Ideas - International laws against genocide exist: so why don’t they work?

Episode Date: June 28, 2024

We have laws against genocide, defined as "the deliberate attempt to erase a national, ethnic, religious or racial group." But how do we make them stick? IDEAS host Nahlah Ayed speaks with scholar William Schabas about the history of the UN Genocide Convention and what needs to change.

My name is Graham Isidor. I have a progressive eye disease called keratoconus. Unmaying I'm losing my vision has been hard, but explaining it to other people has been harder. Lately, I've been trying to talk about it. Short Sighted is an attempt to explain what vision loss feels like by exploring how it sounds. By sharing my story, we get into all the things you don't see

about hidden disabilities. Short Sighted, from CBC's Personally, available now. This is a CBC Podcast. Welcome to Ideas. I'm Nala Ayyad. Bosnia is a land of horror stories tonight. 40,000 Muslims driven from their homes by Serb forces and separated from their families. Reports of young men being executed, young women raped. We have been at war with each other since the beginning of human time,

seeking not only to defeat the enemy, but often to annihilate and destroy them entirely in ever more destructive ways. Even in peacetime, there has been mass systemic killing, whole populations wiped out. Genocide, then, has a long, horrific history. The brutal exodus from Srebrenica saw Muslim women and children struggling on foot across the battle line between Muslim and Serb in central Bosnia today. This, the UN says, is ethnic cleansing, perhaps on the largest scale yet. It was only in 1948, with the founding of the United Nations,

that the Genocide Convention was agreed upon. A set of rules around, quote, acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. The catalyst was the Holocaust against the Jews in World War II. The Rafah offensive has blocked key aid routes through southern Gaza. Supplies brought in via a new U.S US pier quickly looted. The court today ordered Israel to reopen the Rafah crossing.

New battle lines in this war, driven by promises on both sides to protect civilians. Today, many voices cry out against the conflict in Gaza, protesting that what we're witnessing there is another genocide taking place before our eyes. Others vehemently disagree. Judges from Britain, America, Russia, and France assemble in Nuremberg's courthouse. Empowered to impose sentence of death or such punishment as it may consider just, the tribunal sits in judgment upon 20 leaders of the Nazi party. So begins the case of humanity against the makers of war.

An excerpt from a news report announcing the opening of the Nuremberg trials in 1945. Among the many charges against the Nazi leaders, genocide. How the word is defined and how international law deals with it or not has evolved significantly since then. To take us through that history right up to the present day, a conversation with someone who has thought deeply about the subject of genocide. He is author of one of the most important legal books on the subject as well, Canadian international law professor William Chabas. We're calling this episode The Genocide Problem. We're going to focus on the Genocide Convention and what it really means, its strengths and its weaknesses in the context of human rights. Can we go back to the start and ask you this? Why do we have

a Genocide Convention? How did it come about? The Genocide Convention was adopted by the UN General Assembly in 1948. It was the first human rights treaty in the UN system. It was really a reaction to the Nuremberg trial because at the Nuremberg trial, the atrocities committed by the Nazis prior to the outbreak of the war were not addressed. They were excluded by the legal framework of the tribunal. And the reason for that was that the countries setting up the tribunal, the United States principally, but also the United Kingdom, peacetime in the 1930s, they would set a precedent that might apply to the various forms of oppression that they were responsible for, directed against minorities in the case of the United States, against the African-American population, in the case of the UK and France in their colonies and the Soviet Union, I don't need to go into detail there. They all had vulnerabilities and so they excluded atrocities committed in peacetime. And so the idea of a genocide convention was an attempt to address that and to have a crime that would be applicable in peacetime as well as in wartime. But obviously the price for doing that was that it would be more narrowly defined than what had been

applied to atrocities at Nuremberg where they were called crimes against humanity. So this led to the negotiation, difficult negotiation in 1947 and 48, and the final adoption of the Genocide Convention, which says explicitly that it applies to violations in time of peace as well as in time of war. But which also sets out a rather narrow, strict definition of genocide, which has haunted the convention since then. strict definition of genocide, which has haunted the convention since then. Yeah. A distinction is made very early between crimes against humanity and the crime of genocide. Why is that distinction important? So the distinction between crimes against humanity and genocide was originally back in the 1940s, and for decades after that, that crimes against humanity applied to a range of forms of persecution based on a broad range of grounds as well. Whereas genocide was defined as being confined to the intentional destruction of a group.

