Lawfare Daily: Is Complying with the Law of War a Defense to Genocide?

[Introduction]

Gabor Rona: The application of these principles, the rules of IHL are squishy. And what that results in is a tolerance within IHL for a significant amount of civilian harm.

Scott Anderson: It's the Lawfare Podcast. I'm Lawfare general counsel and senior editor Scott R. Anderson with Lawfare Executive Editor Natalie Orpett and Gabor Rona, professor of practice at Cardozo Law.

Natalie Orpett: To the extent you can decide after the fact that the attack, for example, was not sufficiently discriminate or was out of proportion or whatever, if the intelligence that leads to that conclusion was not available at the time, then its not a violation of IHL.

Scott Anderson: Today, we're discussing their new piece for Lawfare, analyzing whether a state that complies with the law of armed conflict may nonetheless commit genocide, a complex legal question recently brought to the fore by proceedings over Israel's conduct of the Gaza War before the International Court of Justice.

[Main Podcast]

Gabor and Natalie, you guys have written for Lawfare, a really, really interesting piece wrestling with a big unknown that kind of is hanging over some of the big legal discussions happening in relation to the conflict in Gaza, and particularly in part the ICJ proceedings being brought under the, in relation to the Genocide Convention. It is a pretty technical conversation and we're going to spend some time kind of laying a foundation so listeners can catch up and then digging into some of these technical points and distinctions about some of the big questions that you all pull out. I think it's, it's really fascinating and, and really lend some perspective to some of these conversations we're hearing about these legal issues. Before we do that though, I kind of want to bring to the fore. What brought this question to front of mind in this particular moment? What is it that makes this a relevant question in relation to the Gaza conflict?

Gabor Rona: Thanks, Scott. In listening to the hearings that were going on in the International Court of Justice concerning South Africa's claim that Israel is in violation of the Genocide Convention. And by the way, there are a number of ways to violate the Genocide Convention, only one of which is committing genocide. Other ways, for example, are inciting genocide or failing to prevent it. But in any case, the heart of the South African claim is that Israel is guilty of genocide in connection with its military action in Gaza that it started after the October 7 attacks.

The Israeli response, or at least one aspect, and a rather significant aspect of the Israeli response is absurd to accuse us of genocide. We have a right to defend ourselves and we are doing so in compliance with the Geneva Conventions and other aspects of the international law of armed conflict. So, what this accusation and response raises is, on the one hand, claims that Israel is in violation of a particular international treaty, that is the Genocide Convention. On the other hand, Israel's response is, that's impossible because we are in compliance with all of our obligations under another realm of treaties, which are the Geneva Conventions, that are designed to govern the conduct of parties to armed conflict.

And while Natalie and I, in our article, don't take a position on whether or not Israel is in compliance or in violation of its Geneva Convention obligations. In other words, those aspects of international law that concern how it is conducting hostilities and whether or not it is adequately protecting civilians from the hostilities to the extent that it's supposed to be. We don't weigh in on that. What we are considering is the question of whether Israel's response, that is, we can't be committing genocide because we are complying with our Geneva Convention obligations, is theoretically an absolute defense.

Natalie Orpett: Yeah, and I think the other thing that's important to emphasize here, and I know we'll get more specifically into these separate bodies of law, but, you know, the question of whether compliance with IHL is an absolute defense to accusations of genocide is something that you can imagine might come up in other situations as well. I think we doubt that this is the only case in which a party will make this sort of legal argument. We know, for example, that there are many armed conflicts where accusations of genocide are made, and of course not all of them land before the ICJ, the International Court of Justice, that is which is the venue that we are focused on. But it is an interesting and important legal question that we can imagine coming up in in other contexts. And so seemed worthy of, of doing a very deep dive into the technical stuff that we will get to.

