Pod Save the World - Biden Launches Airstrikes Against Houthis in Yemen

Episode Date: January 17, 2024

Ben and Tommy discuss US airstrikes on the Houthi rebels in Yemen and why they are unlikely to deter them, and provide background and context on the Houthi’s origins and motivations. They also cover the latest in Gaza and frustration with the administration’s refusal to change course after 100 days. Then they discuss the recent spike in gang violence in Ecuador, efforts to prevent Guatemala’s new President from being sworn in, Taiwan’s election results and North Korea announcing the end of efforts to reunify the Korean peninsula. Then Tommy speaks with Oona Hathaway, Director of the Center for Global Legal Challenges at Yale Law School, about South Africa’s charges of genocide against Israel at the International Court of Justice. For a closed-captioned version of this episode, click here. For a transcript of this episode, please email [e-mail] and include the name of the podcast.

Welcome to Pod Save the World. I'm Tommy Vitor. I'm Ben Rhodes. Were you up really late last night at the real nail biter in Iowa? Do they call the thing before people were voting? You know, the funniest thing is that I thankfully did not have to do a podcast like you guys. So I wasn't following it that closely. And I got a news alert on my phone that just popped up and said, Ron DeSantis wins second place in Iowa.

And I thought it was like the dumbest alert I've gotten in a while. that's saying something because the news media, the political news media has nothing to talk about, right? And so they have to create drama around something. Exactly. Well, we know we have a lot to talk about because we talk about the wars in the world, right? The political side. And the idea that this complete non-entity of a presidential candidate who has no path won a contest for second place 20% to like 19% merits like a news alert pushed out on everybody's phone is a sign that because all. these people had no takes to write for weeks other than Iowa is really about second place and momentum.

It was just so sad to see that. And the turnout was like 110, 100,000 people because it was so cold that people didn't want to leave their houses and freeze to death. I mean, yeah, it was like the worst possible outcome for news purposes for the country for Nikki Haley because Trump won immediately and was able to dance on all their graves. And then it was like too close to call for a while for Haley and DeSantis. and she narrowly lost to him. So she has an actual path to do well in New Hampshire and then maybe make something happen in South Carolina, though I'm very, very skeptical.

He has absolutely no path, but now he's going to stay in and keep going. And it's just like, ugh, everything sucks. It's also sad because I was thinking about caucus night in 2008. Yeah. I was in New Hampshire because I had deployed to New Hampshire. And I remember crying in the office. when Obama won. And then I remember just like working to get ready for Obama to land in New Hampshire,

like in the middle of night or something. Yeah. Yeah. And actually it was the last people in the office in New Hampshire were me and Ben LaBolt's current White House Communications Director, Marty Adams, extraordinary human being, just drinking probably the fourth case of Miller Light cans that were there. And just reading all the cover. of the Obama win. And it felt like, and it was an historic occasion. And now the Iowa caucus is like Rhonda Sanders giving a four-minute speech snarling about the media, I guess.

You know, and Nikki Haley trying to pretend like she has a chance. And Donald Trump delivering some not very persuasive unity mentions. Yeah, yeah, yeah. Anyway, we've come a long way from 2008. I know. It was not exactly hope and change or inspiration. And I do wonder what it all means for the future of the Iowa caucuses. Obviously, on the Democratic side, we got rid of Iowa.

But if a guy like Donald Trump can barely campaign, barely show up in the state and then win. Now, I know he was like essentially an incumbent. But if retail politics seemingly doesn't matter cycle after cycle, I just wonder if these early states will preserve their spot. Congratulations on dealing yourself out of relevance, Iowa. Yeah. I don't know what else to say. Yeah, not great. Not great.

Well, we got a great show, Ben. We have a great check. We are going to cover the U.S. coalition airstrikes against the Houthi rebels in Yemen, the latest from Gaza, gang violence in Ecuador, and an attempted coup in Guatemala. We'll also cover the results of the election in Taiwan, which you previewed last week, and then some not so great news out of North Korea. And then I just did an interview with a woman named Ona Hathaway. She is from Yale University. We talked about South Africa's argument that Israel is committing genocide in Gaza, a little like. interview about events at the Hague. Actually, it was fascinating because we talked about why this

case is the ICJ instead of the ICC, which people are more familiar with. The threshold of proof you need to prove genocide, the evidence that's been presented so far, the far-reaching potential legal ramifications of the ICJ making a determination that genocide is happening for the United States and for the U.S.-Israeli relationship. It was fascinating conversation. Yeah, a huge moment that's somehow flown a little bit under the radar in the U.S. But the one thing I'm certain of is that these cases, not just this case, but there'll be other war crimes cases. I'm sure there'll be cases at the ICC. These are going to be around years and years and years. And I think people don't fully appreciate that. I also think people don't fully appreciate in this country

the degree to which around the world people are intensely following this. And following it as it relates to some of their built-up sense of grievance about the occupation, but also some of their built-up resentment of American double standards in the application of international justice. So I think this is a bigger deal than even the enormous deal that it is as it relates to the immediate conflict. This is, it feels like a kind of seismic moment for the whole idea of international justice. Yeah. And we also talked about how present history is at this trial because you have the history of the Holocaust, you have the history of apartheid in South Africa and how that context is awash in all

of these debates and conversations and what will be adjudicated. It's just like pretty incredible moment. Yeah. And then Ben, before we get to the news, one thing I just did want to flag for listeners, you probably saw a couple episodes of a new show in your feed on the POTS of World Feed called Dissident at the Doorstep. This is an issue that you and I worked on at the White House. I think this was back in like 2011. I don't remember exactly. It all blends together. But one of China's most prominent human rights activists escaped house arrest in China, somehow

found his way in the U.S. Embassy. Barack Obama had to basically negotiate his release. He got to America. He was this, you know, hero of freedom of democracy. And then fast forward a few years later, and this guy is at the capital of January 6th. It's the story of a man named Chen Guaucheng. He is also often referred to as the barefoot lawyer or the blind lawyer. He's this incredible story of a guy who grew up in abject poverty, taught himself the law, became this fighter for justice and human rights in China. Just incredible story.

Incredible story. He was always, though, I remember at the time a bit of an unlikely hero for the American concept of a Chinese dissident because he was essentially kind of an anti-abortion activist. Very much so. So even at the time, I remember, you know, he had other pieces of a human rights agenda, but I remember being animated by opposition to the one child policy and abortion. And so he was always kind of this hero to the American right more than the left in some ways. So it was always strains of complexity, but it's a wild story that he went from literally being a main character in the Hillary Clinton book, Hard Choices, to being a January 6th. Yes. So check it out.

It's just an incredible arc, an incredible story in its own right. And also, I think it kind of traces the arc of the U.S. China relationship and how it's gotten worse over the years. It's unthinkable today that the U.S. could take custody of a dissident and get them out of the country. Shijun Pink would not let that plane out of the country for one second. So anyway, listen to new episodes at Dissent at the Doorstep every Saturday in the Potsie World Feed. You will not regret it. It is fantastic. The first two were out already.

