Welcome back to The Voices of War. My guest today is Professor William Schabas, a name that for anyone working in the fields of international law, human rights, or accountability for mass atrocity, needs little introduction. He’s a professor of international law at Middlesex University in London, and has held academic posts across Europe and North America. But more than that, he’s been at the heart of many of the legal debates and institutions that define how we try to reckon with the worst crimes humanity can commit, including genocide.

He’s the author of over 20 books and more than 400 scholarly articles. And his landmark work, Genocide International Law, now in its third edition, is widely regarded as the most authoritative legal text on the subject. Throughout his career, he has advised the United Nations, contributed to the work of both the International Criminal Court and International Court of Justice, and helped shape how we understand the legal, political, and moral dimensions of this most charged and contested crime.

Professor Schabas, is an honour to have you on The Voices of War. Thank you very much for joining me.

Thank you, it’s my pleasure to be with you.

Professor Schabas, I thought we’d begin by anchoring this conversation in your monumental work, as I mentioned, Genocide International Law, which is now in its third edition. So I’d like to ask what originally motivated you to take on such a comprehensive study, think nearly 800 pages, of genocide? And what was the gap you saw in legal or scholarly thinking that this book set out to address?

Very early in my career as an academic, I was invited to participate in a human rights fact-finding mission to Rwanda. This was in 1992, late 92. We went there in January of 93. So we’re talking here about 15, 16 months before the genocide that took place. Nevertheless, we discussed the issue when we were there and we wrote a press release and then a report where we warned of the danger of genocide in Rwanda.

And as history has shown, we were rather perceptive in what we saw there. Nevertheless, I have not studied the issue of genocide and when I returned home, I was living in Montreal at the time, I went to the library looking for some textbooks on genocide and found that nobody had really written a legal book about the subject since the 1950s. The subject of genocide had been discussed by historians, by sociologists, and they had their own take on it, which was, you know, from their own perspective, very appropriate, but it was not really legal. And so I dug into the origins of the Genocide Convention of 1948, the origins of the term, the debates that taken place within the United Nations over the years. But in reality, there wasn’t that much meat on the bone at the time.

And all of the law on genocide has developed since the mid 1990s, really. First in debates about Rwanda, about the former Yugoslavia, and now more recently about Myanmar, about the Yazidi, and above all about Palestine.

Yeah, and I believe if I remember correctly, listening elsewhere, that you also have some historical context. I think you’re a survivor or at least members of your family are survivors of the Holocaust. Is that accurate?

Yes, that’s right. I come from a family where there were Holocaust survivors. They fled Germany in late 1930s as the persecution mounted. So yeah, I have this personal connection, absolutely.

So it’s a third edition of a monumental work. What is different to, why three editions? Has the law itself changed or our relationship to the crime of crimes as it’s known?

Yes, well, you know, in the 1990s, we had really almost no case law. What we talk about as lawyers, in other words, judgments by courts. The issue of genocide was in this convention, which had been invoked and debated really more in a political environment, but we hadn’t really gone to court with it. And that began in the late 1990s, both with prosecutions at the two temporary tribunals that were set up for the former Yugoslavia and Rwanda.

There were a large number of them. In the Rwanda Tribunal, most of the accusations were genocide and most of them resulted in convictions. At the Yugoslavia Tribunal, it was more complicated and the courts, basically the end result is that there was one finding of genocide relating to the massacre in Srebrenica in July of 1995 when about 7,000 to 8,000 Bosniak Muslims were murdered by Bosnian Serb forces. But the rest of the idea of characterizing the conflict in the former Yugoslavia as a genocidal conflict never really caught on with the criminal tribunal. And then there were also cases that went to the World Court, the International Court of Justice, which is the Court of States. And it developed

It was consistent with what the Yugoslavia Tribunal, the Criminal Tribunal had done, which was a fairly strict and narrow approach to the definition of genocide, despite calls for it to be enlarged and to be more applicable. The term genocide has been used in scores and scores of cases where people, victim groups in particular, invoke it and claim that they are victims of genocide. But when it gets to court,

the approach has been much more narrow and conservative. So the second edition, which I wrote at the end of the first decade of the 21st century, took account of this case law of the first ad hoc tribunals for Yugoslavia and Rwanda, and then the first major judgment of the International Court of Justice, which was in the case of Bosnia and Herzegovina versus Serbia, 2007.

