Front Burner - Israel faces genocide case at UN’s top court

Episode Date: January 15, 2024

In hearings at the International Court of Justice last week, South Africa accused Israel of genocide in Gaza. A potential final ruling at the court could take years, but within weeks, judges could order Israel to stop its military operations So what's behind South Africa’s argument? Why is Israel saying the case should be dismissed? And in a court without a mechanism to enforce orders, why would a ruling really matter? Canadian academic William Schabas, a professor of international law at Middlesex University recognized with the Order of Canada as a foremost authority on genocide, explains. For transcripts of Front Burner, please visit: https://www.cbc.ca/radio/frontburner/transcripts Transcripts of each episode will be made available by the next workday.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Damon Fairless. They are killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches, and as they try to find food and water for their families. On Thursday, lawyers for South Africa began laying out one of the most serious accusations

in international law. Israel, they argued, is committing genocide in Gaza. The devastation we submit is intended to and has laid waste to Gaza beyond any acceptable legal, let alone humane, justification. South Africa filed this case with the International Court of Justice in late December. The first hearings in The Hague were held on Thursday and Friday last week, and the court wasn't yet asked to decide whether Israel was committing genocide. last week, and the court wasn't yet asked to decide whether Israel was committing genocide. Instead, South Africa tried convincing judges to order Israel to stop the attacks while the case unfolds. In response, Israel's defense argued the case must be dismissed. South Africa purports to come to this court in the lofty position of a guardian of the interest of humanity. But in delegitimizing Israel's 75-year

existence, that broad commitment to humanity rang hollow. A potential ruling on genocide would be a long process. Still, world leaders are already waiting in, including on Friday, Prime Minister Justin Trudeau, who said Canada doesn't support the premise of South Africa's case. So what's the argument South Africa's put forward? How is Israel responding? And in a court with no direct way to enforce decisions, what could a possible ruling of genocide actually change? Today I'm speaking with a Canadian academic who knows the intricacies of this law, and who's been recognized with the Order of Canada as one of the foremost international authorities on genocide. William Chavis has been

a defense lawyer for a genocide case at this court, and he's currently a professor of international law at Middlesex University. Hi, William. Thanks so much for coming on FrontBurner. Yes, I'm happy to be here. So I think when people think of international law, the first thing that comes to mind is the ICC, the International Criminal Court. But we're talking about a different court today, the ICJ. So I was hoping we'd start with you setting that up for me. What is the ICJ and what kind of cases does it handle?

Yeah, the ICJ stands for International Court of Justice. It's actually much older than the International Criminal Court. The International Court of Justice was created or its predecessor under the League of Nations was created just after the First World War. And it's a court of states, basically, or rather four states. So it's a part of the United Nations system, but it's fully independent. It's called the Supreme Judicial Organ of the United Nations. The court is made up of 15 elected judges based on a regional distribution. And then when there's a contentious case between two states, if one of them doesn't have a judge on their nationality, they get to appoint a judge. So in the current proceedings brings the number up to 17. So the term that's at the center of this case, genocide, is arguably the most serious allegation in international law. So let's define it. In this

specific context of the ICJ, what constitutes genocide? The definition of genocide comes from a convention adopted by the United Nations General Assembly in 1948. Other international crimes, like crimes against humanity and war crimes, are constantly mutating as they add new categories and generally expand the scope of them. But genocide has stayed sort of untouched. And so the narrowness of the definition, of course, reflects the conservatism of the times when it was adopted. What it calls for is it identifies as a crime the destruction in whole or in part of a national, ethnic, racial, or religious group.

That's been interpreted by courts to mean the physical destruction. So we're talking about physical destruction or extermination of a limited category of groups that are defined by these four terms, national, ethnic, racial, or religious. So I was a little perplexed at first, and I think a lot of people were surprised that this case was filed by a country that is nowhere close to either Israel or Gaza. South Africa is obviously thousands of kilometers away. Why do you think it is that South Africa has decided to take up Gaza's cause? Well, theoretically, of course, it's been possible for many, many years for states to act as kind of international altruists and take a case in which

they have no particular role, where they're not victims, they're not injured, as we say, particular role where they're not victims, they're not injured, as we say, and they just can take a case on behalf of the global community. But it's never really been done until very recently, really the last decade or so. Canada has been doing it. Canada filed a case against Syria, charging that Syria was committing torture. The circumstances that have brought Canada and the Netherlands before the court, namely the torture and other cruel, inhuman or degrading treatment or punishment of tens of thousands of persons in Syria, are nothing short of tragic. Gambia did it with Myanmar taking a case before the International Court of Justice. The court heard allegations of atrocity after atrocity. Myanmar's military is accused of mass

murder, rape, and the destruction of Rohingya Muslim communities. So why are they doing it? Well, you know, it's why do they go and fight for human rights in the United Nations? There's no doubt a political dimension to it, to the decision, because it's governments which are inherently and profoundly political animals. One would like to think that South Africa also is that there's a nobility about doing this and that South Africa, as the regime that emerged from apartheid. They've been fond of quoting Nelson Mandela saying that until Palestine is free, we will not be free. So there's no doubt a connection there. Okay, so then South Africa filed this case against Israel at the ICJ in late December.