Okay, Ben, let's talk about the U.S. and Yemen and the Houthi rebels. So last week, U.S. and British fighter jets hit around 30 sites in northern and western Yemen used by the Houthi rebel group to launch and store drones and missiles. This military response came in response to the Houthi's firing dozens of drones and missiles at commercial ships. in the Red Sea. The Houthis say they're targeting ships in the Red Sea to pressure Israel to stop the war in Gaza. Last week, we talked about how the U.S. Navy had directly engaged in combat with the Houthis back in December. Before that, the U.S. assembled this 20-country maritime coalition to defend ships in the Red Sea, and they had shot down about 60-plus Houthi projectiles, drones, rockets, et cetera. However, the group of countries that participated in these airstrikes in Yemen was much

smaller. It was the U.S., the UK, Australia, Canada, the Netherlands, and Bahrain. So U.S. officials say the strikes damaged or destroyed about 20 to 30 percent of the Houthi's offensive capabilities. The goal here was to deter future Houthi attacks, but a lot of experts say the Houthis are not likely to be deterred. They are very comfortable being at war and rallying their followers around a cause like this or an enemy like the United States. On Monday, CENTCOM said that an anti-ship missile fired by the Houthis hit a U.S.-owned cargo ship, so seemingly not deterred yet. Ben, we talked last week about why we thought strikes in Yemen would be a bad idea. Yeah. A day before they happened. Part of that rationale was the lack of authorization from

Congress. Sure enough, members of Congress are not thrilled with what happened. Here's a clip. The president engaged in these strikes without seeking congressional approval. And, you know, the White House was telegraphing that there was going to be some retaliation. So there was certainly time and space to come to Congress and consult with Congress and ask for our authority, particularly because the Houthis were saying that the reason that they're doing this is because of the war in Gaza. And so I think that the implications of all of this are that the United States could be pushed into a significant set of hostilities and a committing of our resources. and that is something that Congress should consider. He should have come as the Constitution requires to Congress, and that was echoed in a bipartisan way by Senator Mike Lee,

Representative Jonathan Jackson, and many other senators and Congress people, so that we can discuss whether this actually could put more American troops at risk. I'm concerned about retaliation in Iraq and whether it could draw us into a Middle East war. And I believe that he did not follow the Constitution. So there are Democrats, Congressman Bramilla Jaya Paul, and Congressman Rokane.

So, Ben, thoughts on this decision now that it's happened? My thoughts haven't changed. I think, you know, our segment holds up pretty well from last week. Here's what I'd add to it, a couple of things. First on the Congress piece, I think what's important, what you heard from Jaya Paul and Rokana is there's consistency to their position. In the Trump years, there was a coalition of a lot of. lot of Democrats that opposed even the participation of the United States in the Saudi-led military

intervention in Yemen because there was no authorization from Congress. And I think it's really important whether they're talking about domestic laws relates to war powers or you're talking about foreign policy that we can't change our positions just because the Democrat is president, you know. And I'm sure the Biden people will mount an argument rooted in some form of self-defense. Ships are being attacked. And that, okay. There's some truth to that. But then take it to Congress. Right.

That is different than what was happening before. But I still think it holds that this should go to Congress. And I think what you also hear in Roe-Connor's statement is the reason the administration should particularly do that is this has the potential to be one of those left-right issues where the left is uncomfortable with this because it's the president potentially getting us in another war. And the right, the libertarian right, is similarly uncomfortable with it because it's extreme presidential power. That's a dangerous place to be. with Congress because you can get to a majority, a bipartisan majority pretty quick. And in the

Trump years, I think we saw like nearly veto-proof majorities in that space. So watch that. You know, who else didn't like it was Donald Trump, who truth the following. So let me get this straight. We're dropping bombs all over the Middle East again, where I defeated ISIS in perens. Our Secretary of Defense, misspelled, who just went missing for five days, is running the war from his laptop in a hospital room. So that was a future future. There we go. We look forward to a robust debate on the issues. The fundamental thing I want to say about this is I was thinking about how to add to what I said last week about this is lighting a fuse. It's an escalation to go into Yemen and not just hit them in the Red Sea.

I was thinking of a parallel, a lesson that the U.S. should learn. And it's a lesson I feel like I learned the eight years ago as in the White House. It is one thing to hit a terrorist organization that is largely made up of foreigners who get a safe haven someplace. So Al-Qaeda, a lot of al-Qaeda was people that moved to that border region of Pakistan and Afghanistan to kind of plot attacks. Saudis like bin Laden. Saudis like bin Laden. A lot of ISIS was foreign fighters. Remember, foreign fighters pouring into Syria and Iraq to support that.

And if you go and you launch a military campaign against foreigners who are using a geographical space to kind of launch attacks, you actually can defeat those people. You cannot defeat people who just live in the place where they live, right? And I was thinking of a parallel that's not a direct parallel, but bear with me. Do you remember the Haqani Network, Tommy? So the Haqani Network was kind of an aspect of the Taliban insurgency. It was kind of distinct in a certain part of Afghanistan, northeast Afghanistan, along the Pakistan border. I think Waziristan, big stand guys. Yeah.

Yeah. And the U.S. military really hated these guys because they carried a lot of terrorist attacks. They're very lethal. And so we're constantly kind of ramping up military pressure on the Haqqani network. But if you looked at what the Akhani network was, it makes it sound like it's some, like a foreign terrorist organization or something. It's, it's, it's, the Akhanis were tribes that lived in that part of Afghanistan. You weren't going to defeat people that just live, the Houthis live in Yemen. Like they're not going to surrender. We've seen that. They, they, They've lived through years of war and they've proven their resilience through that process. The kinds of weapons they have are pretty cheap to acquire. They feed on this conflict, right? I mean, Hamas, the Houthis, they want the U.S. in this conflict. That's their objective. They want their arsonists. They want the whole region to be on fire.

And so I just think escalating into Yemen, there's not an achievable military objective. You're not going to defeat these people. you're not going to deter them from launching these attacks. I think it's better to try to focus on protecting something clear like shipping through the Red Sea. Once you kind of bring this war into Yemen, it gets unpredictable. They're firing back in other places. There's the risk of escalation in Iraq from other proxy groups attacking U.S. forces or diplomatic targets. Things could pop up and blow up in other parts of this region.

I just think when you escalate against a group that cannot be defeated that is going to be where they are, that has a surrounding population, by the way, in Yemen that hates the United States because they believe that we were part of, understandably believe that we were part of a war that's caused humanitarian catastrophe. You're kind of, the flames are getting bigger, and I don't think that you're putting them out. That's really, really good context. And I want to do a little more background on the Houthis. Oh, by the way, now the Hukai Network is in the cabinet in Afghanistan with the Taliban.

All as well that ends well? No, the exact opposite. Yeah, so a little more in the Houthis. They are Zadis, which is a subsect of Shia. Islam. And in the 80s, the Saudis and the Yemeni government started promoting this more hardline version of Sunni Islam in predominantly Zadhi areas that led to this indigenous domestic resistance movement, including the rise of a cleric named Hussein al-Huthi, whose followers became called the Houthis. So then to your point about, you know, this all swirling together. In 2003,

Houthi leaders called for mass protests in Yemen in response to the Yemeni government's support for the U.S. invasion of Iraq. And around that time, Houthis also started calling for the extermination of American Israel. That led to the Yemeni government to crack down on the Houthis. They killed Hussein Al-Houthi in 2004. That leads to the first Yemeni civil war. Fast war a few years in several conflicts. In 2011, during the Arab Spring, the Houthis seized part of northern Yemen, and then in 2014, they took control of Sanaa, the capital, which leads you to 2015, which is when the Saudis launched this disastrous military campaign to dislodge the Houthis. by the way, the UN, we've talked about it before, but the UN estimates that through 2021,

the war in Yemen killed 377,000 people. More than half of those were from starvation or like lack of health care, et cetera, and millions were displaced. There was a ceasefire reached in 2022. That ceasefire and how fragile can feel is part of why you and I talked about it being a bad idea to launch strikes into Yemen last week. But I wanted to share more of this background because it's interesting, but also I think it complicates the over simplified narratives.

I think you're seeing a lot in the media about the Houthis, right? The first narrative is they're an Iranian proxy group. All their claims about caring about Gaza are bullshit, right? That's narrative one. Narrative two, talk about sort of the horseshoe theory here. On the right, it's like, oh, these guys are brave, anti-imperialist freedom fighters. The reality is a lot more complicated. The Houthis have fired missiles at ships that have nothing to do with Israel.

But I think we should take them at their word that they are doing this because the war in Gaza motivated them to do so. They were probably prodded by the Iranians, but certainly I think we should listen to them. But also, like, the people cheering for the Houthis for standing up for Gaza should probably know that Yemeni human rights groups have accused them of subjecting Ethiopian migrants to sexual slavery

and other abuses. So these are not good guys. Yeah, yeah. Don't be cheering for these guys in Times Square, you know, I mean... No, not at all. But it's just like, you know, to me it just gets back to the point like, okay, let's take them at their word and let's view the war in Gaza as the key to reducing tensions and de-escalating

and not necessarily blowing up stuff in parts of Yemen that have been, you know, dealt with airstrikes for years now. You made this point last week, and it's a really good point, which is that just because, you know, we don't like that this group is kind of coming into the war in Gaza and doing it by firing weapons indiscriminately at like container ships in the Red Sea doesn't mean that it's not true that that's why they're doing it. And the fact of the matter is they weren't doing it before the war in Gaza. So it's not about trusting them.