I will also just note, as we did in the article, that by necessity, because the law is very complicated and these are two separate bodies of law, we did limit the discussion quite a bit. And two important principles to keep in mind are that we limited the discussion. what type of violation of the Genocide Convention we were thinking about. So that is Article 3A of the Genocide Convention, which is about commission of genocide rather than, as Gabor mentioned, incitement to genocide or conspiracy to commit genocide. Those are sort of outside of the scope of what we will talk about and what we talked about in the article. The other is that we are looking at state responsibility, which is the purview of the ICJ, rather than individual responsibility for genocide. And that is, the latter is where there is a lot more jurisprudence. There have only been four cases in the International Court of Justice that have considered state responsibility for genocide, so it is a, a pretty undeveloped area of law.

Scott Anderson: So before we dig deeper into these points of tension and intersection between these two regimes, let's spend a little bit of time orienting our listeners to the two regimes, because not everybody listening has spent a lot of time on international law issues. And Natalie, let me start with you to talk to us a bit about the Genocide Convention, the obligations we're talking about here. What is the core key principles that are essential to understand your analysis here and how they apply in the sort of armed conflict context that we're discussing

Natalie Orpett: So I think the first thing that's important to recognize, because there is a lot of discussion of genocide, as a sort of moral question, and as a legal concept, it's important to remind people that there is an actual Convention, that parties have joined, and decided that they hold obligations under.

There's sort of a lot of rhetoric out there that is separate from the legal question, but this legal instrument involves two main components, and those are an act requirement and a mental state requirement. So, there are enumerated acts in the Convention that constitute acts of genocide, which are actually not just killing members of a group. They also include 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. Those are the acts.

The mental state is by far the more complicated aspect of particularly trying to prove genocide. So the Convention defines intent as intent to destroy in whole or in part a national, ethnical, racial, or religious group as such. So a couple things to note on that. The intent has to be to destroy in whole or in part. So it is not enough to simply commit these acts and hope that the members of a group are, are impacted by it. The act has to be in furtherance of a purpose, which is to, to destroy in whole or in part a group as such. So a group defined as a group, the intent is to destroy in whole or in part. Gabor, am I missing anything?

Gabor Rona: No, I, that, that's absolutely correct. And I, I think an interesting way and a useful way to get one's head around how precise and, and severe the concept of genocide is, is that, you know, you could be committing massive war crimes against civilian populations. That's not necessarily genocide. You could be committing crimes against humanity, even intending the extermination or, or ethnic cleansing of a civilian population. That's not necessarily genocide. What separates genocide from these other types of crimes is the demonstrated intent to destroy the group. And that group must be a group that is defined by nationality, ethnicity, race, and the characteristics that, that you mentioned. So it's a, it's a very specific crime. It's a very high bar to prove the crime of genocide.

Natalie Orpett: Right. And there's actually, I'll just put a plug in for this because I think it's an interesting aspect of this. In his book, “East West Street,” Philippe Sands explains this really well. There was a debate around the time that this, the concept of genocide was created because there was some dispute over whether genocide should be defined as sort of the worst of the worst crimes as compared to things like crimes against humanity, which can constitute incredible atrocities, but are not genocide simply because they are not targeting a group as such with intent to destroy in whole or in part. But that's sort of a tangential issue, but it goes to the overall point that what we are looking at here is a very precisely defined body of law that has particular elements and is not quite as all-encompassing as the rhetoric about it in non-legal terms may suggest.

Scott Anderson: So Gabor, let me turn to you for the other school of law or area of international law we're discussing here. That's international humanitarian law, the law governing armed conflicts, governing the conduct of warfare, law which includes a number of rules about protecting civilians and limiting types of violence directed at them at least and that incidentally affects them within certain constraints. The full scope of this is obviously too broad to go into on the podcast, but, you know, what are the essential elements of this that, that are relevant to your analysis? And in particular, how do we understand this intersects with the international law rules governing genocide? IHL is often conceived of described as a field of lex specialis law, a specialized area of law that supplants in certain contexts, in certain applications, other rules of law. How does it relate as a general matter to the Genocide Convention and other such rules?

