lot of journalists can't go into the West Bank or into Ramallah, they're not covered. So that sounded OK. But he said I'll tell you what, let's have the interview in front of Khan al-Ahmar. I figured, well, OK. So, I take a midnight, one night, I take and I tell the journalists the so-called journalist, listen, I'm going to go I'm going to be there. I went there and slept in the camp, The Bedouin camp Khan al-Ahmar. In the morning, I got a call that he was waiting for me, the journalist was waiting for me on the other side of the highway. That should have been another sign that this is a setup. He's didn't want to come into Khan al-Ahmar, he wanted me to set up on the other side of the highway, which has a lot of police who go by there all the time. And so, he said, I'm waiting for you. I look across kind of like with binoculars and I see there's a limousine, it looks legit. A couple of people there, they look legit. It looked like this must be Olivier Pironet for them to go to this type of expense. And so, I walk across the highway and within two minutes of talking with this person, five Israeli police cars show up and then I'm arrested and then taken back to jail. So that's how that worked.
Ian Williams: Speaking of going to jail, we have a question from Alex Bustos. What should Palestinian supporters do if an arrest warrant is issued, what can they do to help? But I also have another question. We tend to forget about this and it will certainly be forgotten, but this applies to Palestinians as well. The investigation includes, you know, people in the Palestinian Authority who are not known to be gentle with their opponents or with the Hamas, who are notoriously ungentle with their opponents. So, there's a strong chance that the ICC prosecutors might well decide to show that they're not biased, they have to arrest Palestinians as well. So, what's the attitude going to be of the various sides to this? What can be done to support the work? I hate the word activists, but, yeah, by those that those who are active in human rights work.
Dr Frank Romano: What can be done is, let's go to Hamas right now, Hamas is part of this jurisdiction because we only talked about the ICC claiming and deciding it has jurisdiction over the West Bank, over Gaza and East Jerusalem, but also it has jurisdiction over Hamas and the rockets that shot and allegedly targeted civilians, Israeli civilians. They could also receive a summons to appear and arrest warrants, just like the Israeli officials in the next month or two. And your question is, what can activists do to to enforce the arrest warrant?
Ian Williams: I think possibly even to build popular support, for example, in Palestine, how would you persuade the Palestinian authorities to hand over those who have been named for investigation? Because if they're not, then it gives ammunition to the other side to disregard the summonses, the warrants.
Dr Frank Romano: That's a very good point. And I think I'm going to have to talk then about, what about the Hamas members that are in the West Bank and there are some in the West Bank, that are allegedly a part of this whole operation sending thousands of missiles into Israel during Operation Protective Edge in 2014, but the ICC wouldn't apply there and other altercations. I believe that the P.A., the Palestinian Authority, which is pretty well controlled by the PLO, Fatah, Arafat's former party, I believe they're going to cooperate. I believe they will cooperate. I think they're quite as much, as I experienced this when I was living in downtown Ramallah, working in the Mukataa, with lawyers that we're working with the Palestinian Authority on this ICC case and viewing things and hearing things, they are very much of a collaborator and they are very much a rival for Hamas. Look what happened in Gaza. They they were instrumental in reducing electricity access, among other things, in Gaza, to try to punish Hamas, to try to get the people to revolt and try to get Fatah or the P.A., back in control in Gaza. I think they'll cooperate.I don't think Hamas will cooperate with the ICC knowing full well that, you know, this could be reciprocal simply because it probably is going to make a statement, which is absolutely true. But if there is an arrest warrant and this is to the benefit of the Palestinians in particular, if there's an arrest warrant issued against Netanyahu, Lieberman or Gantz and other high Israeli officials, they're going to have to cooperate on their end. But at the end of the day, as someone who does active work, I would advise, at least in messages or whatever, that Hamas does comply, because at the end of the day, there's an article of the Rome Statute that says a country can defend itself. And Israel claims all the time this is just self-defense, bludgeoning Gaza and destroying all these buildings and sending these missiles out. OK, there are about six Israelis that were killed as opposed to thousands of Gazans, there were only a few buildings that were destroyed compared to Gaza and buildings and hospitals. There were sixty-six soldiers destroyed and I'm talking about the Operation Protective Edge in 2014 that were killed. My advice to Hamas would be at the end of the day Israel's claim for self-defense it says in that article, I believe its article twenty-one or twenty-five of the Rome Statute, that it must be proportional, their response must be proportional to the attack, proportional to the danger that they are involved with. So, in other words, if someone comes around and hits you in the face in the subway if you turn around and take a machine gun and blow them away, that's disproportionate. And I think at the end of the day, the court will make that decision. And yes, there will probably be some Hamas officials that will be subject to a sentence. But the Israeli officials can be subject as much as to a life term. Normally, it's 30 years maximum, but a life term. So, this could be said that cooperating will help get this adjudicated and probably give you a working card for some type of negotiation with Israel as well, but you must cooperate because at the end of the day, those that are convicted under the law probably will not have the same sentence.
Ian Williams: Well, coming to the end now, this is Ian Williams, President of the Foreign Press Association. I've been speaking to Dr. Frank Romano about the ICC. Our next event is next Thursday, March the 18th at 2:00 pm Eastern Time. And we're discussing Myanmar, where we'll be joined by Brad Adams the Asia director for Human Rights Watch, broadcaster and correspondent Chris Gunness. Thank you very much for your time today Dr Romano.
Dr Frank Romano: Thank you very much.