And, of course, the groups were listed as well. They were national, ethnic, racial, and religious groups. The Genocide Convention didn't cover and still doesn't cover political groups. It doesn't cover gender groups, whereas the notion of crimes against humanity did. So both of them had their narrowness. And in the 1990s, when crimes against humanity went through this transformation and its great gaps in the notion of crimes against humanity. These were filled. And so it kind of absorbed genocide as a legal reality, although the significance of genocide still has a huge rhetorical value, the term.

And we still have the convention. We still don't have a proper convention for crimes against humanity, which is why it's harder to sue a state at the International Court of Justice, for example, for committing crimes against humanity. Whereas when it comes to genocide, the door is more easily pried open. Let's listen in to the verdict. We're really going to get into the evolution of the thinking, of course, as we go along in this discussion. But I want to look at the original document to begin with. You've highlighted a couple of things that have been left out or left in.

What would you highlight in terms of the biggest oversight or what it leaves out as a document? The heart of the Genocide Convention is the article that defines the crime of genocide. And this is where the list of the groups that are protected, national, ethnic, racial, or religious groups, this is where that list is found. And people have argued that that list should be expanded. Personally, this bothers me less than other issues because I think there's a logic to the convention being focused on what we could call also racial discrimination. It's about destruction of groups based on their identity, which would be defined by terms like race or ethnicity or religion. The hard part, and this is the issue that continues to vex judges at the International Criminal Tribunals and at the International Court of Justice, is the notion

of intent because the convention says that the crime is committed with the intent to destroy the group. That's a word we use in criminal law, and it works well enough if we're involved in a criminal case where there's somebody who's accused and on trial. But we also apply the Genocide Convention to what we call state responsibility, where we say that a state is committing genocide. And it's very mysterious, the notion of the intent of a state, because states are made up by a composite. They have many, many individuals who are involved. We can see they have even the decision-making bodies

like a cabinet or a council or something will have different political forces. And what's the intent when you have 15 individuals sitting around a table and they may all have slightly different intents? And so really, I think it's better to look at the Genocide Convention sitting around a table and they may all have slightly different intents. And so really I think it's better to look at the Genocide Convention as being about policy of a state. When you're looking at what a state is doing,

it's really more a question of what its policy is than this psychological notion of intent. But that's what happens when you transpose a concept that really has been designed really for criminal prosecution of individuals, and then you try to make it apply to states and to governments. Could you make a broad statement as to how that word and that intent in the document has affected its use in the international justice system? How hard is it to prove genocide? You know, it depends on the context, and the proof of intent is sometimes relatively straightforward.

In Rwanda, we have a specialized tribunal, the International Criminal Tribunal for Rwanda, that tried many dozens of individuals, and it never really had any great difficulty with defining with the notion of intent and the definition of it. It would in some cases conclude that there were individuals who didn't manifest the intent, but the actual proof of it was really relatively straightforward and it wasn't difficult. Of course, it's more difficult in the more borderline situations where it's harder to find the intent.

And there, the problem has largely been that you have a case where you don't have direct manifestations of the intent in the sense of someone writes out a program calling for genocide or they send tweets calling for genocide. They make speeches calling for genocide, but where you have a pattern of conduct. And it's something that would be familiar to many people who know even very little about criminal law. It's what we call circumstantial evidence. It's where the circumstances suggest the intent. And so we've had cases. We had them at the International Court of Justice, the cases dealing with the Balkans, with Bosnia and with Croatia, where the court would say, well, yeah, there's evidence of the genocidal intent, but maybe it's something else.

And it doesn't point unequivocally to genocidal intent. And so we have a doubt, and we're going to dismiss the charge. And that's where the trouble has been, largely. Fifteen kilometers east of Kigali, the village of Kinyinya. Just days ago, the RPF wrested it from the government forces. The dead left behind wore the uniforms of neither. People were taken out of our ambulances. Once, six people just taken out of the ambulance and shot in front of us.

I'd like to anchor, I mean, you've brought up a couple of examples, but I would like to drill down a little bit more on these real-life examples of what we mean by genocide and where the boundaries appear to be. So, obviously, near universal agreement about genocide, an example, the Holocaust against the Jews and Roma people in World War II, and the 94 genocide against the Tutsi in Rwanda, which you mentioned. On the other hand, in your book, Genocide and International Law, the Crime of Crimes, you argue, for example, that Stalin's Holodomor, the mass starvation that took place in Ukraine in the 30s,

was not a genocide. Can you talk about, can you explain the difference? Well, yes, of course, the case that you mentioned of the Ukraine, the difficulty there is categorizing the group that was protected. That's the first thing. Is it a national, ethnic, racial, or religious group, or was it more a social group? And in the case of the Halar Mor, it was, I think, was associated with land collectivization in the Soviet Union. There was that dimension of it, which suggests that the term as defined in the Genocide Convention isn't really applicable. And the other, of course, is with defining the intent as to whether the Genocide Convention isn't really applicable. And the other, of course, is with defining the intent as to whether the intent was to destroy the group or whether it

