Optimism for international criminal justice

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And best of all No spreadsheets St managing software and start managing your business with one unified system. Try for free today at odoo. com. Odo. com Hello and welcome to pololitical Thinking We risk a repeat Of what was seen in the nineteen thirties, say those who worry al loud about the spread of anti Jewish hatred here in Britain That others contend is to use the horror of the Holocaust to try to silence criticism off the horrors which Israel, the world's only Jewish state is now responsible for. One man is better placed the most to judge these competing arguments He's my guess on political thinking? Theodore or Ted Meron a thousand miracles from surviving the Holocaust to judging genocide tells the extraordinary story If a boy was liberated from a Nazi labor camp went on to be a human rights lawyer in what became Israel served for two decades as the president of the UN war crimes tribunals And Latterally was an advisor to the International Criminal Court. When when its prosecutor took its most controversial ever decision The issuing of an arrest warrant that Israel's prrime Mis. Benjamin Net and Yo Theedo Marin, Ted Marin Thank you for joining me on political thinking. Thank you Nick for inviting me. We're going to talk about that very controversial case that you were involved in, but I want to begin by talking about anti Semitism now. You're in an almost unique position to judge whether there are any similarities with what you grew up with back in the nineteen thirties and the growth of antis Semitism that it's argued we're seeing now What do you think the soarities and differences are? As a child, I was really not aware of anti Semitism at school. I went to a state school. Most of the children were Catholic, or Jewish. I remember constant playing of chopens, mart, Pners, militar and so on. I remember all the Holidays celebrations of the great victories of Poland over the Soviet Am me in the twenties, but I did not suffer or was even aware of antiemitism. Holocaust was quite a different beast It was the first ever industrial genocide. In many ways, the story of your life is the story of someone who escaped the Holocaust and went on to develop that international human rights law, which I want to discuss, but before we do What do you say to people who say, lookook, we're seeing some of what we saw in the nineteen thirties here in Britain? It's still very, very different It's a difference license effect that it seems to me that the British government Prime Minister quite frequently speak very loudly in a very articulate way in a very persuasive way against the growth and existence and manifestations of anti Semitism Poland to the extent that there were pograms. They were anti Jewish Eggs There were hooligans in the streets who'd love to beat up Jewish boys or Jewish children. At this time, there was no public reaction the mayayor of a city or of a village, certain not cabinet ministers would not speak about it So I appreciate the fact that the government of the United Kingdom speaks loudly and clearly about the phenomenon of the seemetis which is frightening. and it's good that the police is doing something about it. People are trying to see whether in terms of the existing law, it might be strengthened or we might be more effective But situations were quite different. As we'll go on to discuss, you think that the Netanyahu government may well be guilty of war crimes, you've been highly critical of the policies of Israeli governments in the past as well. But do you think there's a danger that demonization of Israel has contributed to an atmosphere of hatred? Did you ever worry yourself given that you were part of that proposed arrest Benjamin Netanyahu, that in a way you've contributed to that climate of opinion. The demonization of Israel did contribute, I think, to manifestations of anti Semitism all over the world, including in the United Kingdom. But you worry at all that that arrest warrant ed to that No, I think that the arrest warrant was required by the application of something that I've always tried to apply in my life. Lw and evividence. You've told us A little bit of your life growing up in Poland, at the age of nine, the German army come to by your part of Poland. let's Relect for a little while on how you were able to escape. horrors of the Holocaust Your family fled back in september nineteen thirty nine. We fled east. We were wandering through Poland, carrying our luggage on our backs, catching trees and stones reverse Where is the bridges had been bombed And eventually we made a decision which was not very wise. We decided to stay in the German part. You chose the Nazis over the Soviet? I don't know. I think it was not a wise decision. It was many of the unwise decisions. which we have made in our lives. Not wise is another of Theodore Meron's understatements, isn't it? brother, your elder brother, put up a fight against the Nazis who was part of the resistance. He was five years older, he was in a way for me a sort of a model of bravery because he was an incredibly good cyclist and he could do simple gymnastics miracles on a bicycle. Later after his deportation, I learned of the fact in the city in the ghetto where we lived turns the Hover He was involved in resistance activities. When he was led to a place where people were being selected either for staying in a labor force or being deported to Trebrina Send you Rreblinka, he attacked the a German senior German officer and that was with the deliberate intent of being killed and not being shipped in terrible conditions to Treblinka. And years later, my father met in Tel Aviv a barber who survived Treblina And he knew my brother and he said he was involved in the uprising there. This was one uprising, which led to a complete destruction of the killing fields of the crematoria. He was involved and survived the pnt and escaped and never found How did you, the younger brother survive. you were not sent