It's about the fact that when you have a war that is escalating as the war is in Gaza, other groups, whether they're being opportunistic or whether they're being ideological or whatever the reason is, they're going to start to do shit like this. And so it is a part of the war in Gaza, even if we want to kind of separate it out and say, no, no, we're not going to grant them legitimacy. It's just a reality that you've seen more active violence from different groups across the region so long as this war continues escalating Gaza. And so therefore, we have to see this as de-escalation that has to involve the war in Gaza. I think the other thing that you said that's really important is that I remember in 2015 when the Saudis were getting more and more exercised about the Houthis and ultimately launched this kind of misguided intervention into Yemen.

And it was not the case that they were like, the Saudis liked to present, and particularly their friends in Washington, you know, like the foundation for the defense of democracies type people, liked to present them as literally like the IRGC, that they were like part of the Iranian, you know, Iranian-backed Houthis, Iranian. But they were not like a creation of Iran. That's why the history you did is so important. Like they're literally named after a guy just like the Khanis, Houthi, lived in Yemen. There are people in Yemen with grievances. It doesn't mean they're good guys. It doesn't mean that they're right about everything. It just means that it's not like the Iranians invented them.

They are a force in Yemen that has a relationship with Iran that is tied to their sectarian identity as Shia and that involves the Iranians providing them with weapons. They don't take all their orders from the Iranians. Everything they're doing is not an extension of Iranian farm policy. It's murkier than that. The Iranians have a degree of influence of the Houthis like they do. with militias in Iraq like they do with Hezbollah, like they do with Hamas, but these are also independent actors. And it just shows you that it's not as simple as saying we're all fighting, because this is how the debate gets presented in Washington, we're all fighting one battle

against some Iranian bloc across the region. That's not really the case. There's localized grievances. There's a lot of history to these places. These people have independent power bases, and they have relationships to Iran. I'm not saying that in any way to let Iran off the hook for what they do provide, but it's misguided thinking to believe that there's just this simplified, you know, access of Iranian proxies that can be defeated by punching them really hard in the face. Yeah, and look, Trump on the way out the door designated the Houthis as a terrorist group. President Biden reversed that decision. A lot of good that day.

Really put them out of business, you know. Set them back. Send them back gears. Biden reversed that decision in February of 2021 because the administration was concerned that it would make it much to deliver aid to Yemen, one of the most impoverished countries in the world, certainly the region. I mean, 75% of the country needs humanitarian assistance. I do worry you're going to see a lot of pressure on President Biden to reverse that reversal, even though it probably wouldn't do anything. Other than make it harder to deliver assistance. I mean, we dealt with this in Somalia.

People, you know, Al-Shabaab is a terrorist group, designated terrorist group in Somalia. And we had times in the Obama administration when there was real famine in Somalia, but we couldn't deliver any assistance there because some of the assistants might have reached al-Shabaab, and then therefore you're violating your own sanctions. And so what? You're going to let a lot of innocent people die because of some designation that only really matters in Washington, you know? It just, it shows you how these tools that are available to the U.S. don't fit the problems they're trying to solve. Yeah, that's right. So let's talk about Gaza for a minute because it's all stemming from the war there. So I think we try to be measured on the show and how we talk about everything, right? Because the issues are

hard, the jobs are harder, we know your options can be bad or worse, we know that sometimes your boss makes a decision you don't agree with, you're stuck implementing it. And I imagine that is probably especially hard right now because you have all these people in government who dedicated their careers to the creation of a Palestinian state and are watching their life's work unravel, right, because of this war in Gaza. Yeah, I know some of those people. Yeah. And like, so I think that's why, you know, sometimes our tones are measured and we let the facts through the talking. But I just want to be clear like what's happening in Gaza right now is indefensible. And it's not just the death toll, which is staggering. We're talking about 1% of the population, including thousands of kids.

By the way, all the sort of truthers out there who say, well, you know, the Gaza health ministry is Hamas run. Those numbers are probably wrong. I think most people now believe that the death hole is higher than what the Gaza health ministry is reporting because people are under the rubble. And then also, I mean, I'm sure there's people who have unrelated illnesses that they can't get treated because there's no longer any health infrastructure. And I just think that, more than 10,000 children have died. So the people that want to be truthers or say that, you know,

9,000 of these people are Hamas fighters, which is a figure that the IDF puts out without describing how they categorize what is a Hamas fighter. They might just be counting military-age males or something. How do you reckon with that figure of the number of children dead, you know?

Right, right. And look, you're right. I mean, we, I've almost run out of ways to talk about why I'm, I'm so appalled by what's happening. I think one of the simplest ways you can kind of try to explain this to someone who maybe is, you know, trying to see it from all sides. When the U.S., again, which I'm not saying the U.S. has, you know, covered itself in total

morality here in its war on terrorism, right? But, you know, drone strikes, right? which again, people can mount very credible arguments against. This is not to defend drone strikes. This is saying even something very controversial like drone strikes involved, like sending very precise weapons at an established terrorist target. They have been dropping scores of 2,000 pound bombs on Gaza. There is nothing targeted about that.

No. You cannot say that you're taking the utmost care to avoid civilian casualties as you are dropping 2,000 pound bombs on civilians and on targets where you've said, okay, move south and then we're going to bomb that too. Like this is not complicated. Yeah. You know, a 2,000 pound bomb, this didn't just happen once. This happened a lot of times, right, is not a precise weapon. And that to me, you know, like is an indefensible use of force. And no rationalization or you can't kind of talk your way through that one.

Yeah. And the results speak for themselves. I mean, Gaza has been leveled. More than half of all buildings in Gaza have been damaged or destroyed. In northern Gaza, it's closer to 70 to 80 percent of buildings that are damaged or destroyed. The country is on the brink of famine. There's no access to clean water. People are either crowded into these refugee camps in the south or about 300,000 people

are stranded in the north, where the U.N. says only one quarter of aid shipments have actually reached their destination this year. So people in northern Gaza that no one can reach are starving to death. Senator Chris Van Hollen recently went to the border crossing and said that Israeli inspectors are rejecting aid shipments into Gaza for reasons that, quote, seemed purely arbitrary. Again, this is Chris Van Hollen. He's not some like far left guy chanting from the river to the sea of protest. He's like a middle of the road democratic politician. And, you know, people who say, okay, what about the hostages? Only one hostage has been rescued in a military operation, and that was back in October. The rest got out because of diplomacy. And so, again,

despite all the talk from the Biden administration about prodding the Israelis to shift into a like lower intensity combat with fewer airstrikes, that has not happened. And it will not happen unless the U.S. actually exerts real pressure. You know, like we talked about this last week, the Hug Bibi strategy has failed. Yeah. publicly teleghing that the U.S. U.S. would never pressure Netanyahu publicly and would never even consider conditioning aid, always, it was clear to me was always going to make it easier for him to act with impunity. And the backdrop was always going to be the political context where Netanyahu knows that he can only avoid political accountability as long as the war is still going and he is still in office.

And so, again, like I think the thing Biden deserves credit for is for, in those early days, pressuring Israel not to launch a preemptive attack on Hezbollah, because there's lots of reporting that they were very close. But now the conflict is once again spirally again. The risk of escalation with Hezbollah is growing. You're seeing like the defense minister saying like the clock is ticking basically. We're going to have to turn the hourglass over some sort of scary rhetoric. The Houthis are taking shots at us.

