The Ezra Klein Show - When Is It Genocide?

Episode Date: August 13, 2025

In December 2023, when South Africa accused Israel of genocide before the International Court of Justice, I thought it was wrong to do so. Israel had been attacked. Its defense was legitimate. The blood was on Hamas’s hands.But over the last year, I have watched a slew of organizations and scholars arrive at the view that whatever Israel’s war on Gaza began as, its mass assault on Palestinian civilians fits the definition of genocidal violence. This is a view now held by Amnesty International, B’Tselem, Human Rights Watch, and the president of the International Association of Genocide Scholars, among many othersOne reason I have stayed away from the word genocide is that there is an imprecision at its heart. When people use the word genocide, I think they imagine something like the Holocaust: the attempted extermination of an entire people. But the legal definition of genocide encompasses much more than that.So what is a genocide? And is this one?Philippe Sands is a lawyer who’s worked on a number of genocide cases. He is the author of, among other books, “East West Street,” about how the idea of genocide was developed and written into international law. He is the best possible guide to the hardest possible topic.Mentioned:“What the Inventor of the Word ‘Genocide’ Might Have Said About Putin’s War” by Philippe Sands“‘Only the Strong Survive.’ How Israel’s Benjamin Netanyahu Is Testing the Limits of Power” by Brian Bennett“The laws of war must guide Israel’s response to Hamas atrocity”The Ratline by Philippe Sands38 Londres Street by Philippe SandsBook Recommendations:Janet Flanner’s World by Janet FlannerCommonwealth by Ann PatchettBy Night in Chile by Roberto BolañoThoughts? Guest suggestions? Email us at [e-mail] can find the transcript and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.htmlThis episode of “The Ezra Klein Show” was produced by Jack McCordick and Annie Galvin. Fact-checking by Michelle Harris, with Kate Sinclair. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota. Our executive producer is Claire Gordon. The show’s production team also includes Marie Cascione, Annie Galvin, Rollin Hu, Elias Isquith, Kristin Lin, Marina King and Jan Kobal. Original music by Marian Lozano, Dan Powell, Carole Sabouraud and Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The director of New York Times Opinion Audio is Annie-Rose Strasser. Unlock full access to New York Times podcasts and explore everything from politics to pop culture. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify.

You know, In the days after October 7th, President Joe Biden tried to help Americans touch the size of Israel's horror and its grief by trying to translate it into the terms of our own tragedies. Since this terrorist attack took place, we've seen it described as Israel's 9-11, though for a nation the size of Israel, it was like 15 9-11s. Imagine what that level of trauma would do to us. Imagine what that level of loss would do to us. We are almost two years on. The death toll in Gaza is now estimated to be over 61,000 people. There are a little over 2 million Gazans.

The leaders in the U.S. government are not spending time trying to help Americans grapple with the scale of their grief, of their loss. But that would be for our population, like 2,500 9-11s. I know there are many who want to cast doubt on that death toll. We're told that it's from the Hamas-run Ministry of Health. And that's true. But look, when the Lancet, the medical journal,

tried to fill in the gaps in the data by adding in new sources, they concluded that the true number, the real death toll, was far higher. Gaza is a strip of territory about the size of Detroit. Michigan. Since October 7th, Israel has dropped more than 100,000 tons of explosives on this tiny sliver of land that is more tonnage of explosives than was dropped on Dresden, Hamburg, and London combined during World War II. Aerial photography shows just absolute devastation. It's estimated that 70% of all structures in Gaza, every home, every hospital, every mosque, every school are severely damaged or completely destroyed.

You cannot drop that many bombs on such a densely populated strip of land without mass casualties. You just cannot. But it is not just the casualties. Israel has also been restricting the flow of food into Gaza. Aid organizations have been warning all along of growing hunger, of the possibility of famine.

Then, in March, Israel blockaded aid into Gaza for 11 weeks. Then it largely ended the existing aid infrastructure the UN had built and replaced the hundreds of operating sites of aid distribution with four sites, four, run by inexperienced American contractors. Famine is now spreading across Gaza. People are dying of hunger. The images and the videos and the stories here, not just of the starving, but of the people, of the children,

their bowls out begging for help, lining up to get food, hundreds having been killed at these aid distribution sites. It is beyond what I have the capacity to imagine. What would it be like to not be able to find food for my children, to not be able to feed them, to have them lose their mother or their uncle or me because we went to get food for them? The idea that this is made up, that it is a concoction of Hamas or anyone. just listen to the aid workers who have been there. People have been hungry for months. We are seeing this starvation is what is written nowadays.

Famine is unfolding. It's not pending anymore. It's happening. People are starving to death as we speak. Children are starving to death as we speak. And I want to be really, really clear. This is not a drought situation. This is entirely preventable famine that we are witnessing in front of us. The parents are writing on the social media,

And they are thanking God for the loss of their children who have been killed in a certain time of the world because of the bombardment or the invasion. They are thanking God that they have lost their children to not reach to this stage while their children are asking them to feed them and they didn't have any capacity and any ways to just fulfill the needs of their children. So this is beyond description and even a man. And if it really isn't that bad, if this is all just propaganda, Israel could prove that easily. Let reporters in. Let independent inspectors in. But they won't do that because this is not a trick, because it is not just propaganda. This is hunger as a policy, hunger as a weapon of war. This is a siege. Almost two years after October 7th, what is the point of this siege?

Is it to break what is left of Hamas? What is left of Hamas? A group of about 600 ex-Israeli security officers, including former heads of Mossad and Shinbet, released a letter saying that, quote, it is our professional judgment that Hamas no longer poses a strategic threat to Israel. Is the point of this to get the hostages back?

This is endangering the hostages. They are being starved alongside the Gossens. The main group in Israel representing the families of the hostages said, quote, Netanyahu is leading Israel and the hostages to doom. Is the point of this to make Hamas capitulate by threatening to starve thousands or tens of thousands of Gazans to death, to malnourish and stunt a generation of children?

That is illegal under any conception of international law. What is this? This is a war crime. This is a crime against humanity. but more and more people are using another word, a word that I've stayed away from on this show. Genocide. Is this a genocide?

In December of 2023, when South Africa accused Israel of genocide before the International Court of Justice, I thought they were wrong to do so. Israel had been attacked. Its self-defense was legitimate. The blood here was on Hamas' hands. Israel was doing what any country in the world

would have done in response. But over the last year, I've watched a slew of organizations and scholars come to the view that whatever this began as, it has become genocidal. Amnesty International, Bethlehem, Human Rights Watch, Melanie O'Brien,

the president of the International Association of Genocide Scholars, Amos Goldberg, professor of Holocaust history at the Hebrew University of Jerusalem. The list here could go on and on. But one reason I have stayed away from the word is that there is an imprecision at its heart. When people use the word genocide, I think they imagine something like the Holocaust,

the attempted extermination of an entire people. But the legal definition of genocide, what it means in international court, encompasses much more than that. At the same time, the word genocide has the power it does because it is rooted in the Holocaust. cost. To accuse Israel, to accuse any state or group of genocide, is to tie them in cultural memory to the worst acts human beings have ever committed. If Israel becomes widely seen, not just as

the state born of a genocide, but as the state that then perpetrated one, it will forever transform the meaning of the Jewish state. So again, what is a genocide? And is this one? Philippe Sands is a lawyer who specializes in genocide cases. He has tried genocide cases. He is trying one now. He teaches on these questions at Harvard Law School and University College London. And he's the author of, among other books, East West Street, which is about how the idea of genocide was developed and written into international law.