to Treblinka and you survive really because one day you came home a few minutes late. I often said to myself looking back at my life that except for terrible childhood, the most terribble imaginable. I had a lot of luck in life.ly apparently good God decided that he does not wish to have my company as yet On that particular day, what was your piece of luck? Let me tell you first that The Germans proceeded with the Holocaust in a very, very systematic way. First they created large ghettos, then people Jews from surrounding communities, towns, villages were forced to go to that ghetto. Then eventually the big ghettos were liquidated by people being sent to one of the killing camps Auschwitz, Rreblinka, Mank, Soobior. We were first in a big ghetto and eventually we were moved most of my family was sent through Tbling and liiquidator. I was say liiquidated is a is again one of those words that is often used with the Holocaust. Your mother was murdered, your grandmother was murdered Lge parts of your family. Both my maternal and paternal grandparents My brother, my mother For the crime of being Jews. For the crime of being Jews. what happened to us in this small ghetto was sort of general interest in the sense that we were given a sort of a living place which was very primitive, no electricity, no water, no nothing. And Jewish resistance, one the evening came home they were armed And they certainly terribly sorry to impose on you, but you are going to dig tunnels under the barbed wires try and smuggle arms from Polish resistance when we can get it and eventually try to escape when the inevitable day comes. And I got a small job in the commommunity Council W typically u tillil five o'clock or whatever And I would try to come home on time So that my mother and my father who lived with us, he was on a labor assignment out of town would not worry. And one day I came I was about fifteen twenty minutes late. I did't know what was happening there. And as I approach I sa that the outer house house is an understatement to describe the habitats that we had at that time. We' surrounded by German pilot roopers And of course you could not approach. And if you had, if you had approach if you joined they would put loaded on trucks and sent to quars outside of It's a sit and machine guns I would have been one of them? As you describeed this and you've obviously described it many times You're familiar with the story, even though I've often heard stories of Holocaore survivors I'm shocked to my core hearing that description. Do you remember your feelings at the time Was it fear terror Dbelief pererhaps all of the above and also Gability In the Wars of Times to find refuge in daydreaming I found daydreaming is that time a real sort of lifeesver bringing me back to was a normality. What did you dream about? I was dreaming of going to school. I was dreaming of biking in a park. I was dreaming of kayaking. I was dreaming of those wonderful things from which I benefited. as a child all of which suddenly hvered one day disappeared I was horrified by the loss of autonomy. I was horrified by not going to school for five years. because Although you did escape being sent to the Nazi death camp, you were sent to a labor camp. with your father and we werere liberated. Both of you by the Soviet troops. C Which then took you to what was then Palestine and would become a couple of years later. C it Israel Jewish state of Israel. Do you remember your feelings as you arrived in Palestine? Was it a place of hope? Did you see it as really a place of salvation? Yes, but translated into smaller factors which are so critical in one's life. The one thing which I found during the war and immediately after the war really so terribly horrifying is not going to school for five years notot seeing a book over five years being constantly in company of adults not seeing anybody more or less my age and the reaction I developed which I think was in a way. logical and natural was to develop an incredible hunger for education. for books, for being with people my age who looking twice bigigger and taller than I was at the time. Yeah so you must have had that huger because now looking at your incredibly distinguished academic career, did you Conscious. idea in your mind that the law in some sense was the answer to the horrors that you'd live through that in Some sense rules order a legal framework. might stop the horrors happening again perhaps not entirely stopped but at least cause them to become less frequent and not as terrifying and as successful in themselves as they were. Bearing in mind the fact that Hitlareary managed. to destroy not only to kill millions of Jews, but also to destroy a whole tradition, a whole culture called set set upp of communities. So let's turn now to this Extraordinary. moment towards the latter part of your life, would I could describe as your late middle age now that you're ninety six which is this decision that you take. Hving been involved in international criminal justice for much of your life haaving been president of the war crimes tribunals for the UN dealing with both Rwanda and Yugoslavia The decision you took to be involved in a decision about whether to prosecute the Israeli Prime Minister. Benjamin Netanyaho. You had up until that moment said I don't want to be involved in decisions about Israel. Why did that change? Well, in a way, dececisions is Sious and perhaps historically As important, I took al many years earlier in sixty seven s, when I was asked by the Israel Cabinet give an opinion to the Israeli Gvernment as to whether civilian settlements on the West Bank and on the other territories stay occupied. in the June warar by Israel with the R government could establish her civilian settlements Just to explain the history to people who don't know that. back in nineteen sixty seven when Israel came under attack, managed. to see off that attack incredibly quickly in those six days and then occupied the territory which Israel still occupies now and which is so deeply controversial