Iran is firing weapons into Iraq. They say it's because of ISIS. But, you know, I think it probably sends a message to a lot of folks. So it's just it's so long. past time to demand a ceasefire, to negotiate the release of hostages, to put conditions on future assistance, and to just like stop allowing the Netanyahu government to drive policies. They're decimating Gaza, but also making Israel less safe and making the United States less safe. No, it's revealing why you can't say you're going to hug a country and hug a government and

not impose any conditions on any of the aid they get and criticize them in private and think that that's somehow going to matter when it's this kind of government. You know, that might work with a different Israeli government, right? But it's not going to work with Bibi Nanyahu in this kind of group of extremists that are to his right wing in this coalition. If there was a ceasefire today, we should be very clear, like it's already so far beyond an acceptable level of loss of life. We're talking about 25,000 people maybe more killed, children killed. We're talking about this place, Gaza just leveled. We're talking about hundreds and hundreds of thousands of people displaced. We're talking about a degree of trauma on children who've been maimed or who've lived through this bombing for three months

already that is going to be with them for the rest of their lives. So it's not like a ceasefire ends the suffering for these people. They are going to be living with trauma. They're going to be living with injury. They're going to be living with that parents or sons and daughters or brothers and sisters for what purpose to take out some of the military wing of Hamas and to blow up some of the military wing of Hamas and to blow up some tunnels, is that really worth the destruction that we've seen in Gaza? And look, the White House, President Biden, you know, clearly they're uncomfortable with what's happening, because they keep telling us that. And I'm sure that they are delivering that message in private. But again, until, and unless, and until you're willing to say, there's a breaking point here where we're not going to

provide assistance or we're not going to kind of shield what you're doing and talking points about, like, you know, someday there might be a Palestinian state when that's not. not the policy of the Israeli government. You know, that doesn't work as policy. And I do want to just say one thing, Tommy. I don't usually jump on things that, like, kind of pop up repeatedly on my social media feeds. But I'm going to do it. Like, putting on a statement on the 100th day of this war about the hostages makes sense.

Of course, because we have to express empathy to families that do not have their loved ones them and we have to show that we are remembering them and and there's Americans potentially that are part of that. That is entirely appropriate. But I do think that not thinking through what message it sends to put out a statement like that and have no messaging whatsoever about just the loss of life that's taken place. And for people in see it, there's a statement went out from President Biden about the hostages that didn't mention Palestinians at all. if part of the dynamic that you're wrestling with internationally and even in domestically is that this is a do lives matter kind of dynamic whether that's your intended message or not

like it just suggests that the lives of these people don't matter the same and and we have to as a country and as a government not send that message and and and i just please like i hope that there's a corrective to that and not just messaging and policy going forward. And I'm glad, you know, what I will say is there are very well-intentioned people serving the U.S. government who don't go to work wanting to do this. And I frankly, I don't think Joe Biden doesn't go. I'm sure he wishes this wasn't happening. Of course. Like, I'm sure he wishes someone other than Bibi Nanyahu's prime minister of Israel.

So I do think it is possible to say, look, like this is not like everybody goes to work at the State Department or the White House is somehow like, you know, happy that this is happening or even supportive of it. But, you know, you own the circumstances that you're part of. I had to deal with that. I didn't agree with everything that happened when I was in White House. And this is necessary that there be voices that just show that like, like, this is, this is not normal. This is not. This is intolerable. This is intolerable. So far past the. the point of no return. It's completely intolerable. And look, I mean, early on, there was a constant communication between Biden himself and Netanyahu. Now they reportedly haven't spoken in

three weeks. I'm not sure what level the pressure is coming from on the Israelis to change course. I mean, it's clearly not working, but I don't know where the pressure is coming from. Bernie Sanders is trying to force a vote in the Senate today, Tuesday, on stopping aid to Israel until basically a human rights report can be created on how the weapons are being used. That's probably going to get like seven votes. Which is supposed to be existing U.S. policy. I know. I mean about it's not normal.

Like normal is, 100 to 0. Yeah, normal is that there are conditions for human rights attached to all U.S. military systems. That's normal. It's just not enforced in this case, you know? Yeah. And again, Chris Van Hollen, like down the road,

it's Democrat, said, quote, my view is that the Biden administration is not adequately exercised U.S. influence and leverage to achieve our goals. There's a big difference between stating our objectives and achieving them. I think that's a fair observation. And again, one other, you know, not to talk. the shadow box social media. But the other rejoinder

you hear all the time is like why are you calling on Israeli government to do X, Y, and Z? Why aren't you calling on Hamas to put down their arms like hostages go, et cetera? Of course.

Hamas would never fucking listen to us. Of course. Everyone's calling on Hamas. I don't want Hamas to have any role whatsoever in the future of Gaza, the Palestinian people or the Middle East. And again, like, from the very beginning, like there's an appropriate

use of force against the military wing of Hamas, but that's just not what we're seeing, you know? And the U.S. doesn't provide $3 billion a year to Hamas's military. Yeah. Well, those 2000 bombs are American bombs. Yeah, exactly. Okay, we are going to take a quick break and we come back. We are going to talk about Ecuador, Guatemala, Taiwan, and North Korea. So stick around for that. Some very scary scenes in Ecuador recently where gangs have basically started to wage war on the government. Here is the back

sort of what happened. So several weeks back, Ecuador's top prosecutor launched a major operation to root out corruption in the government, especially cooperation between government officials and drug gangs. They made a bunch of arrests, including some judges, some police, and the former prison authority director who are coordinating with these narco gangs. The government is also planning to transfer several gang leaders from the prisons they were in to these, to a maximum security prison. That news somehow leaked to the gangs themselves and two gang leaders escaped before they could be moved. In response, President Daniel Naboa declared a state of emergency in a war on the gangs, and there was this explosion of violence.

So you had inmates in several prisons taking hostages. They took about 200 guards and staff hostage. Police were kidnapped in some areas. About 11 people were killed. And then the thing I bet a lot of people saw back here in the U.S. is gang members stormed into a TV station and broadcast themselves taking the employees hostage live on television and delivered this statement to the president, President de Boa, to stop his crackdown on gangs.

So this will be an enormous test for Naboa going forward. He just took office in November. Vox had a fascinating story about how Ecuador went from being one of the most, you know, stable, peaceful upper middle income countries in the region to this intolerable level of violence. It talks about how the demobilization of the FARC rebel group in Colombia coupled with declining demands for cocaine in the U.S. But an increased demand in Europe made Ecuador's ports more valuable.

there was this power vacuum without the FARC that was filled by cartels from Mexico, gangs from Venezuela, even the Albanian mafia, I guess, moved in. And that fed into, as they do. As they do, they're always everywhere. So that fed into existing turf wars. And then the result was basically homicides went from the quadruple since 2018. And last year, we talked about how a presidential candidate was assassinated. So Ben, here's a clip, President Daboah on CNN talking about the support that he thinks he needs

from the international community. We need international cooperation. I would gladly accept cooperation from the U.S. We need equipment, we need weapons, we need intelligence, and I think that this is a global problem. It's not only in Ecuador. This is a problem that goes beyond borders. About 35, 40 percent of the drugs that come out of Ecuador go to the states, another similar percentage to Europe. So this has to be treated as an international problem. So, Ben, State Department is going to send a bunch of a delegation of diplomats, folks in the military, law enforcement, to provide some sort of assistance to Ecuador. What do you think the role is for the U.S. here to help out?

I mean, I think, as the President said, they need an enormous amount of capacity. You know, in the near term, you know, they need probably do need security assistance, military assistance. intelligence and information sharing. I mean, this is an incredible amount of violence happening, you know, not that far south of our border that he's right. We play some role in. The demand for these drugs is in the U.S. and in Europe. Oftentimes, it's even more so the case in Mexico, but weapons from the U.S. where weapons are readily available can make their way down there. And so we have some responsibility here. You know, and if you look at the degree to which we put resources into the Middle East. I'm not suggesting we should go to war in Ecuador. We shouldn't.

But our bandwidth should definitely move down there. And you know, you could make a big difference with that kind of capacity building in the near term. I think it's best if it's not just the U.S. And I think, you know, you heard them indicate that if you have countries from across Latin America as well as European countries, kind of working collectively under some initiative to provide security systems to try to crack down on demand and where the shipping goes and the gangs on the other side in Europe or the U.S. that are helping facilitate this. Like, you need that kind of effort to kind of turn the tide and create a sense of order and normalcy. I think part of what's happened in Ecuador is because you had politicians, especially after that assassination,

who didn't kind of roll over to the gang's demand, they say, okay, we're just going to turn up the heat until you bow to our pressure. And that's a dangerous dynamic. because you either could get, like, essentially, a narco state, or you get, like, a bukele, like a guy in El Salvador is like, you know what? All right, fine. We're just going to imprison, like, everybody arbitrarily and probably violate their human rights and throw out the laws. And the public probably wants that.