So Sands is really the best possible guide to the hardest possible topic. He joins me now. Philippe Sons, welcome to the show. Very good to be with you. So I wanted to begin in the story you tell in East West Street, which is a remarkable book, and particularly the person who creates the word and ultimately the legal concept of genocide, Raphael Lumpkin. Tell me about him. Born at the turn of the 19th and 20th century,

in a territory of small hamlet that is now in Belarus, grows up, loves his mother, who sings him songs about mass killings in the past, the Romans killing the Christians and so on and so forth. There are pogroms in parts of Russia that he hears about. Goes to university in the city that is today, Leviv, in Ukraine, studies with a Polish professor of criminal law, and in the early 1930s, as a public prosecutor, starts thinking about how the law, international law, can protect human beings from mass atrocity. And he focuses on the protection of groups. He starts with ideas about barbarism and vandalism. And he wants to come up with a way to change the world of international law and to be able to come up with a concept which allows people to say,

you cannot treat groups of human beings in this way. He begins thinking about this set of questions before what we would think of as the Holocaust begins. What is in his head? What are the influences of the historical moments that begin to set him on this path? His own recordings of the path that he took are complex, and I noticed doing the research on them prone to exaggeration or sometimes even invention. But it does seem that the crucial factor that influenced him was a case in Berlin in 1921, the killing of a Turkish military guy who was alleged to have been involved in the massacre of the Armenian population. And he describes a conversation with his law professor, who I think was a man, a Polish professor called Julius Makarevich. Why is the man who

killed the Turkish guy, an Armenian called Talerian? Why is he being prosecuted for killing the person who killed his family and hundreds of thousands of Armenians. And the professor says to him, because under international law, as a citizen, you're no different from a chicken. You're the property of your country, of your ruler. If they want to kill you, they're perfectly free to do it. And that is the moment, apparently, when he starts to think about another conception of the protection of human beings from their own governments and their own states. The other thing threaded through this book, threaded through the debates we're going to talk about here,

is the existence of international law as a shelter, as a protection, as a shield for people who do not have a state that can protect them, right? Either they are at the mercy of their own state, or they are part of a state too weak. And it's not an accident. These ideas are developed by Jewish lawyers during and then after the Holocaust. But there's something here about not just the way in which you could have been the property of the state, but what does it mean to not have a state that can protect you, to not have a state that can advocate for you? You've got to wind back all the way to the 1910s and the 1920s. It was a very different world. People didn't even have passports. People could move freely between countries. The idea of nationality was often defined not by your statehood, but by your religion or your race. It was a very different world. But it was different in this way also.

So, until 1945, a state was basically free to treat anyone subject to its jurisdiction as it wished. There were no restrictions. There was nothing called human rights law. Under international law, the only international crimes were in relation to war crimes. There was no such thing as crimes against humanity or genocide. These things were invented in 1945 for the famous Nuremberg trial. And the ideas that came to fruition then basically said for the first time, it's a revolutionary moment. The freedom of the state is not absolute.

The emperor doesn't have absolute power. The king doesn't have absolute power. Tell me what Lemkin spends the war working on. Lemkin has a remarkable escape from Poland. He's there on the 1st of September 1939, when Germany launches an attack on Poland and starts, that's what is now known as the Second World War, and then makes his way up through Latvia and eventually to Sweden.

And then he procures an invitation from Duke University Law School to be a visiting professor, and he makes his way the long way through the Soviet Union, across Japan, across to Seattle, Chicago, down to North Carolina. He travels from Europe to the United States

with no personal luggage and no money. He's completely broke. but he travels with a lot of luggage full of pieces of paper because he's been collecting all the decrees passed by the Nazis across occupied Europe. And there in North Carolina, he receives a commission from the Carnegie Foundation to write a book on what he has seen in occupied Europe. And whilst he's at Duke, he starts assessing what he's seen and he identifies a pattern of behavior.

In other words, he looks at restrictions on jobs, restrictions on work, restrictions on living, and sees a pattern which is to eliminate an entire group or groups, because actually he focuses not just on Jews, but also on Roma and on others, and he calls that concept genocide. So I want to hold you on what you just said for a minute because I think this is important for this whole debate today.

We are talking there before much of what we think of as the Holocaust of the final solution of the industrial extermination when he's looking at those decrees. And I think we now think of genocide colloquially, not necessarily legally, as industrial slaughter. His definition includes something that can happen before slaughter, which is this cattling, constraining, displacement, destruction, exclusion of a group to sort of change their role into society. Tell me a bit about that distinction, that idea maybe of what genocide is meant for him to describe if it is describing something that was happening before what we now think of as the Holocaust. Sure, that's exactly right. He's very methodical in looking at the preparatory work. He goes through the idea of firstly identifying people by reference to their affiliation to a particular group, then restrictions on

education, restrictions on the use of language, restrictions on housing, then they've got to live in a particular place, then they can't do certain jobs, then they've got to be gathered together in certain places, then they're sent to camps, then they're sent to another place, and then eventually they are killed. But for him, the entire process is a genocidal process. So you don't wait until the ninth step, the actual act of killing. Human beings are entitled to protections. And there are basically two ideas that emerge at exactly the same moment. Raphael Lemkin invents the concept of genocide, which has focused on the protection of groups. And then his counterpart, who he never actually meets Hirsch Lauterpat, who studied amazingly at the same law

school, comes up with a different conception, crimes against humanity, which is focusing on the protection of individual human beings. And this juxtaposition of the tension between the protection of the individual and the protection of the group has gone on ever since 1945. And interestingly, Lauter Pact was always opposed to the concept of genocide. He worried that the concept of genocide, focusing on the protection of groups by reason of ethnicity, religion, race, nationality, whatever it may be, would replace what he considered to be the tyranny of the state, the power of the state with the tyranny of the groups, the power of the group. Lemkin rejects that argument and says people don't get killed or attacked or targeted because of their individual

qualities or what they've done as an individual. They're targeted because they're a member of a group that is hated at a particular moment in time and place. And therefore, if you want to protect human beings, focus on the group, not the individual. So for Lumpkin, is genocide, the way of just describing crimes, violence, that is committed against groups for being groups, that he just felt we didn't have a category that described when the motivation is the destruction or antagonism towards a group. And as such, you have not just all the way up to the maximum of crimes, you know, mass slaughter, the extermination, but down to these other crimes that are bodily harm and that he's just simply creating a category of group violence.

To understand what Lempkin was hoping to achieve, you've got to go back to the 1930s and imagine the world as it existed at that point. And at that point, domestic laws and international laws offered no protection to human beings simply because they were a member of a group. usually a minority group that was targeted at a particular moment in time and place. And so I think the operating principle of Lemkin's idea is that that needs to change. We need to firstly recognize that groups have identities that are culturally significant and important. And secondly, we want to protect the diversity of groups in our communities. And in order to do that, we need a law to help us.

a law at the national level isn't enough because the state can then just change its law. And so what we really want to do, I'm paraphrasing here, is create an international law which says states, every state, has an obligation to safeguard, look after and protect different groups within its community and cannot undermine their existence, cannot threaten them. He set the bar low, but the essential idea is to put group identity onto the agenda of international law, which it was not in the 1930s, and it was not until 1945 when that idea finally came to fruition. Tell me a bit about Laudipacht. He's the other main character of your book. He's a more central figure to governments, a more respected figure in his time than Lumpkin. What is his past? He's a very different kind of a character. I'm often asked if I were to have dinner with one of them, which would I choose? I think Lemkin would probably be the more entertaining character in terms of the anecdotes and the stories. Loutapak was much more scholarly, much more restrained in his views. He came from a more middle-class family. Lauterbach grew up with books and ideas in the city of Leviv, mostly, in what is today Ukraine. And he moved into an academic direction. He becomes professor of international or at Cambridge

University. And when the war begins, his family moves to America. And he is introduced by Felix Frankfurter, Justice at the Supreme Court, to Robert Jackson. And he works with Jackson on the arguments to allow the United States to enter the Second World War and to get around the arguments on neutrality. And then he works with Jackson on the creation of of the statute of the Nuremberg Tribunal. And his fundamental interest in life is the belief that every human being has minimum rights under international law.

He's one of the parents, the fathers, of the idea of international human rights law. And he draws this from the US Constitution, the French Constitution, the English common law, and practice from around the world. And so he is focused not on Lenkin's idea, which he opposes on the protection of groups, but on individuals.

You have rights, Ezra Klein, not because you are a member of X, Y, or Z group, but because you are an individual human being. Both Lempkin and Latterpac spend the war primarily in the United States and in Latterpac's case in the U.K., what happens to their families? I mean, the point of connection between them and the point of connection with my own family, my grandfathers, they all were connected to the city of the city. of Leviv, and all three men, my grandfather, Leon Boholtz, Hersch Laotaparte, and Raphael Lankin, lost their entire families. And what I have found so striking about their story is that despite

the fact that this has happened, and they only learn about this after the war has come to an end. They are then remarkably retained respectively by the British and American prosecutors to assist at the Nuremberg trial. And Laotepact, first. focuses on crimes against humanity, Lemkin focuses on genocide. They both prosecute without realizing the man who is responsible for the murder of their families, a man called Hans Frank, who had been Adolf Hitler's personal lawyer. And it's only halfway through the trial that they learn that the man they're prosecuting is responsible for the deaths of their families, their siblings, their parents, their cousins, their nephews. I mean, dozens and dozens of people. And it's for me

very poignant that even in the midst of such horror, neither of these two individuals, remarkable, different individuals, curled down, sat in a corner, and wept. Instead, they said, no, we need to think about ideas, we need to think about ways of stopping these kinds of horrors, and they came up with their respective different and actually in conflict ideas. And that, you know, in difficult times that we're living in right now, I find rather inspiring. Tell me about the Nuremberg trials. How do they come about, what distinguishes them from what came before? So this is the first time in human history that the leaders of a nation are put on trial for international crimes before an international court.

