Foreign Relations & International Law

The Lawfare Podcast: Chimène Keitner on South Africa, Israel, and the Genocide Convention

Benjamin Wittes, Chimène Keitner, Jen Patja
Wednesday, January 17, 2024, 8:00 AM
What is South Africa's claim under the Genocide Convention? 

Published by The Lawfare Institute
in Cooperation With

Chimène Keitner  is the Martin Luther King Jr. Professor of Law at the University of California at Davis. She is a leading international law authority and served for a number of years at the State Department’s Office of the Legal Adviser. She is the author of a lengthy piece in Lawfare about South Africa's petition under the Genocide Convention against Israel in the International Court of Justice.

Chimène joined Lawfare Editor-in-Chief Benjamin Wittes to talk about the litigation. What is South Africa's claim under the Genocide Convention? What is Israel's defense? Where are both sides vulnerable? And how will the court likely consider the matter at this preliminary stage?

Click the button below to view a transcript of this podcast. Please note that the transcript was auto-generated and may contain errors.



Chimène Keitner: When, and if, we get to a merit stage, there is also language in the court's jurisprudence suggesting that to find genocide on the merits, that genocidal intent needs to be the only explanation, or the only possible explanation. And so there is a disconnect, certainly, between the legal framework or the legal test at this preliminary stage and the legal tests that would apply at what we call the merit stage.

Benjamin Wittes: I'm Benjamin Wittes and this is the Lawfare Podcast, January 17th, 2024. Chimène Keitner is the Martin Luther King Jr. Professor of Law at the University of California at Davis. She is a leading international law authority and served for a number of years at the State Department Legal Adviser's Office. She is the author of a lengthy piece today on Lawfare about South Africa's petition under the Genocide Convention against Israel in the International Court of Justice.

It is that rare thing, a sober and dispassionate look, at a subject that has lots of people running around waving their hands in the air. Chimène joined me in the Virtual Jungle studio to talk about the litigation, what South Africa's claim is under the Genocide Convention, what Israel's defense is, where both sides are vulnerable, and how the court is likely to consider the matter at this preliminary stage. It's the Lawfare Podcast, January 17th: Chimène Keitner on South Africa, Israel, and the Genocide Convention.

So, Chimène, I want to start by congratulating you because you've actually done something here that I would not have predicted was possible, which was to write a dispassionate account of the state of play at the ICJ about South Africa's petition against Israel under the Genocide Convention. And I want to start with just getting your sense of why the conversation about this subject is so ferocious and agonized that the piece that you've written on, on Lawfare is really, I think, the first deep breath and step back that I've seen.

Chimène Keitner: Well, thank you so much for that, Ben, and I'm, I'm glad to be with you, although, of course, I wish the circumstances were different. I teach international law, and I know people, as I know you do, on both sides of this conflict. And not just in the conflict that's been raging since October 7th, but of course it's going back decades. And so, I actually feel a tremendous amount of passion, but I understand, or at least try to understand, why it has gotten to this state. And I think it's a lot of reasons.

I think first of all, as I note in the piece, and as many others have noted as well, the concept of genocide. Both on its own, in terms of the huge debates we've seen about whether to label historic events "genocides' or current events "genocides." That label has achieved a status really unlike any other international crime. I'm not sure justifiably so, but certainly it has for a variety of reasons. Regardless of the underlying facts, any allegation of the crime of genocide is going to be extremely emotionally charged. Layered on top of that, of course, is the fact that the term genocide was coined by a Jewish lawyer during, essentially, the Holocaust. And so, although I don't think the Holocaust is the only genocide, certainly, that's ever occurred. We could hope that it's the only one, or that the ones that have occurred so far, are the only ones that will occur, but, unfortunately humanity has not gotten to that point yet. But, I think that the particular historical and contextual resonance of that term vis a vis Israelis, and particularly Jews, is undeniable.

And then, I think the fact that this is an adversarial proceeding before an international court--and I know we'll get into some of the details, because the popular understanding both of the term "genocide" and of what an international court in this situation can and cannot do, I think, are understandably sort of a little bit of a caricature of what's actually going to happen. But, when you mix in an adversarial proceeding to what is already obviously a tremendously adversarial and costly conflict, it's almost the perfect storm of extremes.

Benjamin Wittes: All right, so let's start with some level-setting about terms and institutions. What is genocide? And here I'm referring to genocide as a term of art under international law as defined in the Genocide Convention, not genocide as we more colloquially use it, where it could kind of mean anything the speaker wants it to mean, at least if there are enough dead people.