Gabor Rona: So first of all, let me note that IHL or the law of armed conflict or the law of war, these all mean the same thing. This is a body of international law. It's, it's largely, but not exclusively found in the Geneva Conventions. There are bunches of treaties involving questions of what kinds of arms are, or are not permitted to be used in armed conflict as well. But these are essentially the body of international law rules that govern two aspects of armed conflict. One is the conduct of hostilities themselves. In other words the means and methods of waging war and also a bunch of rules concerning protections that people who are not taking part in the conflict are entitled to, and most notably, these are civilians or, or prisoners of war.

Now, the law of war has a whole bunch of principles. For our purposes, I think it's important to concentrate on three of them. The most important one, perhaps, is the principle of distinction, that says you can only target military objectives, you can't target civilians, you can't target civilian objects. The second one is the principle of proportionality, which recognizes that even while you're targeting military objectives, there is a possibility that civilians will be harmed. This is the concept commonly known as collateral damage. You're not targeting civilians, but you're also not prohibiting targeting combatants and other military objectives where that may result in civilian harm. The principle of proportionality says that while some civilian harm is permissible, civilian harm that is in excess of the anticipated military advantage to be gained in an attack is prohibited. So, all right, so, so far we have the principles of distinction, the principle of proportionality. There's also a principle of precaution. Now, even if you're abiding by your principle of distinction and principle of proportionality obligations, you have yet another obligation if you're a party to an armed conflict, and that is to minimize, to the extent feasible, civilian harm.

With these three principles in mind, you have a kind of a general program of limiting armed conflict to combatants and military objectives, and on the other hand, protecting civilians and, and civilian objects. But the problem that arises that then invokes questions about the relationship between these principles of IHL and the rules of the Genocide Convention that, that Natalie mentioned, is that these IHL rules do not really have metrics for their application. They are imprecise. So, for example, in connection with the principle of distinction, there's a lot of gray area as to what constitutes a military objective. Who is a combatant? What about when civilians participate in hostilities? How do you tell a combatant from a civilian, especially in cases where you're dealing parties to an armed conflict that are non-state actors, that don't necessarily wear uniforms, that don't necessarily distinguish themselves from the civilian population?

Then moving on to the principle of proportionality, there's also a lot of gray area there. Remember, the principle of proportionality says that IHL tolerates a certain amount of civilian harm, civilian casualties, as long as it's not disproportionate to the value of the military advantage that is being gained in the attack. Well, this is a case of essentially comparing apples and oranges, on the one hand, civilian harm, on the other hand, military advantage. How do we determine what is or is not proportionate? And how do we determine whether or not a certain amount of civilian harm is permissible in connection with a particular attack? Or, or do we analyze it in connection with the ultimate goals of the party to the armed conflict overall? In other words, do we assess this on a tactical basis? Do we assess it on a strategic basis? These are uncertain aspects of, of IHL.

And then finally, as to the principle of precaution, parties to armed conflict are required to take precautionary measures to protect civilians from harm in, in attacks. But there, again, are no metrics for what exact actions are required to satisfy the principle of precaution. And it is even a fact that precautionary measures may not be required at all if they are for some reason unfeasible in a particular operation. So the bottom line is that while international humanitarian law is of great service, in attempting to ameliorate the worst effects of war and, and to do so by protecting civilians from the vicissitudes of war. The fact is that the application of these principles, the rules of IHL are squishy. And what that results in is a tolerance within IHL for a significant amount of civilian harm.

Now, as a result of that tolerance, the question then arises, if a party to arm conflict, like a state, evinces genocidal intent. Let's say there are policies or statements by government officials to the extent saying, you know, we want to destroy a particular population on account of their nationality, their racial makeup, their ethnicity. This is evidence of genocidal intent. Our premise is that it is conceivable that a party to armed conflict can move forward with genocidal intent and commit acts, as Natalie described them, of genocide while still not necessarily violating the laws of armed conflict on account of the fact that the rules of armed conflict are not subject to specific metrics, are somewhat squishy as to the line between what is permitted and what is prohibited.

