Judging Freedom - Prof John Mearsheimer: Not a war crime, but GENOCIDE!

Episode Date: January 14, 2024

Prof John Mearsheimer: Not a war crime, but GENOCIDE!See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Thank you. Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Thursday, January 11th, 2024. Professor John Mearsheimer joins us again. Professor, always a pleasure, my dear friend. Thank you for your time and your expertise. I want to talk to you about the case in The Hague of South Africa's application against the government of Israel alleging genocide. But before we do, just a little pick-your-brain time on background. Is Prime Minister Netanyahu in control of his own government, or is he a tool or a puppet of the extremist members of his coalition, who, if they left, would deprive him of a majority in the Knesset? Well, I don't think it would be fair to call him a puppet of

anyone. He's a very powerful individual. He's formed an alliance of convenience or a marriage of convenience with a handful of extremely right-wing individuals who are now ministers, as you say, in his government. And I think that he basically agrees with what they want. I think that they're all interested in ethnically cleansing Gaza and eventually ethnically cleansing the West Bank. But tremendous pressure appears to be being brought to bear on Netanyahu by the Biden administration. And I think this court case is adding to that pressure. So he is now saying, Netanyahu is, that there'll be no ethnic cleansing and there'll be no permanent Israeli settlements or permanent Israeli troops in Gaza that we are, in effect, going to get out. Of course, as he is saying that, the far-right

ministers are, in effect, saying the opposite, which makes him look weak. But he has no choice at this point. Politico reports that he's been saying to Secretary Blinken, I don't know how they know this unless somebody overheard it, I have this coalition, my hands are tied. It's not me. It's the coalition, Tony. There's not much I can do about it. Does that make sense to you? Well, again, I think that his hands are tied and that he can't shut the coalition, the far right members of the coalition up like he probably would like to do at this point in time, just for tactical reasons. But as I said, I think that, you know, he, there's very little daylight between him and those far right ministers on how to deal with the Palestinians. The problem that

Netanyahu faces at this point in time is that the Biden administration is taking tremendous heat and the Biden administration is beginning to lean on him. And he can resist up to a certain point, but then he's got to make some concessions. And furthermore, this whole business of the International Court of Justice is a real problem for Israel. This is a very visible case. All sorts of people are watching it, and Israel is getting hammered. So he has to think all the time about how he can protect Israel's reputation, because that means he has to change his rhetoric somewhat. But he may change his rhetoric, but those far-right ministers, I mean, I think they're constitutionally incapable of changing their rhetoric. Correct me if I'm wrong.

I'm reading what you have written and what you have said here and elsewhere. For the first two months of this war, you were of the view that what was going on in Gaza was a war crime. You're now of the view that it is genocide. Am I right? Yes, yes. And what caused you to come to that dreadful, awful, but in my view, accurate and truthful conclusion? Well, I thought that there was genocidal intent from the beginning. And in fact, if you watch the court proceedings today, the evidence of genocidal intent, as one of the justices said, is chilling, incontrovertible,

and overwhelming. So I think there's no question that from the beginning there has been genocidal intent. But if you look at what the Israelis were doing, I think up until the first truce, or the only truce, which I believe was from November 24th to November 30th. I thought their actual conduct in the war fell short of genocide. But then when the truce ended on November 30th and they went back on the offensive on December 1st, it became clear to me very quickly that they were now focusing on the South. And when you looked at what they were doing in the South, it was clear that the actions I thought were genocidal in nature. And I would point out to you that up until the truce, they were focusing mainly on the

North. And you remember they were pushing many Palestinians from the north, from Gaza City, into the south. So a large number of Palestinians who would have been killed had they stayed in the north went south. But then after December 1st, they turned on the south, and they went on a rampage. And there were huge numbers of people from the north, as well as all those people who lived in the south in that area. And the Israelis were hitting them with 2,000-pound bombs, and it was a relentless bombing campaign. And at that point, I said the action that the Israelis were taking against the Palestinians squared with the genocidal intent, and I thought you could make a clear argument

that they were waging a genocidal campaign against the Palestinians. I know you watched the proceedings in The Hague today because you told us that you did, but before we run a few clips and I ask you to tell me what you saw, is there a legal definition of genocide that the court will employ and that the public can understand? Well, the South Africans say that there is evidence, you know, of substantial killing of the Palestinian population. They're not killing the whole population. They're killing a substantial part of the population. And the actual law, I mean, if you go back to the Genocide Convention, doesn't have the word substantial in front of it. It says that if you set out to destroy part or the whole of a particular population,

