Israel’s Complicated Relationship with Human Rights

Transcript:

MARK HANNAH: So Ken, introduce yourself, and your work at Human Rights Watch to our listeners.

KEN ROTH: Okay. Well, I was the executive director of Human Rights Watch for almost three decades, from 1993 to 2022. And the organization grew considerably. By the end, it was operating on a regular basis in about 100 countries. It had a global presence, not only in terms of investigators or researchers on the ground, but we also had advocacy and communications offices in key capitals all around the world.

And what we did was we would investigate and document as accurately and completely as possible serious human rights violations by a whole range of governments and armed groups. And we would then use those findings to generate pressure on the relevant parties to stop.

MARK HANNAH: Before we get into the ICJ case in particular, a lot of our listeners come from the realist school of international politics, and see this kind of anarchic system and international law working in that system only to the extent it can be enforced.

You were part of a nongovernmental organization, an NGO, that was trying to enforce some basic norms around human rights. What do you think are the challenges of norm setting and enforcement both from supranational organizations, like international courts and the UN, and national governments, as well as from NGOs such as yours.

KEN ROTH: Well, if you think about the enforcement of international human rights standards, the way an American might think about how their constitutional rights get enforced, you're very quickly led astray. Because in the United States, there's a strong court system. You can go to court, you can sue the offending government or agency.

If the court rules in your favor, there are law enforcement agencies that will, you know, apply the court's ruling. They will force you to comply. Most of the world isn't like that. In most countries, the courts are not strong enough to order the government to respect human rights. International institutions are, you know, much weaker.

The few international courts that exist don't have police forces, they don't have militaries to send in. And so what Human Rights Watch and, and frankly our allies in the human rights movement have to do is to generate public pressure on governments to comply with human rights standards.

And that is not as difficult as you would think because every government today, as a matter of basic legitimacy, has to at least pretend to respect human rights. You know, nobody says, oh, human rights don't matter.

So when Human Rights Watch through our investigation reporting is able to demonstrate that a government falls short of the pretense of respecting human rights. That is embarrassing. It's shameful. It's delegitimizing. And governments will go to great lengths to avoid that. It undermines respect for the government at home. It also makes it harder for the government to secure international support in whatever form it wants, whether it's military aid or preferential trade packages, or sometimes just being invited to summits where respectful leaders will treat them decently.

And so we found that governments care very much about their human rights reputations. Some of them are willing to bear the burden of a bad reputation, but that tends to be the minority. And so our ability, you know, through this shaming process to move governments is considerable.

MARK HANNAH: The Holocaust has been brought up pretty consistently here, either to point out an irony of Israel's treatment of Palestinians or to shield Israel from the accusations of genocide. So many states throughout history have committed these kinds of atrocities. Is that an apt or misguided analogy or comparison to what’s happening now.

KEN ROTH: I mean, I don't compare anything to the Holocaust, so I don't think that's the right question.

But rather, I think you correctly note that Israel's lawyers in the Hague did cite the history of Israel as a sanctuary for Jews who were fleeing the genocide, the Holocaust, and they also note in a sense that, you know, Israel was the first to sign on to the Genocide Convention that it, you know, in an earlier stage was, was vehemently opposed to genocide. But frankly, that's a public relations stand, it's not a legal defense because, and if you just think about it logically, the fact that a people might have been victims of genocide in no sense precludes a government today, particularly a far right government like the Netanyahu government, from committing genocide.

And while the International Court of Justice, you know, didn't make a finding one way or the other as to whether Israel is committing genocide, it found that there was a plausible case to be made that genocide is underway in Gaza. And so, you know, that, that defense, if you call it that, was really a defense for the public. It wasn't one that was going to convince the courts for a second.

MARK HANNAH: So Ken, give us a quick summary of the facts of the case. Who are the parties to it? Who is this court? And why is South Africa's role here significant in just a word or two?

KEN ROTH: Well, first of all, the International Court of Justice, sometimes called the World Court, is a civil tribunal to resolve disputes between states. And just for a moment, I'll contrast that with another court that also happens to be in The Hague, the International Criminal Court, which, as its name suggests, is a criminal court to prosecute individuals.

Now, the ICJ, the World Court, among disputes it can resolve, is a dispute under the Genocide Convention whether a government is violating that convention or not. And the court in earlier cases has ruled that every party to the Genocide Convention has a common interest in the enforcement of that convention.