Scott Anderson: So I want to dig into the, this question about that. This question is the types of acts and the types of mental states that you might see that might somehow skirt IHL obligations or align with IHL obligations while crossing the wrong line of Genocide Convention. Before we do, though, I want to dip back into the last question with you, Gabor, about the relationship between these two regimes, the idea of IHL being a lex specialis regime and what that means, if anything, for the Genocide Convention, particularly the Genocide Convention, has its own kind of special rules. You know, the, it's generally considered jus cogens norms, kind of the highest norm or value in the international system. What does that tell us about how we should think about these two regimes interacting?

Gabor Rona: The, the case at the International Court of Justice now concerning allegations that Israel is, is committing genocide are, are a good case in point for considering this lex specialis concept. Again, in the face of allegations that Israel is committing genocide, Israel says that can't be true because we're complying with our law of armed conflict obligations. And in framing their defense in that fashion, what Israel is essentially saying is that this is an armed conflict and therefore the laws of armed conflict take precedence over any other aspects of international law. And if we are in compliance with our law of armed conflict obligations, then you can't accuse us of violating other aspects of international law.

So one way of construing that argument is, again, in connection with this so called lex specialis concept, which means that if there are two potentially applicable frameworks, of international law applicable to this, to a particular situation. You choose the framework that is most specifically designed to address the context in which you are operating. Now, Israel may well be saying that because this situation is armed conflict, we need to be looking exclusively at the laws of armed conflict. And if we are in compliance, we, Israel, are in compliance with our law of armed conflict obligations, that's the end of the inquiry.

But another way of looking at this is that this is not really a lex specialis. situation. This is not really a situation in which we discount the application of genocide law just because it's an armed conflict to which IHL applies. And our view in this article is that you can have IHL compliance, but the law concerning genocide still applies because the law concerning genocide is not displaced by the law of armed conflict. The law of armed conflict also prohibits acts that constitute genocide under the Genocide Convention. So this is not a case in, in which you throw out the law concerning genocide just because there, there's an armed conflict.

Our premise is that there are a set of obligations under the law of armed conflict. There are a separate set of obligations under the Genocide Convention. And there is a place, a delta, as we, we said in, in the article, in which the Genocide Convention obligations are not necessarily displaced by the law of armed conflict. Because you can have compliance with these IHL principles, but you can still have genocidal intent and those acts of genocide that Natalie mentioned. And if you have the confluence of genocidal intent and acts of genocide, then you have genocide regardless of the fact that you're complying with IHL principles of distinction, proportionality, and precaution. That's our premise.

Natalie Orpett: Yeah, and I'll just add to that. And to be clear, I don't think that Israel is arguing that IHL compliance is as a legal matter, a full defense to genocide because IHL meaning armed conflict is underway and therefore IHL is the applicable law. I don't think that it is Israel's position that now that there's an armed conflict, IHL is the only law that exists, right? And there, there's, there would be no basis to make that argument even for people who read lex specialis to be on the more aggressive side, right? The, the principle is that to simplify matters a little bit. The, the principle is that the more specific law in the case of armed conflict, IHL, it does take precedence, but to the extent other bodies of law, like international human rights law, are not inconsistent with IHL, they remain in effect.

Also, no one would seriously make the claim that genocide is not a legal regime still in place during an armed conflict because the Genocide Convention itself says that it applies in both times of peace and in times of war. And, you know, the parties who were negotiating these treaties and signing them were doing so at approximately the same time. These, these conventions, the Geneva Conventions and the Genocide Convention, were all happening simultaneously. So literally the same people who were thinking about these things were recognizing that genocide is still a body of law applicable during armed conflict, just as is the Geneva Conventions and IHL.

