poplar tree. >> the historical legacy of singer billie holidays song strange fruit, or lament about the lynchings of african-americans. here discussion about the song which includes the composers song. at 7 p.m. eastern on american history tv series congress investigates, congressional investigations that led to changes in policy and law. we will feature the 1975 senate committee led by the idaho democratic senator frank church which examined alleged abuses within the u.s. intelligence community. at 9:30 p.m. on the presidency, david from on president woodrow wilson's legacy including his efforts to persuade the u.s. to join the league of nations and the segregated federal government of his time. exploring the american story, watch american history tv saturdays on c-span2 and find a full schedule on your program guide or watch online anyme at

c-span.org/history. host: joining us this morning from nashville is michael newton at vanderbilt university, the director of international legal studies program there is also a former senior advisor to the investor at large for war crimes issued in the state department from 1999-2002. you been an expert witness what is the icc? kiss the international criminal court in the hague. it's a permanent court with permanent prosecutors and registry and defense counsel with broad jurisdiction with war crimes against humanity. the key thing for viewers to know is it's a treaty based courts on the -- it's a very

complicated interconnected treaty that is reviewed periodically. that's the notion in the hague. when people say the world court, they typically talk about the international court of justice which is between states on the civil side but this is the criminal court. host: why does it matter by treaty? guest: it matters a lot because there is certain ascribed jurisdictions. the ideas when i join the treaty, i'm giving out pieces of my some -- some giving appeases my sovereignty. when people ratify their own statute, it's called the rome statute of the international criminal court, that is jurisdiction over crimes committed on their territory or crimes committed by their nationals and that's important because the court does not have power to hear cases unless they can point to specific jurisdictions and specific authorities. it's worth noting the way to bypass that is through the un security council with a binding chapter seven resolution which

is what we've seen in sudan and other places. host: when you bypass the icc, what does it mean? guest: it means you are bypassing state consent. everything in the icc jurisdictionally and the cooperative mechanisms are all based on state consent. they are all based on i have an interest in standing for these common principles and i share them and support them and i want to participate in the system. when you go through the security council, it harkens back to what we did in the 1990's in yugoslavia and rwanda where it's not based on state consent. it's based on the authority of the security council under the united nations charter which is a whole different game. host: the jurisdiction of the international criminal court includes genocide, crimes against humanity, war crimes and crimes of aggression. let's talk about genocide. what is the jurisdiction here, what does it include? guest: the same as all the rest,

the genocide provisions are almost unique in the statute in the sense that is the one part of the statute we have jurisdiction and you have substantive coverage. genocide provisions in the rome statute are almost verbatim substantively from the 1948 genocide convention there is really nothing dramatically new in them. the one place there is a slight twist in the context of genocide is in the elements of crimes we negotiated, there has to be a manifest pattern of genocide. the big idea of the icc is that it's a complementary part of the international system. it is designed to be the pinnacle and work in conjunction and cooperation with all the other courts of the world whether they are regional or domestic or any number of other ways. the idea in genocide law which is where the manifest pattern language comes is it has to be

big, something the icc should appropriately deal with as opposed to many of the other courts of the world that would have jurisdiction on the other provisions of international law. that's what was added of the substantive coverage of genocide is almost identical to the genocide convention which i can explain if you think people would be interested. host: guest: guest: please do. 1948 genocide convention was revolutionary in its own way. it regulated for the first time in international law the treatment of a government, a sovereign entity vis-à-vis its own people and conveyed equal rights to the citizens of other things. the essence of genocide law is split into two pieces -- the thing you have to do, people typically think of murder. that's a form of genocide. there is a much longer list. depriving persons of the conditions of life necessary to live. not actually murder them but i -- but deprive them of

everything they need to survive, that could be genocide. the greatest mass patterns of atrocities can be genocide. the key is that the act, the things you have to do. the real key is what we call in the business the special genocidal intent. that has to be proven beyond a reasonable doubt and what you had to prove is that you intentionally did what you did with the intention of destroying that group in whole or in part on the basis of the defining characteristics from the convention, racial, ethnic, national or religious. the keywords you see is as such. it's not enough to have a pattern of activity. that is felt by a particular portion of the population. those are criminal acts but it's not genocide. i have to prove beyond a reasonable doubt that you did these things that are prohibited