Indeed, the convention imposes a duty on every party to prevent and punish genocide. And so South Africa, as a party to the Genocide Convention, as is Israel, had standing to bring the lawsuit. Politically they brought it because they also have a long affinity for the Palestinians going way back to Nelson Mandela.

And indeed in, in more recent years, they felt an added affinity has become, has become clear that the Israeli government is imposing a regime of apartheid on the occupied Palestinian territory.

MARK HANNAH: And of course South Africa has a very vivid historical experience of apartheid and a feeling that it has in some ways a moral authority and a kind of reputation here that maybe another country would not. So what were South Africa's main arguments?

KEN ROTH: There were in essence three parts to the South African case and I think it's worth just taking a moment and, and explaining what is genocide. because, you know, some people use genocide in a kind of a generic way to mean, you know, any really bad human rights violation.

And that's not its legal meaning. The legal meaning, which was that issue in the International Court of Justice, is a variety of acts, including killing or the creation of conditions meant to, you know, severely harm a group, done with a very specific intent. An intent to destroy in whole or in part a racial, religious, ethnic, or national group.

And so the South African case looked at basically first the pervasive Israeli bombardment of Gaza. Second, the extreme restrictions imposed on the delivery of humanitarian aid to the civilian population of Gaza. And third what it said was genocidal intent, and each of those points was argued at length by both South Africa's and Israel's lawyers, three hours each two weeks before the final court ruling on the so-called provisional measures, this precautionary order that was given.

Intent does not require eradicating everybody. And indeed, you know, one of Israel's defenses was, look, we're doing the following things to try to spare civilians.

Which isn't necessarily a defense. Because, you know, as I mentioned, it can be an intent to destroy in whole or in part a specified group. And if you look, for example, at, I think, the closest parallel, and that was the case brought against Myanmar for what the court found to be plausible genocide against the Rohingya, in that case, the numbers killed, the number of Rohingya killed was roughly comparable to the number of Palestinians killed by Israel.

It was still only a fraction of the overall Rohingya population, let's say 20,000 were killed, 730,000 fled to Bangladesh. And in that case, you know, one way to understand what Myanmar was doing was it was committing genocide against a part of the Rohingya population in order to force the rest, the vast majority, to flee.

And, you know, that is one way to understand what Israel is doing, if you accept the court's finding. Now the court didn't go this far. I mean, it didn't get into motives. But one way to understand why Israel would you know, kill enough Palestinians, make life miserable enough in Gaza, destroy enough housing so that Gaza becomes unlivable, is to secure what a number of Israeli ministers have said outright, which is their desire to get rid of Palestinians in Gaza, to send them all to the Sinai, send them all to Egypt. You know, and to solve the security problem by having no more Palestinians living there. So that is, you know, one way to understand this court judgment.

MARK HANNAH: So on January 26th, as you mentioned, the ICJ issued provisional measures to order Israel to take all measures within its power to halt acts that contribute to genocide and that and to allow this humanitarian aid back into Gaza. The question I have is, will Israel comply? And has it already, has it already begun to comply? And yeah, where do you think—what do you think Israel's response is?

KEN ROTH: Yeah, I mean, maybe before we get there, we should just talk a bit more about you know, what were the arguments before the ICJ. If there were, you know, basically three parts to the South African case, you know, one was the massive destruction, you know what Biden has called the indiscriminate bombardment of Gaza. And, you know, the Israeli defense was basically, you know, human shields. Hamas is using human shields. Hamas is fighting from civilian populated areas. It's all Hamas's fault. and South Africa went on and on and said, well, that doesn't explain the repeated use of 2,000 pound bombs in heavily populated areas as just one example of how the Israeli government is decimating large parts of Gaza in ways that have nothing to do with human shields.

They really reflect more a determination to destroy and render unlivable a good part of Gaza. So that was, you know, one big factual dispute, which Israel didn't really have a good answer to. The second had to do with the catastrophic humanitarian situation in Gaza. What the UN has said is, you know, is basically imminent famine for a very significant part of the population.