Scott Anderson: Let's dig in now to this, this premise, this idea that there's a set of facts and intent, acts and intent, excuse me, that can comply with IHL but might run afoul of the Genocide Convention. Let's start with the act side because the intent side, as I believe you noted, Natalie, is, is the complicated more complicated part of this in some ways. But the act side strikes me as pretty complicated as well because we have these principles of distinction and precaution that Gabor's laid out for us are supposed to help protect civilians. Where Natalie, do you all see the opportunities for those to fail to stop the sort of conduct that would lead to genocide? It's hard to reconcile the most conventional kind of types of act, genocidal acts that come to mind, direct violence. But you all draw some interesting parallels about hard cases to say where you might actually see even acts that rise level of committing genocide that don't fall afoul of those two principles necessarily. Walk us through some of that reasoning.

Natalie Orpett: Sure. So when you're isolating the acts requirement of genocide, it's possible to come up with examples of acts that might simultaneously look like compliance with IHL and an act as enumerated under the Geneva Convention. So the example that we raise in our article is you can imagine that issuing, for example, evacuation orders to civilians saying that they're, this location is going to be targeted tomorrow, next day, whatever, and you should all evacuate. That can look simultaneously like precaution under IHL. It can also look like an act of genocide if the consequence of having all of these people evacuate would be to move them into conditions that are incompatible with life, the deliberately inflicting on the group conditions of like life calculated to bring about its physical destruction in whole or in part. So that one will come back to the intent that particular act has an intent requirement. So it may not be the best example, but the point is that acts that can actually look like an example of compliance with IHL can also look like an act of genocide as enumerated in the Convention.

Scott Anderson: Part of the argument you all really pull out here that's interesting is how these principles apply in relation to kind of the other overriding, kind of countervailing interest that applies in the IHL framework, which is this idea of military necessity. Gabor, let me turn to you on this. How does military necessity, how we weigh it, define it, evaluate it, enter into this, the squishiness, as I think you described it, of these sorts of principles as they apply and how might it lend itself to scenarios of the type you're envisioning, where, you know, again, acts compliant with IHL might nonetheless have a genocidal effect?

Gabor Rona: Well, I think just like the principle of distinction, the principle of precaution, the principle of proportionality, the concept of military necessity is also fairly squishy. And all of these principles are, are designed to strike a balance between, on the one hand, the prerogatives that states want to maintain for themselves to be able to conduct war. Remember, it's states that made these rules, and states want to be able to engage in war. And, and on the other hand, want to create some modicum of civilian protection to prevent wars from, if you will, getting out of hand as, as they did in the Second World War, for example. The principle of military necessity merely counsels that in order for something to be the object of attack, it has to promote the end goal of defeating the capacity of the enemy to wage war against you.

Now, that's not nothing. That would obviously prohibit attacking civilians, because civilians don't wage war against you. Combatants wage war against you. And yet, there are a significant number of ways in which there's flexibility to define military necessity. And I'll take an extreme example, and, and, and by extreme, I mean invalid example, but it has been argued, for example, that, well, anyone that finances the ability of a party to an armed conflict to wage war creates a military necessity to destroy that individual. So that means that U.S. taxpayers, you know, we support the military establishment through, through our taxes would become targetable. And the argument there is that that means that killing taxpayers is within the framework of military necessity.

Now, again, nobody who's serious about the laws of armed conflict buys that concept. But it is an example of, again, the, the squishiness, if you will, of defining the parameters, metrics for the application of these principles, whether it's military necessity, distinction, proportionality, or precaution. And then, to the extent that these principles do leave a lot of room for debate, and therefore leave a lot of room for targeting civilians and civilian objects, that others may claim are not really civilian. They, they are objects of military necessity, or they are combatants, or, or they are military objectives. To the extent that the law of armed conflict leaves room for debate about the application of the, these principles, it also leaves room for those who harbor genocidal intent to be able to commit genocidal acts.

