When Is It Genocide?

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 others One 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 Sands 38 Londres Street by Philippe Sands Book Recommendations: Janet Flanner’s World by Janet Flanner Commonwealth by Ann Patchett By Night in Chile by Roberto Bolaño Thoughts? Guest suggestions? Email us at [email protected]. You 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.html This 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.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:31Ezra Klein?

  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.

• 0:43Speaker 01

  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.

• 0:55Ezra Klein?

  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 US 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.

• 1:40Ezra Klein?

  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

• 2:22Ezra Klein?

  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

• 3:03Ezra Klein?

  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, they're 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,

• 3:49Ezra Klein?

  that it is a concoction of Hamas or anyone else. Just, just listen to the aid workers who have been there.

• 3:56Speaker 02

  People have been hungry for months.

• 3:57Speaker 03

  We are seeing this starvation is what is a bit nowadays.

• 4:01Speaker 02

  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.

• 4:18Speaker 03

  The barons 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, 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, to, to just fulfill the needs of their children. So this is, this is beyond description and even unimaginable.

• 4:53Ezra Klein?

  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 Shin Bet, released a letter saying that, quote, "It is our professional judgment

• 5:36Ezra Klein?

  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 Gazans. 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.

• 6:14Ezra Klein?

  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's 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

• 6:58Ezra Klein?

  view that whatever this began as, it has become genocidal. Amnesty International, B'Tselem, 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.

• 7:41Ezra Klein?

  At the same time, the word genocide has the power it does because it is rooted in the Holocaust. 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?

• 8:18Ezra Klein?

  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 Sands, welcome to the show.

• 8:55Speaker 04

  Very good to be with you.

• 8:57Ezra Klein?

  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 Lempkin. Tell me about him.

• 9:13Speaker 04

  Born at the turn of the 19th and 20th century in the territory of Small Hamlet, 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 Lviv 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.

• 9:55Speaker 04

  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.

• 10:12Ezra Klein?

  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, the historical moments that begin to set him on this path?

• 10:28Speaker 04

  His own recordings of the path that he took are complex, and I've 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 Talyerian?

• 11:11Speaker 04

  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.

• 11:39Ezra Klein?

  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?

• 12:20Speaker 04

  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. Until 1945, a state was basically free to treat any one 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.

• 13:00Speaker 04

  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.

• 13:20Speaker 04

  Tell me what Lemkin spends the war working on.

• 13:24Speaker 04

  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 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.

• 14:06Speaker 04

  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 behaviour. 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

• 14:48Speaker 04

  he focuses not just on Jews but also on Roma and on others and he calls that concept genocide.

• 14:55Ezra Klein?

  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 kettling, constraining, displacement, destruction, exclusion of

• 15:36Ezra Klein?

  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.

• 15:51Speaker 04

  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

• 16:35Speaker 04

  protections and there are basically two ideas that emerge at exactly the same moment. Raphael Lemkin invents the concept of genocide, which is focused on the protection of groups. And then his counterpart, who he never actually meets, Hersh Lauterpakt, 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 tension between the protection of the individual and the protection of the group has gone on ever since 1945. And interestingly, Lauterpakt 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,

• 17:18Speaker 04

  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. Lempkin 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.

• 17:50Ezra Klein?

  So for for Lempkin, 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?

• 18:30Speaker 04

  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,

• 18:44Speaker 04

  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.

• 19:23Speaker 04

  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.

• 20:06Ezra Klein?

  Tell me a bit about Lauterpakt. 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 Lemkin. What is his path?

• 20:20Speaker 04

  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. Lauterpakt was much more scholarly, much more restrained in his views. He came from a more middle-class family. Lauterpakt grew up with books and ideas. In the city of Lviv, mostly, in what is today Ukraine. And he moved into an academic direction. He becomes professor of international law 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.

• 21:05Speaker 04

  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 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 Lempkin's idea, which he opposes, on the protection of groups, but on individuals.

• 21:47Speaker 04

  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.

• 21:56Ezra Klein?

  Both Lempkin and Lauterpacht spend the war primarily in the United States. And in Lauterpacht's case, in the UK. What happens to their families?

• 22:09Speaker 04

  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 Lviv. And all three men, my grandfather Leon Boholds, Hersch Lauterpacht, and Raphael Lempkin, 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 Lauterpacht focuses on crimes against humanity, Lempkin focuses on genocide. They both prosecute without realizing.

• 22:55Speaker 04

  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.

• 23:35Speaker 04

  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.

• 23:46Ezra Klein?