Chimène Keitner: Right. Well, the Genocide Convention, which came out of largely the efforts of, of Raphael Lemkin, defines a new crime, or at the time, a crime that hadn't previously had a label attaching the -cide, right, the C-I-D-E to genos, the idea of being a people, a particular kind of people. So genocide can be committed against a national or racial or ethnic group, not just any kind of group. So, for example, in Cambodia, there were lots of debates about, well, if political affiliation or socioeconomic status is the basis for targeting a group, can that be a genocide within the meaning of this treaty? And then, also the intent of the perpetrators needs to be--and again, this is from the legal text that was agreed by countries, and that I think we can fairly say has entered into what we call customary international law--the intent of the acts--and we can talk about acts, they include those you would expect murder, forced displacement can be genocidal, measures intended to prevent births within a group can be genocidal. But, the intent of those acts needs to be to destroy the group in whole or in part. And so, most violence is not genocidal.

And, importantly, that does not make it lawful under international law. And that does not make it ethical. Being not genocidal is a very low bar. But this term as it has evolved and as it has been codified in international law, does have that very specific and very narrow meaning.

Benjamin Wittes: And so before we go on I want to pause over that because if you can say that the Cambodian, what we colloquially call the Cambodian genocide, is not a genocide because they're the same people, Cambodians killing Cambodians, and it's class-based, and you can sort of make the same argument, though it predates the Genocide Convention, of the liquidation of the kulaks by Stalin, right? Just a class-based annihilation. Or, for that matter, the Great Leap Forward is communist Han Chinese killing or starving to death very large numbers of other Han Chinese. And not because they're Han Chinese, but because they're class enemies. What value, really, is the concept of genocide if it doesn't capture these gigantic crimes against humanity in which very large numbers of, in some cases, tens of millions of people die. Is the concept really useful?

Chimène Keitner: I think that's a very valid question. To begin with, we do also have an explicitly defined category of crimes in international law called crimes against humanity. And so, although, maybe even because it's not a single word, it hasn't taken on the same kind of valence or focus as the crime of genocide has.

 I think many of the things you've described could undoubtedly fall into the category of crimes against humanity and are patently unlawful and condemnable as such. Similarly, there's a whole body of law, as you know, governing the conduct of armed conflict. And again, war crimes are not better or worse than any other kind of crime in my view. ,I think that the meaning that genocide has acquired and the reason that there is a separate international treaty about genocid--and, parenthetically, still not an international treaty about crimes against humanity, although one has been in the works for a very long time--is perhaps number one, that people like Lemkin felt that there was something qualitatively different about the intent to annihilate a group. You and I have both been to Yad Vashem and you see these little models of naked people lined up in front of incinerators and gas chambers and the systematic nature there. Understanding, of course, that it was not only Jewish people who were targeted in the Holocaust, but certainly predominantly. I think Lemkin felt that there just needed to be a separate category for that kind of intent resulting in that many deaths and the decimation of an entire population.

That said, I just finished reading Phillippe Sand's book that's been out for quite a while, East West Street, about Lemkin and about Hersch Lauterpacht, who was a contemporary of his, who I hadn't realized was actually quite opposed to the idea of genocide and the focus on genocide, because he really felt that it was important to focus on individuals as individuals, not as members of groups. And he was a driving force between other contemporary instruments, like the Universal Declaration of Human Rights. And I do think, in retrospect, the emphasis on genocide, perhaps to the exclusion of other crimes, has not been particularly constructive.

Benjamin Wittes: All right, so one thing that the Genocide Convention does is, unlike a lot of other categories of crime within the context of conflict or international law-recognized crimes, is that it actually sets up a state-to-state adjudicative mechanism, which is to say it allows one state to effectively sue another state at the International Court of Justice. So, walk us through this. What is the ICJ and how did it end up being the adjudicative mechanism for claims of genocide, by one state against another?

Chimène Keitner: Sure. Well, the ICJ has been around since the creation of the United Nations after World War II. And in fact, its predecessor, which was ironically called the Permanent Court of International Justice, was created at the time of the League of Nations.

Benjamin Wittes: And just to clear everybody's mind. This is not the ICC, the International Criminal Court. It has two, but not three, letters in common with it.