Last week, we heard the first hearings at The Hague in the Netherlands. As I understand, this is really a preliminary stage of the proceedings. So can you help me understand the main points of South Africa's arguments that Israel's committing genocide? Yeah. So this is, as you say, a preliminary skirmish, really. The big fighting will go on two, three, four years from now. There are a couple of stages that a case that the International Court of Justice goes through. The preliminary stage that we're at is for a kind of injunction. We don't use the term in international law, but it's like an injunction in the domestic courts that you might try to obtain to freeze a situation. Courts do this in Canada in domestic proceedings under certain circumstances. So the International Court of

Justice has a practice of issuing orders for what are called provisional measures. They require the country that's suing, the applicant country, to demonstrate that their case is plausible, that they have a plausible claim before the court. My humble assessment of all of this is that South Africa more than made out a plausible case, and they're going to be entitled to get an order from the court, which will probably be issued within two or three weeks. And really the heart of this is going to be what the content of that order is. South Africa has a list of requests going from, you know, the most demanding is that Israel be ordered to stop its military activity in Gaza. And this seems huge and enormous, although it's not very different from the order that the court gave two years ago to Russia in the case of Ukraine. And I think there's a certain logic to it as well.

I think that Israel's demonstrated that it's incapable of applying international law in terms of distinguishing between civilians and protecting civilians in an armed conflict and focusing exclusively on combatants as it's supposed to do under international law. So I understand what South Africa is looking for in terms of this injunction, as you put it. But can you help me understand the specifics about why it claims Israel is committing genocide? Yeah. So South Africa has gone through the argument for a plausible case by pointing, first of all, to a whole range of acts that have been carried out by the Israel Defense Forces, The percentage of victims are non-combatant civilians, including a huge number of children, the destruction of civilian property throughout the Gaza Strip, and the kind of the siege of the Gaza Strip so that necessities of life, food, medicine, potable water, power, and so on, are not allowed in. potable water, power, and so on, are not allowed in.

Daily, aid trucks creep through Israeli security, able to deliver only 10% of what humanitarian groups say Gaza needs. As the conflict enters its fourth month, only minimal aid is entering the besieged enclave, and the UN has warned that many civilians are at risk of famine. And all of this, of course, they say, is threatening the survival of the people of Gaza. And they've had to marry that or couple that to arguments that this isn't the intent of Israel. It's not to defeat Hamas, but rather to destroy the civilian population of Gaza. Hamas, but rather to destroy the civilian population of Gaza. They've placed reliance on a range of quite outrageous statements that have been made by Israeli officials and public personalities at different levels. These have been well publicized, and I noted that in the

hearing on Friday, the lawyers for Israel took some pains to try and distance themselves from many of these comments. The court was told that Israeli government ministers had indulged in emotional rhetoric, not incitement to genocide. The shock, anxiety and deep pain that have affected Israeli society since October 7th naturally leads to harsh statements regarding the enemy that is committed to, indeed driven by, destruction of Jews and Israelis. Maybe just so people listening can have a sense of the specifics of the statements we're talking about. I mean, Defense Minister Yoav Gallant and I think even President Isaac Herzog have come out with, as you mentioned, statements that have been well publicized. Can you give me an example of those?

Well, they've said that Gaza will be destroyed, that there are no innocent civilians in Gaza, which means that everybody, essentially the entire population, is a military objective and can be targeted. Statements like that, which really go way beyond what is lawful, but more than that point to a genocidal intent. They gave examples, including this one. Israeli Defense Minister Yoav Galant early on in the war. There will be no electricity, no food, no water, no fuel, he's saying. We are fighting human animals. Israel's president.

It's an entire nation out there that's responsible. It's hardline minister for national security. They're all terrorists and they should also be destroyed. And the deputy speaker of parliament. We all have one common goal. Erasing the Gaza Strip from the face of the earth. This is the argument, and they've set it out because to win the case and to demonstrate that genocide is being committed, you have to demonstrate not only that the acts are being carried out, the acts of destruction, killing and so on.