And Israel said, Oh, look at, you know, we're letting in some aid, we're, we're setting up some hospitals. And but the court in its judgment cited various UN officials to make clear that drips and drops of aid does not begin to be sufficient. The Israeli obstruction, the bureaucratic obstacles, the blockage of adequate aid to 2.3 million Palestinians is creating conditions that are capable of destroying this population. And so again Israel really didn't prevail there. And in terms of genocidal intent, The South Africans introduced a large number of statements by very senior officials that did suggest a determination to wipe out large parts of the Palestinian population in Gaza.

They cited President Herzog, who basically said there are no innocent civilians. They cited Defense Minister Yoav Galant, who said that these are all human animals, not just in reference to Hamas, but in reference to the siege, which applies to everybody. So the court, you know, cited those statements.

The court had before it a very chilling video of a bunch of Israeli soldiers singing and dancing. There are no innocent civilians. and it found that this coupled with the manifestation of the intent in terms of the devastation of Gaza was sufficient to find a, you know, plausible case of genocide.

And so even though there was, you know, always an Israeli counterargument to every argument that South Africa put up, there really was plenty of evidence for the court to rule that there is a plausible case of genocide here requiring provisional measures to protect Palestinian rights under the Genocide Convention.

MARK HANNAH: Was any, anything in the provisional ruling surprising to you?

KEN ROTH: Not really. I mean, some people have said, oh, I was surprised that the court didn't order a ceasefire, which is one of the things that South Africa had asked for. I never thought that would be in the cards for the simple reason that, as I mentioned, the International Court of Justice resolves civil disputes between states, meaning Hamas was not before the court, couldn't be before the court.

And the court, there's just no way it was going to order one side to a dispute, an armed conflict, to ceasefire. That just wasn't going to happen. And so it, what it did do was to, you know, urge you know, fighting that would not implicate the rights of Palestinians under the convention. It urged an opening up of the gates for humanitarian aid, and it urged an end to the statements that seemed to be inciting genocide.

And those, none of those were terribly specific orders, but it was at the level of generality that frankly I anticipated.

MARK HANNAH: And those statements about, you know, no innocent civilians and animals, comparisons to animals, those are eerily reminiscent of mid-century statements coming out of Germany, too. I mean, again, not to compare anything to the Holocaust because that is an entirely different scale, scope, and type of, of thing of genocide, if you want to call this what we're seeing now resembling genocide. But yeah, the, the, the language or the logic or the dismissal of the humanity, the basic humanity of, of people, it is either, you know, either it's adversary or it's scapegoat, whatever you want to call it, is, is, is it's pretty remarkable, I think.

KEN ROTH: Well, I think, I mean, in almost every genocidal situation, you find dehumanizing language. If you look at, you know, during the Rwandan genocide, Tutsis were cockroaches. You know, it's always a tendency to, to deny the humanity of the other side to make it easier to kill them off. Now one thing that I think is unhelpful about analogies to the Holocaust is that it's wrong to think of genocide only as the final solution.

Because the final solution really was trying to eradicate, you know, and kill every Jew that the Nazis could get their hands on. And, you know, as I indicated, that's not the only form of genocide. Genocide can also involve killing a part of a group. And that's really what was at issue in Gaza. You know, were the Israelis killing, determined to kill a part of the group for whatever ends, in this case, to try to chase the rest out of Gaza.

So I think that that's sort of, you know, a better way of understanding it. Now, the Israeli defense to these various, you know, genocidal statements by Syria's senior officials, and these were not, you know, low level officials, this was the president of the country, this was the defense minister, you know, people in the chain of command.

But they say, oh, but look at, you know, we, we have official cabinet orders that say, respect the Geneva Conventions, here they are. And, you know, the court didn't get into this in any detail, but, in essence, they just didn't believe that those were the comprehensive orders, or they didn't think that those were the orders that soldiers were in fact following, because it came back to the, the senior officials and, and repeated those statements in its ruling.

MARK HANNAH: So I wanna get to the United States and, and, you know, the US policy, foreign policy, the level of complicity or enabling that the United States and, and Israel's Western backers is responsible for or the level of complicity it has. So you noted in a recent piece for the Guardian, Ken, that the ICJ ruling is a repudiation of Israel and its Western backers, and that these measures are binding, but that the ICJ, as we've discussed, has nothing like a military or police force that could enforce them.

So what will enforcement hinge on? Does it have something to do with the reputation that we started this conversation with, where countries want to show up at these conferences and be treated with respect or be able to solicit, you know, continued international aid? What is, what is, what is the thing that could lead to enforcement, if anything at all?