And since then, there have been a whole lot of new developments and the most dramatic are within the last three or four years. I hate to say it, my book already could be updated again. It came out only six months ago, but there’s almost, you know, I had to finish the manuscript for the publisher in early 2024 and in a year and a half, we’ve had more developments and we will have more now. We have four cases.

Invoking the Genocide Convention before the International Court of Justice, which is absolutely unprecedented. We’ve never had the situation like at the moment there are four. Two of them are dealing with Gaza. One of them is dealing with Myanmar and one of them is dealing with Russia and Ukraine. But in those cases, also something extremely unprecedented has taken place, is that there are more than 50 different states who have intervened in the proceedings on genocide. And until three or four years ago, there had been, I think, three or four interventions in all of the cases before the International Court of Justice in its entire history. And so there had been, it was never used. There were never any interventions. And all of a sudden now we have more than 50 countries who are at the court debating genocide.

So it’s taken on this huge new dimension, really, just in the last four or five years. And we don’t have any final judgments, but we’re expecting that the court will first deal with the Myanmar case, probably in the next couple of years. And then it will deal with the two cases dealing with Gaza.

Why is that? What do you put that down to? I mean, such elevated interests by states to not only, you know, comment on the sidelines, but to become actively engaged at the court. What do you put that down to?

I think it’s part of a broader phenomenon of states turning to the courts for issues that in the past were dealt with in a political environment and are asking judges to rule on them now. So there are other examples of such this type of case being brought to the International Court of Justice. We just had a lengthy opinion of the court on climate change. So this is an inherently

political issue, really. And many would say, well, it belongs in the UN General Assembly or the Human Rights Council or some other political body where states go and make their arguments in their own interests. Instead, what they seem to be doing more and more is going before this court. Fifteen judges who are elected by the General Assembly and the Security Council. There’s a broad geographic distribution. You have judges from the West.

You have judgments from the Global South judges and they are capable of coming to agreement. They reach virtual consensus on many issues. And so I think it’s created a higher level of trust in them that maybe wasn’t there in the past so much in that they’re confident. They want issues to be settled based on law.

Rather than on politics. And we see this, it’s very visible because we take for granted that in political contexts, states are, well, are they even hypocrites? They have double standards and they admit it because they take their positions based on their own self-interest. And it’s different in a court. And you can’t come into the court one day in one case and say one thing, and then a year later go and say the other.

Because the judges will laugh at you and they won’t take you seriously. And so I think it’s a very positive development in society. Until 115 years ago, there was no thought of international courts at all. We didn’t have international courts. So this is a new phenomenon. It’s part of the United Nations, but it’s a judicial body. And the results are in some ways unpredictable.

Interesting.

Because you go with a question and you’ve got the 15 judges and you never quite know what they’re going to decide. But that’s okay. That’s how, when we live by the law, we have to have courts and we have to, you know, suck it up. Even if we don’t like the judgment, that’s how the system works. And increasingly, what we are familiar with at a domestic level is now working at an international level as well.

It’s so interesting. I mean, I’ve discussed so many times on this podcast, the tension between values and interests and nations acting their interests. And it seems to me that the court, like many of the institutions that we’ve set up post World War Two, are grounded in idea of values. There are certain values that underpin humanity. And it seems to me, it’s judging by what you’re saying, perhaps many nations have lost, perhaps rightly, the trust in the political institutions that exist to

arbitrate between these different tensions, conflicts and so on, and are therefore now going to the body that is apolitical and hoping to have the law, international law as ill-defined as it may be, arbitrate on some of these rather enduring and very, very loaded, politically loaded conflicts, like we’re seeing, you know, of course, Ukraine and Gaza. I wonder if you, what do you think on that?

Well, yes, I think that’s exactly what’s going on. When we, to return to the genocide cases, which is my core interest, we have these four cases going on. If we look at the political use of the term, we see all kinds of arbitrary, even irrational use of it. Think of Donald Trump in earlier in 2025 meeting the president of South Africa, Cyril Ramaphosa,

and confronting him about what he called the genocide of the white farmers in South Africa. And, you know, this is just, I mean, it’s insulting to a country like South Africa that suffered so much under apartheid to have to listen to such things. But at the same time, to turn his back on what is increasingly, there’s a growing volume of recognition around the world that what’s going on in Gaza is genocide and

of course, there’s no comparison between whatever inconvenience the white farmers in South Africa have had and the suffering of the people, the Palestinian people of Gaza. And yet he uses the term for one and not the other. In the United Kingdom, where I work, we have the prime minister earlier this year said, well, that he couldn’t make a statement about Gaza because…

the determination of whether there’s genocide in Gaza was left for the courts and so he couldn’t weigh in on that. But four years ago in the House of Commons, he’s a member of the House of Commons, they adopted a resolution charging China with genocide against the Uyghur. So, you know, this is the kind of double standard and abusive manipulation of the term that we get. Those are just two examples. There are many, many more of them.