There's a list of them in the Genocide Convention, but at the core of it is killing and causing serious bodily or mental harm to the victims and imposing conditions of life that are calculated to destroy them. But as is often the case, generally, I'd say in most cases of genocide, you don't have an explicit acknowledgement by the perpetrator that they're doing it to destroy the group. And instead, they explain that they're doing this because it's a military necessity. They're doing it to win a war. They're doing it because the people they're attacking are subversive or rebellious or something like this. So you need to be able to understand the intent and to demonstrate the intent as an inference from the conduct. To the extent you can add to that statements that suggest that intent, it's going to strengthen

the case and that's why they're doing that. I'm going to go. Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income? That's not a typo. 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples.

So William, on Thursday we had South Africa presenting its case. Then on the second day of these hearings, on Friday, Israel's defense appeared at The Hague as well to argue that the case has to be dismissed. So you mentioned how they tried to frame Israeli official statements, but how did Israel's lawyers respond to South Africa's accusations of genocide? Israel's answer basically focused on the acts of Hamas, which are shocking to see the videos and to hear them talk about it, but they're not really relevant to the issue get even, destroy Hamas for the events in early October of last year. You know, my own assessment was they didn't, to be fair to the lawyers for Israel, it is a hard case because the requirements by the court are not that demanding. In a case like this, it's quite straightforward. South Africa should succeed in getting an order from the court. So there was probably a degree of frustration on their part. This is a hard thing to argue against. But I don't know. I didn't think they did an

extraordinary job. They presented images to the court proving they said that Hamas hides behind Palestinian civilians. Here you can see the IDF's Arabic Twitter account. Saying Israeli evacuation orders were for their own protection. So Israel's defense showed images of the missing Israelis, 132 of most of whom are still believed to be held hostage in Gaza. And Israel's lawyer Talbacher asked the court, and I'm quoting here, is there a reason these people on your screen are unworthy of protection? If there is a concern about the obligations of states under the Genocide Convention, then it is in relation to their responsibilities to act against Hamas's proudly declared agenda of annihilation,

which is not a secret and is not in doubt. Israel's been arguing, really, that Hamas is trying to perpetuate genocide. So legally, I guess what I'm curious about is would these claims of self-defense counteract the accusations that Israel's committing genocide? Well, this is in a way the heart of the debate, and it is, Well, this is in a way the heart of the debate, and it is, you've put your finger on the core of Israel's objection or Israel's resistance to the claim by South Africa is that we're acting in self-defense. There's lots of authority for this saying that actually this is not an answer to a charge of genocide. You cannot commit genocide by saying that you're acting in self-defense. That's very clear. The evidence of acting in self-defense or the claims of, for example, trying to recover the hostages,

to free the hostages and so on, are relevant and germane to Israel's argument as an argument that they don't have a genocidal intent, that they're trying to do something else. If they can demonstrate that to the satisfaction of the judges, to raise an argument that this is a serious claim, then they have a good chance of success on the merits of the case. And it's not straightforward in my view. It's above all not straightforward because it does involve assessing whether Israel is using this argument and this idea that they're out there to try and free the hostages as a pretext for trying to drive the Palestinian people out of Gaza or to destroy them, or whether they're just being particularly heavy-handed and brutal in trying to recover hostages or to protect themselves from attacks like the one on the 7th of October.

And I don't want to sound dismissive of the concerns about the hostages. These are violations of international law and it must be terrible suffering that they're going through and their families are going through. But at this stage of the proceedings in a genocide case, I don't think it's an answer that changes the legal dynamic at all. So we talked about the potential for the court to take on provisional measures and order Israel to stop its operations in Gaza. But does the court have any direct powers to actually make Israel follow those orders? No, not really. The court makes orders and the orders are clearly binding. There's no enforcement mechanism in the sense we have in

a domestic legal system. You can't go and seize Israel's bank account or anything. It would go back in a way to the Security Council of the United Nations, which would have the authority then to act and to, in a way, confirm the provisional measures order. That's, you know, confirm the provisional measures order, that's a political environment where the likelihood is it would be vetoed by maybe the triple veto, as we call it, the French, the British, and the Americans, but almost certainly the Americans. On the other hand, and I think this is very important to understand, that Israel has a lot of friends, including Canada, a good friend of Israel, Israel has a lot of friends, including Canada, good friends of Israel, countries in Western Europe and so on. They are not going to be very comfortable with Israel taking an aggressive and antagonistic

approach to a judgment of the court. The prime minister of Israel, I think yesterday, but again this was for public consumption in his own country, said, No one will stop us. We're going to do what we have to do or something to that effect. And just interject for a second. I mean, it's also worth mentioning that Prime Minister Justin Trudeau said that Canada doesn't support the premise of South Africa's case either.