Chimène Keitner: So acronyms can be confusing and, moreover, these two institutions, which as you say are completely different, both sit in The Hague. So, there is some basis for confusion between them, but the ICC is a much, much more recent creation. It's created under its own separate international treaty called the Rome Statute, and it has a prosecutor's office, and the prosecutor brings cases against individuals for criminal acts under international law, which can include the criminal act of genocide or conspiracy or attempt to commit genocide. So, there is a substantive overlap with certain treaties, but a very, very different forum.

,So the ICJ is It's not a court of first resort for most international disputes. It's got a very limited jurisdiction, and this is because countries, at the time of creating both the League of Nations--which folks may remember the United States actually never became part of--and then the United Nations, countries were very wary of supranational governance, of giving up their sovereignty. But, they also recognize that they need to cooperate in an organized fashion, precisely to avoid the scale of violence that unfortunately we're seeing now. And so, the International Court of Justice has, I think, played a very useful role over the years. There are times when its jurisdiction has been more regularly invoked, other times when it has been less busy, but in the state-to-state context, the idea is if two countries have either joined a treaty and agreed in that treaty that if they have arguments under the treaty, the ICJ. will be the decision maker, the adjudicator in that dispute, or on an ad hoc basis, if they're arguing about something and feel like the continued argument is politically costly, they can agree to submit a dispute to the ICJ on an ad hoc basis.

And the court is much larger, I think, than many folks are used to in a domestic context. It's got 15 judges. The judges are elected and the General Assembly of the United Nations and the Security Council both elect judges to the ICJ for nine-year terms. And those 15 judges, plus occasionally ad hoc judges appointed by the parties, decide disputes ranging from boundary disputes involving territory, involving maritime delimitation, all sorts of things that you can imagine states might fight about.

The interesting thing about the Genocide Convention is it's, of course, not just a bilateral treaty between two states, it's a multilateral treaty which countries join, and Israel joined almost at the same time that the state of Israel was founded. And in that treaty, is a clause saying that any party to the treaty can bring a case to the ICJ if there's a dispute about the interpretation or application of the treaty.

So, when South Africa joined the treaty in 1998, it essentially entered into a treaty relationship with all other countries that are party to the Genocide Convention. And I hadn't realized this before, but, I've read that actually the Genocide Convention is the only multilateral treaty under which Israel has agreed to subject itself to the jurisdiction of the International Court of Justice.

And I think the reason many countries have agreed to do so under the Genocide Convention is no country imagines itself to be the perpetrator of genocide.

Benjamin Wittes: Right. Particularly not Israel.

Chimène Keitner: Well, on top of it all, right? So the whole idea of the convention is actually to define unacceptable behavior so we don't end up having a dispute about whether or not genocide is occurring because nobody will engage in genocide.

But, the court does have jurisdiction under that binding treaty. South Africa and Israel are both parties. And then, the one other thing I'd add is, generally speaking, in these, what we call" contentious disputes" before the ICJ, you would imagine a party that itself was injured by another state's conduct to bring a claim to the ICJ to try to seek redress.

And under the Genocide Convention, once before, somewhat recently, the Gambia actually brought a case against Myanmar for its alleged genocide against the Rohingya people. And the court accepted the argument that the Gambia made, which is number one, the Rohingya people don't have their own state, so they couldn't bring their own claim under the Genocide Convention, at least in the ICJ. And number two, every country that's party to the Genocide Convention has an interest in ensuring that genocide doesn't occur. And so, in fact, the obligation not to commit genocide is what we call in international law an erga omnes obligation. It's one that any country can essentially seek to enforce or to vindicate, and that is what South Africa is attempting to do here.

Benjamin Wittes: All right, so, there seems to me to be an antecedent question to whether Israel is violating the Genocide Convention now, which is whether Hamas was violating the Genocide Convention on October 7th? That is, they went into Israel; they attacked a whole bunch of settlements; killed, raped, and kidnapped a large number of people because they were Israelis or Jews.

It seems to me the initial question, which is not before the court, is when you're dealing with a, I don't know what to call that, a massacre or a pogrom or that is aimed at a group of people as a group of people. What makes that not cognizable under the Genocide Convention?

Chimène Keitner: Well, so for purposes of South Africa's case against Israel, at least in terms of defining conduct as genocidal or not genocidal, really, there isn't actually an antecedent legal question involving the conduct of Hamas. Certainly, that is the context in which Israel undertook its latest military operation. But, believe it or not, and maybe for those who were on the receiving end of those attacks and who are, quite frankly, on the receiving end of continued rocket attacks. Maybe it feels like that ought to be an antecedent question. But, what really matters in this--again, because litigation between countries is so rare and so carefully circumscribed based on this principle of state consent, Hamas's actions will not be adjudicated in the ICJ.