If you don't want there to be a strong man or a narco state, you need a kind of multilateral initiative to turn the tide on this. Yeah, you had on two very important points. I think one, this is absolutely a regional problem. I mean, Ecuador is not producing cocaine. It's coming from Colombia or Peru. But basically, they have a dollarized country, so it's easier to buy and sell it. And also the cocaine that's transiting through Ecuador to these ports and getting shipped out.

But, you know, the Buckele comparison in El Salvador is very important because basically what we're talking about now in Ecuador is militarizing law enforcement. Naboa designated 22 gangs as terrorist organizations. He's authorized the military to combat them. in the past he has talked about admiring Buckely, who has basically fought gang violence by throwing everyone who happens to be in the wrong place at the wrong time into prison and as a result... Or is related to gang members. Yeah. And it has like a 90% approval rating that. So that is not a good outcome either.

It's an intolerable level of violence, but also you don't want this like police state. It's a hardest, a hardest held problem. I mean, the U.S. did this initiative over a couple decades in Columbia, planned Columbia, that on the one hand did, help secure Colombia and lead to a renaissance in places like Medellin, but also had human rights overreach, you know. So it's calibrating this is hard, but I mean, if you don't try, you leave that kind of binary between total autocracy and total narco state. And that's worth trying to award. Yes, for sure. Let's turn to Guatemala where there was another wild scene at the weekends. So Bernardo Ariavala was supposed to be sworn into office as president on Sunday afternoon.

but his political opponents in Congress pulled like a January 6 basically. They did almost everything they could to prevent it from happening. And he actually managed to delay the ceremony by about 10 hours. So he was not sworn in until early Monday morning. It took Aravallo supporters threatening to storm the Capitol. It took a strong public push from the United States to finally get it done. Our friend Samantha Power, I think, led the delegation down to Guatemala for his inauguration. So, you know, look, this wasn't, it's been a rough couple of months.

months for Aurevalo. He had to, there was an alleged assassination plot back in the summer between the first round of his election and the runoff. There were rumors that his vice president might be arrested to prevent his swearing it from happening. His political party got suspended for a while. And before that, a number of other opposition candidates were disqualified from running. So it's not been a fair election process. There is this entrenched conservative establishment that really pulled all the stop to try to prevent it from achieving power. Despite all of that, Arirvalo won by more than 20 points in the election back in August. He will be the most progressive president in the country's history. But this battle to get sworn in, I think, is a pretty good indicator of how hard it will be

to govern. His party has very little control of Congress, very little power in Congress. His opponents in Congress have already taken steps to curb his powers, including how much he can spend. And he ran on a platform promising to curb corruption and fight poverty. So he's going to need all the help he can get. The U.S. took a number of steps to ensure that he was ultimately sworn in. The Biden team sanctioned allies of the former president. They imposed visa restrictions on more than 100 members of the Guatemalan Congress for undermining democracy. And a lot of activists in Guatemala actually credit President Biden for avoiding what would have been a coup. This seems like a pretty big win for the Biden team that will probably never get covered in the U.S. But it is like an impressive piece of diplomacy. Well, and they also were involved around the election when their efforts to kind of get this guy out of the contest. So there's been a sustained focus on Guatemala and trying to fortify basically the democratic process. And this, yeah, this globalization of January 6th is the latest chapter. I think in the long run, too, what you want to be doing is, you know, empowering institutions and civil society within Guatemala.

So it's not always like the U.S. coming in. and heavy-handed, they deserve a lot of credit. Over time, what you'd like to see is that capacity to resist this kind of corrupt sclerotic establishment trying to reassert itself. You know, you want to be building the capacity in the country to do that. And so there's a lot of good work that's been done, a lot of more work to be done. Yeah, and reminder, the U.S. is a terrible history in Guatemala. CIA engineer to coup in the 50s.

the U.S. backed a brutal military dictatorship in the 80s. Arvalla's father is a former president, Juan Jose Arivalo. He had to go into exile in the Latin America for a while. So his son was raised in Chile, Mexico, and Venezuela. One last weird thing on this, Ben. You and I both noticed that Trump's former acting head of intelligence, Rick Grinnell, was apparently down. Former Special Envoy to Serbia or something.

Yeah. Yeah. He was in Guatemala like the day before the swearing in the day of maybe. meeting with the outgoing president. Oh, he's good at January 6th. Why? Because he's a January 6 enthusiast. So, I mean, it really bears watching because there's this kind of globalization of, you know, in Guatemala, it's not even like the kind of far right.

It's just kind of corrupt assholes who don't like the peaceful transfer of power. And like the fact that these Trumpies show up, you know, you had Jason Miller, another Trumpy guy, probably Grinnell. I, you know, didn't bother to notice. But I'm sure down in Brazil helping Bolsonaro. You've got Grinnell showing up in Guatemala. You know, he's actually turned up in the Balkans and supportive, like, kind of pro-Russian nationalist. Like, there is a scary, the scary thing about this is kind of comical when you see on social

media. But, like, if Trump wins, like Rick Grinnell will probably be a very senior official. Oh, yeah. He'll probably be trying to, like, you know, put us in some gulag or something, you know. So, you know, we can laugh about it now, but it's a kind of a taste of like, this is actually the kind of people that would be making U.S. foreign policy, the kind of people that are, like, supporting January 6th-style efforts to prevent the peaceful transition of power to a man who won a free and fair election in Guatemala. That's depressing. And it's a reason for whatever you don't

like about the Biden foreign policy, it just shows you the enormous gulf between what a Trump foreign policy would be and this. It could be a lot worse. If you think Victor Orban is a good guy, Donald Trump is the man for you. Okay. So let's do an update on the Taiwanese election. Last week, you had Emily Wu on to do a preview and talk about the candidates and the stakes. Now the results are in. William Lai will be Taiwan's new president. He is the former vice president and the candidate from the Democratic Progressive Party, which had been in power for the last eight years. Senors a rebuke to China, which was accused of trying to influence the election. And they called William Lai a troublemaker and a separatist and the lead up to the vote. What do we need to know about this election? Anything surprise you? And what are the stakes here? It's a really important result. So the DPP is the party that traditionally has been both more pro-democracy and progressive inside of Taiwan because the other major party, the KMT, had been associated with like the single-party dictatorship that governed Taiwan until the late 90s. But they've also been seen as the more pro-independence party. They don't outwardly say we want to declare independence, but they basically don't accept one China as the principle through which they would negotiate with Beijing.

they kind of de facto, and William Lai's position is, well, we don't have to declare independence because we kind of already are in independent country, you know. And so it is a rebuke to China that William Lai was elected. It is an indication of where Taiwanese are going that they see themselves as a matter of identity as Taiwanese and less as Chinese. It is a show that the Chinese play of like disinformation campaigns and intimidation did not affect Taiwanese voters. and Emily talked about this bit.

People are kind of accustomed to living with fear, even if they don't like it. And look, he has moderated his tone. He used to be seen as a little bit more of a rabble-rouser than the previous president Tsying Wen. But he said kind of the right things in this campaign about he's not looking to be provocative or declare independence. And the formulation I talked about was status quo is good because we get to kind of do our own thing.

But what it means is that a window is opening up here. The window in which analysts think that the Chinese military, military will be, quote, unquote, ready to invade Taiwan is 2027. Right, right. And so William Lai getting elected, if the KMT guide one probably would have meant tensions go down and there's like some negotiation, it probably wouldn't have let anywhere, but it just would have parked it a little bit more. This does mean that there's come to this window of William Lai's term and office of the next

few years where this is an issue that is going to have to be managed and there are going going to be provocations and things that Chinese do to try to intimidate and, you know, the U.S. is going to have to calibrate its own statements and, you know, already they're sent, you know, Jim Steinberg and Steve Hadley to kind of... Two former senior officials, Obama and Bush from like Clinton, Clinton and Bush, yeah, to go and I guess just be high-level delegation, but not active officials. It's this game we play where it's not sitting government officials who go, but it's former ones who carry messages. Anyway, it's a preview of the fact that this is going to be an issue, and there are going to be tensions around it. I think it's an understandable result because if I was Taiwanese, I wouldn't trust negotiations with China over anything because the Chinese just kind of essentially want to swallow up Taiwan.