that is genocide. But the word part by itself is not a very satisfactory word because part could even include a small part. So what the South Africans have done is added the word substantial, a substantial part. They're not accusing the Israelis of killing all Palestinians in Gaza, just a substantial part. Now, how the court actually interprets that, I don't know. Maybe we'll find out at some point. But I would guess everybody on that court, this is my guess, would go along with the South African use of the term substantial part of the Palestinian population. And doesn't the same convention, a treaty, it's called a convention, doesn't the same convention prohibit aiding and abetting, supplying and actively supporting

genocide? Oh, absolutely. It directly addresses the issue of complicity. Would that arguably inculpate Joe Biden and the American administration? Yes, but I didn't see any evidence. And you want to understand, I'm not a lawyer and I wasn't looking for this, but I didn't see any evidence that the South Africans were going after the United States for complicity. But I think there's no question that we're complicit in this crime. This is cut 13 we're going to run now, guys. Here is the opening statement, a portion of it, which you saw earlier today, of the chief lawyer for South Africa. The violence and the destruction in Palestine and Israel

did not begin on the 7th of October, 2023. The Palestinians have experienced systematic oppression and violence for the last 76 years, on 6 October 2023 and every day since October 7, 2023. In the Gaza Strip, at least since 2004, Israel continues to exercise control over the airspace, territorial waters, land crossing, water, electricity and civilian infrastructure, as well as over key government functions. No armed attack on a State territory, no matter how serious, even an attack involving atrocity

crimes, can provide any justification for or defence to breaches to the convention, whether as a matter of law or morality. Israel's response to the 7th of October 2023 attack has crossed this line and give rise to the breaches of the convention. What did you think when you saw that argument earlier today? Well, what you're seeing there is that gentleman who is one of the first speakers is setting up the context for the charge of genocide. He's not talking about what actually happened in Gaza after October 7th, and he's not talking about genocidal intent. He's setting up the context, and he's

saying that there's a rich history here. And by the way, he also places much emphasis on the fact that he believes Israel is an apartheid state. Then the next speaker makes the argument about the Israeli actions in Gaza, and makes the case that if you look at what the Israelis are doing, it's genocidal in nature. And then after that comes another speaker who makes the argument for genocidal intent. So just as is the case in the report, you get sort of a one, two, three punch, context, actions, or behavior, and then the question of genocidal intent. We have another one of the lawyers, I don't know, South African lawyers, I don't know if he's the second or the third, and in the midst of his argument, he plays a tape of Israeli IDF soldiers dancing and chanting and celebrating the demise of some neighborhood in Gaza.

And he uses that to make an argument of, see, they understood what Prime Minister Netanyahu told them to do and they carried it out. But I'll let you expand on it. So this is cut number 14. On 7 December 2023, Israeli soldiers proved that they understood the Prime Minister's message to remember what the Amalek has done to you as genocider. They were recorded by journalists dancing and singing. We know our motto.

They are no uninvolved, that they obey one commandment, to wipe off the seed of Amalek. The Prime Minister's invocation of Amalek is being used by soldiers to justify the killing of civilians, including children. These are the soldiers repeating the inciting words of their prime minister. What do you think? Which one was he? Which one of those lawyers, two or three? He's number three. I don't have the exact number right, but he's dealing with the third charge, which is genocidal intent. There's a woman in between him and the first person that

you showed who does a brilliant presentation. She gives a superb presentation of the behavior of the Israelis in Gaza. But this gentleman who you showed from the South African side is dealing with the question of genocidal intent. And the context in which that film is shown, as is clear at the very beginning, is that Prime Minister Netanyahu, on a number of occasions, has made reference to what the Israelites did to the Amaleks. And the argument there is, in effect, that the soldiers should go out and kill all of the Palestinians the way the Israelites killed the Amaleks, according to this Bible story. Because God the Father told them to do it, according to this Bible story. Yes, yes. And what the South Africans are trying to show

is that Netanyahu's words had consequences, that the soldiers listened to what Netanyahu said, because Netanyahu said this explicitly to them. There are two instances where Netanyahu referred to the Amalek, and in one case, he was talking to the soldiers and you see that the soldiers listened to him. And when you take the rhetoric surrounding the Amalek, which is genocidal rhetoric,

and then you see how the soldiers followed in the footsteps of Netanyahu's rhetoric, you obviously see evidence of genocide. What kind of a defense do you expect the Israelis to offer tomorrow? Boy, I've spent a lot of time thinking about that. I've said to myself, if I was their lawyer, how would I deal with this? And I don't know. You know, they've not issued a written statement. The South Africans, as we know, you know, produced this 84-page document. So if you watch the proceedings today, you got a lot of what was in the 84-page document. The Israelis have not filed a reply, a responding, a pleading to that document, an answer?