It has never happened before. So in 43, 44, the idea emerges, what do we do with the Nazi leaders? Churchill, in short, would like to line them up and shoot them. Roosevelt and Stalin say, no, we're going to put on a trial. They obviously have different motivations as to what that trial should be about. But they then agree the three leaders at Yalta that they will be, for the first time, an international military tribunal to deal with the leaders. And they have a problem.

They've got no crimes to charge them with. The only crime that exists at the time is something called war crimes, which doesn't govern the totality of what's happened. And that was pretty limited in terms of its scope. What it basically did was said, how you attack your enemy in times of war is limited. You have to distinguish between combatants and non-combatants and so on and so forth. So they basically invent three new crimes. Lauterbach's idea was to take war crimes further with something called crimes against humanity,

which would not be limited only to the protection of people in times of war, but at all times, and which focused on protecting individual. from attack in different ways. Lauterpac's crimes against humanity is inserted into the statute. The crime of aggression, waging an illegal war, newly invented in 45, is inserted into the statute. Lemkin is devastated. There is no inclusion in the statute of the crime of genocide, but he then flies to London, just before the trial begins, and persuades Robert Jackson and the Americans to include genocide

as a subhead of war crimes, and so it is included. So on the opening days of the trial, for the first time, the prosecutors from the UK, France, the Soviet Union, and Robert Jackson, who's the chief prosecutor, a Supreme Court justice on leave, make arguments about war crimes, crimes against humanity, and the crime of aggression. Now, interestingly, Americans never use the concept of genocide. There's something interesting in the way Lumpkin conducts his advocacy and in what his victories are. during that trial. And it was so striking to me that he was also trying to persuade the lawyers for the defense,

for the Nazis, of the concept of genocide. And one of his victories is that they tried to rebut that they were guilty of genocide. So why is he doing that? I mean, I'm trying to imagine this man who has lost so much of his family

seeking to sit down with the people defending the people responsible for the loss of his family and persuade them that this crime should exist. And then second, how do the lawyers for the Nazi defendants try to rebut it? What is their answer to the charge? What they were attempting was the extermination of the Jewish people?

So, Lelten really is a fascinating character and really quite a modern character. Laotaparte, who's the sort of classic academic lawyer, just sticks to the lawyers, works for the lawyers. Lemkin's on a one-man campaign. He is trying to persuade governments. He tries to persuade public opinion. He gets in touch with leader writers of the New York Times.

There's a leader that he influences. And he's on this sort of huge letter-writing campaign on this important concept of genocide, which bears some fruit because it does get included in the trial. I then discover while I'm doing the research that not only has he been trying to persuade, you know, the lawyers for the prosecution, the British, the French, the Americans. The Americans are pretty skeptical. Robert Jackson thought he was a pain and irritant. But he also gets in touch with the defense lawyers and has conversations with them. And we know about that because in the transcript, some of the defense lawyers, without even the crime of genocide having been alleged, raised the concept of genocide. side, and I'm able to trace that two conversations between Lemkin and some of the defense counsel. They basically rebut it and say, it's a total invention. This is new. This didn't exist in 1933. This didn't exist in 1939. You've invented this concept, and in any event,

on the facts, it's not true. One of the things that people forget is that the focus at Nuremberg was not largely on the extermination of particular groups, Jews or Roma. They were really second or third tier. The main focus of Nuremberg was the crime of aggression, waging illegal war, and everything else was secondary to that main objective. But it is

those concepts of crimes against humanity and genocide, which have risen from the trial, even though the judgment never mentions the word genocide. Why are the Americans, and for that matter, oh, they've mentioned it a bit here, Latterbach,

so skeptical of the concept of of genocide. Loudapak's skepticism is that he worries it's going to sort of reinforce sort of group identity in international politics, replace the state with the group. The Americans have another concern. Jackson comes under pressure from southern senators in the United States who are extremely worried that the crime of genocide will be invoked in relation to lynchings in the southern states of African Americans, black people.

and also historically in relation to Native Americans and the effort works. Jackson never mentions the word genocide. The Americans never mention it. It never comes up. The set of laws that they are, at some level, inventing in this period, these countries are arguably guilty of over and over again. I mean, wars of aggression? What is the history of Europe, aside from wars of aggression?

the crimes against humanity genocide i mean you look back in our treatment of native americans in the united states treatment of black americans there is an invention of international legal standards that under any plain reading the people now prosecuting the germans for their countries have culpability in their own histories Absolutely. I often think about the fourth character in my book, who is an interesting and sort of devilish individual called Hans Frank, the one who is Adolf Hitler's lawyer, highly cultivated, highly cultured, went to the best German law schools, could, you know, recite Shakespeare and Heiner and Goethe, world-class pianist. How does he get mixed up in all of this? It's an interesting

question. I often think of him on the first day of the trial when he's presented with the indictment. And he sees that he's been indicted for crimes against humanity, genocide is mentioned, crime of aggression, and his reaction with his lawyer is going to be, what's this about? These have been invented. This has been invented for this trial. There's a principle of the non-retroactivity of the law. You can't invent, you know, a crime in 1945 and then apply it retroactively to what happened in 1940 or 1937 or whatever.

And it was one of those moments in life where, the horrors of what had happened crystallized a sentiment, yeah, there's probably forced to those arguments, and yeah, this is lopsided justice, this is a form of victor's justice, which it is, plainly it is, and it's one-sided, and that has dogged Nuremberg ever since, but these ideas invented for Nuremberg then take off the new United Nations General Assembly meets in the United States, and they endorse the crimes that have been laid out in the Nuremberg statute and say crimes against humanity, crime of aggression, genocide, these are now part of international law going forward. But, and forgive me if I'm misunderstood this in your book, genocide is not one of the

crimes in the Nuremberg statute. Genocide is mentioned in the indictment, but not in the statute. and when you then come to the judgment on the 1st of October, 1946, the word genocide is not mentioned, not even once. There isn't even a reference to it was argued, but we're rejecting it for the following reasons. The four principal judges just pass in silence on it. Lemkin describes the day of the judgment as the blackest day of his life, worse even than the day on which he discovered the loss of his beloved parents and his... cousins and uncles and aunts and so on and so forth. And he resumes his campaign. And he begins to lobby within the context of the UN General Assembly, which passes a resolution in December 1946 saying

basically the tribunal got it wrong. And genocide is part of international law. And what he achieves is a commitment by a General Assembly resolution that they will then be negotiated a convention against genocide on the prevention and punishment of genocide. And that is, again, his almost one-man show in December 1948 he succeeds. And the first modern human rights treaty adopted with the strong support of the United States and about 50 other countries is the adoption of the Convention on the Prevention and Punishment of Genocide in 1948. So I want to read how it is defined in that Treaty. Genocide is, quote, any of the following acts committed with intent to destroy in whole or in part, a national, ethnical, racial, or religious group as such, killing members of

the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group. To people who I think in their head, genocide is the Holocaust, or maybe the Rwandan genocide, if you're younger, that's different. There is more in it. As somebody who has tried genocide cases, what is in it? How would you describe what the legal definition of genocide is and how it may be difference from the colloquial one. Right. So I have a problem to alert the listeners here,

which is that I've argued genocide cases before international courts. And the difficulty that I've often faced in those cases is that the definition that is adopted in the 1948 convention is different from the definition that Lemkin originally conceived of. As I've already explained, he set the bar much lower. If you look at the definition here, just a couple of examples that you out, committed with intent to destroy, Lemkin's conception didn't have what has emerged as a special intention that has to be proven. And Lemkin also had a much broader conception of which groups were covered. You'll have noticed political groups are excluded. And the concession that he made, and he knew it at the time, was that it was a more limited definition, and it set the bar much

higher. That was 1948, and he accepted it. What happened next? Between 1948 and the 1990s, nothing happened really with the interpretation and application of the genocide convention. Then in 93 and 94, we had the horrors of Rwanda, which you've already mentioned, and of the former Yugoslavia, and the Security Council creates two new international tribunals to deal with those horrors, and cases reached the International Court of Justice on the horrors of Yugoslavia. And before the International Court of Justice in particular, the court takes a particular definition

of what it means to intend to destroy a group in whole or in part. In short, we can unpick this now in relation to what's going on right now in various parts of the world, you start with Lemkin's conception in 1944 at a lower bar, you then get the convention definition in 1948

which pushes the bar higher, and then in the 1990s and in the 2000s, the bar is pushed even higher by international judges who want to limit what genocide means in international law. And the end result is you've got a gap. You've got a gap between what ordinary folk think of as genocide, which is much closer to what Lemton imagined it to be on the one hand, and the legal definition taken by international courts. And much of the mischief that is faced today is about that gap. You are vastly more expert on this in me, but it seems to me that you have two gaps, and they're different. There's a gap you described. So Lumpkin has a definition of genocide that is consequential.