because of the development of Israeli settlements on what is seen internationally and within law. as occupied Palestinian land You're telling us that way back then You said Those settlements shouldn't exist. They're not legal. I said that Geneva Convention number four which is the Geneva convention dealing with patient and protection of civilian populations provisions. which would prohibit entirely and in a not ambivalent way, establishment of civilian outposts villages, communities on the west bank I also said that establishing military bases and their territory was lawful because It was a war and countries may establish military outbursts. How was that judgment received then? The government was not enthused. Not enthused. Not entused. That's another of your understatements. I bet you they were furious were they I suppose they were too polite to do it in a very explicit way. but there were a few weeks where the Cabinet hesitated as how to handle the opinion. they intended to ignore it They of course intended to ignore it from the beginning, but the question was How are we going to represent the decision to ignore that opinion to the world And they said, well, we were in the beginning call settlements that we established and it was a total fiction. as military bases But this They would disguise them in effect. Disguis and that fiction didn't even survive for a long time every few months the goovernment and let me to make it clear at this time It was not a liquid government It was a labour government Leteds by a label need a levia skull. They decided to ignore it And you know what's really makes me very unhappy about it looking back is that I say to myself It's the government accepted my opinion and not only accepted it formally in formal terms but really carried it out probably who have been living in a different Middle East in a different world in a world which may be We would have had peace between the Abs and the Jews between the Israelis and the Palestinians. When you look at what's happening on the West Bank now, in which it's clear that settlers are attacking Palestinians in their villages in order to drive them out of that land to occupy more and more of the land to make it argued often The two state solution impossible to implement, even if it can ever be agreed. What do you think of what's happening now? It really breaks my heart I told you in a different context Recently I started writing poetry and one of the poems which I have recently written, which was published I call it the Poggroms. Speaking of the memor of terrible pograms against Jews in easastern Europe and saying horrible it is. the Jews who for centuries were subjected to pogrims, to rapes, burning of properties to plunder of properties Yet some of them, not all of them, I'm sure, but many of the religious fanatic settlers on the West Bank. resort to phenomenon to action, which I am forced as a lawyer to regard as pogrs And you know as breaks my heart. You know as you used that word, as you wrote that word in your poetry. That is a knife to the heart of many Israeli Jews because you're using words to describe the horrors that they suffered and saying that they are now doing it to other people. I think that the legal advisers of governments, I think the judges in international criminal courts have a very high ethical obligation, professional obligation, obligation of integrity to call the ss It's the way things are. Let's turn now from you being a lawyer in Israel giving this rather difficult advice to the then Israeliis In sixty seven, back in sixty seven, two years later. And you've had a lifetime's involvement by then in the development of international criminal justice. You've been the president of the tribunals dealing with Rwanda and dealing with Youve sp five decades working with the International Committee of the Red Cross, with which I'm still very much involved. Now throughout that time, you had taken a decision not to get involved in cases that might involve Israeli or old homeland What made you decide that you would when it came to the fallout of the Gaza War. Let me explain that I joined the International Criminal Court in a way about two years before the Gaza W and the Nithhanian war. I was approached by the Chief prosecutor, Karim Khan, and I said to myself it would be a hypocritical. if I having spent nearly twenty years. in leading international criminal courts when they pertain when we were involved in cases on Rwanda all on the breakup of the Balkans When it comes to something which touches me I say I stay up I said to myself, I have an obligation to say yes. I told him, I told Karim Khan I wish you would not have phon me. I wish you would not have approached me But I'm afraid that I have no choice now You wish she hadn't called you because you feared the consequences? No, or it placed you morally. It placed me morally in this sort of conflictual situation. I wish I would not be I would not have to deal with issues pertaining to a country. which was very good to me historically, and which I owe a lot But I felt that when it comes to war crimes We really as professionals as lawyers as judges We have a higher obligation to try and get People respect a la and one of the ways to do it is to strengthen the principle of accountability to end, put an end to practice of impunity for war crimes. So he asked me, in fact, takeake the plane. We want you at the Hague on Monday. When you were at the Hagen, when you were meeting with those other barristers You then wrote as a group legal judgment, that there was a case Israel's leaders to anser as well as the call it a judgment of an opinion. An opinion, forgive me a possible prosecution for war crimes. It wasn't your job to find the g. Let me emphasize that our function was very, very narrow. It was limited It was to determine whether according to the evidence which was presented to us by Karim Khan. We would think that deatha evidence would be adequate charges before an international criminal Ct.. So to be clear, you were expressing