substantively with the specific intent of eliminating that group on the basis of that characteristic in whole or in part and i did those things targeting that group as such is the way to treaty says it. host: does it have to be during a time of war? guest: one of the beauties of genocide which is similar to crimes against humanity is no, it's not connected to armed conflict. it can be time -- in times of peace or on conflict as opposed to the war crimes provision each of which has a circumstantial element. you can only commit war crimes during a war. whether it's international or non-international. genocide and crimes against humanity, there is substantive jurisdiction at any time and any place. you have to meet those element beyond a reasonable doubt. host: war crimes from the geneva convention of 1949, willful killing or inhumane killing

including biological experiments, willfully causing great suffering or serious injury to body or health, extensive destruction and appropriation of prort not justified by military necessity or carried outnlfully and wantonly, unlawful deportation or transfer unlawful taking taking up hostages. why these provisions? guest: that's just a subset. i want to be clear with people. in this concept, they should look at the first article of the rome statute. paragraph a takes it out of the 1949 conventions of most of the things you just mentioned constitute great breaches, treaty crimes if you will under the geneva convention. then they simply incorporate them into the structure of the international criminal court.

that's fairly easy but in doing that, you expand the punitive authority of that treaty of the international criminal court based on the pre-existing treaty arrangement. that's a beautiful thing. for our purposes, a2b goes on to list other series of crimes so three of the crimes you mentioned don't come froma@a but a@b. you're picking up a whole variety of other crimes that aren't specifically criminalized with specific criminal prohibitions but are found in the body of law, the law of war. that's all the crimes that are committed during an international armed conflict. articlec,d and e deal with intrastate wars, insurgencies, terrorist acts, etc. that's the division and that's why the rome statute is

wonderful. in my view and i helped negotiate them, is the most comprehensive listing of war crimes anywhere in the world. it serves a really important function for consolidating and clarifying and explaining exactly what's criminal and in those elements of crime, giving great detail in terms of what prosecutor must prove beyond a verse -- a reasonable doubt to get a conviction for that particular thing. it's really host: host: important. blessed are viewers, illinois, question or comments? caller: two questions. what would have happened to america and world war ii with the atomic bombings and why didn't your organization come down hard on north vietnam during the vietnamese war?

number three, look at africa. why aren't you guys over there? why are you trying to pick on one of our best allies? thank you very much. guest: i'm not sure i take the first person come on just a law professor who works in this field and litigates trials. we'll start with the third one. one of the criticisms of the court which just came into existence in 2002 is that many of the early cases did focus on africa. this has been a hot button issue. as time has gone on, we are into the second decade of the court's existence. many of those cases if not all of those cases imploded. cork has essentially used africa as a testing ground to develop the theories of criminality and the theories of individuals etc.

one thing you need to understand is the international criminal court has no jurisdiction whatsoever for crimes committed before its entry into force. in other words, may 1, two thousand two. anything before that, you have to look at other mechanisms. with respect to the atomic weapons issue, the court looked at that in detail in an advisory case and codify the law slightly to say it's not simple. it's situation specific context the way you begin to apply international law. that's why the details in the rome statute are very important. it gives you the structure in great detail of what you look at and what you have to prove and what defense arguments are available etc. in north korea, it's a nice question because it illustrates one of the key important factors about the court. at least half the worlds population, more than half is

not subject to international criminal court just -- authority which includes north korea, syria and others. as i said,because as i said it t based. the north koreans will not consent to the jurisdiction of the court. so, you have to find other ways. this is why it is important to remember that the international criminal court is designed to be part of an interconnected system. it does not stand alone and it has to work in cooperation in conjunction with other courts around the world, domestic, international and regional. host: that the itc is picking on one of the u.s. allies in israel. guest: with respect to the recent press reports. the nature of the beast is they do not do anything that is easy or not controversial. everything that they have ever done has been controversial in one way or another. and i stand by that.

even cases that imploded in the end, they are always having to pick sides. they say we follow the evidence and do what prosecutors do. we are independent, which is correct technically. everything they do has political overtones. i also believe from my experience that there is an awful lot of inaccurate press reporting. i do believe that they do warrants of arrest instead of indictments when we see them and then we will evaluate on merits. on the flipside they have done venezuela and looked at a whole series of other cases where you could make the exact argument. somebody would say just a perception, the court is just attacking opponents of america. that is also not true. they are independent and impartial. they just try to do the best they can. they also have an incredibly difficult challenge in actually