was rather a consequence of a policy that had very terrible repercussions in terms of death, but it was not directed explicitly at destroying the group. So those are the typical problems. explicitly at destroying the group. So those are the typical problems. When we're talking about the Holocaust, we have a very interesting judgment from the courts of Israel, really the only significant judgment dealing with genocide until the 1990s. And that judgment actually dismissed the charges of genocide against Eichmann, who was on trial, prior to 1941,

and said that before that, the intention to destroy the Jewish people in Europe was not evident, was not clear. They were being persecuted. The laws were terrible. But they didn't provide convincing evidence of an intent to destroy the group. were, but they didn't provide convincing evidence of an intent to destroy the group. And that only became apparent at some point in 1941 or early in 1942. I think with the Tutsi in Rwanda, you have several episodes of ethnic cleansing, as we call it, that took place from the 1950s. But this was about driving people out of the territory.

But this was about driving people out of the territory. And that's often been the line that creates difficulty when we're dealing with genocide, determining when an attempt to destroy a people by driving them out of territory kind of tips into a category where you can say that they're actually intending to destroy them physically, to exterminate them physically, rather than simply get them to move somewhere else. What's the tipping point? Well, the tipping point is a question of the facts in each case and making assessments of it. And as I say, it's also a question of people carrying out the policy. They may have different views themselves and different intents about what they're trying to do. So in Rwanda, this posed very little difficulty, the tipping point between ethnic cleansing and genocide. That was really where the court would say, you know, this looks more like ethnic cleansing because they're trying to drive them out of the territory than the intent to actually physically destroy them. But it's something that will be assessed case by case. And it's also something where judges at the international level as well as at the domestic level, their thinking may evolve on this. This can't be excluded.

This is a law that has a flexibility built into it, and the previous interpretations, which have tended to be quite strict and narrow, at least at the international level, may take a turn to being opened up in the years to come. What do you mean when you say it has the flexibility built into it? What is that mechanism? Well, the definition is, you know, it's, I forget how many words, 40, 50 words, something like that. Each one of them has been interpreted and analyzed,

and I, of course, did that in the book I wrote on the subject of genocide. But like all words, the words are subject to interpretation. And for example, when they refer to intent to destroy the group, the interpretation that was given by the Yugoslavia Tribunal and by the International Court of Justice was that this requires a specific intent or a special intent. And that's a notion familiar enough to criminal lawyers and to judges, but it doesn't say special intent or specific intent. And they're not really bound by that in that sense to give it such a narrow interpretation. They have. They have done so.

And so, you know, if a court says, well, what's the case law on this? An honest lawyer would have to say, well, judge, you know, this has been interpreted in two judgments by the International Court of Justice rather narrowly. But the judge will say, well, but I'm not bound by that. I'm a different court. Or in the case of the judges at the International Court of Justice, they change every three years. There's a new batch of judges. There are very few of the judges, I think only one or two now, who were around in those earlier judgments, and they might just take a different tack. This is possible. Earlier today, Serb forces overran the town of Srebrenica, a so-called UN safe haven. NATO jets tried to stop the

offensive by attacking Serb tank units. The Serbs didn't blink. Tonight, tens of thousands of Muslim refugees are fleeing Srebrenica, heading north to Potocari. But there are reports of shelling and injuries. Let me just ask you, you brought up Bosnia a couple of times. In 95, Serb forces in Srebrenica massacred around 8,000 men and boys. And in 2004, the International Criminal Tribunal judged this to be a genocide, as did the International Court of Justice in 2007. But they failed to find Serbia responsible. In your reading, was it a correct interpretation of what took place at Srebrenica? You know, the Srebrenica has become now, we have a General Assembly resolution that was adopted only earlier this year, talking about the genocide of Srebrenica, and it's recognized by the courts. I guess if you'd ask me this, I wrote something back in 2001 on the subject suggesting that the term genocide wasn't appropriate. But I don't like to quarrel about it now.