KEN ROTH: Well, first, I mean in terms of why I felt this was a repudiation of both Israel and its Western backers, You know, they were dismissive of this lawsuit. You know, Netanyahu said it was outrageous to say that Israel was committing genocide. The Biden administration said the case was meritless. The court found by 15 to 2, you know, not terribly close, an overwhelming majority, that indeed there was a plausible case of genocide.

And so, the, you know, it made the Israeli and the USanticipatory response seem like a public relations spin rather than an honest assessment of the case. Now, with the ruling out, the court properly noted that his ruling is binding. That's a legally correct statement. But the fact remains it has no police force to enforce it.

If it wants to rely on coercive measures, it needs to go to the UN Security Council, which means contending with the US veto. And it's far from clear that Biden would refrain from exercising the veto to protect Israel. so that really then leaves political pressure and while many governments are pressing for respect for the ICJ ruling, why, well, even the US government on the substance wants Israel to do what the ICJ has asked, you know, Biden for some time has been saying, do more to protect civilians in your bombing let more humanitarian aid in. You know, no incendiary statements. I mean, these are, these are the US positions. But the question is, is the US going to put any muscle behind that if Netanyahu continues to resist? And, you know, as we're recording, there's no sign that Netanyahu is complying. Indeed, the UN is reporting day after day, you know, ongoing bombing, ongoing obstruction of, of humanitarian aid, a disastrous situation for the people of Gaza.

And the government that has the capacity to change that is the US government, because as we all know, the US supplies 3.8 billion dollars in annual military aid to Israel. The US is the principal seller of arms to the Israeli military. And if Biden were even to condition any of that on respect for the ICJ ruling, let alone to stop it, that would put enormous pressure on Israel to change behavior.

MARK HANNAH: Right. Do you think he will? I mean, it's difficult in an election year where I don't know. I mean, the Jewish vote is not a foregone conclusion the way maybe it once was, and being critical of Israel is no longer alienating to—it doesn't have the disastrous political, domestic political effects that it might have had you know, as, as recently as 10 years ago or eight years ago.

I don't, I know you're not a political commentator, but given that enforcement is sort of driven by the potential for of US pressure yeah, where, what is the political reality for the Biden team as it deliberates whether to apply that pressure?

KEN ROTH: There seem to be two factors inhibiting Biden from really putting pressure on Israel.

to, to stop some of this killing and to open up the doors for humanitarian aid. One is just his personal affinity for Israel, which is quite deep. And it's not clear that he can overcome that easily. That may well be the paramount issue. The second is frankly, you know, a political calculation that he doesn't want to give the Republicans a talking point in an election year.

Now, I think that that's a, the second factor is a bit double edged in that If you look at the American Jewish vote, it's quite divided. You know, particularly younger American Jews tend to be more liberal. They've grown up knowing Israel as an occupier, as the superpower in the region. They see Netanyahu's far right government.

They tend to be quite sympathetic to the Palestinian cause. So it's wrong to think of the American Jewish population as just APEC. Which is ultra conservative and, you know, essentially has become a Republican talking point, you know, ironically, the biggest supporters, the most consistent reporters, supporters of Israel in the United States are Christian evangelicals and they all vote Republican anyhow.

So I'm not sure that a strict political calculation leads Biden to his current position, particularly when he is losing a significant part of the Arab vote in a swing state like Michigan. So, you know, the politics can cut both ways. His personal affinity for Israel is unclear what would overcome that.

MARK HANNAH: And what about, what of America's geopolitical reputation or liabilities as the world's strongest country rebukes the ruling, continues to rebuke the ruling and continues to support what a lot of countries perceive to be violations of international law?

KEN ROTH: I think there are three big political stakes from a geopolitical perspective for the US government. One is Ukraine. The U. S. is in a very tough position to get governments to sort of stand up for Ukraine, to oppose Russian bombardment of civilian targets in Ukraine, if it's covering up for Israel doing something very similar in Gaza. Second, China is politically profiting.

From the growing outrage in the global South over this apparent double standard. You know, the US claims to be concerned about things like Ukraine, but it's just closing its eyes to the killing and the starvation of Palestinians in Gaza. And third, you know, even though Biden has kind of given up on talking about human rights as being a centerpiece of his foreign policy, he still does talk a lot about the importance of the rules based order.