a legal opinion, you were not judging because that We were not judging decision future c You reached unanimously. Leturn to the reaction to that opinion There was horror in Israel, wasn't there because a country that was still feeling Living really every day, the horror of what Hamas had done on october the seventh, which many of them thought was the worst crime against Jews since the Holocaust was itself being accused on the same day of carrying out war crimes the same day as Hamas leaders were also facing that Did that make you hesitate? No. I think that I would have hesitated Much more H's the arrest warrant. not included on the very same day, charges against the Hamas leaders. I think that the talk, which I resented then and I do resent now is accusing Karim Khan of moral equivalence because at the same time he went against both parties There is no question in my mind That's what happened on the seventh of October was one of the most cruel inhan events that I have witnessed in my lifetime Here we are and if we are going to have justice It must be Following principles of the rule of law The same justice for everybody, for both parties Let's go to the evidence that was presented to you On the one hand, the evidence is that Israel attacks civilian targets They say, Now, hold on, Hamas hide behind civiling targets Another part of your opinion was to do with the restriction of food supplies. Israel says vast amounts of food have been supplied to the people in Gaza. And their overall defense is, we' at war with a group, a terrorist group, as they put it, that had carried out the worst atrocities on Jews since the Holocaust What were we meant to do? Well, it's a responsibility of Hamas for using civilians. As Schel is covers for military and combat activities was well established There's no question that the fact that Hamas combatants were embedded in every school, in every hospital, in every civilian building made the situation extremely difficult But again, you had to put it into the different components, smaller components. There is no question whatsoever that the evidence which was presented to us on the main charge which was presented pushed against brest against against Netananyah and his covenant Defence Minister Mrter Galand was the question of stvation. There is no question. that there was a deliberate policy of the Israeli government A that time to liit terribly sue provision of suppli and food and medicine to the Gaza strip. And the defense that Israel has which is that those supplies were being stolen by Hamas, that they were being sold for huge profits byra. It may very well be that some of them were in fact hijacked plndered by Hamas But still, there's no question looking at the picture as a whole. The population was suffering from starvation and this was one of the items on which we approved of the charges. Do you believe that that case will ever come to court Or is it now likely that given that Israel's not a signatory of the treaty that set up the international criminal Couruse, that the United States rejects it, incidentally, Russia rejects it as well, that nothing will happen? I would not be willing at this point in time to reach this negative conclusion. things happen, governments change, attitudes change People can find themselves at the Hague without willing to go to the Hague This was our experience in the Balkan Wars. This was the experience of the International Criminal Court recently when they got custodody of the expxression ofive Pilibs. So are you saying that it is possible that one day, it may be some years ag away Benjamin Netanyu who will end up in the Hague facing prosecution for war crimes. One of the things that I did not inherit from my great ancestor is to be a prophet So I will hesitate to answer very clearly but please do remember But lots of countries, most of the European countries, for example which you need to overfly when you go elsewhere have accepted. parties to the court. So they would have an obligation to arrest him. And imagine that because of a storm or otherwise. plane carrying, Mr. Galant or Mr. Netanyah would land somewhere in a country which is accepted, which is abouted that this country I cannot now predict what decision politically they would make whether they in fact deliver Our rest, Mr Netanyahu Mr Galandin delivered him up to the Hague, but this is not impossible. I want to end our fascinating conversation by talking about whether this Rules based order this legal framework which was designed to deal with some of the horrors that you witness as a child is now completely under threat. Mark Carney, the Canadian Prime Minister, talked to Davos, didn't he A the old order is not coming back. Perhaps a little bit too apocalyptic. Yeah, too apocalypptic Why? what makes you an optimist then? Well, first of all, let me tell you Being at least in part, an optimist is part of a job description of international criminal justice. You cannot deal with those things, de with those horrors that you see before the eyes and lead to and reach judgments which are based not on any prejudice But on law and evidence we sub being a little bit optimistic. If you look at the past in which international justice has developed international criminal law has developed You see that there is not a simple linear and upward way. at international law develops in ups and downs And some ofimes It's the worldsts atrocities reach to greater reform of the law. and improvement. Do think there's a connection, Ted Merron. between your optimism now as a ninety six year old human rights lawyer. and the daydreamer of that nine year old. You dealt with the horrors of the Holocaust. I' dreaming about canoing. I'd never thought about this aspect, but I think you could do a point sir We need we need some daydreaming We time for the despair I don't believe it has come I think that should we move into the a mode of despair, we will not improve the world. We should try to improve it and do it from now on. And I very much like to hope that eventually before long