It's not just about intent. But there has been a gap between genocide is the Holocaust. It is a race to exterminate every single member of a group that you possibly can. And so if that is not happening, then whatever it is, it is not genocide. And then this legal definition, which is much more, even if it's hard to prove for reasons we'll talk about around intent, it's more expansive. It is, you know, causing serious bodily or mental harm to members of the group. It is deliberately inflicting on the conditions of life calculated to bring about its physical destruction in whole or in part that much smaller, actions can legally be genocide than something of the level of the Holocaust or the Rwandan

genocide. And into that, I think, a huge amount of debate has fallen. That is generally right. Lemkin had a conception of genocide, which was much closer to what most people think, But Lemkin did not believe that you needed something of the scale of the murder of the Jews of Europe to amount to genocide. For Lemkin, genocide was not a numbers game, and nor did it require a specific intention. I mean, I've always understood that Lemkin, if you have a village of nine people coming from three different groups, Group A, Group B, Group B, Group C, if Group B and Group B in Group C, you know, co-joins and then attacks until, you know, people from Group A, the killing of those three people constitutes an act of genocide. So in Lemkin's notes, we find examples of relatively small acts of killings, of groups in part, a part of a community living in a particular part of the world.

For him, for example, the pogroms that were carry out in Russia against Jews in particular towns, those were genocidal acts. And so his conception was not the vast conception. His conception was not that it has to be the murder of six million people in order to amount to genocide. It's essentially the targeting and the killing, although not only the killing, of people because they happen to be a member of a particular group that is hated at a particular time in place. But I think it's very important to explain something else that we haven't mentioned right now. Is that that in the popular conception, in the public conception, genocide has emerged as the crime of crimes. In international law, it's not the crime of crimes. If you kill 50,000 people as a war crime or a crime against humanity or a genocide, it's all on a level playing field. And the issue that has arisen in my mind is this problem of labelling. What Lemkin did was he invented a word that has opened the imagination. It's a brilliant word. It's not technical like war crimes and crimes

against humanity. It portrays absolute horror. And what that means is that if an American president takes to the airwaves and says, I've just seen something happen, that's a genocide, it will be on the front page of every single newspaper in the world. But if the president says, oh, that's war crime or crimes against humanity, it will pass in silence or it'll be on page 15. There was an example of this quite recently in 2022-23. President Biden took to the airwaves in a moment and said the killings in Ukraine by Russian troops look to him like genocide. And I wrote an op-ed piece in The New York Times to say, hang on a second, let's be careful what we're talking about. It certainly looks like crimes.

It certainly looks like war crimes. It may be systematic in crimes against humanity. But the definition of genocide sets a high bar. But in any event, what does it matter for those people, what we call it? They're dead. They've been massacred in appalling circumstances. Whether it's a war crime, a crime against humanity or genocide, I'm less interested in. It's wrong, and it should not have happened, and it needs to be punished.

Well, maybe this gets it the other way the concept of genocide evolved. So as you mentioned it, at Nuremberg, it's not a major player. And at Nuremberg, the trials are not primarily about what we now, think of as the Holocaust. It is later in our collective historical memory that the Holocaust becomes definitional, the epicenter of all 20th century evil, and that the worst possible thing, the embodiment of human evil is Adolf Hitler, the embodiment of collective industrial evil is the Holocaust. And so this crime that doesn't end up in the final charges of Nuremberg is the one that comes to define, I think even Nuremberg in the collective imagination.

So genocide kind of takes on this life of its own, but because it is tied to something that is central to our historical memory, when we say never again, never again is meant to describe the Holocaust, it's something very specific, and it is from that specific thing that our collective fear exists, right? What do we do, what strictures need to exist? to make sure that level of barbarism in humanity never reveals itself again. And so even as you have the legal term of genocide emerging as both more limited and more expansive, I think, than what people think it is, you have this cultural idea of genocide, which is to connect you to the worst thing human beings in our collective understanding have

ever done. And that gives it a cultural meaning that is maybe different. It's very much in that direction. What seems to have happened is that genocide has emerged as the crime of crimes. And many prosecutors at international criminal tribunals and in national courts will tell you that in relation to the worst acts of killing that have taken place, whether it's Sudan or Congo or Kosovo or Yugoslavia or Rwanda or whatever, they want their crime to be treated as the worst crime that has happened. And in popular conception, that is genocide. And so there is disappointment if a prosecutor only indicts for war crime or crimes against humanity. My own view is that is misplaced, but that's the reality. And what you then

see is the focus on genocide as a comparator to what happened between 1933 and 1945. War crimes and crimes against humanity, yeah, they're more regular. That happens the whole time, we want our crime to be right up there in the Premier League of horrors. And that means if it's not called genocide, we are disappointed. And you see that produce consequences that are very painful. I've mentioned the case that I argued for 15 years for Croatia against Serbia on what had happened at the town of Vukovar in the 1990s, where Croatia went to the International Court of Justice and argued this was the crime of genocide. And the International Court of Justice said, no, it's not, and left the consequence that it was crimes

against humanity and war crimes. And the consequence has been devastating within Croatia and within the region. Why did the Bosnians get a genocide for Shrebrunitsa and we only got a crime against humanity for Vukovar? And what that causes me to ask is what is the social utility of that distinction? What is the social usefulness? of having a sort of category of horrors in which some things are treated as so much worse than others. And I think the concept of genocide in that sense has been unhelpful, because it has created a hierarchy, and that hierarchy has caused a great deal of grief and a great deal of conflict in of itself.

Why is genocide so difficult to prove? Genocide is difficult to prove before an international court, because it has, and comes back to what we've already touched on, this special intent. you have to prove, you read out the words from Article 2, acts committed with intent to destroy in whole or in part. So the first thing to say is that since Nazi Germany, leaders who want to destroy groups have learned that you don't put in writing, you don't articulate your intention to destroy a group in whole or in part. And so courts and judges are left to infer from a pattern of behavior. What is the mental element? What's the, what's motive?

the action? What's the intention behind the act of killing of destruction of harm? And in the Croatia case of 2015, which I have referred to a couple of times, the court said the following, and I think words are very important, the court said, to state that for a pattern of conduct to be accepted as evidence of existence of genocidal intent, it must be such that it could only point to the existence of such intent. And the court says what this amounts to saying is that in order to infer the existence of that special intent from a pattern of conduct, it is necessary and sufficient that this is the only inference that could reasonably be drawn from the acts in question. Now, what does that mean? What that means is that if you have a double or triple intent, you want to act in self-defense, you want to

act to protect your national security, but actually on the side it would be helpful to destroy these people as part of a group you happen to hate, it's going to be very difficult to prove that it's the only reasonable inferred intent. And that in practice is what has caused so much difficulty. My own personal view is that that definition is wrong. It sets the bar far too high that the psychologist that I speak to say that when human beings have an intent to act, they're often motivated by multiple different intents. And to say you've got to have only one intent makes it very, very difficult to prove. So we are not having this conversation abstractly. We're having it in the context of a debate over whether what Israel is doing in Gaza should be

understood as a genocide. And this debate has been playing out, and it is, I think, the most red-hot word in all of this. I mean, for Jews, for them to be accused of, a word that to them means a Holocaust, and for Palestinians to have what has happened to them be seen as what they understand to be, which is an effort to destroy them. I'm going to ask you to argue this both ways and go through the arguments with me, not to answer it, but to understand it. What is the argument that it is a genocide, that the intent here is not just to destroy Hamas,

which is what these are the government at different times has said the intent is, but that it's genocidal. I'm going to answer that question, but I just want to contextualize by saying that I understand that this is a red-hot issue. Part of the reason I've been quite restrained in what I've said in my own characterizations is, I think, as you know,