Now, interestingly, they may well be adjudicated in that other court you mentioned, in the International Criminal Court, which is conducting investigations, including investigations of the attacks perpetrated by Hamas. That could be a whole other podcast because there are evidentiary issues and jurisdictional issues. But it's, I think, maybe headlines like the ones we've seen about Israel's defending itself against claims of genocide in the ICJ somehow creates this expectation that the ICJ is sort of a free-floating court there to pronounce upon the acts of various different state and non-state actors. And it really isn't.

Benjamin Wittes: So to be clear here, from the ICJ's perspective, legitimately, the question begins not with Hamas's actions, but with the Israeli response to them.

Chimène Keitner: I think that's fair to say, and that in the context of assessing allegations of genocide, it's not that the time, the aperture for sort of looking at the time frame can't be widened to include events leading up to October 7th.

And, certainly, I think the ICJ is going to be very cognizant, or should be, of Hamas's continued military actions, both within Gaza against the Israeli army and then also outside of Gaza in the form of rocket attacks and an announced intention to continue attempting to perpetrate attacks on the scale of October 7th.

That will all form part, I think, of the court's assessment of the genocide claims and what kind of order it might craft in response. But, it's not actually legally salient, doesn't make a difference to how the court evaluates Israel's intent here.

Benjamin Wittes: All right, so sketch out for us, if you will, a high altitude summary of South Africa's case. What is the version of the facts that amounts to Israel being in violation of the Genocide Convention in its conduct in Gaza?

Chimène Keitner: So, the hearings that took place on January 11th and 12th were specifically on a request by South Africa for the court to issue what we call provisional measures. One might analogize that to a preliminary injunction in domestic law. So, it has filed its complaint, which we call an application, alleging violations of the convention. But, it has further requested, given the urgency of the situation, the risk of irreparable harm, that the court intercede very early on at this preliminary phase and order Israel not to take certain actions or to take certain actions.

So, South Africa's account of why the court should do this is, first, in order to issue provisional measures, the court need only decide that it has jurisdiction over South Africa's claims prima facie. In other words, that the conduct South Africa is alleging is prima facie, could fall within the scope of the Genocide Convention.

That again is a fairly low bar. Although, one that Israel argues South Africa has not met. And then, South Africa needs to show that Israel has plausibly violated rights under the Genocide Convention. And then, there's some other requirements for specific actions that South Africa is asking the court to take.

So, I think what really South Africa's argument focused on was this idea that Israel has plausibly violated the Genocide Convention. And its obligations under the convention include, of course, the obligation not to commit genocide, so not to commit acts, including killings and displacement for the purpose, or with the specific intent, of destroying Palestinians in Gaza, as such.

And, moreover, there is an obligation under the convention to prevent and punish incitement to genocide. And I think a lot of observers found that some of South Africa's most powerful evidence came from the painstaking compilation that South Africa and non-governmental groups have done, of comments made both during the military campaign, but also, before it by a variety of Israeli government and civil society actors, that really do dehumanize Palestinians and, taken again on their face value, would at least make a genocidal intent on Israel's part plausible.

Benjamin Wittes: Yeah, and I think most of that would be relatively easy to ignore if it were just civil society actors, but we are talking about at least two government ministers, although, not government ministers who are directly in the chain of command of the conduct of the war.

What do we know about how the court is likely to think about statements that are wildly unacceptable by people who don't obviously have the power to do the things they're talking about doing? When the Prime Minister, with a lot of hemming and hawing, is, at the end of the day, not saying those things and actually saying something else.

Chimène Keitner: Well, South Africa argued that the Prime Minister, Netanyahu, is not saying something else because he has made references to the biblical destruction or the call to destroy Amalek and the Amalekites. I think that this really is the crux of the big picture dispute, because Israel, of course, came in on the second day of argument. It did focus on Hamas' actions, I think, in order to remind the court that there is a backdrop to this conflict and another explanation for Israel's actions.