getting admissible trial evidence. it is a difficult challenge for them, which is why so many cases from africa have ended up collapsing, really for lack of evidence. if i am in that office and i want to issue warrants of arrest for israeli's or anyone else, the real challenge will be the sufficiency of evidence because they know that they will be attacked for being a political arm. and they would say no, we are about law, procedure and regularity. it all comes down to the evidence. there is one more thing i want people to understand, particularly larry. in the icc context they have situations. very different than the way we think of a crime. we think of if i charge this person and develop a case against that person, larry. that is not how they work. they take a situation and, by

definition has jurisdiction over both sides of the conflict. so, i fully expect that if they do proceed with cases in the context of the current situation , i do not see how in the world they could avoid charging particular hamas leaders or other palestinian leaders or other members, they will have to be some balance and you will argue that his politics and perception. again, they say we will follow the evidence where the evidence goes because we are prosecutors and that's what we do, we try people where we have evidence beyond a reasonable doubt. host: the headline that larry was referring to, israeli officials believe international court is preparing arrest warrants over war. how would they know? guest: well, good question. the court like any other institution might have leaks and the israelis do know that there

has been a long-standing investigation. i have honestly say almost anytime i am in the hague in the international criminal court for business i have seen a palestinian delegation and the coffee shop. they've been working the court hard for many years now, five or six years at least. so there has been a long-standing set of investigations. they begin to bump up against the reality which is why what i am saying is so important of what you charge and who you charge, what particular crimes and how you prove them. those will be incredibly difficult cases. most of the icc cases that have imploded or just disintegrated is probably a more politically correct word have been based on insufficient evidence because prosecutors or somebody in the office of the prosecutor began to rely on press reports and unreliable third-party accounts. they began to rely on in some

cases evidence provided by private organizations and nongovernmental groups. that is fine but it does not prove the crimes. they have to be careful with how they construct a case. it is difficult. these are difficult cases no matter what if they are warrant of arrest issued. host: we are talking about the international criminal court and war crimes with martin -- with michael newton. martin in louisville, kentucky. you are next. caller: i want to make comments and then i will hang up. the reason i called and that on wikipedia he is an expert on terrorism and domestic terrorism. i am not happy that domestic terrorism is not given the same priority as international terrorism it is. it is obvious that the biggest threat to america is not the taliban, isis or al qaeda but right here at home. there is a group of people who are making it clear that they intend to take over the country by force if they have to.

the original campaign slogan of the tea party was go home and get your guns you're taking back the country. when todd young ran for congress and rand paul ran, they showed revolutionary war soldiers walking off in these more interactive -- war reenactments. host: we got it, you are concerned about domestic terrorism. we are focusing on the international criminal court. he referenced your bio. talk about the testimony that you have given on terrorism related cases. where they at the hague. guest: slow down. with permission can i answer his question. caller: absent -- host: absolutely. guest: it raises a portion of the international criminal court that i want people to understand. i use the word complementary.

the way we say it in the court is complementary. complimenary means that i would complement my friend. the international criminal court is designed from the ground up to work in conjunction with domestic systems. it can only get involved when the domestic system in the language of article 17, look at the treaty, is unwilling or unable genuinely. so if and when domestic terrorism is a problem is up to us to deal with it in accordance with our legal system. that is our right and duty as a sovereign country. the same is true of every other country in the world. the international criminal court will have to prove if they do warrants of arrest against the israelis or any other country that the domestic system is inadequate and insufficient -- not dysfunctional.

with respect to this israelis, the system works and they do prosecute people and conduct investigations. in the language of article 17 its meaning does not just necessarily -- it is not limited just to prosecution. good faith investigations, when i investigate martin and i decide i cannot prove that beyond a reasonable doubt. absolutely satisfies that standard. the idea is very simple, but incredibly difficult in practice. the court, the international criminal court is the court of last resort. it is not the court of first resort in the place we automatically turn to. it has to work only when any other structures are incapable, inadequate and insufficient in practice. host: drill down on the warrants of arrest. how will the officials go about getting these warrants.

what is the process like? guest: the international criminal court is very complex. they have something that is almost unique in the world and in some ways it is unique. they have a pretrial chamber. and they have to go to the pretrial chamber, a group of judges, present the case. that means that even if at the warrant of arrest phase they have evidence, real evidence. more importantly, real charges so they have to go down this genocide charge among the group. this crime against humanity along that long list. this set of war crimes. and then they have to give judges almost a prima fascia case. not only can they prove the crime, but the individual connection of that person to that crime. they did it and they ordered it and they facilitated it. they aided and abetted.