You know, it’s less the case, as I say, in the court. People often criticize the world court saying, well, it’s politicized, but you know, the members of the court come from different parts of the world and they bring with them their cultural baggage, their backgrounds and all of this. So of course they reflect that the way any individual does in their own judgments and assessments. But ultimately they are

applying a law and they feel bound to apply it consistently. When the international court of justice issued its first ruling in the case of South Africa versus Israel in January of 2024, I remember people saying, the American judge who was then the president of the court, they said she voted in favor. How could that happen? You know, didn’t the state department tell her not to vote for it? And of course she didn’t take orders from the state department.

She had worked for the State Department. She was a former State Department lawyer, but she was elected to the court and she took an oath to be impartial and independent. And so that’s what happens. And yeah, it’s a beautiful thing.

And I guess these judges also have to be a little bit more conscious of the historical context and the precedent perhaps that they’re setting. So it’s not merely political rhetoric because this will go down in the history books. Same, you know, as I’ve alluded to in my intro to you, I’m from Bosnia, deeply affected by that war myself. I was on the receiving side. I’m a Bosnian Bosnian, so not a Bosniak, but I’m a Bosnian Bosnian.

And of course, the term genocide itself within Bosnia carries a lot of meaning. What is it about genocide itself that is so loaded and it almost carries a disproportionate, perhaps symbolic and more so moral weight, even though its legal definition, which I want to get to in a minute, is rather narrow and difficult to prove. And it’s kind of thrown out there, as you just alluded to, in a political fashion. What is it about genocide that makes it so visceral?

Yes, it’s a bit of an enigma. There’s not a clear explanation for why that’s the case. In some ways, the greatest tribunal of them all was the Nuremberg Tribunal at the end of the Second World War, and it held accountable 20-odd individuals who were arguably responsible for the worst atrocities, whether we consider the Holocaust to be the worst atrocity

or starting a war that resulted in 70 million deaths, the worst conflict that the world has ever seen and hopefully will never see again, and holding them responsible for that. And they were convicted of crimes against peace and crimes against humanity. They weren’t convicted of genocide. Arguably those should be the worst crimes, crimes against humanity and crimes against peace. The court said, by the way, that crimes against peace, which today we call the crime of aggression,

they said it’s the supreme international crime. They say this in the judgment at Nuremberg. But what happened since then is that the crime of aggression or crimes against peace was neglected in many ways. And it still is in terms of creating the legal context for prosecuting it. That’s a long story. I don’t know that we have time to get into that, but crimes against humanity, on the other hand,

were somewhat emasculated by the judgment of the Nuremberg because they were linked to an international war. They didn’t apply in peacetime. So then along some years later and very deliberately in order to address the shortcomings of the Nuremberg judgment, the Genocide Convention was proposed. And it says at the very beginning of the convention that it applies to atrocities committed in time of peace as well as in time of war.

So this was a very important development, but the price for doing it was a definition of genocide that is quite narrow, narrower than crimes against humanity. And so for many decades until the 1990s, if you couldn’t fit an atrocity within the definition of genocide, you really didn’t have much. You didn’t have a tribunal, you didn’t have a convention.

You were, you could say, well, no, it’s not genocide. It’s a crime against humanity. And, but then if you didn’t have an international conflict associated with it, it didn’t apply. All of that changed in the 1990s. That in effect, crimes against humanity was enlarged to apply to peacetime, to conflicts that were not international in nature. And this meant that crimes against humanity in some ways was corrected and covered everything in terms of atrocities.

And we could have said in the 1990s, well, we don’t need genocide anymore. We can just park that away now. We fix crimes against humanity. Let’s just go with that. But it’s not what happened. And for one reason or another, it’s been treated a bit as the, well, I used the subtitle in my book, which comes from statements by judges as the crime of crimes.