And when we get to what we call the " merit stage," which, if we get there, people should be well aware would take years on the courts. Sort of based on the court's past engagement in cases involving allegations of genocide, which would include very careful parsing, as you suggest, Ben, of particular statements, the particular roles of the particular people who have made those statements, the connection between the statements and what's happening on the ground, any potential mitigating acts. Israel pointed to many in its arguments, including the provision, however insufficient of humanitarian aid, the call on civilians to evacuate, which Israel portrays not as an attempt at forced displacement for the purpose of destroying a people as such, but, trying to clear civilians from an area that it knew Hamas was embedded in and under, and could not conduct a military campaign in the midst of a high civilian presence. Again, South Africa comes back and says, "Well, you're also bombing areas you said we're safe." So the more in the weeds the court decides to get, the more this starts to look like a determination on the merits, which it can't reach at this stage and will certainly not want to reach.

So, then the question becomes among these 17 judges, 15 judges who are there by virtue of their nine-year appointments, some of which interestingly are coming to an end in February, so a different bench of judges would hear eventual., or somewhat different bench would hear eventual arguments on the merits. Plus two ad hoc judges, one appointed each by Israel and South Africa, are going to have to decide how into the weeds to get, whether they feel that in fact, one can fairly summarily dismiss many of the comments compiled by South Africa on the grounds that they are not made by decision-makers, or whether the plausibility threshold is met simply by the volume of comments and the fact that some of them were made by people who are part of the current political establishment, coupled with the extreme devastation on the ground. Which, again, I don't think Israel contests the degree of devastation, it contests the applicable legal framework, and whether or not it has violated that framework.

Benjamin Wittes: So, as to the devastation, I assume Israel's response would be number one, the specific intent was to go after Hamas, not to destroy a people, and Hamas's embedding within the civilian population makes it impossible to do the former without major damage to the latter. But secondly, I would assume their argument, as well, is that they have, because of October 7th, a right of self-defense. And the purpose, defending oneself, is not a genocidal purpose. Give us an overview of the Israeli defense here, and what are the other components of it.

Chimène Keitner: Well, again, we're going to have to look at this, at this stage, through the lens of plausibility. And the ICJ hasn't really defined plausibility in a way that would enable us as outside observers to say, in my view, that judges will absolutely find that it has been satisfied or not.

I think two things are true. One is, at least at this provisional measures stage, the fact that there are also other plausible intents behind Israel's actions will not, in itself, prevent a finding that genocidal intent is also plausible. But, I think you're absolutely right, Ben. This is where--of course, Hamas's attacks, its stated goals of essentially eradicating or destroying the state of Israel are very much part of the context.

I think Defense Minister Gallant's comment immediately following the Hamas attacks in which he referred to--at least my understanding, and that of a number of outside observers at the time--referred to those who perpetrated the October 7th and 8th attacks as human animals, which is itself dehumanizing rhetoric for sure, but I think South Africa has suggested that that comment referred to all Palestinians.

The second part of that comment did announce what he called a complete siege of the Gaza Strip. Now, although a few days into the operation, I think there was an agreement to let water in and electricity has been coming in in bits and pieces. I do think that's extremely problematic to come from the defense minister because even if your goal is to deprive Hamas of water and electricity to survive in the tunnels it has built as a matter of the laws of war and even potentially as a matter of laws governing crimes against humanity, where that specific intent to destroy a group isn't required, it's an extremely, extremely problematic statement and extremely problematic conduct. So, whether the court is going to say, "You may have had other reasons for doing these things, and the damage that has been inflicted may also be attributable to Hamas's way of conducting its own operations." That's not going to be enough, I think, for at least some of the judges to find that a genocidal intent is not also plausible. But, certainly, that is what Israel has argued. And I think when, and if, we get to a merit stage, there is also language in the court's jurisprudence suggesting that to find genocide on the merits, that genocidal intent needs to be the only explanation or the only possible explanation.

And so, there is a disconnect, certainly, between the legal framework of the legal test at this preliminary stage and the legal tests that would apply at what we call the merit stage. And I think it's going to be very difficult for the court. I think each judge, like so many people, will come to this conflict as a whole with preconceptions, with understandings based on their own life experiences, their own information sources about whether or not they can more easily put themselves in the shoes of Israelis reeling from these attacks or the shoes of Palestinians who still do not have their own universally recognized state.

And I think when it comes to plausibility, those experiences and preconceptions might inform the analysis even more than they would on the merits, precisely because it's kind of a mushy standard.