Well, if they have, it's not in the public domain. I mean, it's quite clear from, you know, sort of reading around that nobody has seen anything from the Israelis. And all sorts of people do raise the question, what are the Israelis going to say? I mean, in public, they'll say things like the South Africans are, you know, waging a blood libel or making a blood libel against the Israelis. They're waging an anti-Semitic campaign and so forth and so on. But that's not going to wash tomorrow when the Israelis have their turn. And a lot of times in the public, you'll see this with the American spokesman as well. What they'll do is shift the focus from what the Israelis are doing in Gaza

to what happened on October 7th and say it's really Hamas that's genocidal. That won't wash either because this case is not about Hamas and what Hamas did on October 7th. It's what Israel is doing in Gaza. So, you know, I guess they could say that, you know, they dropped leaflets to warn the Palestinians to leave. I guess they could argue that they're waging a precision campaign. I think they'll argue that the Palestinians use the civilians in Gaza as shields. So you'll get arguments like that. The problem is that those arguments are all easy to knock down. There's really just not a good case to be made here. They can't deny the events that occurred in Gaza, up to 24 or 26,000 deaths, only 3,000 of which appear to have been Hamas fighters. And they can't deny the words that came out of the mouths of the senior government leaders, all of which are quoted at length verbatim, and as far as I can tell, accurately in that 84-page document that we read. Absolutely. I mean, the evidence here is overwhelming, certainly in terms of

genocidal intent. Let me just say another word about that. This is not an actual court case to determine whether Israel is guilty of genocide. It's very important to understand that. And I think the bar for genocide is very high. And one could argue that even with all this evidence, it won't be enough to cross that bar. But again, this is not a trial where we're trying to determine, or the court is trying to determine, whether Israel is guilty of genocide. Well, what are they there for? They're there to get an order from the court to tell Israel to cease and desist from its offensive operations in Gaza. And the argument they have to make is that there is sufficient evidence that this is a potential genocide to force the Israelis to, in a sense, stop their military operations in Gaza. That's all they're asking for. They're not saying Israel is guilty of genocide, period, and the court should determine whether that's true or not. That will come later in all likelihood.

And that will take years to resolve. Almost everybody agrees on that. Right, right. This is a case where South Africa is just trying to get an order from the court to put an end to this offensive before more people are killed. And the Israelis wouldn't comply with such an order, would they? Unless there's some sort of severe economic sanction. The court doesn't have an army. Well, that's right. And what the court can do is go to the Security Council and ask the Security Council to pass a resolution, which would have real teeth.

But we all know who's sitting in the Security Council and will veto that resolution. Correct. Correct. Sam. And so I think that's true. Go ahead. Here is a clip from one of our regular guests who was a big fan of yours and a very intelligent young man, Max Blumenthal, has press credentials and was at the State Department today. I'm sure this poor guy, whose name is Vedant Patel, at the State Department was not happy to see Max in the audience.

It's a little bit of a long clip, but the question is typical Blumenthalian. And I want you to hear it, listen to the response and reply to it. So this is cut 19. Secretary Blinken has specifically accused China of genocide for its treatment of the Uyghurs. But Blinken didn't point to any mass killing there. According to Euromed Monitor, 4% of the entire population of the Gaza Strip is now dead or injured. In just 90 days, 65,000 tons of munitions have been dropped on the Gaza Strip, three times what was dropped on Hiroshima. You have evidence of industrial-style killing. The South African legal team presented 20 minutes straight of statements on the record by Israeli leadership

expressing the intent to commit genocide, for example, referring to the Palestinian population as Amalek. So how can you explain this discrepancy between Secretary Blinken accusing China explicitly of genocide with no mass killing, presenting no evidence of the mass killing of Uyghurs, and then dismissing out of hand the potential that Israel could be committing genocide in the Gaza Strip, calling it unfounded? How do you explain this discrepancy? The same way that I just explained it to your colleague who asked essentially the same version of your question, which is that each conflict is different and any kind of determination like this needs to be based on specific facts and law. And when it comes to the points that are being made

in today's hearing, again, I'm not going to speak to those specifically. Israel will have an opportunity to address some of those tomorrow. But we again feel that these allegations that Israel is committing genocide are unfounded. That being said, we do not disagree that additional steps must and need to be taken to minimize the impact on civilians. And we'll continue to raise that directly with relevant partners. And given that you fast-tracked a sale of 14,000 tank shells to Israel, bypassing Congress, given Secretary Blinken's participation in war campaigns— We didn't bypass. I'm just going to stop you right there because the premise of your question is a little misguided. We did not bypass Congress. As part of that, there is appropriate congressional notification that happens, and we complied with those appropriately.