But it's not a rules based order if there's an Israel exception. And that rhetoric is going to sound quite hollow if Biden can't get himself to insist that Israel abide by the ruling of the world's highest court.

MARK HANNAH: I have to assume you've given that answer somewhere else because that was on point. And yeah sort of sweeping in its geographic scope and the challenges that the United States is facing you know, do you think? But I want to probe a little bit more on the China piece. US support for Israel sort of in an unconditional, single minded, extraordinarily generous way has never been particularly geopolitically popular with certain countries, right? Do you think countries that are that that start to perceive the United States as hypocritical on the issues of democracy and human rights as a result of its support for the continuation of this war—Do you think those countries necessarily are going to then start running into the arms of of China or that China is going to be able to you know, press that to its advantage?

Are we talking about a Cold War framework here or are we talking about more disillusionment with the United States and that's enough of a price to pay? So many issues get back to China and I want to know if this one really does in your estimation.

KEN ROTH: I think there are two points to be made here. First, how governments have responded in the past to the US treatment of Israel is not sufficient to determine how they'll respond today, because what the Israelis are doing to the Palestinian civilian population of Gaza is exponentially worse than anything that has happened in the past.

And there is genuine outrage. There's horror at what's going on. And so I do think that there is a much more visceral response on the part of people around the world, but particularly in the Global South to the seeming indifference by the Biden administration, the willingness to support Israel regardless of what it does.

Now, in terms of the geopolitical contest with China, a lot of what this is about is things simply like with which governments vote at the United Nations. You know, one way to understand China's Belt and Road Initiative is that it really was a trillion dollar bribery scheme masquerading as an infrastructure project.

Because it was meant to buy off government officials to get them to vote with China at the UN, where China is desperate to fend off any possible challenge to, for example, its treatment of the Uyghurs in Xinjiang. And this utter distaste with how the US is treating Israel is going to make it more likely for governments of the Global South to either vote with China or to abstain, when otherwise they might have been willing to stand with proponents of human rights to condemn what China's doing, you know, in Xinjiang and in Tibet, in Hong Kong, or, or just to, to the people of a whole. So in that sense, it really does matter and in so far as the US government cares about these things, which I think it does, it is hurting an important interest by aligning itself so unconditionally with what Israel is doing in Gaza.

MARK HANNAH: So, there's been a lot of controversy, as you know, around the United Nations Relief and Works Agency (UNRWA), 12 employees were fired and investigated for potential leaks links to the October 7th attacks by Hamas. The United States and several other countries pulled funding from that organization and it looks like those employees have been terminated.

But how does support of UNRWA fit into all of this?

KEN ROTH: Well, first, let me explain what UNRWA is. It is the principal humanitarian agency run by the UN. serving people in Gaza and Palestinian refugees elsewhere in the Middle East.

But in Gaza, it is the principal supplier of humanitarian aid. There are, you know, other humanitarian groups working there, some UN, some private, but, you know, as the head of one of those said recently, you can add all of them up and they don't come close to what UNRWA is doing. UNRWA is the indispensable link, among all of these, and without UNRWA, humanitarian aid just doesn't get to the people in need, particularly with the fighting happening all around the people who are trying to deliver aid. So already there is famine, there's starvation, there's massive deprivation, and to remove from the picture the principal humanitarian agency that is trying to address that is potentially disastrous.

Now, what the principal donor countries, including the US, have done is not definitively ended funding, but they say they've suspended funding. And that means different things for different countries because there are different stages in the funding cycle.

But frankly, there is something perverse about the reaction of the donors to suspend funding to UNRWA because of the acts of a mere 12 out of 12,000 employees in Gaza. When UNRWA as an institution has done the exact right thing, announcing an investigation, firing the particular employees in question who are still alive.

It's made clear that, you know, if indeed these allegations of participation in the October 7th Hamas attack are true, that this is despicable and there will be consequences. But nonetheless, their funding is suspended. Yet, with Israel, where there's a, you know, an international court of justice ruling of plausible genocide, where there is extensive evidence of systematic war crimes, the massive funding of the Israeli military continues unsuspended.

And people look at this and say, what's going on? You know, this seems to be collective punishment to the Palestinian civilian population, which is what's going to suffer, while Israel continues to be funded and supplied with weapons to bomb and to blockade the civilian population of Gaza.