Benjamin Wittes: Yeah. So, if we take out the statements and we just, say, look at the conduct of the IDF on the ground in Gaza alone, is there a plausible case just based on the devastation, based on the use of very large weapons that could be expected to have substantial collateral civilian impact? Or, is South Africa really relying on the statements here to take what we would otherwise look at as, "Hey, maybe this stuff is or isn't proportional within the meaning of the law of armed conflict." And we would be thinking about in that context, and kind of ratchet it up into a genocide analysis; but, really, that work is all being done by the statements.

Chimène Keitner: That's another, not surprisingly, good question. I think if you asked South Africa's legal team, they would say you only need to look at the conduct and its consequences. They would say, "We've compiled these statements for you as sort of additional circumstantial evidence. And, certainly, the statements are critical to the incitement to genocide charges. But, that the conduct itself, the scale of devastation plausibly allows an inference of genocidal intent." I think South Africa was very clear that that's the argument it's making. Israel disagrees with that legal framework and says, "Look, even if you are just trying to look for plausible genocidal conduct, you can't make that assessment based solely on conduct. It's a specific intent crime, and you need to look at, or you need to actually show, right, a plausible connection between specific decision-makers' statements and what's going on on the ground. And you need to take into account these countervailing examples of letting in humanitarian aid." Trying to be selective, Israel says, in its choice of targets giving the population some lead time to evacuate, even at the expense, Israel says, of the potential success of its own military strikes.

Again, I think this whole conflict, this particular conflict, is of course viewed against the backdrop of prior Israeli military campaigns in Gaza where allegations of genocide have been less common, although not absent, but allegations of war crimes have been quite pervasive. And so, I think, again, there's a whole other conversation to be had about whether either proportionality or the laws of war as interpreted in the context of urban warfare do what they're supposed to do in terms of protecting the civilian population. Because if this is what a compliant, lawful conduct of war looks like, then we definitely need to revisit our legal categories.

But, in terms of the allegations of genocide, again, I think depending on how much importance the court puts on trying to come up with some sort of at least majority opinion, and then, maybe some additional separator dissenting opinions versus everybody just writing their own opinion--which is uncommon, but not unheard of. A threshold question will also be are the comments, the collected comments, in addition to speaking to the incitement charge, how much are they necessary to connect in order, plausibly to draw an inference of genocidal intent based on the scale of civilian harm, notwithstanding the fact that it would be essentially impossible to eradicate a fighting force of up to 40,000 people with 450 miles of underground tunnels without inflicting a pretty devastating civilian toll.

Benjamin Wittes: So, is it fair to summarize--I'm going to be very crass about how I summarize both sides of this--but, it seems to me South Africa's saying, "Look at the devastation, that's kind of all you need, but if you have any doubt, look at the statements of Itamar Ben-Gvir and Bezalel Smotrich and Yoav Gallant. Which confirms the basic picture that you get by turning on your television." And the Israelis are saying, "South Africa can't point to a single Palestinian who's been intentionally intentionally killed or a group of Palestinians, as such, that have been intentionally targeted. All of the targeting has been at Hamas, and we've taken real care to avoid civilian casualties, which is impossible in this setting, and don't listen to the idiots that we happen to have in our government.

Chimène Keitner: Well, I would agree with that characterization overall, but, I would say in addition to, "Don't listen to the idiots in our government," Israel, at least in its arguments at this stage, it has definitely asserted that its conduct of the war complies with international law, but, those are very broad brushstroke statements and ones that one would assume or expect Israel to make in this setting.

It is basically said all the court is authorized or empowered to look at at this stage, because we're talking about the Genocide Convention, is the existence or lack of the requisite specific intent. And so, rather than saying, "South Africa hasn't pointed to a single case in which we've explicitly targeted a Palestinian on account of her group membership," what they would say is, and what they did say is, "It's inconceivable that a country, like Israel, that is in the situation that Israel is currently in, could possibly have the kind of intent that South Africa is attributing to it."

And this is where I think it gets really tricky because there are so many people, as you well know, and as your listeners all know, who without even hearing those additional statements would clearly view Israel as a genocidal government. And that comes as a big surprise I think to a lot of Israelis, but, it is what we are seeing here. Here, I mean in the United States, but also in other parts of the world. And then, there are many also who, especially given the historical origin of the concept of genocide, but also given--and this is where I think that the degree of horror and brutality experienced by Israelis and others on October 7th and 8th really makes it inconceivable for those affected by or observing that to imagine what other kind of response one might expect from a country that is facing this, and can't conceive of how you could impute genocidal motives to the response. So I think it is not so much in the weeds, although that is where the merits would get. It is really this higher level debate or disconnect between perceptions of both the immediate and the longer term situation.