Canada right now is directly engaged in at least five different cases at the ICJ because we believe in the importance of that as an institution. But our wholehearted support of the IGA and its processes does not mean that we support the premise of the case brought forward by South Africa? Well, I don't think they should do that. I really don't. I know Germany did something like that as well. I think that the Prime Minister of Canada should say, this is for the judges, and we'll

let them decide it. It's a judicial issue. But look, Canada does this. Canada takes positions on genocide. We have resolutions from the Canadian Parliament about genocide in Ukraine, about genocide of the Uyghur in China. So sometimes Canada takes a position about genocide, which is compatible with its political orientation. And in this case, they said it. But the point is, Prime Minister Trudeau didn't call for defiance of the judgment. And I don't think he would ever do that. I think that Canada's position, and I believe that the Minister of Foreign Affairs issued or Global Affairs issued a statement saying that, of course, Canada respects the International Court of Justice. it's going to be very awkward and uncomfortable for Canada. Canada will be torn between its loyalty to Israel, but also its loyalty to the international institutions, like in particular, the International Court of Justice. It's a lot easier for countries to reject even bodies like the Human Rights Council in the United Nations, or the General Assembly of the United Nations as being politicized. But this is the International Court of Justice. This is a court.

So let's talk about the ruling. So given that the ICJ doesn't really have much direct power to enforce its orders, what would the significance of a ruling be in this case? Why would it matter? Well, most countries, most of the time, will respect an order from the International Court of Justice. It's also, of course, and this will depend on what the order is, but it's going to affect the political environment. I'll give you an example. It's not an example of a provisional measures order, but... The International Criminal Court has issued an arrest warrant against Vladimir Putin and another Russian official. Both are at the center of an alleged scheme to forcibly deport thousands of Ukrainian children to Russia.

President Putin in Russia. Now, everybody knows he's presumed innocent, but when he's described now, people speak about him as an indicted war criminal. There's a political emphasis that will result from this, and it will certainly result as well from a provisional measures order by the court. The idea that it could be dismissed, and you mentioned before Israel's arguing that it be dismissed, the court can't dismiss the case at this stage. It could dismiss the application for provisional measures, although I think that that's highly unlikely, but it can't dismiss the case. It will have a chance to do that in about a year and a half to two years. Israel will be in a position to make objections about jurisdiction and so on,

and then the court will have an opportunity to do it, and we'll have to hold our breath and wait and see what happens then. So the International Treaty that lays out genocide as a crime in the way we've been talking about about is known as the Genocide Convention. Dozens of countries that have signed it have agreed, obviously, not to commit genocide, but additionally there's also an agreement to prevent it. So, you know, clearly Israel has not been found guilty of genocide.

But hypothetically, if it were, what would that mean for countries like Canada, the U.S., who are supportive of Israel? The convention, of course, calls, as you say, for both the prevention and the punishment. It's in the title of the convention. But most of the convention is about punishment, actually. It's about criminal trials and obligations on states. But it has this word in there, and it's in the title and it's in the Article 1 of the Convention, about prevention. And until about 15 years ago, if you asked states

what that meant, they said, well, it means we have to prevent genocide if it takes place on our territory. But in 2007, the International Court of Justice issued a judgment in the case between Bosnia and Serbia where they said, it goes beyond that. It means that you are also, you have a duty to do your utmost to, within the realm of the possible, to prevent genocide when it happens in another country. And in that case, they were talking about the influence of Serbia on the Bosnian Serbs. But they made a more general proposition of this. And they said, it's all relative to your influence. So obviously, with regard to Israel, the country with the most influence is the United States. And

so that obligation weighs heavily on the United States today, to the extent, not that even the genocide is taking place, but that there is a serious risk of genocide. I think Canada is not in an equivalent position to the United States in terms of its influence over Israel, but we can't be dismissive either of Canada's influence in Israel. So I think this burden actually weighs on Canada today to use its influence in Israel, to the extent it has some influence, to do what it can do that's lawful to try and prevent genocide within Gaza. Now, if the Canadian government takes the position that, well, we don't think genocide is taking place, and we don't think that there's a serious risk of

genocide, well, then they can live with the consequences. But to the extent one can conclude that there's a risk of genocide, not even that it's been committed, but that there's a risk, then there's a duty to take some kind of action to prevent genocide. All right, William, thank you so much. I really appreciate it. Thank you. Thank you for having me. All right, that's itbc.ca slash podcasts.