Scott Anderson: So you all are very careful in your piece about making the point that this is a universe of acts that, while you make the case it is real, a possibility, but might be quite narrow. But you flag a couple of interesting kind of hard cases that are particularly relevant to kind of modern warfare and some of the aspects of warfare we're seeing in Gaza that kind of raise perhaps an additional risk or additional questions regarding exactly this category of conduct. And then let me ask you, you mentioned evacuation orders. Let me ask you about the other two, just, just briefly, which are siege warfare and AI, both things we are seeing very much in play in Gaza and in other armed conflicts around the world. Tell us how these might raise the risk of this category of conduct becoming more relevant.

Natalie Orpett: Sure. So, to take the first siege warfare is actually a very good example of what Gabor was just describing of an area where there is a lot of room for debate. So, siege warfare is a situation where I think some people would argue that it is, it is nearly impossible to successfully adhere to principles of distinction when it comes to a siege situation. If you're in an extremely dense urban area, if the, it is impossible to, for practical purposes, identify combatants from civilians, perhaps because the combatants are intentionally not distinguishing themselves in order to not be easily targeted. You know, the question is, as a matter of law, if the combatants make it extremely difficult to be able to exercise in the most ideal way possible, perfect distinction, does that mean that the party that is trying to adhere to IHL has an obligation to simply not engage in hostilities. But this is an area of, of debate. What are the appropriate parameters to put when this is the context of the armed conflict?

The second example involving artificial intelligence is one that, for obvious reasons, is, has been subject to, to less discussion, since it's a relatively new concept. But the idea is that as parties, as we know they are, are using artificial intelligence to make targeting decisions, the lack of there being a human and a clear at least at a certain part of the chain, chain of command that is making a call and compiling data, et cetera, in order to make the targeting decisions. You know, it's difficult to imagine how the law can adapt to hold accountable machine learning or algorithms or some, you know, technical implementation of an artificial intelligence evaluation.

Gabor Rona: And, and if, if I may add, I think one way in which the advent of artificial intelligence in, in targeting can increase the room for committing genocide is that in IHL, it is parties to armed conflict that have obligations. When targeting decisions are relegated to an algorithm and the, and the question arises, well, you know, who's responsible? And especially when the algorithm permits machine learning and the decision-making concerning targeting is increasingly out of the hands of the humans that created it, the algorithm. It is possible to deflect responsibility in a way that allows one to at least argue, well, I haven't committed any IHL violations. I've programmed this, this machine in ways that we earnestly believed were calculated to minimize civilian harm and to focus as exclusively as possible on legitimate military objectives. But then to the extent that the machine makes decisions that on a case-by-case basis, we may consider to be invalid. Civilians are in fact harmed and indeed are, are targeted. But there's no human in the loop to hold responsible. And that creates an added realm of mischief, an added realm for mischief in connection with the satisfaction of genocidal intent, if you will.

It's conceivable that someone in a policymaking position that harbors genocidal intent could then hide the genocidal acts quite capably in those circumstances in which artificial intelligence is being used to actually make the targeting decisions because of the absence of human accountability. So that would be one more example in which it would be perhaps extremely difficult to determine that there's a violation of IHL. However, the example presumes that we have found evidence of genocidal intent and that the acts are those that fall within the definition of genocidal acts in the Genocide Convention.

Natalie Orpett: Yeah. And just as a point of clarification, you know, I, I think that that example is more one of being able to prove violations of IHL because the, the lack of accountability or the difficulty in figuring out how to apply the law now that there is the advent of artificial intelligence and targeting is what makes possible the sort of mischief that Gabor was describing. So this is not an example of, you know, a genuine commitment to comply with IHL. It is, it is sort of an example more of coming up with a means of skirting individual responsibility by deflecting responsibility onto a machine that the law has not yet figured out how to assign responsibility.