But I think in the U.S. election, for instance, like Biden's position is that we would come to Taiwan's defense militarily. Trump has kind of been on all sides of the issue. It just means this is going to be something that matters. Yeah, definitely matters. Speaking of issues that are sort of bubbling up in the region. So not so good news that North Korean leader Kim Jong-un said that his country will no longer pursue reconciliation with South Korea. That basically means that the decades-long official policy of unifying the Korean Peninsula is now officially dead. North Korea also abolished the key government agencies that have been tasked with managing relations with South Korea.

And on January 1st, Kim Jong-un said that his military should, quote, thoroughly annihilate the United States and South Korea if provoked. So then we are pretty used to genocidal rhetoric from North Korea at this point. But what do you make of them officially abandoning reconciliation and reunification? I think what I make of it is like, yeah, like on the one hand, okay, it's not like he was really pursuing reunification. So I don't overstate it. But what I make of it is I think Kim Jong-un feels in a particularly strong position right now. You know, he's got this relationship with Russia where Russia is actually relying on him to supply all this artillery. and he's probably getting God knows what in return.

His nuclear program has advanced leaps and bounds, particularly since the famous Singapore summit with Donald Trump. You got fourth in Iowa. Is he the Biggsby guy or something? He did pretty good. No, yeah. The Chinese who used to kind of occasionally work with the U.S. to put pressure on the North Koreans, since the U.S.-China relationship has gotten frostier,

the Chinese are much kind of more outwardly friendly of the North Koreans is much less willing to put pressure on them. So I think what it shows is this guy is like, wait a say, I'm not going anywhere. I'm pretty comfortable. I've got this nuclear missile program. I got my friends to Russia and the Chinese. The international community, such as it is, can no longer pressure me like they could a decade ago.

And so, yeah, I'm riding high. I don't have to pretend that I want to like make up with these guys. And maybe my best friend who I exchanged love letters with Donald Trump could be president of the United States in a year, you know? And so again, watch this space in a, because the risk, the better he feels, the more I feel like there could be some provocation from him to start messing with the South Koreans.

Yeah, absolutely. It's one of those dogs that has not barked in a while, but when it does, it would be a very big deal. Last thing before we go to the break, I just want you to know that while we were recording, former crooked producer, comedy writer, all around hilarious person. Travis Hellwig sent me a text,

wondering why we don't have a band called The Houthies and the Bloch. back. So just wanted to get that out there. That's your real-time reaction, Travis. We're going to take a quick break. And when we come back, you will hear my interview with Ona Hathaway, the founder and director of the Yale Law School Center for Global Legal Challenges. We're going to talk about South Africa's case at the ICJ alleging that Israel has committed genocide. The UN's International Court of Justice has been hearing testimony in South Africa's case against Israel for allegedly violating the genocide convention.

Joining me today to talk about the legal details and the international implications is Ona Hathaway, the founder and director of the Yale Law School Center for Global Legal Challenges. Ona, thank you so much for doing the show. Thanks so much for having me. So can we start with some basics? Can you help listeners understand the difference between the International Court of Justice or the ICJ and the International Criminal Court or ICC?

They might be more familiar with the latter. Yeah. So the International Court of Justice is a court that's an organ of the United Nations. So when the United Nations was created in 1945 at the end of World War II, it was one of the main organs. So the Security Council, the General Assembly, and the International Court of Justice. Those are kind of the three main organs of the United Nations. And every state that is party to the United Nations charter is also a party to the charter of the International Court of Justice. And the International Court of Justice only hears cases between states.

So the only person who can bring a case is a state, and the only person who can be sued or the only entity that can be a case can be brought against is a state. So here the case we're going to be talking about is South Africa versus Israel. Now, the international criminal court is different. It's much newer. It was set up in 2001. And it's a criminal court. It's what sounds like.

And while states are party to it, what they're doing when they're doing when they become, come party to the International Criminal Court is they're saying, you have jurisdiction court over my citizens if they commit the crimes that are within the jurisdiction of the court or if crimes are committed on my territory. And that's criminal law jurisdiction. So it's jurisdiction over individuals. So there was an indictment of Putin, for instance. So these are criminal cases that they then get brought in the international criminal court against individual persons for international crimes and they're prosecuted for those crimes and they can be locked up for for those crimes if they're found guilty. Fascinating. Okay, very helpful. And so in this case, South Africa is asking

the court to order an immediate end to Israel's military campaign in Gaza. My understanding is that these cases can take a long time to adjudicate and that while these rulings may be legally binding, there's not necessarily an enforcement mechanism for them. Is that accurate? And if so, what do you think South Africa is hoping to achieve here? Well, it's partially accurate. So in the narrow sense, it's accurate. So this case has been brought by South Africa against Israel. And this initial stage is the provisional measure stage. So what they're asking for is basically, look, this case is going to take a while, it's probably going to take years. And if you think we even have a plausible case, please order Israel to stop doing certain things that are going to basically mean that the

case is meaningless by the time it's decided. So they're asking for things like stop the war. I don't think they're going to get that full measure, but they're also asking for things like access to humanitarian assistance or asking for preservation of evidence. The court could also order something more modest, like stop committing, stop killing quite so many civilians in the conduct of the war. They may not say stop the war altogether.

So let's say they issue that order. Let's say they issue an order that says you have to provide more humanitarian assistance or you have to allow more humanitarian assistance in. you have to stop, you know, screening things at the border. The bottlenecks have to be let up. There has to be significantly more aid. That's something, I think, is a pretty likely order if the court finds that these allegations are plausible.

And Israel says, no, we don't want to do that. Well, there's a number of things. So the formal mechanism is referral to the Security Council. That's not going to go anywhere because the U.S. would almost certainly veto an enforcement measure. So we can sort of take that off the table. But once the court says, look, we think there's a possible violation of the genocide convention here. And South Africa has said enough here to convince us that there might be a violation and that we're ordering this to prevent a kind of prejudice of the situation on the ground and that this is necessary to kind of preserve the facts and not allow genocide to continue to unfold.

what that does is it triggers the obligations of everybody else. So it's not just South Africa and Israel that are partyed to the genocide convention. The U.S. is party to the genocide convention. Hundreds of over 190 states are party to the genocide convention. So all of those states now are on notice that the court thinks there's a possible or a plausible case that there's violations of the genocide convention. And as parties to the genocide convention, they have an obligation. not to assist and aid genocide, but they also have an affirmative obligation under the genocide

convention to prevent genocide. So it creates this cascade potentially of effects on other states and, you know, particularly thinking about the U.S., for the U.S. to continue to provide aid and assistance, particularly military assistance to Israel, once that decision comes down, it's going to be a lot harder. And that's going to be faced a lot of challenge if, in fact, that that does, that ruling does come down. God, that's really interesting. So it's a lot more than just sort of naming and shaming and all the media coverage around this case. There are some real legal implications that I want to get into later because you are a really interesting piece about this for just security. So let's take a listen to a clip of testimony from the South African legal team. On the basis of the current

figures, on average, 247 Palestinians are being killed and are at risk of being killed each day. many of them literally blown to pieces. They include 48 mothers each day, two every hour, and over 117 children each day, leading UNICEF to call Israel's actions a war on children. Entirements entire multigenerational families will be obliterated, and yet more Palestinian children will become WC, N-S-F. Wounded child, no surviving family.