  Tell me about the Nuremberg Trials. How do they come about? What distinguishes them from what came before?

• 23:54Speaker 04

  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 forty-three, forty-four, the idea emerges, what do we do with 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 there 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,

• 24:39Speaker 04

  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. Lauterpak'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 individuals from attack in different ways. Lauterpak's Crimes Against Humanity is inserted into the statute.

• 25:23Speaker 04

  The crime of aggression, waging an illegal war, newly invented in forty five, 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, the Americans never use the concept of genocide.

• 26:08Ezra Klein?

  There's something interesting in the way Lemkin 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.

• 26:51Ezra Klein?

  And then, second, how do the lawyers for the Nazi defendants try to rebut it? What is their answer to the charge? That what they were attempting was the extermination of the Jewish people?

• 27:04Speaker 04

  So Lemkin really is a fascinating character and really quite a modern character. Lauterpacht, who's the sort of classic academic lawyer, just sticks to the lawyers, works with 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 a, 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,

• 27:48Speaker 04

  the Americans, the Americans are pretty skeptical. Robert Jackson thought he was a pain and irritant. But he also gets in touch with the defence lawyers and has conversations with them. And we know about that because in the transcript, some of the defence lawyers, without even the crime of genocide having been alleged, raised the concept of genocide. And I'm able to trace that two conversations between Lemkin and some of the Defence Council. 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

• 28:32Speaker 04

  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.

• 29:03Ezra Klein?

  Why are the Americans, and for that matter, although they've mentioned it a bit here, Lauterbach, so sceptical of the concept of genocide?

• 29:11Speaker 04

  Lauterbach's scepticism is that he worries it's going to reinforce 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. And Jackson never mentions the word genocide. The Americans never mention it. It never comes up.

• 29:54Ezra Klein?

  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.

• 30:37Speaker 04

  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 was Adolf Hitler's lawyer, highly cultivated, highly cultured, went to the best German law schools, could recite Shakespeare and Heine 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.

• 31:21Speaker 04

  There's a principle of the non-retroactivity of the law. You can't invent 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 that, yeah, there's probably force to those arguments. And, yeah, this is lopsided justice. This is a form of victorious 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,

• 32:03Speaker 04

  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 a part of international law going forward.

• 32:15Ezra Klein?

  But, and forgive me if I misunderstood this in your book, genocide is not one of the crimes in the Nuremberg Statute.

• 32:23Speaker 04

  Genocide is mentioned in the indictment, but not in the statute. And when you then come to the judgment on the first 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. Lempton 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,

• 33:07Speaker 04

  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 there 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.

• 33:45Ezra Klein?

  So I want to read how it is defined in that treaty.

• 33:50Ezra Klein?

  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."

• 34:29Ezra Klein?

  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's tried genocide cases, what is in it? How would you describe what the legal definition of genocide is? And how it maybe differs from the colloquial one?

• 34:50Speaker 04

  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 read 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.

• 35:33Speaker 04

  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, 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.

• 36:16Speaker 04

  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, and 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.

• 36:58Speaker 04

  You've got a gap between what ordinary folk think of as genocide, which is much closer to what Lemkin 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.

• 37:14Ezra Klein?

  You are vastly more expert on this than me, but it seems to me that you have two gaps and they're different. There's a gap you described. So Lemkin 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 is hard to prove for

• 37:55Ezra Klein?

  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 group 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.

• 38:30Speaker 04

  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, you know, a village of nine people coming from three different groups, Group A, Group B, Group C, if Group B and Group C, you know, co-joins and then attacks and kills people from Group A, the killing of those three people constitutes an act of genocide.

• 39:15Speaker 04

  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 carried out in Russia about, 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

• 39:55Speaker 04

  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 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.

• 40:38Speaker 04

  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 fifteen. There was an example of this quite recently in two thousand twenty-two, twenty-three. President Biden took the airwaves in a moment and said the killings in Ukraine by Russian troops looked to him like genocide. And I wrote an op-ed piece in the New York Times to say, hang on a second.

• 41:22Speaker 04

  Let's be careful what we're talking about. It certainly looks like crimes. It certainly looks like war crimes. It may be systematic and 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.

• 41:50Ezra Klein?

  Well, maybe this gets at 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 twentieth 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 that this crime that doesn't end up in the final charges of Nuremberg

• 42:32Ezra Klein?

  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? The what do we do? What strictures need to exist to make sure that level of barbarism in humanity never reveals itself?

• 43:09Ezra Klein?

  Again, and so even as you have the legal term of genocide emerging as both more limited and more expansive, I think than 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.