I'm counseled in another case that's coming up before the International Court of Justice in the next few months, a case brought by the Gambia against Myanmar alleging genocide in relation to the mistreatment of the Rohingya. I'm not involved in the case brought by South Africa against Israel, but I was counsel for Palestine in another case at the International Court of Justice, the Palestinian Authority, I should say, involving the question of the right of self-determination. So, but these are my personal views that I'm now expressing. The very first thing that I would say is I think it's entirely fine for people to freely express their views. If people want to say this

is a genocide, they should not be criticized for saying that. If people want to get upset that others characterizes as genocide, I understand that also. It's become a lightning rod for so many different perspectives and difficult issues. The case for South Africa is very straightforward. It is that the only reasonable inference you can infer from the pattern of behavior, particularly in relation to statements of genocidal rhetoric by various ministers and the, in particular use of famine as an instrument of conflict, the only reasonable inference you can draw from that is an intention to destroy a group in whole or in part. And that is the argument that South Africa will have put in. It's the argument that they have put in their

application, and it's the argument that the judges addressed in four provisional measures orders, interim relief that the court has given, offering certain degrees of protection to the Palestinians in Gaza against some of the attacks that are taking place. But that, in essence, is the argument that South Africa will put. So when South Africa brought this argument, it was not how I saw what was happening at that moment, right? Just mere months after October 7th, this seemed still to me like a war that whatever the absolutely traumatized and infuriated statements of top Israelis right after October 7th, it seemed to me that any country that had been attacked, the way Israel was attacked, would respond with overwhelming force and attempt to destroy the organization,

in this case, Hamas, that detect it, that that is wars, we understand it, self-defense as we understand it. I have watched over the months and months that have gone on as many Holocaust scholars, as many human rights groups, even people who did not agree

with South Africa at that moment, have come to accept the term genocide, and it seems to me for a few reasons. I guess one is the, and maybe the most important is the targeting of civilian populations through siege tactics

that if Israel wants to argue that all they are attempting to do is to destroy Hamas. Hamas is completely degraded as a military fighting for as Yai As Sumar is dead and yet they are starving the people of Gaza

in a way that it is it just extremely, extremely difficult, I think, to argue. This is an act of war against a live military or terrorist or organization. And I've seen this, I think more than anything, this has brought people to a new understanding of what is happening here. How do you think about that, charge? I mean, I think about it a lot. I've already said publicly that if Lemkin were to view what has happened, he would have characterized what happened on October the 7th as meeting his definition of genocide, and he would certainly characterize what is happening now in Gaza as genocidal for exactly the reason that you have stated. The challenge, as we've seen,

is not to determine whether crimes are being committed. There's no question that what you're describing is a war crime. There's no question in my mind either that it is so systematic that it's likely also to be a crime against humanity in the conception of international law. The debate, and it's a legal debate, which, as I've said, it's not a helpful one, is what is the intention behind the acts that you are describing? South Africa will make a strong argument that there is no military justification, and therefore there cannot be an intention other than to destroy the group in whole or in part. That is the argument that they will make. And the judges of the International Court of Justice will then assess that on the basis of the evidence that is before them,

and they will assess it presumably on the basis of an argument by Israel. No, we're not intending to destroy a group in whole or in part. We're seeking to protect ourselves against further attacks of this kind. But until the judges have spoken, we don't know whether they're going to take their definition from 2015 and apply it to these facts, or whether they're going to tweak the definition and say, this is totally unacceptable, reduce the bar, and conclude that this is a genocide, or do something else, which is to conclude that no. I've mentioned another case that will come up before the case of Israel in South Africa, and that is the case of Israel in South Africa, and that is the case of the Gambia and Myanmar,

and the judges are going to face exactly the same issue. In that case, they are going to have to determine whether Myanmar's arguments that it is acting in self-defense against a threat to its national security justifies the court ruling that this is not genocide. That's not the argument that I'm putting, but these will be the legal issues that will be put, and it imposes a particular burden on the judges

for another reason. In the whole of human history, the International Court of Justice has never ruled that a state is responsible for genocide. It has never happened. In the case brought by Bosnia against Serbia, the court said, yes, there was a genocide,

but it wasn't one that was intended by the state of Serbia. Serbia failed to prevent a genocidal act by paramilitary groups. And so for the judges of the international court, they're in this rather awkward position of having to decide for the first time. It'll be in the Myanmar case brought by the Gambia, but then it will also be in the South Africa case with Israel. Do we put the label of genocidal state on the forehead of one or both of these countries, something that has never happened before? And that, I think, concentrates the minds of judges, but it may well be that they say, yes, one or both or neither of these countries. cases, meets our definition, the judge's definition, of what is genocidal. And in the meantime, people will continue to make the arguments, and people will be pretty incandescent, I suspect, in both cases, if the court says, no, this doesn't meet the legal definition. So there is the level of targeting the civilian population. And then there's the level of

targeting the structures and infrastructure of normal life, of any life in Gaza. There are estimates that upwards of 70% of the physical structures in Gaza are destroyed. The footage is just a wasteland. And two specialists in this area, Daniel Blatman and Amos Goldberg, they wrote in Haareth's The way they put it, the way they said they had moved to believing this was a genocide, was, I'm going to quote them here. The murder of children, starvation, destruction of infrastructure, including that of the health care system, destruction of most homes, including the erasure of entire neighborhoods and towns, such as Jabalia and Rafa, ethnic cleansing in the northern strip, destruction of all of Gaza's universities, and most cultural institutions and mosques,

destruction of government and organizational infrastructure, mass graves, destruction of infrastructure for local food production and water distribution. All these paint clear picture of genocide. Gaza as a human national collective entity no longer exists. This is precisely what genocide looks like. And so the claim being made here, the argument being made here, is it's more than just the attacks on the people that in destroying everything that Gaza was,

making it functionally uninhabitable by human beings. that that is part of genocide, that is part of revealing an intent to make this place in people no longer exist in the form they once did. How do you think about that? I think about it, I think, in pretty much the same way you think about it. I mean, it's plain,

if you read the provisional measures or orders of the International Court of Justice that in particular, the judges who've already addressed what's been of the case so far are deeply concerned. concerned about famine. I think there was another statistic in the paper in the last few days that I think one and a half percent of arable agricultural land remains in the whole of Gaza. It is not possible for a population of that size to sustain itself with that amount of arable land. So all of that

absolutely points to that kind of genocidal intent if the court takes a definition which allows it to happen. One of the complexities here also, is that ethnic cleansing, moving a population out of their homelands, and people will find this difficult to believe, has been ruled not to be genocidal in international law on the particular definition that international courts have taken. But coming back to the factors you have set out, they are exactly the kind of factors that you will find in Lemkin's book from 1944, indicating his conception of what constitutes a genocidal attack. These are exactly the kinds of factors that are taken into account by judges

when assessing how to characterize certain crimes. As part of the effort to define or to reveal intent, something that is a backbone in South Africa's filing is statements from top Israeli officials. So Benjamin Netanyahu, the Prime Minister, has repeatedly referred to biblical verses around the Jewish people's war with the Amalek. And in Deuteronomy, specifically in the area that he's referring to, God commands the Jewish people to blot out the memory of Amalek from under heaven. There's elsewhere in the book of Samuel, go and attack the Amalekites and completely destroy everything they have.

Don't leave a thing. Kill all the men, women, children and babies, the cattle. sheep, camels, and donkeys. Now, you can debate which biblical passages, Netanyahu is referring to. I find that debate a little bit strange, but the Amalekites exist in the Torah as an example of the people that God commands a Jews to destroy utterly to blot out their memory. President Isaac Herzog of Israel, it's an entire nation out there that is responsible. It's not true, this rhetoric about civilians not aware, not involved. It's absolutely. not true. Many of Israeli leaders have simply said

that Hamas is the Ghazans and the Ghazans are Hamas, that there is not a distinction worth making. And while you can say that that is statements made in the midst of trauma and rage,

it does seem to be governing now two years on the war effort. The people of Gaza are not being treated as distinct really from Hamas. being starved, they're being punished, they're being displaced. Do statements like that create intent? Again, I sound like a terrible pedantic lawyer, but there's a distinction between genocidal rhetoric and genocidal intent. It's plain from the provisional measures orders that

the judges at the International Court of Justice were very concerned, very focused on these statements, which are appalling statements, and which will undoubtedly. doubtedly make it more difficult. And I want to say there are many, many, many more. Like in preparing on this, I have lists of these that are pages and pages and pages. But there are other conflicts in the world where we get the same kinds of statements that are made.