It's, you know, this is water under the bridge. That interpretation has been confirmed. Your own opinion evolved over time. Well, yeah, and it was influenced. You know, above all, I'm a legal scholar, so I study what judges say. And I make my, you know, I'm part of what I do is say, well, this is what the law is, not what I would like it to be, but what it actually is. So that involves reflecting in a genuine and serious way what judges say about it. Let me just explain a little bit about why it has created problems,

because for the prosecutor of the International Criminal Tribunal for the former Yugoslavia, that condemnation of General Kursic for what became complicity in genocide was considered a big victory, and it was endorsed three years later by the International Court of Justice. When they ruled on Bosnia and Herzegovina, they said, we support that. We agree with that. But the prosecutor continued campaigning in many, many cases to have the judges at the Yugoslavia Tribunal also condemn various defendants for genocide that were committed.

The term they use in the court is in the municipalities. That is that the war itself was genocidal and not just this terrible, terrible episode in 1995. And they never went back on it. The prosecutor was never able to convince the judges to change their mind on that. And the last attempt was only a few years ago in the appeal of General Mladic, where they confirmed this case law. What the prosecutor says is, you know, this is incoherent. There's an incoherence in finding that genocide took place over the space of really three or four or five days in July of 1995, but that the war, which lasted from 1992 to 1995, wasn't characterized

more generally by genocide. And, you know, it's a good argument. I agree that it's a good argument, but it's an argument that can go in either direction, because if you say there's an incoherence, you can just as easily actually reach the other conclusion. But that's an argument that can go in either direction, because if you say there's an incoherence, you can just as easily actually reach the other conclusion. But that's what we're left with. So being a scholar of genocide and genocide law, how would you characterize the evolution over time, in the time that you've been studying it? I mean, is it a progressive evolution? What kind of evolution is it? I wouldn't call it a progressive evolution.

I started studying the question after I participated in a human rights fact-finding mission to Rwanda in 1993, more than a year before the genocide took place. And I was there, I was frustrated, a bit almost humiliated because I didn't really know enough about the genocide convention and about the law of genocide. And so I started studying it then. And I wrote this book that came out at the end of 1999. I was kind of, how should I put it?

I was anxious to see how the law would develop. And I was, at the time, I thought it could go in either direction towards a broader definition or towards a narrower definition. But that had, you know, it hadn't been determined yet authoritatively by the international tribunals. And at the time, we had the Yugoslavia Tribunal, the Rwanda Tribunal, and the International Court of Justice, all of them with important genocide cases before them. And what happened over the coming years

was that they adopted this narrow approach to the definition of genocide. And that was entrenched by the International Court of Justice in the 2007 judgment dealing with Serbia, and then confirmed again in 2015 in the case filed by Croatia against Serbia. So if you'd asked me in 2016, what's going to happen, I would have said that I think the Genocide Convention is a dead duck. It's not going anywhere because the courts have interpreted very strictly. The International Court of Justice seemed to be saying to litigants, don't bother us with these genocide cases. Don't come back here. Leave us alone. in the last five years, but particularly in the last year or two, is this great resurgence in the interest in the Genocide Convention.

So we now have four cases before the court, an entirely unprecedented situation dealing with genocide. And we also have a huge number of states, including Canada, that are joining in the cases by intervening, by filing interventions, which is something they're allowed to do at the International Court of Justice and have been since it started operation in 1946, but have almost never done. And I'm not sure, but I don't think Canada's ever intervened in a case until it started intervening, I don't think Canada's ever intervened in a case until it started intervening,

first in a case on genocide filed by Ukraine just two years ago, a year and a half ago, and then in a genocide case filed by Myanmar against, by Gambia against Myanmar. There's an extraordinary scene playing out on the world stage this morning. Nobel Peace Prize winner Aung San Suu Kyi defending her country of Myanmar against genocide charges in the International Court of Justice. morning, Nobel Peace Prize winner Aung San Suu Kyi, defending her country of Myanmar against genocide charges in the International Court of Justice. Surely, under the circumstances, genocidal intent cannot be the only hypothesis. If war crimes have been committed by members of Myanmar's defense services, they will be prosecuted through our military justice system. They will be prosecuted through our military justice system.

You're listening to Ideas. We're a podcast and a broadcast. Heard on CBC Radio 1 in Canada, on US Public Radio, across North America on Sirius XM, in Australia on ABC Radio National, and around the world at cbc.ca slash ideas. Find us wherever you get your podcasts. I'm Nala Ayyad. Hey there, I'm Kathleen Goldtar, and I have a confession to make. I am a true crime fanatic.