• 43:37Speaker 04

  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 of 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,

• 44:17Speaker 04

  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

• 44:59Speaker 04

  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 Shrebrnica 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?

• 45:39Speaker 04

  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.

• 46:21Ezra Klein?

  Why is genocide so difficult to prove?

• 46:24Speaker 04

  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 learnt 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 behaviour, what is the mental element? What's motivating the action? What's the intention behind the act of killing, of destruction, of harm?

• 47:07Speaker 04

  And in the Croatia case of 2015, which I have referred to a couple of times, the court said the following, and I think its 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?

• 47:51Speaker 04

  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'd 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 psychologists 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.

• 48:37Ezra Klein?

  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 the 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.

• 49:21Ezra Klein?

  What is the argument that it is a genocide? That the intent here is not just to destroy Hamas, which is what these really government at different times has said the intent is, but that it's genocidal?

• 49:35Speaker 04

  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. And 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 counsel 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.

• 50:19Speaker 04

  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 characterize it 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,

• 51:01Speaker 04

  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.

• 51:44Ezra Klein?

  So, when South Africa brought this argument...

• 51:48Ezra Klein?

  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 attacked it, that that is war as we understand it, self-defense as we understand it.

• 52:25Ezra Klein?

  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 force. Yahya Samar is dead.

• 53:10Ezra Klein?

  And yet, they are starving the people of Gaza in a way that it is 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, George?

• 53:38Speaker 04

  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 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

• 54:19Speaker 04

  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, is 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

• 55:00Speaker 04

  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 and 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.

• 55:45Speaker 04

  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.

• 56:09Speaker 04

  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 will be in the Myanmar case brought by the Gambian, 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?

• 56:54Speaker 04

  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 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.

• 57:23Ezra Klein?

  So there is the the level of targeting the civilian population. And then there's the the level of targeting the structures and infrastructure of normal life, of any life in Gaza. There are estimates upwards of 70% of the physical structures in Gaza are destroyed. The footage is just a wasteland. And and two specialists in this area, Daniel Blattman and Amos Goldberg, they wrote in in Haaretz. The way they put it, the way they said they had moved to believe this was a genocide was, I'm going to quote them here.

• 58:05Ezra Klein?

  The murder of children, starvation, destruction of infrastructure, including that of the healthcare system, destruction of most homes, including the erasure of entire neighborhoods and towns such as Jabalya 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 a 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 that it's more than just

• 58:48Ezra Klein?

  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 and people no longer exist in the form they once did. How do you think about that?

• 59:11Speaker 04

  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 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 about famine. I think there was another statistic in a 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.

• 59:54Speaker 04

  One of the complexities here also is that ethnic cleansing, moving a population out...

• 1:00:04Speaker 04

  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 as 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.

• 1:00:40Ezra Klein?

  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.

• 1:01:21Ezra Klein?

  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 a people that God commands the 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's leaders have simply said that Hamas is the Gazans and the Gazans are Hamas, that there's not a distinction worth making.

• 1:02:05Ezra Klein?

  And while you can say that that is statements...

• 1:02:11Ezra Klein?

  Made in the midst of 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. They're being starved, they're being punished, they're being displaced. Do statements like that create intent?

• 1:02:31Speaker 04

  Then 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 make it more difficult.

• 1:02:56Ezra Klein?

  And I want to say, there are many, many, many. Like in preparing on this, I have lists of these that are pages and pages and pages.

• 1:03:03Speaker 04

  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 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 Lviv that, yes, these are appalling statements and they might amount to genocidal rhetoric. But there's a distinction between that on the one hand

• 1:03:45Speaker 04

  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.

• 1:03:54Ezra Klein?

  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?

• 1:04:05Speaker 04

  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 1000 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

• 1:04:49Speaker 04

  people, doesn't actually prove that the 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

• 1:05:29Speaker 04

  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.

• 1:06:13Ezra Klein?

  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, to Israel's current leadership, to the Jewish state, the charge of genocide and make it stick in cultural memory, to change the meaning of the Jewish state.

• 1:06:47Speaker 04

  Yeah.

• 1:06:47Ezra Klein?

  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.

• 1:06:59Ezra Klein?

  Reading your book is really hard for me. And I read actually a fair amount of it in Berlin in 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, great grandparents. It imbues the world with an unreality.

• 1:07:43Ezra Klein?

  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 to have any attitude towards it aside from indifference. And this goes back to Hannah Rentsch's books and indifference is actually not just hatred, but indifference as the soil in which something like a genocide can emerge.

• 1:08:19Ezra Klein?