I'm very involved also in the current conflict between Ukraine and Russia. And many of my colleagues and friends in Ukraine consider that what is happening in Ukraine is a genocidal act. that President Putin has made statements saying the Ukrainians don't exist as a people, they shall not exist as a people,

they have no right to exist as a people. And I've had to explain when I've been in Leviv that, yes, these are appalling statements and they might amount to genocidal rhetoric, but there's a distinction between that on the one hand and what you actually do on the ground on the other. And that's what the courts are going to have to decide in these cases.

To clarify here, what is the distinction between genocidal rhetoric and genocidal intent? What beyond public statements is needed to prove intent in a court of law? Well, genocidal rhetoric is an expression along the lines that X or Y group doesn't exist or has no right to exist or ought to be destroyed as a group. And it can create a context in which people then act to implement that. idea. The classic example is in Rwanda. There was a radio station called Radio Milcolin, Radio A Thousand Hills, which put out really nasty stuff, and that created an environment in which people on the ground then implemented genocidal acts. But, you know, someone expressing genocidal

rhetoric, go out and do nasty things to these people, doesn't actually prove that the act acts that follow were intended to destroy a group in whole or in part. So you have to show a connection between the expression and the act on the ground. If the expression is made by a minister acting in an official capacity, it's going to be much easier to show a connection between an expression of genocidal intent as rhetoric, on the one hand, and the act of killing or targeting or exterminating on the ground, on the other hand. But the essential thing that you have to prove is that the act of targeting on the ground, the act of killing, the act of imposing hunger or using famine as a weapon as an instrument

of conflict or extermination is intended to destroy the group in whole or in part, rather than simply to diminish that group as a fighting force. it's, I think, also important just so that your listeners are aware of the dynamic between the political and the legal, because that's essentially what we're talking about here, is whether a group of judges are going to be willing to cross the line. If they want to, they've got all of the material to allow them to do it, to make a finding in favor of South Africa. Well, I do think the distinction here between the political and legal is important because on some level, I don't understand all of this to be really about a court case that will happen at some point in the future. I understand it to be about a cultural understanding that the real damage here, the real demand here, the real effort here, is to attach to Israel's current leadership to the Jewish state, the charge of Genesis. and make it stick in cultural memory to change the meaning of the Jewish

state. And not just that, but the other piece of all of this is just the reality of what is happening and why, whether intent can be proven or not, the why of what is happening. Reading your book is really hard for me. And

I read actually a fair amount of it in Berlin and Poland on a trip that was supposed to be, to celebrate a friend's birthday. But being in these places, while reading this book, which was maybe not my greatest idea ever, was to really try to imagine all this and how it had happened and how the people around me,

where I was enjoying their coffee shops and going to see music and how their grandparents and great-grandparents could have done this to my great-grandparents and great-grandparents. It imbues the world with an unreality. and I thought a lot about what allows you to dehumanize other people. There's a really startling moment in the trials in your book where I forget who says it, but he says about the extermination of the Jewish people

that it never occurred to him and the people around him and of any attitude towards it aside from indifference. And this goes back to, you know, Hanna-Rent's books, and indifference is actually not just hatred, but indifference, as the soil in which something like a genocide can emerge

and around the same time a poll came out that was reported on by Harats where 79% of Israeli Jews 79% said they are not so troubled or not troubled at all by the reports of famine and suffering among the Palestinian population in Gaza

I'd seen another poll not long before saying that Israeli Jews felt that they had heard enough about the suffering in Gaza. And what chilled me so much about it even beyond the level of suffering in Gaza was the level of indifference that had gripped hearts of Israeli Jews. I mean, if the Holocaust should sensitize you to anything,

it should be the dangers of dehumanization. And I'm not saying this is something you prove in a court or it's part of the legal case. But I think those polls and thinking about the places I was in now where everybody was perfectly nice and wonderful, and I have friends who are reclaiming German citizenship, that it was the reality of the dehumanization, right?

Those kinds of comments mixed within the indifference. That I think if you read books like yours, that there's something very, I mean, astonishingly dangerous about that. that intent is not always hatred. Intent can be, what makes it possible in some ways is not seeing any humanity in other people. Attent in my book can also be turning a blind eye

to what is happening, and a blind eye is being turned. And I, to be frank, find it incomprehensible. I have trouble understanding how it is possible to treat human beings in this way, to treat children in this way, to treat elderly people in this way. It is literally beyond my comprehension. Save that, as with so much of the work that I do

in cases about mass atrocity, it's always about dehumanization. They're not like us. They're different. And therefore, we are free to treat them in this way. And in a sense, where I come back to is I'm not focused on whether it's a war crime or a crime against humanity or a genocide,

which is a distraction from the real issue. It is utterly appalling and unjustifiable, and it should not be happening. And these debates about whether to characterize something as X or Y or Z are not helpful because they distract us from the horror that is happening and that is unfolding before our own eyes. One of the debates around Lempkin's definition of genocide that takes hold is whether or not acts from before the war, war are included in it. Or it's just a subcategory of a war crime that can only be prosecuted in the context of a war. And I was thinking about this because many of the Palestinians I've talked to about this, to them, the reason that the concept of genocide was so close at hand was they believe

this is something Israel's been seeking for some time, that the Palestinian people look to Israel as a problem to be solved. Maybe caged up in Gaza and unable to leave. Maybe their existence in the West Bank made more and more tenuous and more and more difficult and more and more dangerous. And so they self-deport that the way they understand this period is that October 7th in some ways opened up a window of opportunity for Israel to execute a project that some in it had been thinking about

and planning for some time. And you can look at, you know, work from some of the more far-right ministers to defer antecedents to that. And so to them that there's a continuity. There was a siege on Gaza before. The siege is tighter now. But Israel had Gaza blockaded for quite some time. That's why there were tunnels in part. How do you think about that question of what was going on here before the war

and the way that the groundwork for what has happened after? October 7th might have been laid in a long period in which certainly parts of Israeli society came to the view that the Palestinians were not a people to coexist with and to find a way for both to live in self-determination and equality, but some problem to be solved, to be cleansed, to be displaced, to take what they would call Judean Samaria back. For Palestinians that talked to, this all did not begin on October 7th. one of the ways they believe the conversation is biased against them as we speak of October 7th, is beginning. And they don't see it that way. They see it as an eruption of violence and set a long process of their erasure.

Well, I think everyone is right to see it as a long process. I mean, things were indeed happening before on the West Bank in terms of the settlements, in terms of the right of self-determination, which the International Court of Justice a year ago said not only that the Palestinians have a right of self-determination, but that the right of self-determination implies the existence of a sovereign state. And what we are actually beginning to see right now, I think, curiously, in the consequence of the horrors in our newspapers and our TV screens is a move which I think will be very problematic for the current Israeli government

of recognition of Palestinian statehood. The first two European countries to break with the Kensensensis against recognition were Spain and Ireland, and they've now been followed by France, which is very significant because it's a permanent member of the Security Council And now the United Kingdom has effectively said in September it will recognize the existence of a Palestinian state.

And this is, I mean, I know for many people this seems only symbolic, but actually in terms of symbolism, it is sort of a game changer. Because once you recognize Palestinian statehood as 147 states already have, and I think now many European countries will follow suit, you essentially put Palestine and Israel on a level footage. on a footing of equality in terms of their treatment under international law. And that's one of the reasons I suspect the Israeli government has opposed strongly the recognition of Palestinian statehood. But once you recognize Palestinian statehood, then the borders become inviolable and you can't annex parts of the West Bank and you can't occupy and then annex Gaza without causing significant problems with some of your allies, including your allies in your Europe. And so if this path continues, if use of starvation and if the military tax continue,

there's going to be recognition of Palestinian statehood. And there are going to be other consequences in relation to trade with Israel, not just armaments, but also other products, I suspect. And it will become an overwhelming cry in many countries around the world to adopt the kinds of sanctions that have been adopted in relation to Russia on Ukraine. And the Israeli position will become increasingly isolated and increasingly untenable. Now, whether that is sufficient in time to stop suffering on the ground of children and mums and people who have nothing to do with a military conflict, time will only tell. But we know in life that every act has unintended consequences, and it may well be

that this Israeli government has simply now taken things too far and made things too intolerable and unacceptable for too many people around the world, that finally something will crap. So then there's the case Israel's making and will make in its defense, both to the courts and to itself. If you were the lawyer for Israel, what would your argument be? Tell your minisus to zip it.