You know, I don’t want to suggest that there’s not a legitimate reason for it either. I think that ultimately what it is capturing is the idea that amongst the worst things that have happened to humanity is racial discrimination and the idea that one group is superior to or inferior to another. It’s a poisonous noxious concept that

really is in some ways quite recent in human history. We’re talking hundreds of years, the last three, four hundred years. It’s related to colonialism. It’s related to the slave trade. And I think that’s just it’s a recognition that that somehow separating people based on their identity, ethnic, racial, religious, however we specify exactly what that identity is, and then destroying them.

Because the genocide definition requires destruction. You’re saying these people, you know, like eliminating a species of the animal kingdom, rendering a plant extinct. That this is just something that we cannot tolerate. And so when that’s taking place, it is the crime of crimes. That’s a subjective definition. Lawyers don’t decide which crimes are important and which crimes are unimportant.

Political decision. That’s a policy decision. But somehow, globally, global public opinion, global governance has decided that genocide is the crime of crimes. And I think ultimately the explanation is that because it’s a crime of racial hatred resulting in destruction.

Which kind of leads me to the next point, and that’s the piece of intentionality. You devote the entire chapter to the idea of specific intent as both being essential to the legal identity of genocide and also being rather remarkably elusive in practice. Why is this mental aspect of intentionality so difficult to prove? Because that’s what the crime of genocide ultimately rests upon, and it makes it very different to the other crimes.

War crimes or crimes against humanity. So what makes this element of intentionality so slippery?

I don’t know if it’s as complicated as all that. We do this in ordinary criminal law where we have crimes of homicide, killing other human beings and you can kill someone accidentally. You can kill them, which is where you’re entirely innocent. You can kill them because you’re negligent or careless. You can kill them because you got in a fight with them and you punched them a little too hard or used a weapon or something like that, but didn’t plan it.

And then you could have the intentional murder of a human being. And so we have gradations within ordinary crimes. All criminal justice systems have this. And the crime of murder is essentially one of these special intent or specific intent crimes like genocide. So genocide requires that intent to destroy the group. It’s not about accidental destruction. And it’s not just about the

underlying acts of killing or so on, which could also be crimes against humanity, or they could simply be what we call ordinary crimes. The idea here then is you have to prove it. Often people say to me, well, it’s going to be very hard to prove genocide. And I say, well, maybe that’s because it isn’t genocide. And often people mix that up. They sort of invoke the thing. Well, they say genocide is very hard to prove. And really what they’re saying is we don’t have the evidence of

genocide. So, really the difficulty in the question is what is the evidence of genocide? And there’s a rule that the Tribunal for the former Yugoslavia applied that was then picked up by the judges at the International Criminal Court that where you’re proving genocide based on genocidal intent, based on what we call circumstantial evidence. In other words, you don’t have any direct evidence that somebody intended to destroy the group.

But you have a combination of events, facts, circumstances, conduct that suggests that’s what they intended to do. They don’t say what they intended to do. You don’t have it in writing. You don’t have clear evidence of what they intend to do. It’s an inference. You’re surmising what they meant to do based on what they did. And the difficulty there is that

there may be other explanations for what they intended to do. And so when you’re proving genocide based only on circumstantial evidence, on saying, they did this, they did that, that’s probably what they meant to do, well, you’ve got to be sure that’s what they meant to do. And that means you have to eliminate other reasonable explanations.

Right. And I believe, well, some time ago already now, you’ve publicly come out and gave your opinion on what Israel is doing, particularly in Gaza, but perhaps more broadly also in the West Bank. And given what we just talked about, about the evidence required for the intent piece of genocide, what made you come to that conclusion? And when did you make that conclusion yourself?

Yes, when the conflict began in October of 2023, I was assisting some lawyers in the United States who were preparing a case there of litigation against the US government dealing with its support for Israel. I was focused then on a related issue, which is the duty to prevent genocide.

And the duty on a third state, the duty on someone who’s not directly involved in the conflict, but who is in a position of influence on those who are perpetrating it, that duty, according to the International Court of Justice in its judgment in the case of Bosnia versus Serbia, the court said that duty arises when there is a serious risk of genocide.

Which is what this government was ultimately found guilty of as well. Not genocide, but of failure to prevent, correct? Yeah.

Yes, in other words,

and in the case of Bosnia versus Serbia, the court said that Serbia could have influenced the Bosnian Serb forces, General Mladic, Karadžić, to, could have put pressure on them. That might have prevented the genocide. You can never be sure whether that would have worked or not, but they said you did nothing and you could have done something.