  And around the same time, a poll came out that was reported on by Haritz, 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'd 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.

• 1:09:01Ezra Klein?

  That the, I mean, if the Holocaust should subsidize 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.

• 1:09:43Ezra Klein?

  Intent can be, what makes it possible in some ways is not seeing any humanity in other people.

• 1:09:51Speaker 04

  Intent, 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... If I'm not focused on whether it's a war crime

• 1:10:34Speaker 04

  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.

• 1:11:01Ezra Klein?

  One of the debates around Lumpkin's definition of genocide that takes hold is whether or not acts from before the war are included in it. Or it's just a subcategory of a war crime that can only be prosecuted in the context of 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

• 1:11:46Ezra Klein?

  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 work from some of the more far-right ministers for antecedents to that. And so to them, that there was 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.

• 1:12:24Ezra Klein?

  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 I talked to, this all did not begin on October 7th. One of the ways they believe the conversation is biased against them is we speak of October 7th as a beginning, and they don't see it that way.

• 1:13:09Ezra Klein?

  They see it as an eruption of violence inside a long process of their erasure.

• 1:13:16Speaker 04

  Well, I think that I think everyone is right to see it as a 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.

• 1:13:57Speaker 04

  The first two European countries to break with a consensus 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 footing,

• 1:14:42Speaker 04

  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 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

• 1:15:27Speaker 04

  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

• 1:16:09Speaker 04

  things too intolerable and unacceptable for too many people around the world, that finally something will crack.

• 1:16:35Ezra Klein?

  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?

• 1:16:48Speaker 04

  Tell your ministers to zip it to start with. Stop making these statements.

• 1:16:54Ezra Klein?

  Well, that's your strategy, but what's your argument?

• 1:16:57Speaker 04

  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.

• 1:17:40Speaker 04

  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 few, five, six years ago, a profile of Benjamin Netanyahu, and the piece included a photograph of him reading East West Street. And I have to say.

• 1:18:03Ezra Klein?

  That's astonishing.

• 1:18:04Speaker 04

  I find this very painful. And 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.

• 1:18:23Ezra Klein?

  I want to, that's a remarkable thing to know.

• 1:18:27Speaker 04

  Well, the other thing to know is that who reviewed the book for Harretts? 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 happened to their forebears, can find a justification for this kind of behavior is very difficult for me to comprehend.

• 1:18:58Ezra Klein?

  Let me, let me try to put myself in their shoes to create fairness here.

• 1:19:06Ezra Klein?

  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 in 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 anymore 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,

• 1:19:51Ezra Klein?

  gives up the hostages and ends the war. And Israel's not attempting to exterminate the Gazan 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's willing to cause Gazan 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.

• 1:20:38Speaker 04

  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

• 1:21:22Speaker 04

  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 Newbogah. 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.

• 1:22:02Speaker 04

  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 are 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.

• 1:22:27Ezra Klein?

  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.

• 1:23:10Ezra Klein?

  Because this would, at least they believe, stop if Hamas surrendered and gave up the hostages. That Israel has endangered the hostages further by continuing the war, I think is also undeniable. But in terms of intent, is that not an argument?

• 1:23:28Speaker 04

  I mean, it's 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 occupy. We have no idea what Israel would actually do in those circumstances. But your question brings to my mind this thought.

• 1:23:49Speaker 04

  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?

• 1:24:31Speaker 04

  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 that there is no military justification. The only intention is to destroy large parts of this group.

• 1:24:47Ezra Klein?

  Here's, I think, how they argue this. And I think also goes to your point of the longer this goes on, the harder this argument becomes to sustain, which is 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 universities, 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.

• 1:25:31Ezra Klein?

  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.

• 1:25:53Speaker 04

  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.

• 1:26:34Speaker 04

  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.

• 1:26:58Ezra Klein?

  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.

• 1:27:42Ezra Klein?

  How does genocide law balance?

• 1:27:46Ezra Klein?

  The omnipresence of claims about self-defense.

• 1:27:50Speaker 04

  Well, it doesn't balance it well in relation to the, you know, single intent argument that seems to have emerged, which, as I've explained, I'm deeply troubled by. But if you go back to Lempkin's original conception, he could well imagine a situation in which a double or a 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 Lviv receives a letter from his father. His name is Otto Wächter, and he receives a letter from his father, General Wächter,

• 1:28:31Speaker 04

  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, Otto Wächter, 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."

• 1:29:16Speaker 04

  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. You're 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

• 1:30:00Speaker 04

  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 Lauterpakt 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.