Scott Anderson: So let us take for a given that we have established a category of acts that meet the Genocide Convention requirements, but don't cross the line from an IHL front. That still leaves this question of intent. Gabor, let me come to you on this. How do we think about intent in the genocide context when we're talking about state responsibility, state conduct? Who's intent is needed in these sorts of cases? What is, who is, has the intent for a state and how does that fit into accountability mechanisms here? I mean, how do we even begin to think about attributing the conduct of soldiers and uniting that with an intent that's genocidal, particularly if it's coming from potentially totally disparate actors in a large state apparatus?

Gabor Rona: I think that's a really important question here and it challenges the thesis of, of our piece. Because it's entirely possible that you would have one set of individuals to whom you can attribute genocidal intent. But what if they are not the individuals who are actually committing the, the acts of genocide as those are defined in the Genocide Convention. It's entirely possible that policy makers who have genocidal intent and also have command control, say over troops, would have both genocidal intent and be responsible for the acts of those troops because they have command responsibility. You know, they're either politicians or military commanders.

Whereas it's also possible that the troops themselves have no genocidal intent. You know, they're not, they're not out to destroy a group in whole or in part on the basis of their race or nationality. They're out to simply win a war and to focus their attempts and, and their acts of violence on legitimate military objectives and obeying the, otherwise obeying the laws of armed conflict. And so that then the question arises, not only whose genocidal intent matters, but can you in fact have genocide if it's, you know, one individual or one group of individuals to whom you're attributing genocidal intent, but another that don't have genocidal intent that are, that are committing the acts?

And I think for these purposes, there are, you know, general principles of criminal law and international criminal law that deal with questions particularly in situations of armed conflict, of command responsibility, in which commanders become responsible for the acts of their, of their troops because they have control over them. Likewise, policy makers, politicians, if they are guilty of exhibiting genocidal intent, well to the extent that they have the power to order, say, military forces to effectuate their genocidal intent, then I believe that those policymakers are guilty of, of genocide, even if the individuals who are on the ground, in the field, committing the acts, do not have genocidal intent.

Natalie Orpett: Right, and that's where the, the squishiness of IHL comes back into play because in this type of scenario, the political leaders would be responsible for genocide, perhaps as indirect perpetrators. Political leaders conduct is attributable to the state for purposes of state responsibility under the doctrine of state responsibility, which is, again, what matters here before the International Court of Justice. Military is, conduct is also attributable to the state under state responsibility.

So the divide that we are recognizing here relates to the fact that IHL analysis in terms of deciding whether a party is in compliance with IHL is at least traditionally focused on an attack by attack analysis because a major principle that we haven't talked about yet is that within that analysis, you look at what the commander knew at the time based on, you know, reasonable information. So, depending on what the, the context was, to the extent you can decide after the fact that the attack, for example, was, you know, not sufficiently discriminant or was out of proportion or whatever. If the intelligence that leads to that conclusion was not available at the time, then it's not a violation of IHL. So this distinction that we're drawing between the political leaders in this example and the military is relevant because it's, it's the military in this example that is making the case by case determinations and can be doing so in compliance with IHL, we're arguing, whereas simultaneously, the political leadership can be committing genocide through its direction to the actors also committing the acts of genocide.

Scott Anderson: So this is in a lot of ways a super stimulating argument and also one though that applies to pretty extraordinary circumstances, in certain contexts, like in terms of the actual facts and intent aligning up, but not impossible ones, or at least that's the argument you would, you argue. And I find that fairly persuasive, especially some of the extraordinary kind of circumstances you document.  I'm curious as a more general matter, what are the big takeaways for you from conducting this analysis about what it tells us about accountability for genocide or under the Genocide Convention? Setting aside the Israel ICJ proceedings, which frankly hinge on a lot of facts and questions that we don't have answers to at this point, and it's premature to reach any judgment in that case. But does this tell us something more general about accountability in this context, how it's structured, and how we need to think about it, particularly when it comes to states as opposed to individuals? Gabor, let me start with you.

