Judging Freedom - Prof. Mearsheimer: Israel's Unsuccessful Legal Assertions at the International Court of Justice?

Episode Date: January 17, 2024

Prof. Mearsheimer:  Israel's Unsuccessful Legal Assertions at the International Court of Justice?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 Monday, January 15th, 2024. Professor John Mearsheimer joins us now. Professor Mearsheimer, thank you very much for coming back onto the show. Since we were together last, you had an opportunity to review the submissions made at the International Court of Justice by a team of lawyers representing the government of Israel, and you shared some of those thoughts with me, and I'd like to examine them in some detail. But before we do, I want to play you a little clip from 1992. This is a retired general from the Israeli Defense Forces, General Matty Pallad. He speaks very well in English. He's speaking at a conference in San Francisco in 1992,

and he is condemning the Israeli occupation of the West Bank and Gaza and condemning Israel's addiction to American government aid. Take a listen. This is the situation we have to live with, and I have no doubt that the direct consequence of the occupation. Anyone who said occupation corrupts was absolutely right. And we are occupying the West Bank and the Gaza Strip for the last 25 years, and this is corrupting us, maybe even more than the American aid. Well, I would like this to be eliminated altogether. I think that we should pay for our arms out of our own money.

But in any case, this is one of the most damaging gifts that we get from the United States. What is your view on whether occupation corrupts and American aid corrupts Israel? Well, occupation definitely corrupts because you have to treat the people that you're occupying as subhumans, which is exactly what the Israelis do. They can't treat them as equals, because if they treated them as equals, they would have to give them a vote. And given that there are as many Palestinians as there are Israeli Jews, this would be a huge problem for Israel. So instead, they treat them like subhumans, and the end result is you effectively have an apartheid state. And General Pallad, he understood that a result of the power of the Israel lobby in the United States. The Israel lobby thinks it's doing good work for Israel.

It's helping Israel out. In fact, that's not true at all. And the fact that the United States gives Israel unconditional aid, in other words, no matter what Israel does, we back it to the hilt is not good for Israel. And I think the lobby bears a lot of responsibility for that situation. A lot of viewers are writing in as to whether General Pallet, who I don't believe is with us any longer, is the father of Mikko Pallet. And the answer to that is yes. Yes. One of the things that you commented on, not necessarily critically, but from an observation point of view of what you observed on Friday, was that the Israeli legal

team was attempting to shift the focus from what the IDF is doing in Gaza to what happened on October 7th. I'm sure that that didn't surprise you, even though that's largely irrelevant to whether or not genocide is going on in Gaza. Yeah, it was quite interesting the extent to which the Israeli speakers and all of them talked about the events of October 7th. And what they were trying to do, obviously, was shift the focus. And furthermore, I don't think that this tricked the judges at all. I think they understood what was going on. I think this was done mainly for propaganda purposes or for influencing public opinion around the world.

And the Israelis actually said at one point, one of the Israeli spokesmen said at one point that what happened on October 7th does not absolve us from following the laws of war in the conduct of our campaign in Gaza. So he was, in effect, admitting that what they were saying had nothing to do with what the issue was on the table. The Israelis, by the way, before we get deeper into an analysis of what you saw on Friday. Our friend and colleague Alistair Crook, who was a former British diplomat of Irish origin and lives and works in Italy, told us it was impossible to watch the South African presentation on any Western website or venue, but it was, he had to go to Al Jazeera,

but it was easy in Italy to watch the Israeli presentation. Do you know if the governments of Western Europe or in the U.S. wanted to suppress the South African argument by not making it available to the public? Well, the story that I've heard, and I've not seen it refuted, is that BBC live-streamed the Israeli testimony or the presentation of the Israeli case on Friday, but it did not do the same for the South Africans on Thursday. And I've also seen arguments to the effect that Sky News in Britain did the same thing. I've seen no evidence that that happened in the United States. I think there's no question, however, that if you look at the coverage of the hearings, both on Thursday and Friday in the Western media, they decidedly favored the Israeli side over the South African side. But you and I would not find