The terrible new acronym born out of Israel's genocidal assault on the Palestinian population in Gaza. So, you know, pretty devastating description of, you know, some of the outcomes of this war. But I think the key thing for listeners to understand

is that to prove the crime of genocide under international law, you need to show that in this case, Israel acted with with genocidal intent. To make that argument, South Africa put forward a series of quotes from Israeli officials, among other evidence, including a quote from Prime Minister Bibi Netanyahu, where in a letter to soldiers, he invokes a biblical passage that says, quote, spare no one but kill alike men and women, infants and sucklings, oxen and sheep,

camels and asses, end quote. Can you talk a bit about the barrier or the threshold that you need to reach to prove genocidal intent and what you make of the evidence presented thus far. Yeah. So as you said, there's not just a requirement that you show acts. So there are genocidal acts that you have to show. That can include killing, making life intolerable or impossible in the Gaza Strip. Those are the kinds of things that might constitute the acts. But it also requires what we call specific intent. So specific intent to destroy a group and whole or in part. So they have to show not just that they did these things, that they've killed a lot of people. You know, the South African team, you know, went through all the various facts around

killing more than 23,000 civilians and, you know, many people starving and all of that. So that's the act part. But then you have to show that that was done with the intent to destroy a group or and whole arm part. And that is a very high threshold. And so to try and meet that, what they've done here is to use statements from members of the Israeli government. even from like pop stars. So part of that is to show not just genocidal intent, but the failure to prevent incitement to genocide, because that's also a violation of the genocide convention

is not just to commit the genital acts yourself, but to incite genocide by others. So they are using a lot of these statements. Now, part of it was interesting at this stage, because we're so preliminary. We're really, really early on. They're sort of having to use all this public evidence. Once the case ultimately gets to the merits, assuming it ever does get to the merits, they will then, you know, likely have more information, kind of more information about kind of internal conversations within the government that might provide further evidence of specific intent.

But that's what they're trying to do there because because that really is an extraordinarily high threshold. And it's part of the reason genocide is so difficult to prove. Yeah, I mean, so I wasn't at the White House at the time, but my co-host Ben Rhodes was when the Obama administration found that ISIS had the intent to commit genocide against the Yazidi people. And I think they based that determination off literal documents that were like, we are going to eradicate this group of people. And I'm wondering how you sort out in a court of law a document like that, which is pretty cut and dry with statements which, you know, look, might be hyperbole, right? After a horrific moment of trauma for a country for a population or for, you know, leaders who tend to be boastful and want to show how tough they are? Like, how do you sort out what is actual genocidal intent there? Well, this is exactly the challenge. And this is what Israel was sort of pointing to. They were saying, look, what South Africa is doing is cherry picking. They're cherry picking a bunch of kind of random statements. They're taking them out of context. And that this doesn't

demonstrate intent. These are sort of various people kind of randomly picked out these various statements. And as you say, kind of, you know, political hyperbole, they're not really intended to incite genocide or to, they're not necessarily indicative of genocidal intent. And in fact, Israel said, look, you're ignoring all these statements that we also gave that said, you know, don't kill civilians unnecessarily. And we're trying to be cautious about killing lots of civilians. So they sort of tried to balance the scales a bit by showing some of those comments on the other side. You know, so that's, I think, really going to be a sticking point for the court here is to decide, you know, is there enough here that they think that there's a, they don't have to decide here that there is genocide. They have to decide that there could be genocide, right?

So that's the other thing. At this early stage, they don't have to sort of make a final determination in the merits. The question is, is this capable falling within the provisions of the genocides? the side convention. So is there enough here that we think that there is likely to be proven or there's a possibility that it'll be proven down the line that any of these acts constituted a violation of the convention. But I think you've pointed to exactly the really hard part here. And the question is whether those statements combined with intent inferred from acts, you know, so the South Africans also were trying to show, look, you know, there's huge numbers of civilian casualties

that don't seem to be justified by military necessity, that also the starvation of significant portions of the population in an adequate access of basic human needs, water, fuel, access to food and the like, military medical supplies, you know, these things. That was also an important part of the case. And part of what they're trying to show there is not just these statements that demonstrate intent,

but that the kind of reaction and the way in which So many people are being killed and the sort of the way in which life has essentially become intolerable in the Gaza Strip is meant to communicate something about intent as well. So those are the various ways in which they were trying to make their case. Yeah. Let's listen to a clip of the Israeli counterargument. The genocide convention was not designed to address the brutal impact of intensive hostilities on the civilian population. Even when the use of force raises, quote, very serious issues of, international law and involves enormous suffering and continuing loss of life, end quote.

The Convention was set apart to address a malevolent crime of the most exceptional severity. We live at a time when words are cheap. In an age of social media and identity politics, the temptation to reach for the most outrageous term to vilify and demonize has become for many irresistant. But if there is a place where words should still matter, where truth should still matter, it is surely a court of law. What do you make of that argument that essentially the genocide convention was not intended to address the brutality of war? Yeah, I mean, I think that what they're trying to do there, what the advocates who are trying

to do is say, look, genocide is something else, right? Genocide has this resonant power and this term. has this resonant power and it is a very distinctive kind of crime. And I think part of this is an effort to respond to the, for what many is this extraordinary pain of Israel being accused of committing genocide when the convention that they're being accused of violating is a convention that was passed in large part in response to the Holocaust. And so this kind of historical connection between the genocide convention that they're being accused of violating

and Israel and the founding of Israel, I think is part of why this has provoked such an emotional reaction from Israelis and this outrage, really, from Israelis, from the top down. And I think that that's part of what he's trying to say is, look, genocide is something very specific. It's a certain kind of crime.

It's not just a term to be kind of thrown around lately, it is one of the most horrific crimes imaginable and, you know, suggests that what's happening here is genocide is, is, is inaccurate, I think is the claim that they're trying to make. Now, of course, the South Africans are responding that, well, it may not look exactly like the genocides of the past, but, but the claim they're making is that, in fact, they are engaging in a violation of the genocide convention. It may not be precisely the same as, as these historic genocides, but that it has, that it meets a legal definition. That's, that's at least the claim. Yeah, I think you bring up something very important and important piece of context here,

which is that there's a lot of bad actors in this world that like to accuse Israel or often just Jews generally of committing genocide. There is the great replacement theory that we've heard about so much on Tucker Carlson show, another right wing media outlets. There's all kinds of baseless, crazy conspiracy theories that Jews were pushing vaccines as part of a strategy. to exterminate or sterilize non-Jews. Israel was accused of committing genocide in Gaza long before this current conflict started. And it is clear, I think, from that history that some people just want to turn this singular evil in history, the Holocaust, like the greatest trauma ever experienced by the Jewish people

against them. And I'm wondering if you think that context, that history is relevant or will be discussed as part of this trial or this is just more of like a legalistic determination? I think history is so heavy in this case and there's no doubt that it will play a massive role. I think it's heavy in a variety of ways. So in the ways that you've just described, I mean, this history of genocide and the Genocide's convention, its connection to Israel, it's really important that Israel was able to name one of the ad hoc judges. So each side got to name an ad hoc judge. And the judge that was named by Israel is Justice Ahron Brock, who himself was a victim of

the Holocaust. His family was persecuted. And he narrowly escaped with his life from Lithuania and immigrated to Israel. And I think he's been a critic of this government. So it was an interesting choice. I mean, he was sort of the one behind the opposition to the reform of the court. And has been under siege in Israel in some ways because of his opposition to the right-wing government. So it's a really interesting choice to appoint him. But I think they did so in part because he is a kind of this voice of history. He brings this weight of history. And this reminder of that Israel was founded in this history of out of this history of a genocide.

And so there's no escaping it. On the other hand, there's also history on South Africa's side. I mean, I think part of the argument South Africa is making here for why they're bringing this case is they feel this burden of history because of their history of apartheid, because of the persecution of the significant part of their population for much of its history. And this, you know, treating groups of people because of the color of their skin, second-class citizens and making their lives intolerable, that they have this kind of burden of history. as well to speak for the Palestinian people who they see as sort of existing in a similar position. So I think on both sides, we're seeing history as playing this really powerful role in the case. And there's going to be no escaping it. I mean, it will absolutely be an important part of this case and, you know, as it should be.