And they said that was a violation of the Genocide Convention. And they said that that duty arises when there’s a serious risk, which obviously is a lower standard. And I was prepared very early in the conflict to take that position. And then over the weeks that followed in 2023, it became more more evident to me. The evidence was mounting that indicated that pointed to a genocidal intent.

What was that? Well, first of all, there was a whole series of outrageous statements by Israeli leaders. And many people immediately said that, well, that’s the evidence. There we have the evidence of their plan. I was more cautious on that initially because those statements, you know, are made in the heat of battle. They could be a reaction to the

you know, the anger and the bitterness that the Israelis felt about the attack by the Palestinians at the beginning of October of 2023. So, you know, you didn’t, I didn’t want to jump to a conclusion immediately, although those were not irrelevant issues in terms of proving genocidal intent. The other thing is as a specialist on the law, I know that we’ve seen similar things in other contexts where genocide was committed.

Where the courts have tended not to take those types of statements as being decisive. But then the other thing that contributed to these conclusions, so I don’t want to, I’m not suggesting those statements are not important, but I felt maybe we needed more. And I think there are two things. One is the growing evidence that the people leading Israel now, we’re talking about those who are in charge,

want to expand the borders of Israel. They want to expand them to at least as far as the Jordan River and to the Mediterranean Sea, in effect swallowing up and annexing Gaza and the West Bank. If they do that, they then have a territory where the population is roughly equally divided between Jewish Israelis and Palestinian Arabs. And that’s not viable for them.

The only way that works, expanding those borders, is if they get rid of the Palestinians. And so that’s a policy. It’s clear that’s the policy of Netanyahu and the people in his circle around him. I’m not saying that Israelis are unanimous, they haven’t had a referendum on this, but that’s the political direction of travel in Israel. That’s significant. The other thing that I found very striking

is that it didn’t appear to me, and it’s still the case, and if anything the evidence is stronger and stronger with every passing day, that the purported war aims of the Israelis were not actually being pursued with very great effort. So one of them was to destroy Hamas and the other was to rescue the hostages. Well, they haven’t really done

much of a job of rescuing the hostages. I think that they’ve killed, the Israeli defense forces killed more hostages than it’s rescued, only a handful. The others were released by negotiation. And then as for the military aspect of it, the Israeli defense forces have sustained very few combat deaths. Very few, less than a thousand, maybe six, seven, and 800, something like that.

This is a very disproportionate war when you have seven or 800 combat deaths and 70,000 deaths on the other side. I mean, for a general, I guess it’s a dream to achieve that. But to me, what it’s showing is they’re not fighting hard against Hamas. They’re not going into the tunnels. Of course, they would take much more serious casualties. They might succeed in defeating the Palestinian fighters if they were to do that.

To me, this is evidence that that’s not really what their objective is. And we’re talking about their intent. So the intent is to destroy the Palestinian infrastructure, to destroy the people, to make Gaza unlivable. And so all of these things, when you add them together, led me to that conclusion. You know, reaching legal conclusions is not an exact science.

It’s not like you can get an app on your iPhone where you put in certain information and it tells you whether someone’s guilty of a crime or not. Ultimately, juries, judges, they hear all the evidence, they weigh it up and they say, this is what’s going on. This is what I think. So I got to that point. I don’t remember the day, but probably in November or early December of 2023. And everything that’s happened since then has just confirmed my conclusion.

And I should add that over time, the momentum has grown. So we, for very recently, in early September or mid-September of 2025, had this report by the Commission of Inquiry set up by the United Nations Human Rights Council. You know, they had been in existence since October of 2023. They could have said it was genocide much earlier. They took their time

and they issued this marvelous, thorough report, which I think will stand as the sort of the benchmark now on the subject legally until the International Court issues its judgment. But this took them a while and I have great respect for the members of the commission. I was impatient for them to take the position. Ultimately, they did it. But that momentum continues to grow. It grows in the academic community.

It’s grown with organizations. It took Human Rights Watch and Amnesty International a year or more to reach such a conclusion. Then it took another year for the Israeli NGOs to reach such a conclusion. But that momentum continues to grow as well.