And South Africa, as I discuss in the piece is not a... It's no coincidence that South Africa has really led the charge here because there is a feeling, I think, a pervasive feeling, that countries like Israel, the United States, United Kingdom have gotten away with slaughter and with widespread killing, sort of under the guise of international law for too long, and that this is sort of a reckoning. And I think there are a lot of expectations among watchers of this case that it will be difficult to fulfill both expectations that the court will proclaim that allegations of genocide are plausible, and Israel must stop the war immediately. Or that the court will exonerate Israel of any possible suggestion that it's doing anything wrong, at least under the parameters of the Genocide Convention.

Benjamin Wittes: Yeah, so let's talk about South Africa's motivations here. As you say, there is a kind of a long-term, anti-colonial agenda that the ANC has. But, they've also been exceedingly tolerant of Russian actions in Ukraine. And, as you note in the piece, they've at one point refused to honor an ICC warrant against Omar al-Bashir, the then president of Sudan, on war crimes and crimes against humanity charges. So, how should we understand South Africa's zeal in bringing this case? Is it mostly a kind of sympathy with the Palestinian struggle as it maps onto the ANC's long term struggle? Is it mostly a sort of anti-Western thing? Or is it mostly sort of a kind of thumb in the eye to the West? How do you understand their desire to bring a case like this?

Chimène Keitner: Well, I'm not an expert by any stretch. And I think, rather than thumb in the eye, they would say using available international institutions to try to level the playing field.

I think that the analog, perhaps, in the United States, is the Center for Constitutional Rights, has also filed a lawsuit against the Biden administration for aiding and abetting genocide by providing arms to Israel. So it's clear that there's a pervasive sense that whatever legal tools we have so far have not been sufficient to protect the civilian population in Gaza.

We're hearing now about an impending famine on top of disease. I think there really is no genuine dispute about the humanitarian catastrophe there, which is not to say that there is not, there are not also humanitarian catastrophes created by armed ,conflict in other parts of the world.

So, I think that the focus on Gaza certainly has multiple factors contributing to it. But, I do think that the frustration with the United Nations Security Council and the inability of the U.N. General Assembly to--inability, literally, as, as a matter of the U.N. Charter--to issue resolutions that are legally binding means that there are coalitions of people whose concerns are animated by a variety of different factors that have kind of coalesced around litigation as one advocacy strategy. And this is the interesting thing about, or uninteresting thing about, the current situation, which is sort of looking from the outside, as we all are, what are the best points of leverage to try to both ensure that Israel--and I realize now I didn't directly address your point about self-defense and the law of self-defense. I also think that the ICJ's order at this stage of the hearings will not dive into that, although, both parties had their own arguments about the law of self-defense.

 I think that people are looking for points of leverage to try and alleviate human suffering. And then for the most part, also ensure that Israel does not undergo the same kind of attacks to which it was subjected last fall. And so the Biden administration has, ,it appears, primarily been seeking to use or exert diplomatic leverage. And then lawyers, you can expect, would try to turn to the courts.

So I do think it's likely mixed motivations, but, perhaps, the amount of attention that the case has received also kind of attests to this confluence of feelings in countries all around the world that, on the one hand, I think many were very supportive and are very supportive of attempts at normalization in the region of the idea that there could be a lasting peace. But, also I think a real sense of identification with Palestinians, not just in Gaza, but more generally, who have perhaps--precisely because Israel does have the trappings of democracy and I know you had a podcast recently and a post on Lawfare about the continued vibrancy, at least more so than the current government would like of Israeli courts and the judicial system, that creates the expectation that there would be more genuine equality, that there would be the ability of people to live in all parts of this land without being under anyone's thumb.

And I think that that is animating a lot of the attention, a lot of--to come back to what you started with at the outset--a lot of the passion, and a lot of the real inability, which again, is completely understandable. But, again, going back to the beginning, as someone who needs to, this semester, stand in the front of a classroom and make everyone feel like their voices can be heard, but, also that they need to listen to and appreciate the voices and perspectives of others, that this is an issue on which people have understandably have a very hard time doing that. And so, the judges have a really tall order, I think, ahead of them. They're not going to please everybody. They may not please anybody. I think the more carefully they parse the record such as it exists at the moment, the more they may be inclined to accept the argument, Ben, that you put forth that we should disregard the comments by civil society actors.