that surprising. Correct. Correct. Do you believe, before we get into a little bit more detail, that the Israeli legal team effectively rebutted or even dented the argument of the South African side? No, I don't believe that at all. I don't think they dented the legal arguments of the South African side. I think to the extent that they might have some effect on the outcome has to do with technical details surrounding the question of whether or not the dispute between South Africa and Israel was a real dispute. And if it's not a real dispute, then the court should not rule on this case. This is the argument that Israel's lawyers made on Friday. I'm not expert enough to judge whether this argument had much merit or not, or had sufficient merit to convince some judges to vote against the South African position.

It's just hard to say. Well, the genocide treaty permits any signatory to the treaty to charge any other signatory to the treaty with genocide, even if the charging entity is not the victim of the genocide. So it's almost inconceivable to me, maybe I'll be wrong, that the court could punt on this by saying there's no case or controversy here because one of their many duties is to interpret that treaty. The other treaty, of course, is the UN treaty. One of the more extreme things that Bill O'Reilly said was that nobody is a party to this court. We didn't agree to it. Well, the court is the highest court of the UN and every country that's a member of

the UN, which includes South Africa, Israel, and the United States, is subject to the jurisdiction of the court. Were you surprised when the Israeli legal team played the Holocaust card? No, not at all. I think this is sort of an argument where the Israelis were basically saying that Israel is a state that was created in the ashes of the Holocaust, and therefore it's impossible to indict a state like Israel of genocide, or to accuse a state like Israel of genocide. This is just not, it's not possible. In fact, it's morally reprehensible. That's in effect what they were saying. And it's worth noting that Mr. Becker, who was the first person to present for the Israeli side, the first argument he went to

was the Holocaust argument, because he knows that that is a powerful emotional argument to make, both for public relations purposes, and I'm sure it also affected the judges somewhat. How could it do otherwise? But the fact is, it's largely irrelevant. The question on the table is whether or not what the Israelis are doing in Gaza is possibly a genocide. And you want to remember here, this is not a trial. This is not a trial on whether Israel is committing genocide. The argument on the table by the South African side is there is sufficient evidence to think that Israel is creating a genocide. And given the importance of preventing that outcome, the ICJ should go to great lengths to shut down this conflict as quickly as possible. That's the

issue here. So the bar is not that high in this case. Right, right. Here's the opening statement by Mr. Becker. Let's not play the whole thing, Chris, maybe that first paragraph or so, but this will refresh your memory. Not that your memory ever needs refreshing. And exposed to the audience exactly what you saw and from which you drew the arguments that you just made. So this is Tal Becker, who's the legal advisor to the Israeli Ministry of Foreign Affairs. I mean, he's an Israeli, but like a lot of them, he speaks English for the British accent. The state of Israel is singularly aware of why the Genocide Convention, which has been invoked in these proceedings, was adopted. Seared in our collective memory is the systematic murder of six million Jews

as part of a premeditated and heinous program for their total annihilation. Given the Jewish people's history and its foundational texts, it is not surprising that Israel was among the first states to ratify the Genocide Convention without reservation and to incorporate its provisions in its domestic legislation. Well, I mean, if I were on the bench, and this is not the custom there, but in America, even if you're on an appellate bench with six or seven or eight other jurists, or whether you're alone in a trial court, when the lawyer veers into something that's irrelevant, you cut him off. But I realize that their custom and habit and procedures are just to sit there and listen to him and let him say whatever he wants. But the fact that I submit

that the Jewish people suffered egregiously during the Holocaust, a historical fact that only a crazy person would attempt to deny, is largely irrelevant to what the IDF is doing in Gaza as we speak. Yes, it is largely irrelevant. And the events of October 7th are irrelevant for the question on the table. Another tactic that they used was they smeared the South Africans on a number of occasions. What is that based on? Well, it's an argument that basically says that the South Africans are joined at the hip with Hamas, and they're doing Hamas's dirty work. They're engaged in lawfare. And what the Israelis are trying to do is cast dispersions on the South Africans on the grounds that they can't be trusted because they're in bed with terrorists. And they're collectively, and here we're talking about the South Africans in Hamas, interested in delegitimizing and destroying Israel. Now, is there a basis for that? Does South Africa provide financial aid to Hamas? Or is this just a,