Okay. More and more members of Congress are demanding oversight because they're not getting adequate oversight. But no one disputes that the U.S. is isolated in protecting Israel as it conducts this operation, as it calls it in Gaza. No one disputes the direct U.S. role. So the question is, does Secretary Blinken, who went to Israel first, declaring he was there as a Jew, identifying with the ethno-religious character of this state, which is now standing accused of the potential to commit genocide, is Secretary Blinken concerned that ruling in favor of South Africa in this case could set the stage for his own prosecution or that of your colleagues? I'm just not going to get ahead of hypotheticals, and you probably shouldn't either. Jackson, go ahead. All right. So he referred to the genocide allegations as unfounded. Admiral Kirby, you and I have seen this tape, referred to them as meritless. These two references are hogwash. Yeah, I think that that's true. I mean,

Max Blumenthal is putting them on the spot and they have stock answers. And I think that most people are going to think those stock answers are foolish answers and don't really address the issue that Max is raising. I mean, what else can you say? Right, right. I know you're a graduate of West Point, and I know you spent some time in the Air Force. When you were on active duty, did you ever go into a hospital for a week and not tell your bosses where you are. I have to ask you this. I mean, is there any legitimate, moral, ethical, lawful explanation for the disappearance of the Secretary of Defense from his boss in the White House for 10 days? No. I mean, I think almost everybody, including people in the administration, you know, in the White House, understand that this was a huge mistake.

I think the only thing you can say in Austin's defense is that everybody in his or her life does something really stupid that they later live to regret. And when they look back at it, they can't understand why they did it. And my guess is that this would be the case for Austin. He just did something that was remarkably foolish. He should have never done. And there's no way to defend it. He's not tried to defend it. And that's about all you can say here's uh my uh friend and former colleague Peter Ducey at Fox um putting it to Admiral uh Austin uh or Admiral Kirby on Secretary Austin's uh disappearance this is cut number 17. John what kind of Commander-in-Chief is President Biden that at a time when American forces are under fire in the Middle East,

he can go days without knowing that his defense secretary is in a hospital bed? Peter, there's a lot to your question, so I want you to bear with me for just a second. First of all, at no time was the ability for the United States military to defend our national security interests compromised. Why should we believe anything that this administration tells us about anything ever again? I think we all recognize, and I think the Pentagon has been very, very honest with themselves about the the challenge to credibility by what by what has transpired here and by what and by But if the administration is going to go to such great lengths to keep secrets about the defense secretary's health how can anybody be certain that the

administration would not go to the same lengths to keep secret problems with President Biden's health in the future? If you could logically argue, and you can't, but if you could logically argue that the administration... He's 81 years old. Wait a second. Just give me a second here, Bub. I'll get there. If the administration made some sort of Machiavellian effort across the board to keep this from getting public, then I think your question has merit and certainly is a fair one. I don't think it's a fair one because that's not what happened here. Peter? Military men and women react when this happens.

I'm not sure what your question is. How do military men and women react, or how do you expect they would react to the sudden disappearance of the Secretary of Defense? His deputy was running the Defense Department from a hotel or a beach in Puerto Rico. Who had the nuclear codes. I guess there's no good answer to this. Yeah. I mean, I think that people in the military would react the same way Joe Biden reacted, which is to think that this is outrageous. He should not have done this. I mean, it's Austin's fault, nobody else's. I mean, it's not his deputy's fault that she was at the beach. It's not Biden's fault that he didn't know.

Austin just didn't tell anybody. He just decided to go in the hospital and keep radio silence. Well, can you imagine President Putin not communicating with his minister of defense for 10 days and not being curious about it? It is possible. I mean, you just sort of have to know how often they communicate, in which ways do they communicate. I mean, I don't see Biden being at fault in this case, to be honest. I mean, Biden has his faults, and you and I criticize him quite frequently. But I don't think this is Biden's fault.