MARK HANNAH: And the Biden administration has said it's doing, it's contributing aid, humanitarian aid to Gaza you know, independently of UN agencies.

Is that, is that true or is it, is the amount of aid that it's giving at all comparable to what the needs are in, in Gaza.

KEN ROTH: A handful of governments, the US, Germany have said, oh, we can, you know, supply aid through other agencies. And that's just not true. I mean, as those agencies themselves are the first to tell you, they have no capacity to replace UNRWA.

You know, UNRWA alone has the capacity, logistically, to distribute aid in the middle of a war zone to a population of 2. 3 million people that is 80 percent displaced. You know, people living in tents and, and spread throughout a war zone. No one else has the capacity to supply those people. And to pretend that, oh, UNRWA doesn't matter is being utterly disingenuous at the cost of civilian lives.

MARK HANNAH: So you said the provisional ruling by the ICJ was quote, a win for the rule of law. How so?

KEN ROTH: What's interesting about the International Court of Justice case is that it was a successful effort by a government of the Global South to transcend power politics and to try to apply the rule of law. Israel, you know, is a regional powerhouse, but it is supported by the world's most powerful nations for the most part, including the United States.

And so to play power politics was a guaranteed loser. And what South Africa did is say, we're not going to play that game. We're going to appeal to the law. We're going to go before the world court and we're going to try to apply the law even handedly to everybody. You know, even to a powerful nation like Israel.

And it succeeded. And that is a victory for the rule of law so far. What remains to be seen is whether the court's order is complied with.

MARK HANNAH: And that's the next question, is if there is little or no compliance with these provisional measures, does international law's legitimacy take a hit, right? Because if there's no enforcement, do you think the legitimacy of international law and human rights protections will be seriously harmed if there is little compliance?

KEN ROTH: Yeah. I mean, I think it's too early to say whether there's going to be compliance with the ICJ ruling. We can say that so far, there's little sign that the Israeli government is complying. But as we speak, it's, you know, less than a week since the ruling. The ICJ is going to require Israel to report back within a month on what it's done, at which point it could issue further orders if it sees Israel being intransigent.

But when push comes to shove, the way Israel responds is going to be determined in significant part. by how the Biden administration wants it to respond. And if the Biden administration limits itself to, you know, rhetorical support for minimizing civilian casualties and feeding the hungry, but allows Israel to still be massively funded and massively armed to do the opposite, that will be a big strike against US credibility and indeed it will harm human rights and the rule of law because a government that puts itself forward as a proponent of the rules based order, as an upholder of human rights will have shown there to be a massive Israel exception. And these are universal standards, they're not meant to be standards that apply to people who are not, you know, close friends of the United States only.

MARK HANNAH: So, Ken Roth, I know you must have a lot of friends in this space—leaders, inside government, outside government that are human rights advocates, that are sort of on the forefront of a lot of these issues. You know, what are they telling you about their personal, personal views of the administration's positions and activities here.

KEN ROTH: There is clearly widespread disquiet within the US government over Biden’s personal insistence in supporting Israel unconditionally without regard of what it’s doing. And while I do see rhetorical efforts to make a difference, you know, rhetorical urging of more care and protecting civilians and feeding civilians, they don’t see this backed up with any muscle. And that is deeply disturbing to people.

MARK HANNAH: Let me ask you. This is sort of the where will we go from here section. What will, what will the process to reach the final ruling be like? I understand that this kind of thing typically takes years. So what's the process like for this sort of thing?

The decision on the merits by the International Court of Justice, you know, is Israel committing genocide or not, is years away.

We're very unlikely to receive that ruling before this war is long completed. So, in a sense, the real contest is the one that's happening right now, the contest over provisional measures. Which, you know, in American terms is basically a temporary injunction. You know, a holding pattern to prevent further harm to the rights of people under the genocide convention while the merits of the case are litigated.

The court, I mean, as expected, ruled in pretty broad brushed ways. And it still could specify if it finds that Israel is just stonewalling and is making no genuine effort to comply. With the initial rulings that's why this periodic reporting back is going to be so important.