oh, you're making the Hamas argument, therefore you're just as bad as they are? It's irrelevant. It just doesn't matter, right? The question is, what are the Israelis doing in Gaza, right? And this is where the Israeli side on Friday had huge problems, because it's very hard to deny what's happened in Gaza, and it's very hard to deny what all these Israelis leaders have said about how they think about the Palestinians in Gaza and what they would like to do to those Palestinians. These are, to use Menachem Begin's old words, these are facts. Facts have been created here. And the question that the Israeli side had to deal with was, how do you get around these facts?

And I think I can tell you how they tried, but it's almost impossible to get around the facts. Well, one of the things they did, the Israeli legal team, was to argue that October 7th was a shock, that they're still not over the shock. It was a shock of a lifetime. And the statements that were made were random emotional statements made by people in a state of shock. That, of course, does not take into account the fact that many of these statements were made months after October 7th and made by high-ranking government officials in their official governmental capacity. Yeah, the highest ranking, not just high-ranking, the highest ranking officials inside the Israeli government. I mean, look, what they tried to do was make the argument that there are these random assertions that were made by public officials on one hand, but on the other

hand, and much more importantly, there was an official discourse. And if you look at the official discourse, you will see that the Israelis were going to great lengths to spare civilian lives and not to starve the Palestinians. So there's a complete disconnect between the public discourse and the official discourse. But what you have to do is you have to look at what's actually happened in Gaza, right, the actions in Gaza by the Israelis, and you have to ask yourself, do those actions square with the public discourse, or do they square with the so-called official discourse, which we really don't have access to? And the answer is, it's quite clear that what's happening on the ground in Gaza squares very neatly with the public comments by the highest

Israeli leaders. So this is not a serious argument. Here's the opening line from one of the Israeli lawyers, a woman by the name of Galit Rajwan, addressing the circumstances of Israel's actions. We'll play the clip in a minute, but she basically says Israel cannot possibly comprehensively address today all of the allegations made in the application in this regard. What she's talking about, we'll get to the clip in a minute, is comments made by an Irish barrister for South Africa who explained the significance, and you remember this from observing it on Thursday, the significance between a smart bomb and a so-called dumb bomb. And if you really are concerned about protecting civilians, you'll use a smart bomb that is guided toward the target rather than a 2,000 pound bomb on a refugee camp, which shows utter disregard to the value of human life because it brings about the certainty of the death of civilians.

Chris, cut number three, the first three or four lines from what she says. Israel cannot possibly comprehensively address today all of the allegations made in South Africa's application in this regard. The applicant paints a dire picture, but it is a partial and deeply flawed picture. The application is so distorted in its descriptions that it prevents the court from properly assessing the plausibility of the rights asserted by South Africa. Did you see anything in that application, which I know you read and studied, that was so distorted, so distanced from reality as to support the argument this lady just made? No, I don't think you did. I mean, I think in the end, despite what she said and a number of others said in the course of the proceedings, there's no way you can dispute what's actually happened. And what they tried to do, and you did not see it reflected in

this clip, what they tried to do was make the human shield argument. And the argument that they made on many occasions was that the Palestinians, excuse me, Hamas uses individual Palestinians, it uses schools, it uses mosques, it uses apartment buildings, it uses all sorts of buildings on the ground and individuals on the ground as human shields. And the reason that Israel is killing so many civilians is that in the process of trying to kill Hamas fighters, they are killing lots of civilians. You know, people refer to this as collateral damage, which is really a horrible term, but is frequently used to describe this situation. So the argument here is don't blame the IDF, blame Hamas, because Hamas is using all of these buildings and people, Palestinian people, as human shields. And the Israelis are doing the best they can to avoid