I devour books and films and most of all, true crime podcasts. But sometimes I just want to know more. I want to go deeper. And that's where my podcast, Crime Story, comes in. Every week, I go behind the scenes with the creators of the best in true crime. I chat with the host of Scamanda, Teacher's Pet, Bone Valley. The list goes on. For the insider scoop, find Crime Story in your podcast app. app. In our own times, the scale of war, the possibility for weapons of ever-increasing destruction, has brought us to formalize the so-called rules around war in the Geneva Conventions. There is also the Genocide Convention of 1948, a framework to recognize and deal with the greatest crime of all, the deliberate attempt to wipe out a national, ethnical, racial, or religious group. Here is the second part of my conversation

with one of the world's leading thinkers about genocide, Canadian international law professor William Chavis. One aspect of the evolution of how we go after major war crimes such as genocide is what you mentioned, the development of these international tribunals, Yugoslavia, Rwanda, Syria. From a legal point of view, can you speak to the significance of the creation of these tribunals as legal mechanisms to exact justice in these kinds of cases. Of course, the story begins with the Nuremberg and Tokyo trials in 1945-46,

but the Genocide Convention actually is in some ways the spark. It's the moment of conception of the International Criminal Court because in the convention, those who were negotiating, it had to agree on where the crime would be prosecuted. And they ultimately opted for, again, a very conservative approach. They said it will be prosecuted by the courts of the country where the crime takes place,

which is not a great solution because presumably in that country, it had some – the state itself would have been – had some involvement in the genocide. And then they added, they said, or by the International Criminal Tribunal when it's created. And when the convention was adopted that day in December of 1948 by the General Assembly, in December of 1948 by the General Assembly, there was a parallel resolution calling for work to begin discussing the feasibility and the advisability of creating an international criminal court. And that, of course, that idea sort of simmers at some points. It's not even simmering.

It goes cold for many, many years and then is revived in the 1990s with the proposal to create the International Criminal Court, which is negotiated, and finally the convention is adopted, the Rome Statute in 1998. But in the meantime, the impatience to return to this idea of international criminal prosecution manifests itself in the creation of these two temporary tribunals, one for Yugoslavia and one for Rwanda. And, of course, all of these tribunals prosecute the crime of genocide, although they also prosecute the two other big categories, war crimes and crimes against humanity.

It was a very dramatic development in international law. very dramatic development in international law. There had been nothing like this for about 40, more than 40 years since the post-Second World War period. There are different explanations for that. People say, a lot of writers and specialists say, well, the Cold War made it impossible. But part of it also was the debates within the UN that started in the 1960s about apartheid and racial discrimination that are driven by the countries of the South. And there's a great anxiety.

They like the idea of a court and they propose it in the Apartheid Convention of 1973. But it's the countries, mainly the Western countries, the countries in Europe and North America that are anxious, are nervous about it. And that finally starts to turn in the 1980s, and it leads to this very significant development in the 1990s. And now we've come to a point, really, where this is, for every crisis, every human rights crisis, people turn almost, it's a reflex. They say, criminal prosecution, criminal prosecution. May not always be the best thing to do, may not be the right thing to do, but it has become almost an automatic answer to practically every crisis.

You've played a role in some of these tribunals yourself. What about them have you found works best and what doesn't work? Well, I think the Yugoslavia Tribunal and the Rwanda Tribunal were really successful. They were certainly successful compared to the other examples. We had a special court for Sierra Leone, which was a more modest proportions, and it did its job. The International Criminal Court, which is now the centerpiece, has struggled. It's been, for me, in many respects, a big disappointment because it has not produced anywhere near what the other tribunals did. I'm not blaming the people who work there for this.

There may be multiple explanations, but it hasn't really delivered what the promise seemed like 30 years ago when this idea was so exciting of having an international criminal court. So, compared to the Yugoslavia tribunal where there were, you know, well over 100, about 160 prosecutions, many, many convictions, you know, a job well done and where the leading people responsible for atrocities in the former Yugoslavia were by and large brought to justice. At the international criminal court, they have, I think, five convictions in 20 years. They have more failed cases. I mean, if we're measuring the score between the defense and the prosecution, the defense wins more often than the prosecutor at the International Criminal Court.

The creation of the International Criminal Tribunal for the former Yugoslavia in 1993 was a groundbreaking moment. The creation of this tribunal demonstrated a newfound and serious commitment by the international community that those responsible for perpetrating the most serious crimes of international concern,

should be held accountable for their actions. We seem to be moving into an era where more countries are willing to go to the International Court of Justice, for example, to call out other countries on their actions where mass killing is concerned. Are we moving into an era where we've finally kind of figured out how to make the international justice system work? Kind of a mixture of the formal international law and the sort of improvising ad hoc tribunals? dramatically different period just in the last recent four or five years. You know, back at the beginning of the United Nations, there were three courts that were kind of being discussed at the time. One was the International Court of Justice, which had existed earlier at the time of the League of Nations, and it was simply repackaged as a UN institution in the charter in 1945. There was also the idea of having an international criminal court,