Things that keeps popping up and again, I alluded to in my intro, I’ve spent many years in the army and this is a discussion quite often with some of my fellow army friends who see this war as urban warfare. It’s difficult and people will die. Many will say that Israel needs a security buffer, so therefore 75% of Gaza is under their occupation

as security buffer. They say that they are, you know, one to one or one to two terrorists to civilian casualties, which again, they will tell us is unseen in urban warfare and they tell people to get out, et cetera, et cetera. How much does this hold in legal terms? So when this goes before the ICJ, whenever it happens, how much will this argument hold legally that

Israel’s hands were ultimately tied and this was in order to prosecute their war aims as you rightly pointed out to destroy Hamas and rescue their hostages and this is just the nature of urban warfare. How much water does that hold in legal sense?

Well…

And just on that, because they kept secret, right? Just to clarify, they kept secret, right? Obviously Israel knows.

That’s correct. I mean, I suppose there are copies of them circulating informally, but I’ve not seen them and I don’t know what the materials are. So some of it depends on the materials that come before the court. Some of it will depend on things that may emerge or develop before it gets to court, before it gets to trial, which are in the next few years.

You know, again, I think looking at how all of this started, first of all, Israel, you know, to defend itself, its argument that it needs to do this in self-defense, we know that that border between Gaza and Israel was almost undefended. I mean, this is why it was such a shock. It was not. Israel can protect itself the way it’s done in other parts by the way of the territory, by building a wall.

It just hasn’t done it. It had a little fence and that was so better defenses would do that. That’s their concern. This would be much easier and much less costly than what they’ve expended by the way in Gaza. If that was really what they were saying. So it’s a question of how credible is that? Is that really credible? They were, you know, they say, well, but Hamas was firing missiles from inside Gaza.

Well, they had very effective defenses against that too in the Iron Dome defense. You know, the court will have to weigh up how plausible all of this is. There’ll be 15 judges and some of them may take those arguments more seriously than others. But as I said, you know, urban warfare, and of course, there’s nothing simple about urban warfare, partly because cities are notoriously easy to defend for those who were in there because

and you know, the more rubble that Israel creates in the cities of Gaza, the harder they make to defeat the enemy because the enemy, the rubble hides them. You know, it makes the battle harder. I think you’re a military man. Maybe you know this better than I do. That the, but that’s only if you’re fighting, if you’re really fighting them.

The evidence, you know, we’ve had coverage of lots of wars in the past. We had lots of television coverage of the wars in the former Yugoslavia. I grew up watching the war in Vietnam. We saw battles. We could see the enemy out there. We don’t see any of this. There’s none of this going on in Gaza. They go in with drones, robots, and tanks. That’s why they sustain very few casualties.

That’s why they’re not really having battles with the Palestinian fighters in the rubble. If they were, they’d have more casualties. If they were, wouldn’t be going in with robots and drones, but they’d actually get out of their, or tanks, they’d get out of their tanks and have to fight and take casualties. I don’t think they’re doing that because I don’t think that’s really, to me, that’s just confirming the fact that that’s not why they’re there. They’re there to destroy Palestinian life.

And in the same vein, think something like 92% of Gaza has been either damaged or destroyed. Think 93% of crop lands have been destroyed. Again, how does that, are those calculations used by the ICJ when it’s presented as evidence, perhaps, of genocidal intent or at the very least ethnic cleansing or other, you know, other lesser war crimes, dare I say it?

Because those figures, I mean, it’s hard to argue from a military perspective that, you know, 92% of Gaza is being used by, you know, 30,000 Hamas fighters to prosecute a war against Israel to destroy them. It’s very hard to argue that, but it’s of course, you know, what’s happening.

I think that it does two things for that evidence. First of all, as you say, it points to the fact that they’re the genocidal intent in the direct sense because you’re targeting things that really don’t clearly have any military purpose or significance, but that are intensely important to civilian life. But, you know, so I think that’s a very important factor. The other thing, though, is that it also

knocks a big hole in the argument that they’re there for self-defense because the self-defense doesn’t require you to destroy the fields of the farmers and the universities and the hospitals and all of that, you know, self-defense is, is, and, and, you know, this is a concept that in international law isn’t really very different from what we all know about in our daily lives. Everybody knows about the defense of self-defense, you know,

somebody makes a nasty comment to you in a pub and then threatens to have a fight with you. You don’t have the right then to go and beat them to death with a golf club or a cricket bat or whatever because of rules of proportionality. And that’s so evident and it’s familiar to all of us. We all have a basic understanding of familiarity and people go to jail regularly because they get that calculation wrong.

Burn the pub.