killing those civilians, but they have no choice but to kill lots of civilians and cause huge amounts of destruction in Gaza because of the human shield problem. Yeah, but this is a fallacy. Is it not the argument that Israel is carefully avoiding killing civilians is nonsense and is belied by reams and reams and reams of evidence? There's no question about it. This is one of the most destructive bombing campaigns in modern history. You know, this is in the same category as, you know, the American and British bombing of Germany in World War II. And we went after cities like Leipzig, Dresden and Hamburg. bombs, and you're dropping 2,000-pound bombs on an area that's tightly packed with civilians,

and you're killing huge numbers of those civilians, and many of them, in fact, about 70% are women and children, it's impossible to make the argument that this is all about discrimination. And by the way, just very quickly, there are two reports that came out of Israel, one by the magazine 972 and another one that came out in Haaretz on December 9th of last year. That's 2023, which detailed the Israeli bombing campaign in detail and was based on interviews with people who were intimately involved in the bombing campaign. And all you have to do is read the Haaretz piece and the 972 piece, again, which both come out of Israel. And it's manifestly clear that the Israelis were not engaged in precision bombing.

They were engaged in a massive punishment campaign where they were inflicting huge amounts of punishment on the civilian population. Do you think that a time will come when Arab animosity in the region will force the hands of Arab leaders like, say, Jordan or Egypt to do something militarily to resist what Israel is doing? The problem is that those countries have no military option. I mean, what is Jordan going to do militarily? It's very clear, given the large Palestinian population inside of Jordan, that there's tremendous pressure on the king there. But he has no military option. The Egyptians have no military option. And furthermore,

we have tremendous economic leverage over the Egyptians. Where you see resistance is with the Houthis, right? The Houthis are standing up to us on behalf of the Palestinians. You don't see much of that in the Western media, because people don't want to connect what's happening with the Houthis to what's happening in Gaza, because then it looks like Israel is the taproot of the problem or Israel's policies in Gaza. But the Houthis are tough hombres. There's just no question about that. They're in the same category as Hamas, and they are giving us a devil of a time in the Red Sea. But other than the Houthis and, to some extent, Hezbollah up north of Israel, Arab states have not done much at all. Well, what about Iran? I mean, if Joe Biden listens to Lindsey Graham,

maybe you could stop right there. It almost doesn't matter what I'm going to say after that. That would be absurd. But if Joe Biden listens to Lindsey Graham and attacks Iran, wouldn't that, couldn't that be potentially catastrophic for Israel? Why would it be catastrophic for Israel? Wouldn't Iran attack Israel in retaliation for the U.S. attacking Iran? Possibly. I would not be sure that that would happen. But the more important point is we have

no interest, the United States, in picking a fight with Iran. I mean, it's bad enough we've got into a fight with the Houthis. I mean, Biden must understand at this point in time that this is not a winning situation, that he's got himself into another swamp that he's not going to get out of quickly. I mean, to pick a fight with Iran would be insane at this point in time. So I find it hard to believe that we would attack Iran. And if we did attack Iran, I'd be surprised if Iran attacked Israel. It might. You might be right. As you know, we live in a world of radical uncertainty, and how this plays itself out over time is very hard to predict. Here's a fellow academic of yours, though he hardly shares your view, Professor Malcolm Shaw, a law professor who is the chief lawyer on the Israeli side, a British barrister in Fuller Gallia, as you know from you because

you saw this. Let's play the first paragraph or two, cut number two, Chris, of Professor Shaw's argument. There's a lot of history in here. South Africa casts its net widely. In its application, yn ei ddefnyddio, mae'n defnyddio'r gair yw'r gair, ambell amser. Yn enwedig, mae'n ei ddweud, mae'n bwysig rhoi'r ffyrdd o genesydd yn y cyd-destun mwyaf o ran gweithredaeth Israel tuag at y Palestyniaid yn ystod ei ddiwedd o 75 mlynedd. O'r ffordd, mae'r ddifrif yn anodd yn ystod y ddyfodol. long apartheid. Leaving aside the outrageous nature of that statement, why stop at 75 years? Why not refer to 1922

and the approval by the Council of the League of Nations of the British Mandate? Or 1917, the proclamation of the Balfour Declaration? Irrelevant. No? Well, the problem here is the reason that the South Africans referred to a 75-year period of apartheid is that Israel was created in 1948. 75 years ago. Yeah, and the reason they didn't go back, South Africans didn't go back, you know, to 1903 when the second Aliyah came to Palestine or, you know, 1918 or whatever, is simply because there was no Jewish state at the time.