You start with. Stop making these statements. Well, that's your strategy, but what's your argument? The only argument that is available to Israel is the one that is based on a very particular reading of the language that I read out to you earlier. it's necessary and sufficient that the only inference to be drawn from our acts is that it's

genocidal intent, and it's not. Israel will say we are acting in self-defense, the bombs continue to fall on us, the hostages continue to be held, we are entitled to take these steps in order to protect ourselves from an existential threat, and therefore our intention is self-defense, self-protection, it is not the extermination of a group in whole or in part. That's the kind of argument. that they would make. Incidentally, the relevant people concerned are well aware of the history of genocide and of the meaning of the genocide convention. There was a piece in Time magazine about a, well, a few, five, six years ago,

profile of Benjamin Netanyahu. And the piece included a photograph of him reading East West Street. And I have to say, that's astonishing, I find this very painful, that the idea that the person who is most responsible for what is going on right now is someone who is well aware of the historical matters because he has read himself into them and frankly he should know better. That's a remarkable thing to know. Well, the other thing to know is that who reviewed the book for Haaretz,

Isaac Herzog, the current president of Israel. So it's very difficult for me to comprehend how individuals who have themselves through their own family stories lived through, in a historical sense, the kinds of things that happen to their forebears can find a justification for this kind of behavior is very difficult for me to comprehend. Let me try to put myself in their shoes to create fairness here. One is that their view is this is Hamas, that the actor here was Hamas. Hamas attacked on October 7th. Hamas has held the hostages since. The way you know that it is not genocidal and intent is if Hamas would lay down its arms, give itself up as an organization, release the hostages.

This would have ended long before now. That what this is analogous to is a war. fought through siege, and they are sieging Gaza until the, I don't know if you can even call Hamas any more governing authority, I don't really think you can. But they are sieging Gaza until what used to be the government of it gives up, gives up the hostages, and ends the war. And Israel's not attempting to exterminate the Gaza people, did not start this war, that this was, it was on Hamas then, and it is on Hamas now. And whatever you think about the level of pain, Israel is willing to cause Gaza's civilian population that doesn't change their intent, which is to destroy Hamas utterly and completely as an organization, to restore their deterrence, to make clear to anybody that if you do something like this to Israel, your society will be annihilated.

And to punish the Palestinian people for ever having supported Hamas or ever having thought that a Hamas-like organization was a good idea or a vehicle of national. rebellion or freedom. Well, I mean, I understand that to be an argument that Israel would make, but of course I'm not privy to the detailed negotiations. I don't know what's been on the table, what's not been on the table. We've seen it evolve over the course now of nearly two years. But even if all of this is true, under international law, this kind of treatment is not justifiable, whether you call it war crimes or crimes against humanity or anything else, including genocide, it is simply not justifiable. There are norms of international law that are very clear in prohibiting this

kind of act. It does not justify that act. What Israel is entitled to say is that the attack that occurred on October the 7th was such as to entitle it to respond. I wrote a letter, I wrote a piece in the Financial Times with other British Jewish lawyers at the end of October including the former president of the UK Supreme Court, David Newboga. And we said, look, three points. One, the attack of October the 7th is a crime under international law. Two, Israel is entitled to use force in self-defense to protect itself against such attacks. But three, the right to use force is not unlimited.

And it is constrained by the requirements of international law, and it may not go beyond those requirements. and we were very criticized for the third point because it was said we're assuming Israel would violate international law, but everyone knew what was coming, and we wanted to put a marker down that as and when lines crossed,

we would be on the front line of saying this is not acceptable behavior, and that is what has happened. This is not self-defense. These acts are not preventing attacks. So I do not see a defense that Israel is not guilty of, at this point, war crimes

and crimes against humanity, but the debate has centered around this question of genocide. And to be fair to that debate, there was not a surrender the Jews could make in 1940 that would have ended the Holocaust or stopped the Holocaust.

This is the view I hear from Israeli Jews and from many Jewish people here. There are conditions Israel has laid out if Hamas capitulated. They have rejected many ceasefire agreements or broken ceasefires, but to call this a genocide is flatly untrue even under any colloquial definition of genocide, because this would, at least they believe, stop if Hamas surrendered and gave up the hostages. That Israel has endangered the hostages further by containing

the war, I think is also undeniable. But in terms of intent, is that not an argument? I mean, it's, you know, hypothetical, we have no idea. what would happen if they laid down arms now and said, here are your 20 remaining hostages and we give up and you take over and you occupies. We have no idea what Israel would actually do in those circumstances. But your question brings to my mind this thought. The longer this goes on, the more difficult it is going to be for Israel to resist the argument that this meets the definition of genocide under international law. And I'd be very surprised. if the Israeli government is not getting that advice from its lawyers. The more you persist in this

direction, the more likely you make it that ultimately one or other international court is going to conclude not only colloquially, but as a matter of law that these facts constitute a genocide. And that, again, causes me to ask the question, why exactly are they persisting? What is the military advantage that they seek to gain. And the more difficult it becomes to answer that question, the more likely it is that a group of judges at the International Court of Justice will conclude there is no military justification. The only intention is to destroy large parts of this group. Here's, I think, how they argue this, and I think also goes to your point of the longer this goes on, the heart of this argument becomes to sustain, but just to say that Hamas is

interwoven into civilian life in Gaza, both inextricably and strategically. It operates out of mosques, out of hospitals, out of university, out of all these things that the rest of the world is condemning Israel for destroying, that it is Hamas's fault because it hides among the population. Israel has argued that Hamas has been diverting food aid, which is why Israel had to stop the food aid, and then rebuild this absolutely horrific structure of food assistance, which has led to so many deaths now. I am not saying I buy this argument. I do want to say that the investigations have found that Hamas has not diverted food aid systematically. But that has been their argument, that the targeting of what looks like civilian infrastructure is necessary because Hamas

hides among civilians and inside civilian infrastructure. Even if it's true, it doesn't justify what's going on under international law in terms of international humanitarian law, war crimes law, crimes against humanity, and perhaps even crossing the line in due course, whatever the judges decide. It's not an answer to those claims. And if it is an answer to those claims, then you have opened the door to an end to these rules that we've spent 150 years struggling to put in place. So if you accept those kinds of arguments, you are, in effect, accepting that total war, total destruction, total annihilation is now permitted under international law in such circumstances. And if you use it one day against others, then others

one day will use it against you. And you ought to be prepared for that time when you find yourself under attack in such conditions. And you need to say, this is not permissible. So there is no justification on those grounds in law for what is happening, period. How much does that also extend to the arguments around self-defense, which is to say that when you look at the history of genocide proceedings, I think it is very hard to find one that does not claim on behalf of those who committed the genocide, going back to the Germans, that they were acting in self-defense, that they faced a threat from this group.

It was sabotage from within, there was an attack, there was an assassination, and they had no choice. The only way to protect themselves was to destroy this group's capacity to be a group or capacity to act or capacity to exist utterly. How does genocide law balance

the omnipresence of claims about self-defense. Well, it doesn't balance it well in relation to the, you know, single intent argument that seems to have merged, which, as I've explained, I'm deeply troubled by. But if you go back to Lemkin's original conception, he could well imagine a situation in which a double or triple intent would not preclude a finding of genocide. I mean, your account reminds me of an exchange that took place

in a book that is the sequel to East West Street called The Rat Line, in which the Nazi governor of Leviv receives a letter from his father. His name is Otto Wechter, and he receives a letter from his father, General Wechter, who tells him, look, I have come to learn that within your district of Krakow, there is a child who happens to be Jewish, and I would be grateful if you could take steps to secure the safety of that child who happens to be, you know, the child of a friend of mine. The son, Tauvejta writes back and says, I've looked into this. Yes, this child is present in our territory, but I have to tell you that the laws that we have in relation to a threat

posed by these people, including the children, is such that we have no other way of proceeding than to apply the full force of the law to them in order to protect ourselves. So this is a timeless argument. This has been used across history that in order to protect ourselves against the other, in particular circumstances, we are entitled to take far-reaching and even exterminatory methods. And what happened in 1945, this was the revolutionary moment, was, no, that's not a defense anymore. not allowed to do that. Everyone has rights, either as an individual or as a member of a group, and in order to safeguard human beings against these type of arguments, we under international law