they were part of international criminal court language, complacent relationship -- complicit relationship. we call that the law of individual responsibility. the ideas not -- the idea is not state policy but about individual activities and crimes committed by individuals. crimes are committed by individuals not abstract entities. that is a challenge always. it is so easy to argue that i am just going after the african state as a matter of politics. it is an individual criminal court designed to build a case. that is the role of the pretrial chamber to serve as a speedbump. the other thing that gets litigated at that phase, as i said are the admissibility challenges and complementary challenges. you cannot prosecute martin

because the courts in that state are already functioning and are handling his case, etc.. host: lucy in new york. caller: i will be quick. i do not know how they could not find netanyahu guilty, he is keeping children from getting food and water. starvation is a horrible way to die. he also went to a scripture from the bible and i do not remember the exact words that says that he can kill these people. the other thing is if they indict and putin, netanyahu is doing the same thing, killing people and taking their lien. this is a kangaroo court if they do not indict him. guest: i know plenty of people who will say the opposite that if they do indict him it is a kangaroo court. the technical term is warrant of arrest. the challenge in any of these cases will be the interconnected bodies of law. when you talk to israeli officials and look at the press

statements from israel they will say here all of the things that we are doing that facilitate humanitarian aid in the middle of an armed conflict and by the way an armed conflict we did not start. they would argue we have an absolute right of sovereign self-defense and that is what we are doing. we are not responsible for the use of human shields all over gaza. you know, we want civilians to be fed and sheltered and watered. i just saw the report yesterday that they have opened out of northern israel a water pipeline that will give five liters of water per day per person in gaza. they would point to lots of things where they are not intentionally starving and in many cases point two introductions of -- interdiction of relief. there is a newly added crime of intentionally using starvation

as a method of warfare. that is one of those wonderful things about the evolution of the international criminal court is that it is adaptive and responsive. let us say they charge the crime intentionally using starvation as a method of war, it will be the first time in history that we have had that charge. but remember in the elements of crimes there will be a detailed list of things that have to be proven. it is intentional that they are specifically targeting palestinians and depriving them of a. on the flipside you might well see warrants of arrest on that exact same crime issued against hamas operatives. who are stealing humanitarian aid and assaulting trucks. right, to the extent that they want to create conditions where the civilian population suffers. i do not know what they will do. it will come down to the actual

evidence, not press reports or public reporting. detailed, specific incidences based on a linkage, we call it linkage evidence, the particular criminal actors. this is why these are tough cases. host: how long do the trials last and when there has been a conviction, what has happened? guest: most people would say too long. they are incredibly long and complicated. i worked on the bemba trial. 10 years from the start of his trial before he was fully acquitted on appeal. 10 years lost. with no release and etc.. so, they take a long time, maybe five to six to eight years and by the time you litigate all of the pretrial issues. international criminal court, unlike other cases you have three hearings. you have the pretrial chamber, and that issues a warrant of

arrest. then what happens is when that person comes into custody whether it is putin or any other official, they do a confirmation of charges hearing. that is a full litigated almost like a mini trial and pretrial where the court tests the evidence of the pretrial phase. at that phase the defense has a chance to say insufficient evidence that on the flipside, unlike our system, the prosecutor and sometimes the judges of their own authority can change the evidence and change the charges. that is pretrial and then you get to the trial phase which is easy and clear. in that phase there are several discrete issues that come up on appeal so you have to stop the trial while you litigate that issue. and that would be similar to our system. and then the appeals phase. that is why they take so long which is counterintuitive.

remember the whole point of creating an international criminal court was to have a common body with court rooms ready and prosecutors ready on a list and preapproved and funding in place and trust funds to help victims. all of that designed to facilitate expeditious resolution of these cases. in practice what we have seen is the opposite. and i want to be clear, to me that is one of the greatest defects of the court. i was in northern iraq after isis went in and every victim i spoke with wanted cases to go to the international criminal court because i was told i could get money and damages and i can get help from the international criminal court. yes there is a trust fund for victims but it will not be as much money as you need or want and it will come six or eight years down the line. that is one of the structural achilles' heels, the

expectations gap because trial takes a long and it is a recurring problem. host: if there are convictions? guest: i am not sure of the question, people go to jail? host: what happens? guest: people go to jail. remember, it is a court. but, it is a court with a structural system that cannot work without the cooperation of individual states. in that way it is like every other tribunal. the easy example, charles taylor is in trial today. i worked on the trial. he got convicted by the special court for sierra leone. and then the british government agreed to hold him under british parole rules and british rules. that is what happens. some country