Gabor Rona: Well, a couple of possibilities, Scott. One is that states, the international community needs to go back to the drawing board on, on IHL to make it more precise, more, more specific to, to remove this, you know, delta that, that we've identified between, you know, IHL and, and, and genocide law. That's not going to happen. And, and, and in fact, it’s probably not a good idea to kind of reopen the Geneva Conventions because, you know, God knows what happens, what's going to happen when, when, when you reopen them.

I think the, the other way to, to look at, you know, what we've identified from, from the bigger picture perspective is that ever since the, the Second World War, when this concept of genocide was created and the law of genocide was created in response to the horrors of the Holocaust, there has been a popular sense, I think, that whatever you're seeing, it ain't genocide unless it looks like the gas chambers and, and the concentration camps. That's not true. Where the Genocide Convention takes us is to recognition that acts of hostility that either kill or create conditions of life that are unbearable or that prevent births among a particular population should be understood to be genocide as long as the actor, the bad actor can be shown to have an intent to destroy that group in whole or in part. In other words, it doesn't have to be Nazi gas chambers. It doesn't have to be concentration camps. And so there has to be, I think, more care taken in how armed conflicts themselves are conducted, and how the international community weighs what is and isn't permissible in, in armed conflict. It would be nice if the Geneva Conventions were more precise about what constitutes a military objective, what constitutes military necessity, what are the metrics of proportionality, what are the metrics of taking precaution. But in the absence of greater specification of these IHL rules I think we, we have to concede that IHL permits a certain amount of flexibility to parties to armed conflict.

However, just because you're complying with your IHL obligations does not mean that you can't be committing genocide. And that's, that's kind of the bottom-line message that I think we wanted to create in this piece. And, and what that means is that if, for example, there is an international tribunal that is considering whether a party to armed conflict is or isn't also guilty of genocide, it simply cannot be an absolute defense that there is compliance with, with IHL. What I'm hoping comes out of our article is a recognition that for Israel to defend itself against charges of genocide, it is not sufficient to say we are in compliance with our, with our IHL obligations.

And, and again, that is because the law of genocide itself in the Genocide Convention doesn't require concentration camps. It doesn't require gas chambers. There are many ways in which an intent to destroy a group can be realized. And in order to advance human rights and advance protection of civilians in armed conflict, I think it would be at the very least useful for international tribunals, other bodies, and for, and for states themselves to recognize that there is a possibility of crimes against humanity and genocide, even when there is arguable compliance with IHL.

Natalie Orpett: I think that's a great summary of, of the takeaway. I'll just add one additional, this is more of a, a legalistic item of curiosity. You know, there isn't very much out there with respect to state responsibility for genocide. This, there have been four cases before the International Court of Justice examining this question, and none of them has found a state has committed genocide. As I mentioned at the outset, there are multiple ways to violate the Genocide Convention, not all of which are a state committing genocide.

And thus far, we don't have any ICJ decisions that are describe what that means, which, which leads to the fact that I think we've identified as, as being particularly difficult from an analytical perspective, which is the intent question. How do you decide, you know, we know principles of state responsibility, we know certain actors conduct is attributable to the state, but what do we do about attribution of intent to the state, particularly in difficult scenarios where you have individuals who do possess the requisite genocidal intent, and they are actors who are traditionally attributable to the state. And then you have other actors whose conduct is also attributable to the state that lack the genocidal intent. And I think the law in this area is just really not developed. So it raises a lot of complicated and interesting questions that I think, as, as we mentioned, are likely to continue to come up. This is likely not the only situation in which this legal question will be presented.

Scott Anderson: Well, we may yet have opportunities to revisit this question and some of the questions that follow from it, but for the moment we are out of time. Gabor, Natalie, thank you for joining us here today on the Lawfare Podcast.

Gabor Rona: Thank you so much.

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