We should remind Israel it needs to prosecute and punish incitement. We need to remind Israel that it cannot conduct genocidal acts and it should be taking every action possible to make it inconceivable, even to outside observers who might not otherwise be so disposed, that there are genocidal aspirations here on any sort of official level. But, at the same time, the court is also going to want to live up to the expectation. And I'm sure what many of the judges feel is the responsibility to act in an urgent situation, which this indisputably is.

Benjamin Wittes: Yeah, so, what do you--you've kind of teased that a little bit--but what do you reasonably expect from them in this preliminary phase and in what time frame?

Chimène Keitner: Well, if I were more of a court-watcher as so many people are in the United States, I would be looking judge-by-judge at their prior rulings and statements to try to read the tea leaves even more on how they might come out. I think as a general matter, first of all, we're going to get some sort of decision by the end of the month. As I mentioned, there's an upcoming turnover in judges and in previous provisional measures requests. It's very clear under the court's statute that--or sort of method of of doing its work--that it prioritizes provisional measures requests and responding to them. So, even though cases take years to resolve on the merits that the provisional measures order, I think we would see fairly quickly. Although, not as quickly as we saw in in the Ukraine versus Russia case, because there I think Russia really didn't have many counter arguments on why it could lawfully invade Ukraine. It just said that there wasn't jurisdiction under the treaty. And it didn't even show up to say that. But, that was the the counter-argument. Here, I don't see an order that gives Israel everything that it wants. And I don't see an order that gives South Africa everything that it wants. Of course, the so-called devil is in the details.

And I think it is... it would be hard to imagine many judges--although, I'm sure there will be at least a couple, including, presumably, the ad hoc judge from Israel--saying that genocidal intent is not even conceivable here. And then the question will really be, how does each judge determine what plausibility means?

And in terms of the order, again, many have said that you need to pay attention to all of the details of the order. I don't imagine that we would see from a majority of the judges, an order that Israel must cease all military operations in Gaza. Nor do I anticipate that if that were the order, Israel would comply with it. Again, because it has an obligation also to protect its population. And, although it's certainly debatable whether the current scale of military operation is required to protect the Israeli population, certainly some military defense is required.

I also don't see the court really getting into the weeds of the conduct of a military operation, because these folks, they're not commanders. You'd have to look at their biographies.

Benjamin Wittes: Right. It's not the ICC.

Chimène Keitner: Well, even the ICC judges haven't necessarily set foot on a battlefield. So, they're not going to be able to be super specific. At the same time, I think they don't want to just talk in platitudes. So they wouldn't want to just say, "Israel must abide by its obligations under the Genocide Convention."

So, I think we'll see some language about humanitarian aid, some language towards maybe working towards the quickest possible cessation of military activities. But there also will be, presumably, from the South African judge and, perhaps, several others, either an indication that they would have ordered an immediate humanitarian ceasefire, and/or that they would order much more extensive provisional measures that would really tie Israel's hands, again, in South Africa's view to prevent them from continuing to commit genocide; in Israel's view, that would prevent them from defending their population.

Benjamin Wittes: We are going to leave it there. Chimène, thank you for writing the piece and thank you so much for joining us today.

Chimène Keitner: Thank you, Ben. I hope that the next time we speak it's in better circumstances.

Benjamin Wittes: The Lawfare Podcast is produced in cooperation with the Brookings Institution. Our audio engineer this episode is the intrepid Cara Schillen of Goat Rodeo. Folks, I know you hear me say this all the time, and it's true every time, so it kind of just blurs into the ether. And you ignore it, but I don't want you to ignore it.

I want you to go become a material supporter of Lawfare. Here's what's in it for you. You get rid of the ads. You don't ever have to listen to an ad again on the Lawfare Podcast. Here's what we get out of it. Your support. It's a good trade. You'll also be doing the right thing because we bring you all kinds of stuff that nobody else brings you. So don't think about it too much. Just do it.

The Lawfare Podcast is edited by Jen Patja Howell. Our music is performed by the Istanbul-based journalist Sophia Yan. And as always, thanks for listening.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Chimène Keitner is Martin Luther King Jr. Professor of Law at the University of California Davis School of Law. She is a leading authority on international law and civil litigation, and served as the 27th Counselor on International Law in the U.S. Department of State.
Jen Patja is the editor and producer of The Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.

Subscribe to Lawfare