And they use excessive force in response to a perceived threat. It’s a very common phenomenon in courts.

Absolutely. I know our time is short, so I want to go through a couple of questions that I keep having to debate, I guess, either on the podcast or outside. The five specific acts that make up crime of genocide under the convention are killing members of the group, causing serious bodily or mental harm to the group, deliberately inflicting conditions of life calculated to bring about physical destruction, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group. Now, many argue

both publicly, but certainly to me privately, that versions of these acts can be found in every single war. And therefore using genocide while, you know, any war can be genocide. So in my view, that’s not accurate, but why is that inaccurate? And what distinguishes these acts as genocidal under international law as opposed to merely any other war?

Yes, well, of the five acts, there are a couple of them that sort of have a genocidal flavor to them. One of them is the prevention of births within the group. And the idea there is that if you’re preventing births within the group, you’re trying to destroy the group. And the other is the transferring of children to another group, which again, those two acts suggest destruction. The other acts, particularly the first one, which is killing, of course, killing happens

in all conflicts and it happens in daily life as well. In peacetime, people exaggerate the importance of those acts. The acts are just, they’re there under what we call the chapeau, under this umbrella notion of intent to destroy the group. And they were debated what those acts would be at the time when the convention was adopted.

Part of it was they wanted to exclude the inclusion of cultural genocide within the definition of genocide and confine it to physical genocide. But that doesn’t really work because ultimately evidence of cultural genocide, destroying the monuments, the religious institutions and all of this of a group, is also evidence that you intend to destroy them physically. It adds to that,

to the evidence, so it’s not really excluded. I think there’s a tendency to make too much of those acts of genocide because really, you really just need to have evidence that killing is taking place. And if you don’t have evidence that killing is taking place, it’s very hard to make the claim that they intend to physically exterminate the group. Legally, part of the problem, this definition was adopted almost 80 years ago.

And it was also adopted at a time when there was probably the majority view when it was adopted was that the Genocide Convention was not about states committing genocide. That came later. That’s what the court decided in the Bosnia versus Serbia case. They said, actually, a state itself can commit genocide. But I think that in 1948, when the convention was adopted, really the prevailing view was that actually this was a convention

that deals with the obligations of governments to make sure that the crimes don’t go unpunished. We already had conventions like that dealing with human trafficking, dealing with international trafficking drugs, counterfeit currency and so on. And so it was seen as being a bit that type of a convention, but it’s been transformed over the years into a convention that’s also about countries committing genocide.

And so we’re dealing with it, we have, you know, we see this a lot in international law. We have language and terminology that’s maybe no longer fit for purpose. Maybe it’s not exactly what we should be using and that’s where we need judges to come in and sort it out. And that’s what they’re going to do, I think.

So we fall into the trap of looking at these individuals acts as I mean, they may be necessary, but not sufficient. You know, it’s quite obvious, like you said, killing members of the group. Well, yeah, that happens in every war. So they’re kind of the necessary, there are say ticks in the box to, at least narrow a scene in what we’re talking about here. OK, this condition has been met, this condition has been met. But ultimately, it’s the last couple that lean us into the absolute extermination of a people or

part thereof, coupled with the intentionality piece, which is the overarching, dare I say, umbrella term of genocide. And that’s the kind of proof in the pudding, you know, that there’s this is actually policy, as you rightly pointed out. So getting bogged down, and I really like that you brought that up, because getting bogged down in these particular acts, it doesn’t really get us anywhere. It’s the intentionality piece.

Again, I’m conscious of our time and I know we don’t have a lot of it, but what I do want to touch on very briefly, if I may, as you rightly pointed out, it’s convention on the prevention and punishment of crime of genocide. And the prevention piece, I think, is starting to gather a lot more, at least, steam in mainstream media, because there are nations like the US, as you already mentioned earlier, and certainly nations like Germany, who are in many ways accused of not only not preventing it, but

aiding and abetting genocide in Gaza. How does the world view that? And the courts view that. Is there actually, there’s no precedent as far as I’m aware that a country apart from Serbia, as you rightly pointed out, which is the precedent, how likely is it that those nations, namely USA, and I chuckle because I’m conscious of what I’m asking, but also countries like Germany or other European nations that are providing aid and still continue to do so to Israel?

What are they likely to face?