and we see echoes of that in the Genocide Convention of 1948. And there were serious measures to do it. And finally, there was a suggestion to have an international, a universal human rights court. And that has never caught on. It's never gained any traction. We have very successful international human rights courts on a regional basis. For example, the European Court of Human Rights, the Inter-American Court of Human Rights,

the African Court. But the idea of a global court has never worked. And now we find the International Court of Justice, which was historically a court that mainly dealt with disputes about fishing zones and borders and diplomatic immunities and things like this. And all of a sudden, it's a human rights court. And half the cases before the court today are dealing with human rights issues directly or indirectly. And many, many states seem to be keen on this. They show that not only in filing lawsuits against another state for violating human rights, even when they're doing so, like the case of Canada and the Netherlands against

Syria. They have no, Canada and the Netherlands are not injured by Syria. They have no particular, they're not victims of what Syria did. They're acting on behalf of international law and of the international community. But the other thing about it, we have three what are called advisory opinions

before the International Court of Justice. And again, this is states voting in a body like the General Assembly to have an issue that historically would be addressed politically by a political body. And they say, let the judges decide. We have three of them now, which is also completely unprecedented. They're overworked. They have too much work. The Peace Palace is a very busy place. It absolutely is. And this is great. Yeah. It is great. And yet, you know, just a short while ago, we were speaking to an international human rights lawyer who basically said, you know, from one day to another, she sometimes wonders whether she should continue working in the realm? And the question kind of underlying her question and anxiety about the

international justice system is, and it's a broad question, is it fit for purpose? Does it accomplish what we want it to accomplish, which is, you know, exacting justice? Well, justice is, you know, it's a mysterious notion as well, what justice is. And I think there would be a sense that in the former Yugoslavia, that justice was done, although it's controversial. And you had three main groups there in the Balkans, and some of them feel that it picked on them, that it was unfair, and others feel that they were victimized as well. So the controversies remain. It's not clear people would like the idea that the International Criminal Tribunal for

the former Yugoslavia helped to bring about peace in the Balkans. And frankly, we've had peace in the Balkans for the last, what, since 1995 with the exception of the Kosovo conflict in 1999. So is that what changed it? Is that what did it? Nobody knows. And then we look even at the Second World War tribunals, Nuremberg. For many years, the Germans were not enthusiastic about Nuremberg.

And that only changed really because of domestic changes in Germany itself and domestic prosecutions. So this is part of deciding what we wanted to deliver and what we expect. But I think what we're seeing at the International Court of Justice in particular is this idea that states trust this institution to make determinations in application of law. And they don't get that, or they're not satisfied with it at the political level. That's why they turn to the judicial institution. At the political level, you'll have a government that will stand up and say one thing one day, and the next day they'll say the opposite, because in the first case they're dealing with a friendly state,

and the next day they're dealing with a state they don't like. And we just accept that that's politics. We see that in the House of Commons as well. You know, the stands that Canada and other countries take on different issues are sometimes they're hard to reconcile. It's hard to find a legal policy there. It's politics. And it's harder to do that at the court. It's politics. And it's harder to do that at the court.

It's just harder to do it there. What position does that put the court in? At what stage could they possibly reinforce that trust or lose it? Because a lot of these cases are still ongoing. I mean, we haven't had a lot of results yet from the ICJ's most recent cases. The International Court of Justice had a checkered history. And it was not always viewed with great warmth and sympathy by the majority of states. At times, it was thought to be a court that was almost captive of the five permanent members of the Security Council, but more particularly of the three Western members,

the United States, the UK, and France. And that although there was no veto, that in some way, it was vulnerable to strong political pressures that were reflected in the composition of the Security Council. And we can see this. This is why it went through periods where there were no cases at all because states didn't really have confidence in it. And sometimes when they did, it was to deal with more technical matters like where to draw a boundary between a fishing zone between two countries and that sort of thing. So it will depend on what they decide. And I think the judges are aware of that.

The other thing is that you can't please all of the people all of the time. And the world is divided politically. We're divided between West, North, South, and those tensions manifest themselves at the court. These judges are independent and impartial, but they reflect their past, their legal background, their views. That's inevitable, and you can't, the only way you can correct for that

is to make sure that the 15 judges are broadly representative of the whole planet yeah israel's soldiers have been ordered to push into rapha israel's leaders have been ordered to stop footage from both sides shows the fighting as israeli troops edge closer to the city center but the UN's highest court today focused on civilians. Israel must immediately halt its military offensive and any other action in the Rafah government, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part. And that really very adequately kind of leads us to the big question today.