These are demonstrations. 200,000 people in Washington, D.C., a huge number comparable in London. Is it clear to you that the Israeli government is losing or has lost the PR war? I think there's no question they've lost the PR war around the world, they're doing reasonably well in the West, especially in the United States and Britain. But otherwise, I think they're in real trouble, and one could argue they're in real trouble inside the United States. If you look at public opinion polls in the United States, it's quite clear that they're losing the public relations war. You remember when you and I were young, and if you think about what Israel's position was in our

minds back in those days, and you think about where we are today, there's been a fundamental transformation that's taken place over time. In the early 1950s or early 1960s, when I was really paying attention to this issue for the first time, I thought the Israelis were clearly the good guys and the Arabs were the bad guys. How could it be otherwise? I think we were all affected by Leon Uris's famous novel, Exodus. What's happened over time is that that positive picture of Israel has almost completely disappeared. And now almost everyone I know has either a highly negative view of contemporary Israel or a qualified view of Israel at the best. At best. I mean, Israel is just in terrible shape.

And there's no sign that this situation that we talk about whenever I'm on the show is going to improve anytime soon. And in fact, Benjamin Netanyahu, as you surely know, has just said that no matter what the Hague rules, he's going to continue to do what he sees fit for the foreseeable future. And down the PR tubes, down into the depths of the PR hole deeper, he will go, particularly if they decide that it is genocide or issue some preliminary injunction at which he will thumb his nose. He will do that at his peril, won't he? I guess so.

I mean, the question he asks himself, I'm sure, is what will the Americans do? Right. Israelis care really about the Americans and not anybody else. They don't care about world opinion. They think almost all of the Gentiles are anti-Semites anyway. And what really matters is that they have American backing. So the question here is, will the United States abandon them? And I don't think there's any evidence that Joe Biden is going to abandon Israel. And if the court, the ICJ, rules in some way against Israel, which I think is likely, then the question is, what will the Americans do? And I think in all likelihood, we will go

to great lengths to support the Israelis. If it goes into the Security Council, as you know, the Security Council is where the ICJ rulings are enforced. We have a veto there. And surely if the Security Council decides to get tough on Israel, the first one is the U.S. and the second one are the Brits abstaining. The PR mess for Netanyahu will be exacerbated. Yeah, but the ones who will suffer the most in public relations terms is the United States, right? The United States is a global superpower, right? We care greatly about our diplomatic relations with countries all over the world. We have a profound interest in having good relations with countries in the Middle East and in the Arab and Islamic world more generally. And if we side with Israel against an ICJ ruling,

that's going to cause us huge problems, and it's going to be a moral stain, a permanent moral stain on our reputation. Isn't the United States the unindicted co-conspirator here or the unindicted abettor? There's no question about that. I mean, you know, we're up to our eyeballs in alligators in this one. There's no getting around that. And I'm sure that Joe Biden just wishes this would all go away as quickly as possible. But the fact is that we're sinking deeper and deeper into the tar pit. Professor John Mearshamer, it's a pleasure, my dear friend. I know this is not your usual time with us, but thank you. We could do to our emailing each other over the weekend. Thank

you for coming on. Thank you for your wisdom. And we'll see you again next week. Yes. Of course. All the best. We do have a full week for you. Scott Ritter from Moscow. Phil Giraldi, the Intelligence Roundtable.

Tony Schaefer, Matt Ho, Karen Kwiatkowski. Thank you for watching. Judge Napolitano for Judging Freedom. Roundtable, Tony Schaefer, Matt Ho, Karen Kwiatkowski. Thank you.