This is Austin's fault. He screwed up big time. If the International Court of Justice rules that there is genocide and takes this to the Security Council, even if the U.S. vetoes it and Britain abstains, which is what usually happens there when the Security Council is arguably being critical of Israel. Will this not put a nail in the coffin of the Israeli PR war internationally? Just to be clear, they're not going to rule that this is or is not genocide. They're going to rule that there is or is not sufficient evidence to think that there is possible genocide. You saw this reflected in Max Blumenthal's comments,

and then tell the Israelis to cease and desist. But it is very important to understand that this is not a trial dealing with- I wish it were a trial, and I wish the South African lawyers could call Professor John Mearsheimer from the University of Chicago as an expert witness. The problem is, if it was a trial, it would take a couple years to resolve. Probably. it was a trial, it would take a couple of years to resolve. In the meantime, many more Palestinians would die, right? So the reason that you have this expedited format is to stop the killing as quickly as possible. All right. The court is not going to stop the killing and the security council

is not going to stop the killing. However, if the court favors South Africa and says it's a credible charge and goes to the Security Council, and the Security Council sustains the likely American veto, I'm modifying my question in light of your correction of my misunderstanding of what the court would do. Will this not be a nail in the coffin to the Israeli PR war? Yes, it will be. No matter what happens in terms of the ruling or the decision of the court, this is a disaster for Israel because the evidence was presented today all in one place in a very clear and compelling manner. And it is disastrous for Israel. There's just no question about it. Anybody who sits down and watches the three hours and 16 minutes of testimony can't help but think that there's something

fundamentally wrong in Israel. Just listening to what Israeli leaders are saying about the Palestinians, just looking at what they're doing to the population, the civilian population in Gaza, it's horrible. So this is a huge problem. But the more important point is it's not going away. It's not like this is going to be resolved in the International Court of Justice, and then that's the end of it. This is going to go on and on and on. Will an adverse decision or ruling or an opinion adverse to Israel in the Hague affect Israeli public opinion of what their government is doing? Very hard to say. Up to this point, it hasn't had much effect at all. The Israelis have really circled the wagons, and they just don't want to hear this. And they have all sorts of counters to the charges. Most of them don't make much sense. But what happens over time

is another matter. This one's going to play out over the next couple of years. And Israel is not in a good position to deal with these charges over time. Professor Mearsheimer, is a wider war coming in the Middle East, one in which the United States would inevitably be involved physically, militarily? We're doing everything we can to avoid that. I mean, in addition to telling the Israelis that they have to change their behavior inside Gaza, we're telling them that they can't escalate on their northern flank against Hezbollah. The last thing we want is a war between Hezbollah and Israel. So we're working hard to prevent that. We certainly don't want to get involved in a war with Iran.

That would be catastrophic. That's not to say Iran would defeat us, but we need a major war with Iran like we can to rein in the Houthis in the Red Sea without actually attacking them so that we can open up the Red Sea and, in effect, the Suez Canal. But the United States is definitely not interested in escalation. But it is possible. And all this, by the way, just goes to show you what a strategic liability Israel is for the United States. This is the argument that Steve Walton and I made when we wrote the Israel lobby. This relationship we have with Israel does us significant strategic damage. Professor John Mearsheimer, thank you very much. Will you

come back again after you've had a chance to listen to and analyze the Israeli defense, which I guess will be presented in Brussels sometime tomorrow. Yeah, I look forward to that. I'm fascinated on what the Israelis are going to say to defend themselves against these charges. I think they've hired a British barrister as their chief, not an Israeli lawyer, but a British barrister as their chief lawyer. But as you know, because they get paid by the hour, there are teams of lawyers there. Yeah, yeah. And I would assume that he's a very clever and effective lawyer who knows his P's and Q's in this case. And I would also imagine, as was the case with the South Africans today, it's not just one person who presents the

case. We talked about one, two, and three, but if you look at the case today, I think there were probably about six different people making the case on the South African side. And I would imagine on the Israeli side tomorrow, you'll have a handful of individuals as well. And a lot depends on how effective each one of those individuals is. Okay. We may email you and ask you. I don't expect you to say it. I think you're the best place from which to watch all of this. But Professor, thank you for your time. Thanks for sharing your big brain and your intellect and your analysis with us. It's always a pleasure. My pleasure as well. Thank you. Coming up at 4.30 this afternoon, the Intelligence Community Roundtable

about all of this. Raymond Gover and Larry Johnson. Judge Napolitano for judging freedom. I'm