So we turn, as we must, to the situation in Gaza where all these questions come to a head. You know, human rights in general and genocide in particular are front of mind of all of us as we watch the situation in Gaza. And the ICJ, which was drawn into this by South Africa, has ruled that there is a, quote, plausible risk of genocide in Gaza. And the UN Human Rights Council has passed a motion calling for Israel to be held accountable for possible war crimes and crimes against humanity. In your opinion, to put you on the spot, do the events taking place in Gaza meet the criteria for

genocide? There have been several genocide cases now at the International Court of Justice. I think the case that South Africa is setting out is easily the strongest case of genocide. The various elements, the differences between, for example, the situation in the Balkans where the borders were largely open and porous and where people could flee. We don't have that in Gaza. The statements made by politicians in Israel, the notorious statements about how the Gazans are in human or animal, human animals was one of the terms and the statements like we're going to deny you electricity, water, medical care, the destruction of the institutions, all of

these things, they add up and they make for a very strong case. As I say, I can't entirely predict what the judges are going to do and you certainly could exaggerate the importance of these provisional measures orders in suggesting that they represent some kind of a determination of the issue. They don't. That is yet to come. But South Africa has a very strong case. And, you know, in the other pending case, the other important pending case, which is the one by Gambia against Myanmar, several governments, Canada among them, made an intervention where they argued for a more flexible, generous interpretation of the notion of genocide. One that would put an emphasis on things like population displacement within a territory and on victimization of children. And that submission was not the intent of Canada and the other countries, Germany, France, the UK, to do that.

But that's a very powerful tool for the South Africans in the case against Israel. So this is what we're going to see in the in the next few years is how this case unfolds but it's a it's a very it's a very strong case just going back to that idea that we talked about at the beginning about preventing and punishing genocide um what does it say of the other nations that have failed to act on this and other cases of mass killings? This responsibility that was enshrined in the title, even from the very beginning, where does that leave other nations that have not really weighed in on this matter?

The issue of prevention of genocide is a bit of a, I would say, it's a blank check in a way, in the Genocide Convention, and one that had not really received a lot of attention until the International Court of Justice in 2007 found that Serbia had violated its obligation under the Genocide Convention to prevent genocide in Srebrenica. And this was a remarkable decision because it was basically cut from whole cloth. It wasn't clear at all in the convention, two aspects of it. Obviously, the obligation to prevent, the word was there in the convention. But what the court said was that it had an extraterritorial scope. So it wasn't just an obligation, which is the case with most treaties, including treaties that have an obligation to prevent in them, like the Torture Convention. It's understood that that's to prevent genocide or to prevent torture within your territory and not outside your territory.

And the other thing was they said that it was a unilateral obligation in that Serbia, they didn't say to Serbia, you should have gone to the Security Council. You should have gone to the General Assembly. They didn't say to Serbia, you should have gone to the Security Council, you should have gone to the General Assembly. They said, you should have taken action, lawful action, of course, but you should have acted on your own to prevent genocide. So what this means is that the obligation obviously applies not just to poor Serbia, but it applies to the United States, to Germany, to Canada, an obligation to prevent genocide. And that obligation, again, according to the court, kicks in when there's a serious risk of genocide. So you don't have to be satisfied that genocide has been committed. You have to be satisfied that there's a serious risk of genocide. And that's an easier case to make than, you know, you ask me the question, is it genocide? What will be the result in the case South Africa filed? We'll see the result

when we have a judgment in two or three years. But today, we can look at it and say, it's pretty compelling that there's a serious risk. And that means that there's a duty to prevent. And it's stronger, just as it was with Serbia and the Bosnian Serbs. It's stronger to the extent that the state can influence those who are responsible for this serious risk of genocide. And so that means that a country like the United States, whose influence in Israel is undeniable. I don't know how great Canada's influence is, although it's part of other countries with influence there. Germany, certainly. A German recently asked me, he said, you know, how strong is this obligation for Germany? I said, it's really strong for Germany because you've adopted this very close and loyal and devoted

relationship with Israel. So you have a lot of influence on them, and you have to get them to behave, and I think that's the case with the United States and also the case with Canada. If we were contemplating writing an update to the existing Genocide Convention today, what would you change? I think I would readjust the Article 2 with the definition so that it's more clearly talking about the policy of a state rather than the intent. We have a much more modern definition of crimes against humanity in the Rome Statute, and it talks about a state or organizational policy as being a requirement for crimes against humanity.