The idea of the prevention of genocide being an obligation on states to use their influence on other states, because this is what the court decided in the 2007 case. Well, it wasn’t another state, they were the Bosnian Serb forces, but it’s clear and it’s well understood that this would mean other states as well, was kind of cut from whole cloth by the International Court of Justice. It’s not really explicit

in the convention. We have the word prevention. It’s in the title of the convention. It’s in Article 1 of the convention. It talks about preventing genocide, but doesn’t really tell you what’s involved. It was quite a huge leap for the court to make that statement in 2007. Amongst other things, they referred to other treaties and they said, well, we have such a duty to prevent a crime in other treaties. But there was one difference.

The obligation to prevent the crime in the other treaties was an obligation within the borders of that state. And what the court created was an extraterritorial duty, a duty to influence states other than your own. And this is total innovation. So they created it and then it’s sort of sat there now since 2007. The issue didn’t arise in the other big genocide case between Croatia and Serbia in 2015.

And now it’s in front of them, particularly not so much in the South Africa versus Israel case, as in a case filed by Nicaragua against Germany, which charges Germany with failing to prevent genocide. So we’re going to see exactly where that obligation leads us. Of course, it’s also the fact that we have the statement by the court brings the debate back to the political arena. And this is important as well, because it’s within countries.

You know, political figures, journalists, activists go to their governments and say, well, read carefully that judgment in the Bosnia case. You have a duty to use your influence. The court said that it was an asymmetric kind of a duty. It wasn’t the same duty on every state because, you know, we don’t really expect a little country like San Marino or Monaco

to put pressure on Israel, that’s absurd. And even some big countries are in no position to do it. I think that if you, but some big countries are. And after the United States, Germany would be really very much at the top of the list of the countries that could have that influence. And of course, we know that this aspect of the influence on Israel, for example, or another state that would be in the course of committing or threatening to commit genocide,

is related to the existence of assistance to the state. Those are going to be linked. And when we’re talking about assisting the state that’s committing the genocide, there we’re talking, you use the term aiding and abetting. In the convention, we use the term complicity, but effectively, it’s the same thing. Essentially, it’s not committing the crime yourself, but providing assistance or encouragement to those who are committing the crime. And so those two are linked in a way

the prevention and the complicity, even though you could have one without the other. That’s possible. But they are linked. And they’re linked in the case, also the case that Nicaragua was filed against Germany. It’s a very valuable notion. And it’s related to something else we have within the United Nations that was a doctrine that was developed in 2005 that was

called the responsibility to protect. And this is, you know, they’re very similar, actually, and they have the same flavor to them. And it’s this idea that we, that all countries have some sort of a duty to acting out in some cases alone, this would be the case of, of the duty to prevent genocide, or collectively, which is the way it’s presented in the responsibility to protect resolution to prevent

and to protect victims of atrocities elsewhere in the world. And it’s part of human beings, humanity becoming more civilized, having such notions, even if they have the potential also to be abused politically. That’s also possible.

It would be remiss of me not to ask you why do think the West has so readily accepted the label of genocide in Ukraine against Russia but has largely rejected or has kind of downplayed it in the case of Gaza.

Well, there are clearly a huge double standards at work here. You know, the argument of genocide, wouldn’t, you in the Ukraine conflict, both sides have accused the other of genocide, actually, and as far as I’m concerned, neither of them has a very good argument. But what I think that is interesting to point out when governments say, well, yes, it’s terrible what’s going on in Gaza, but what do want us to do? And I say, well,

look at what you did in Ukraine. Within weeks of the Russian attack on Ukraine, there were measures, everything from the freezing of assets of individuals, freezing of assets of individuals because they were Russian and might have been, you know, had a friendly relationship with Vladimir Putin, freezing their assets, canceling sports events, firing opera singers, you know, the whole range. I’m not even…

I don’t want to encourage them to fire opera singers because I love opera singers. But my point is they had no shortage of measures, sanctions and so on that they took. They’re not doing that with Israel. You know, they’re acknowledging now increasingly and they have things like this report of the Commission on Human Rights, which is the Human Rights Council of the fact-finding commission that was set up. And they’re not. So, yeah, there are a huge double standards at work

and that’s just the world we live in.

On that note, Professor SSchabas, thank you very much and thank you for being so articulate and so clear when discussing something so sensitive, touchy and politicized and it’s made into a debate when perhaps there should not be a debate on it. Thank you very much for time. Really appreciate it. Thank you for the work that you do.

Nice talking with you. Thank you. Bye.