MARK HANNAH: Do you think this could invigorate courts at the international courts at the U. N.? I mean, the US is, you know, famously not a signatory to the International Criminal Court. There's a fear among powerful countries that their self governance might be overridden by, by supranational organizations, you know, if, if the international criminal, if the International Court of Justice succeeds to what, you know, whatever that looks like, is, is, is this a win for the public perception of, of these courts and, and the ability for them to actually restore order and, and, and, and adjudicate on matters of international law?

KEN ROTH: In many ways, the International Court of Justice has already received a big boon in public relations terms from this case. I suspect that there has never been more attention paid to the International Court of Justice than over the last three weeks. You know, so suddenly people are aware that this exists.

They're aware that it can adjudicate certain human rights disputes. And, I suspect we will see more of them. This is not the first case, you know, we've seen somewhat comparable cases involving Myanmar, involving Ukraine, involving Syria. But I expect we'll see more of these.

But the other big international court that has not yet acted is the International Criminal Court.

And it has jurisdiction over any crime committed by a Palestinian or any crime committed in Palestine. And even though Israel has not joined the ICC, any crime it commits in Gaza can be prosecuted by the ICC. There's been an open investigation since March 2021. Kareem Khan, the current prosecutor, took office in June 2021, has largely been sitting on that investigation.

He's known to be kind of sensitive to feelings in London and Washington, and this was not a case they were eager to see pursued. In fact, this was one of the reasons Trump imposed sanctions on Kareem Khan's predecessor, Fatou Bensouda.

But what has changed a lot of this is Ukraine. Because Russia stands in the same position vis a vis Ukraine as Israel does for Palestine.

Which is to say that just as Palestine has conferred jurisdiction on the court despite Israel not accepting the court's jurisdiction, so Ukraine conferred jurisdiction on the court despite Russia not accepting its jurisdiction. And when the ICC charged Putin with war crimes, the U. S. government applauded.

Biden himself applauded. Even people like Lindsey Graham, you know, one of the leading foreign policy experts in the Senate on the Republican side, applauded. There was bipartisan approval for what the ICC had done, and in fact there was recognition that the traditional U. S. view against what was known as territorial jurisdiction because they were afraid that this could implicate an American—if an American were to commit a crime on the territory of a state that had accepted the court's jurisdiction. Suddenly that was out the window because everybody wanted to see Putin and his accomplices prosecuted. Once the U. S. has accepted that territorial jurisdiction with respect to Russia and Ukraine, it cannot reject it with respect to Israel and Palestine.

And so the ICC is now a real threat. And it's one that can go all the way to, in fact, will focus on most, the most senior Israeli officials as well as senior Hamas officials. So far, Kareem Khan has just given two press conferences. He hasn't done anything real. But I think it's just a matter of time before we will begin to see formal war crimes charges.

MARK HANNAH: Against whom specifically, because you mentioned, you know, you mentioned the senior leadership and that the ICC goes only against, goes up only against individuals—how senior are we talking here? Are we talking about the defense minister? Are we talking about Netanyahu himself? Are we talking about, you know, the—

KEN ROTH: I mean, first of all, I think it's very likely to go to the senior Hamas leadership for the October 7th atrocities, which are blatant war crimes.

In terms of Israel, it depends what Kareem Khan focuses on. Issues of bombing probably are more likely to go as far as the defense minister. You know, these are chain of command questions as to whether they go to Netanyahu. Things like the siege are clearly cabinet level decisions and so are more likely to go to Netanyahu.

The other big wild card in this, which does not involve Gaza but involves the West Bank, is the settlements. Because the settlements are war crimes. They're violations of Article 49 and the Fourth Geneva Convention that prohibit an occupying power from transferring its population to occupied territory.

And the settlements are very much a product of Israeli government policy at the top. You know, Netanyahu in recent years, but, but prior prime ministers as well. So, Netanyahu certainly faces a risk of criminal liability before the ICC.

MARK HANNAH: That’s, yeah that’s something that will probably startle our, or, or, be jarring for our listeners to hear. Is there any doubt in your mind whatsoever that these are war crimes?

KEN ROTH: Oh, it's, I think there's abundant evidence of indiscriminate bombardment, which is a war crime. There's abundant evidence of firing at military targets using means such as the 2,000 pound bombs that are knowingly going to cause disproportionate civilian harm, which is also a war crime.

There's absolutely clear evidence that Israel is obstructing the delivery of humanitarian aid to people in need, a blatant war crime. So these are pretty clear cases.

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