So I would put something like that into the Genocide Convention. I think that would be the most helpful thing. There are other small changes we could make, like make it a full-blown extradition treaty. We have now modern treaties like the Torture Convention and the Enforced Disappearance Convention that are very much like the Genocide Convention in terms of what they tried to do. And they have more modern terminology. So there are many little improvements that could be made because we've learned a lot in 75 years about how to write these things. But the big thing would be to clarify that when a state is charged with genocide,

that it's about its policy, that this is important. And that would play out as well when individuals are prosecuted, you would have to show that as well. What we say in the Rome statute for crimes against humanity is that it has to be a state or organizational policy. So it leaves open the door to what we call non-state actors, various groups, armed groups and so on, could also be held responsible. The chamber finds Ratko Mladic guilty as a member of various joint criminal enterprises of the following counts. Count two, genocide. Count three, persecution, a crime against humanity. Three, persecution, a crime against humanity. Count four, extermination, a crime against humanity.

As you know more than anyone, in many quarters you have the reputation as kind of the go-to person on issues of genocide. You literally wrote the book on the subject. What does that weight feel like to you? This responsibility to get it right? Well, there are many people, I don't know, I don't like being called the guru. I'm still fascinated in the subject. And I write about it. And I have a new edition of my book that's currently with the publishers. And it's a new book, because so much has happened in the last 25 years. But I wasn't prepared for this to happen, to be quite honest. I thought that the Genocide Convention was kind of stagnant and that it was old,

and nothing was going to happen to it. And now we have this phenomenal, absolutely phenomenal interest in it from so many, many states. from so many, so many, many states. What does that mean? What does that say about our society and our global community that it is the case? Well, what it says is that we're increasingly devoted to the idea that law, legal rules should apply. And that means, of course, they apply to everyone

and to all states and that we're moving. It's one step further away from a global system, if you want to call it that, that is dominated and controlled by a handful of powerful economic and military states. And the little states, smaller states, smaller powers get towed along. And this has historically been a big part of Canada's policy too, is our safety is protected by legal rules and institutions to enforce them. So it's a step in that direction, and it's a very positive one. Speaking of next steps, any thoughts that you could leave with us in terms of what should be done next? You know, when we look at the attempts to reduce the human capacity for mass killing, what should be the next steps for holding nations accountable for their actions?

Well, it's a complicated thing to hold nations accountable further because this has to be done through legal mechanisms as well. And the central part of that, of course, remains the United Nations Security Council where five countries essentially hold the keys and control it. And this is something that has to develop and evolve. I'm sure of that. You know, some situations are simple. If you want my list, I mean, I'll start with Gaza and with the Middle East because you've asked me about it. To me, the solution is very straightforward. There are seven, eight million Palestinians

who were promised a state. They were promised a state by the League of Nations at the very beginning when the mandate system was established. They were promised it in the Oslo Agreements in 1992, and they're still waiting for it. And that's the solution. We have to have that state. We have to have nuclear disarmament. This is something, you know, Lloyd Axworthy, once I was at a meeting with him, and he said that he boasted that Canada was the first country to give up nuclear weapons. And he reminded some Americans and others that really the idea of the non-proliferation treaty

was that the nuclear states, in exchange for non-proliferation, that they were supposed to disarm. So we should get that. So we need to reform the United Nations. We need to get nuclear disarmament. And we need to have a Palestinian state. That's my formula for world peace. Wow. I do have to ask you one last personal question.

I'm told that when you were at the University of Toronto as a student in the 70s, that you were a member of Students for a Democratic Society, the SDS. Yes, I was. I was very active. I was a very activist student. And, you know, I've had obviously a career in law and as an academic, but I don't think that my views about the world have really changed or anything in – I'm now 73 years old, and so that was a long time ago. But I'm – so I'm very inspired, as I have been in recent months, watching student demonstrations at universities in the United States and in France and in the UK and elsewhere. And I'd love to see that come back the way it was in the 1960s

when I was a university student in Toronto. William Chabas, thank you so much for speaking with me. Well, thank you very much. It's my pleasure. And I love being back in Canada, even if it's virtual. You're always welcome. On Ideas, you've been listening to The Genocide Problem, a conversation with William Chabis, author of Genocide in International Law, The Crime of Crimes. This program was produced by Philip Coulter with Pauline Holdsworth. The web producer for Ideas is Lisa Ayuso.

Our technical producer is Danielle Duval. Acting senior producer is Lisa Godfrey. The executive producer of Ideas is Greg Kelly. And I'm Nala Ayyad. For more CBC Podcasts, go to cbc.ca slash podcasts.