are going to protect and ensure the protection of the rights of those human beings. And that's right now what is under attack in the world, right now, to basically roll back the frontiers to a pre-1945 world in which the ideas of Lauter Pact and Lemkin rights for individuals and rights for groups, not under domestic law, but under international law, are rolled back. And that's why this moment is so important. And what's happening in places like Ukraine and in Israel and Palestine is so emblematic for the future well-being of these rules. This felt to me, and even more so knowing that Netanyahu and Herzog have read your book, like the historical tragedy that is playing out in this moment, not the tragedy playing out in this moment, which is the actual

thing happening to Gossens, but the historical tragedy, which is that the creators of these rules, Lumpkin and Iran Crimes Against Humanity, Latterpach, they were Jewish people at a time when Jewish people had no power and could be annihilated by states and now that Jewish people have a state and have power

they are flouting these rules profoundly and watching a structure of law built by Jews in their moment of absolute weakness and vulnerability

destroyed by them in some way as they have become stronger and more state-bound it's almost a historical tragedy irony strangeness

it's really it's almost too much to bear indeed and it rather proves the old adage that the international rules, like other rules, are not intended for us. They're only intended for others when it suits us. And I think that will come back to haunt, because at the end of the day, any community requires protections not only under domestic rules, but under international rules. They will come a time again when Israelis and Jews and Palestinians and Muslims and

Ukrainians and Russians and Sudanese and Congolese come to understand that these ideas of Lauterbach and Lemkin were there for a reason. And the only thing that gives me a modicum of hope in what is, you're absolutely right, a tragic and painful moment is that at some point those in power will come to realize that what happened in 1945, the idea that the state, power is not absolute, that human beings have rights as individuals and as groups will return. It's not the end of that argument. And people like me just have to keep making those arguments. That's why I stand up at the International Court of Justice in January next year on behalf of

the Gambia, a small African country, making allegations in relation to the mistreatment of the Rohingya. And I have to hope that the judges of the International Court of Justice adopt an interpretation of the genocide convention which does justice and which protects essentially the fundamental thrust of what Raphael Lemkin wanted to do.

I mean, look, you've read East West Street, you will have understood that throughout the book I've got this internal struggle in myself. Am I with Lauter Pact protection of individuals or Lemkin protection of groups? And you'll have seen that throughout the book, I'm basically intellectually with Lauter Pact.

and then we get right to the end of the book. And I am taken in a small town called Julesquiev, just outside Lviv in Ukraine, to a forest. And in that forest is a mass grave. And in that masgrave, on the 25th of March, 1943, three and a half thousand people from the village of Jolkiev were taken, made to walk along a plank, shot in the back in the head, and killed.

And in that mass grave today, unmarked today, lie the bodies of Lauterpac's family and my grandfather's family. And at that moment, I understood what it was that Lemkin was trying to do, and I came to understand the force of his arguments on genocide. So even my most strong intellectual arguments in favor of the idea of protection, the dignity, and the rights of individuals, when faced with a group of which I am a member, my grandfather's family, face those kinds of actions. it was a sort of moment of epiphany, and I understood the force of Lemkin's arguments, and notwithstanding the horror that is happening right now, the horrors of October the 7th,

the terrible horrors that have followed, the force of Lemkin's arguments, I have no doubt, will eventually prevail in some way, but that does not provide solace for those people who are on the receiving end right now. I fully understand that. I fully understand that. what would it mean for international law to work? Whether it's crimes against humanity, whether or not it's a charge of genocide, it's not stopping the war, right? We mentioned preliminary findings and injunctions

from the International Court of Justice. It is not, as best we can tell, significantly constrained Israel's conduct in the war. It is not as if there is an international coalition that has demanded ceasefire in a serious way. America has sheltered Israel from international condemnation. If, you know, 15 or 20 years from now, we are to look back on this

as a world in which international law eventually worked, obviously international law did not work during World War II, what would that mean? What are the remedies here? How do you imagine that as somebody who devotes much of your life to this working? Over time, it will work. The question is, what's the time? 1945 was a revolutionary moment.

It's very recent. When I was a young academic at Cambridge University, I had a colleague, Sir John Baker, Professor of English Legal History, and he would occasionally invite me for lunch, and he'd say, what are you working on, Philipp? And I'd say, X or Y, and he stroked his little beard, and he'd say, oh, yes, yes, we had a similar problem in English law

in about 1472, and it took 275 years to sort it out. And frankly, that's where we are. The difference between today and 1939 and 1941 is we have these pieces of paper called treaties on torture, on genocide. I had an extraordinary conversation just before I argued the Provisional Measures Order in the case for the Gambia against Myanmar with a man called Thomas Burgenthal. Thomas Bergantel was the American judge at the International Court of Justice. But before that, he was a young Jewish kid in Poland, and he was at Auschwitz. And just before I argued the case on the allegations of genocide in relation to Myanmar, Tom, who's sadly no longer with us, said to me, Philippe, can you imagine if, in 1944, when I was at Auschwitz,

there had been a piece of paper called the Convention on the Prevention and Punishment of Genocide, and they've been an international court and they'd been a country far away which had gone to that court and said, you can't treat those kids in that way. This is inhuman, this is a crime, this is against international law. Felipe said, it may not have stopped what happened,

but it would have given us hope and it would have given us an understanding that what was being done to us was wrong and it should not happen. And at the very least, that is where we are today. we have standards which tell us, thanks to the work of people like Lauterpac and Lemkin and the government successively that have followed it up, that this kind of behaviour, this kind of treatment of human beings, of kids, of elderly people, people who have nothing to do with wage in war, simply because of where they happen to be and who they happen to be is totally unacceptable, totally intolerable, must be held to account, and must be punished. And that's where I come out on these horrors. I'm less concerned about the label we put on things. I'm most concerned with causing it to stop now. And if the law can help to make that happen, that is a good thing. But we know

the limits of the law and we know the limits of international law. That is the political reality in which we live. And so it will take time. And in the meantime, there will be horror after horror after horror, and we have to construct and elaborate and build over time. We don't just down tools and give up and say, oh, it's all useless and there's no point, and we just have to keep going. And out of this horror, hopefully something will come, which causes us to reinforce our commitment to the idea of a rule of law at the international level, to reinforce the powers of our international judges to make the consequences of breaking the law at the personal level or the state level much greater, but that's going to take time. I wish I could say to you, it could all

be fine in 15 years. It won't. It's a multi-decade century project, and we have to be honest about that, but it's a project worth engaging in. Absolutely, it's a project worth engaging in. then always our ending question what are three books you'd recommend to the audience one book that i would take is called janet flanner's world uncollected writings 1932 to 1975 janet flanner was the new yorker correspondent in europe and she wrote extraordinary letters from europe including on nuremberg and they are so personate for what we you've been talking about today in terms of the historic aspect. A second book, I'm going to recommend a book by Anne Patchett called Commonwealth, which is about relationships. I did not

expect that book to come up here. I love that book. Yeah, it's a wonderful book. It's a wonderful book and it draws the connections between the personal and the broader political in a way that really resonated with me. And the third book that I'm going to take is, by a Chilean writer called Roberto Bolognao, and it is called Knights in Chile. And I love this book because it is a fictionalized account of tales that are central to a book I'm publishing shortly, I call 38 Londre Street, which is a sequel to East West Street and examines the relationship between Augusta Pinochet and a Nazi who became the manager of a king crab cannery in Punta Arenas in Chile, but it raises many of the similar issues today that we've been discussing

on personal responsibilities. In a sense, I'd say that's the theme between the three books, personal responsibility in times of conflict. Philippe Sounds, thank you very much. Terrific to be with you. This episode of The Isfranches produced by Jack McCordick and Annie Galvin. Fact-checking by Michelle Harris with Kate Sinclair. Our senior audio engineer is Jeff Gelb with additional mixing by Isaac Jones and Amund Sahota. Our executive producer is Claire Gordon.

The show's production team also includes Marie Cassione, Elias Isquith, Marina King, Roland Hu, Kristen Lynn, and Jan Kobel. Original music by Marian Lizano, Dan Powell, Carol Sabro, and Pat McCusker. Audience Strategy by Christina Similuski and Shannon Busta. The director of New York Times opinion audio is Annie Rhodes-Strazer.