• 1:30:28Ezra Klein?

  This felt to me, and even more so knowing that Netanyahu and Herzog have read your book, like the 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 Gazans, but the historical tragedy, which is that the creators of these rules, Lemkin and around Crimes Against Humanity, Lauterpakt, they were Jewish people at a time when Jewish people had no power

• 1:31:01Ezra Klein?

  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,

• 1:31:31Ezra Klein?

  destroyed by them in some way

• 1:31:35Ezra Klein?

  as they have become stronger and more state-bound. It's almost like a historical tragedy, irony, strangeness. Like, it's really, it's almost too much to bear.

• 1:31:53Speaker 04

  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. There 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 Lauterpakt and Lemkin were there for a reason. And the only thing that gives me a modicum of hope

• 1:32:38Speaker 04

  in what is, you're absolutely right, a tragic and painful moment, is that at some point, those in power will come to realise that what happened in 1945, the idea that the state's 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

• 1:33:22Speaker 04

  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 Lauterpakt, protection of individuals, or Lemkin, protection of groups? And you'll have seen that throughout the book, I'm basically intellectually with Lauterpakt. And then we get right to the end of the book. And I am taken in a small town called Zhulkev, just outside Lviv in Ukraine, to a forest. And in that forest is a mass grave.

• 1:34:05Speaker 04

  And in that mass grave, on the 25th of March 1943, three and a half thousand people from the village of Zhulkev were taken. Made to walk along a plank, shot in the back and the head, and killed. And in that mass grave today, unmarked today, lie the bodies of Lauterpak's family and my grandfather's family. And at that moment, I understood what it was that Lembkin 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, dignity and the rights of individuals, when faced with a group of which I am a member,

• 1:34:47Speaker 04

  my grandfather's family, face those kinds of actions, it was a sort of moment of epiphany. And I understood the force of Lembkin'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 Lembkin'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.

• 1:35:19Ezra Klein?

  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

• 1:36:04Ezra Klein?

  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?

• 1:36:13Speaker 04

  Well.

• 1:36:14Ezra Klein?

  Working?

• 1:36:15Speaker 04

  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, Philippe? And I'd say, X or Y. And he'd stroke 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.

• 1:36:58Speaker 04

  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 Burgenthal 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 sadly no longer with us, said to me, Philippe, can you imagine if in 1944, when I was at Auschwitz, there'd been a piece of paper called the Convention on the

• 1:37:39Speaker 04

  Prevention and Punishment of Genocide, and there'd been an international court, and there'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 Lauterpakt and Lemkin and the government successively that have followed it up, that this kind of behaviour, this kind of treatment of human beings,

• 1:38:21Speaker 04

  of kids, elderly people, people who have nothing to do with waging 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

• 1:39:05Speaker 04

  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.

• 1:39:48Speaker 04

  And we have to be honest about that. But it's a project worth engaging in. Absolutely, it's a project worth engaging in.

• 1:39:57Ezra Klein?

  Then always our ending question. What are three books you'd recommend to the audience?

• 1:40:02Speaker 04

  One book that I would take is called Janet Flannan's World, uncollected writings, nineteen thirty-two to nineteen seventy-five. Janet Flannan was the New Yorker correspondent in Europe, and she wrote extraordinary letters from Europe, including on Nuremberg, and they are so pertinent for what we'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.

• 1:40:40Ezra Klein?

  I did not expect that book to come up here. I love that book.

• 1:40:43Speaker 04

  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 Chilean writer called Roberto Bolaño, 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 called Thirty-Eight Londres Street, which is a sequel to East West Street and examines the relationship between Augusto Pinochet and a Nazi who became the manager of a king crab cannery in Punta Arenas in Chile.

• 1:41:29Speaker 04

  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.

• 1:41:44Ezra Klein?

  Philippe Sands, thank you very much.

• 1:41:46Speaker 04

  Terrific to be with you.

• 1:41:57Ezra Klein?

  This episode of The Oscar Club is produced by Jack McCordick and Annie Galvin. Fact checking by Michelle Harris with Kate Sinclair. Our senior audio engineer is Jeff Geld with additional mixing by Isaac Jones and Aman Sahota. Our executive producer is Claire Gordon. The show's production team also includes Marie Cassillon, Elias Isquith, Marina King, Roland Hu, Kristin Lin, and Jan Kobal. Original music by Marian Lozano, Dan Powell, Carol Sabaro, and Pat McCusker. Audience strategy by Kristina Cimuluski and Shannon Busta. The director of New York Times Spinning Audio is Annie Rose Strasser.