I mean, that's part of the conversation here is going to be not only what's happening now, but how does that fit into the arc of history and how do we understand the events that are unfolded? now and does it fit the legal definition of genocide given all of that? Yeah, that's a really good point. Wow. I mean, talk about complicating an already complicated case. I mean, you bring in apartheid and the Holocaust and all that history there. It's just unbelievable. Last question for you. So you wrote this piece at Just Security about the potential ramifications to the case, not just in terms of the current conflict that's happening in Gaza, but really in terms of the broader U.S.-Israel relationship going forward. Can you help us understand

those applications? Yeah, I mean, I think this is really challenging for the United States. It has been a steadfast ally of Israel's for as long as I can remember. And, you know, Biden personally is deeply committed to Israel. He has personal connections in Israel. He's, you know, since his days as a senator has been a strong supporter of Israel. And so I think this is really coming from the top, this sort of unequivocal support for Israel. But I think the challenge that we're running into is that Israel is waging this war in a way that's so brutal and killing so many civilians. And that has ignited a regional war. We're already seeing, obviously, the Houthis claiming they're acting on behalf of the Palestinians attacking U.S. ships and other Western ships.

and the U.S. now retaliating, along with the U.K. and Yemen, and the U.S., you know, putting together a big aid package to continue to support Israel. But meanwhile, Israel being accused of committing a violation of the genocide convention. And let's not even, that's not even dealing with another set of problems with this, which is whether Israel is violating the Geneva Conventions as well. That's not in front of the court, the International Court of Justice, because the International Court of Justice doesn't have jurisdiction over the Geneva conventions, but the International Criminal Court, which we talked about earlier, does. And it's in the process of investigating possible violations of the Geneva Conventions in Palestine and by Palestinians.

So the initial attack on October 7 by Hamas is within the scope of that investigation as well. And so that puts the U.S. in a very hot spot because states not only have an obligation not to engage in violations of these international laws, but not to aid and assist the violation of the Genocide Convention or the Geneva Conventions. And the Geneva Conventions also have a special obligation under Common Article 1 to ensure respect. So not only to respect yourself, but ensure respect by others of the Geneva Convention. So the U.S. in having this full-throated support for Israel is now kind of, I think, realizing that maybe that was a little bit of a mistake. And they're sort of trying to backpedal a bit, not backpedal in terms of support for Israel, but saying, you know,

we kind of trying to encourage Israel to, you know, wage the war in a way that's more cautious with regard to civilian casualties, but not really pulling out the threat that it could potentially pull out, which is we're not going to continue to provide aid unless you do. And I think the U.S. is going to be, as this work continues to unfold, if it continues unfold the way that it has, The U.S. is actually facing its own legal jeopardy because it is actually in violation of international law if it's assisting these violations of international law. And if it continues to provide aid to provide new aid knowing what's happening, that is actually pretty clearly a violation of the Geneva Conventions itself, as well as a violation of the genocide convention. So I think this ought to be giving lawyers in the administration some serious heartburn. I think they really ought to be raising questions about whether we can continue to provide this aid without conditions.

And in fact, I think probably we can't. And I think we're probably going to have to really think about how do we ensure that Israel's not going to use the weapons we're providing, the aid we're providing to engage in clear violations of international law. Do you think that's why the administration keeps ducking questions about whether they're doing any kind of review of whether, you know, war crimes are being committed or, saying, you know, Bernie Sanders legislation that he's putting before the Senate right now to try to put some, you know, very limited conditions on aid. It's not the right time, et cetera. They just don't want like a legal record of having looked at these things if this determination comes down.

You know, I think so, but it's so puzzling to me because that's normally, that's not how we normally deal with the law, right? We don't normally sort of like blind ourselves to the problem or sort of close our eyes to the problem. And traditionally lawyers try to anticipate the problems, not, not sort of. of ignore them. And so I worry that might be part of what's happening. And if that is what's happening, I think that's not good. I think the lawyers ought to be really thinking carefully about how do we protect ourselves from being a violation of international law and our ability

to encourage others to abide by international law in the future. I mean, it really does harm not only in this instance, but it really destroys our credibility going forward to try and encourage anybody else to abide by the rules. If we're not abiding by the rules, if we're not abiding by the rules ourselves and we're not holding those that we're supporting to some of the most fundamental rules of the international legal order. So I think if they're not, if they're, if they're avoiding it for that reason and they may very well be, I think that's a really misguided decision. Yeah. I mean, I think maybe the take home for me to take them for listeners is a genocide determination is a very high bar. We don't know if it will be met. That doesn't

mean that war crimes aren't being committed. That doesn't mean that displacing Gazans wouldn't be ethnic cleansing, right? There's all sorts of other horrors that are happening, regardless of whether we determine this to genocide. So you don't have to call it a genocide to demand the administration stop, to, you know, do some activism, to call your senator, to put pressure on the administration to condition aid, right? I mean, I think that's what's driving me a little insane, if we're being honest, the conversation online is like, if you don't say genocide, you aren't really against the war. No, you know, this is like the most serious crime you could commit. It's going to be a high bar. You know, judges will determine that. But we also.

should be pressuring the administration to pressure the Israelis to commit to a ceasefire immediately. Yeah, I mean, I think you're right. And I do think, I do worry a little bit that if, depending on what the court decides here, if they decide that this, that the bar hasn't been met because it is such a high one, that there are credible allegations of violations of the genocide conventions such that they can grant provisional measures, that people read that as like, oh, everything's fine. But that doesn't mean everything's fine. I mean, there's lots of other laws potentially being violated here. And the prosecutor of the ICC has been much slower to act.

And so it traditionally is slow because you has to build a criminal case. And so we may not see that for a while. And so even if there is a decision against provisional measures here, that doesn't mean that there's clean hands. And it doesn't mean that there's not legal problems that we should be addressing. And even if there isn't, even if there aren't any laws being broken, it's still the case that so many civilians are suffering. and so many civilians are being killed

that there's a moral case to do something about that, right? So putting law to one side, I'm a lawyer and I care about law, but law's not all that matters here. Yeah, we should not be killing kids, period, paragraph, or supporting those who do. Una Hathaway, thank you so much for talking with me today.

That was absolutely fascinating and incredibly helpful to understand a thorny issue that could be scary to talk about. So thank you again. Yeah, thank you for having me. Thanks again to Eun Hathaway for joining the show. What else we got? Thanks, Travis.

Thanks Travis for that joke. Yeah. It's good stuff. I will say I was in the car the other with my daughter and I have Sirius XM now because I got a new car. You know, so I got the, and we like series here. Right on. And I was kind of scrolling around and who, who, not who. Who did, who, who did he and the blowfish came on.

What's the guy's name? Darius Rucker. He's a country star now. Yeah. But that song like, Hold My Hand came on. remember that song? And that's how old I am. I'm dating myself. And I was like, I hadn't heard that song like at least a decade. And I was kind of thinking like, there's, those markers particularly when you have kids where you feel old because it's like, my daughter's like, what is this? And I was

like, can I explain her that this was like a massive song? Like massive, like omnipresent song. And I was like, oh, it's just a song from the past. It's one of those times, too, when it doesn't have to be your child, it could be your parent, asks you, hey, who sings this? And you feel embarrassed to set out like a hootie in the blowfish. I remember when my dad, a song came on on the radio, and my dad was like, Tommy, who sings this? And I had to tell him it was Millie Vanilly, and he laughed his ass off for like five minutes straight,

and I felt like an idiot. I had that cassette tape. I definitely had it, too. I definitely had it. It was pretty good. I mean, I haven't heard in a while. There's a great, someone did. It was like a VH1 behind the music type thing

about what really happened to them. It's very sad story. They got exploited in a lot of ways. It was a bit of a tell. that those guys had like massive German accents. Yeah. Like, I think I saw that. And I was like, wait a second.

Like, how did anybody believe that they were singing these songs? And they like, yeah, they barely, they spoke like broken English, you know? Yeah, not great. I felt bad for them. Because you know the rest of their life probably kind of sucks. One of them has passed away.

But yeah, music industry is pretty predatory and fucked up. Anyway, on that note, talk to you guys next week. See yeah. If you want to get ad freak episodes, exclusive content and more. Consider joining our Friends of the Pots subscription community at crooked.com slash friends. Don't forget to follow Crooked Media on Instagram, TikTok, and Twitter for more original content, host takeovers and other community events. Plus, find Pod Save the World on YouTube

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