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Podcast #232: Is Israel Really Committing Genocide in Gaza?

‘What South Africa’s evidence really shows us is that there’s a war going on—and that the Israelis are determined to destroy Hamas. But that’s a far cry from genocide.’

· 24 min read
Podcast #232: Is Israel Really Committing Genocide in Gaza?

University of Florida historian Norman Goda—author of the recent Quillette essay, South African Lawfare at The Hague—tells podcast host Jonathan Kay why he isn’t persuaded by South Africa’s claims against Israel at the International Court of Justice.

South African Lawfare at The Hague
Motions before any court—criminal or civil, national or international—contain references to hard evidence and a careful reading of legal precedent. The South African ICJ application has neither.


Jonathan Kay: This week our subject will be the genocide accusations launched by South Africa in regard to Israel's military campaign in Gaza, which was launched following Hamas' October 7 terrorist attacks. What you'll be hearing are my interviews with University of Florida historian Norman Goda, a specialist in the Holocaust and the international legal framework that emerged from it. And I say interviews, plural, because I interviewed Professor Goda twice. The first time was in late January.

after the publication of his Quillette article entitled South African Lawfare at The Hague. Then, while I was editing the episode, the International Court of Justice delivered its interim ruling on South Africa's claims. So I've divided this episode in half, with my initial interview with Professor Goda coming before the mid -episode commercial break, and then the second post -judgment interview coming at the end.

As I understand your academic specialty is the Holocaust, yes?

Norman Goda: Yes.

I study the Holocaust, but I also study the great trials of the Holocaust and the laws of war and their application in the courtroom.

JK: Is it fair to say that the laws against genocide came out of that horrific legacy?

NG: Yes, absolutely. The term genocide was coined by Raphael Lemkin. He was a Jew from Lwów in eastern Poland before the war in Western Ukraine now. He had made his way to the United States, but his entire family was in love of where they were killed. Lemkin coined this term genocide, meaning the destruction of a people, the destruction of a group, and had hoped that it would be one of the charges against the major war criminals at Nuremberg. The term was mentioned at the trial but it was not one of the charges, they went with different charges instead.

JK: In recent decades, we've had something called the International Court of Justice, which didn't exist at that time in the years after World War II. How many times has the charge of genocide been successfully prosecuted? There's the International Criminal Court, the ICC, which was founded as sort of a response to the killing in former Yugoslavia, also the killing in Rwanda and after. And that court, the ICC, followed two ad hoc courts. One was for Yugoslavia and one was for Rwanda. So the International Criminal Court tries individuals for various violations of the laws of war, whether it's war crimes, crimes against humanity,

or crimes relating to genocide itself. The International Court of Justice is a very different court. We can almost think of it as a civil court where states can bring actions against one another. And so if there were a dispute over fishing rights or something like that, that could be settled by the International Court of Justice. But the Genocide Convention stipulates that if two states are in disagreement over the definition of genocide or whether a genocide is being committed or has been committed, then that would go to the International Court of Justice. And so the International Criminal Court is really about individuals. The International Court of Justice is really about countries.

JK: If I understand you correctly, something as mundane as fishing disputes would go up through the same procedural channels.

NG: It could. You know, the International Court of Justice had a predecessor under the League of Nations, and they handled things like border disputes and economic disputes. And, you know, the idea was to keep these things from blowing into war.

JK: When I was in law school, one of the lessons that was hammered into me was that the most important baseline issue in litigation, it's questions of jurisdiction and standing. As a layperson when it comes to international law, I was kind of shocked that South Africa, several thousand miles away from Gaza, had standing to bring this kind of epic legal claim in regard to Israel. Is it the case that Belize or Canada or any country could have brought this?

NG: Yes. We all know Article 2 of the Genocide Convention now, which defines or tries to define what genocide is. But Article 9 of the Genocide Convention says that disputes between contracting parties relating to the interpretation, application, or fulfilment of the Genocide Convention, including those relating to the responsibility of a state for genocide, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

It doesn't happen a lot, right? The South African brief actually cites two previous cases before the International Court of Justice. And one was a couple of cases brought by Bosnia against Serbia during the war in Bosnia. Of course, the Bosnians were arguing that Serbia was committing an aiding and abetting genocide. Well, this dispute, was between two countries that were kind of at war with one another at the time.

But the more recent case was actually brought by Gambia, a West African country against Myanmar. And that case was brought to the International Court of Justice in 2019. And here the dispute was over Gambia's allegation that Myanmar was committing a genocide against the Rohingya people, which was a Muslim ethnic group. So there is precedent for this. If you read the South African brief, part of it is simply establishing South Africa's own standing to bring a case against Israel.

JK: But why didn't Iran bring this kind of case or one of the many countries in the region that is traditionally hostile to Israel?

NG: Theoretically, Iran could have. But South Africa has had not very good relationships with Israel in recent years. And I think South Africa feels that owing to the apartheid regime and having overthrown the apartheid regime eventually, then it had sort of a moral standing as well to bring this case.

JK: Over the course of your career, have you observed, in the popular context, a degrading of the word genocide? I know that here in Canada, we recently had it seriously asserted in the public sphere that there is an ongoing genocide against Indigenous women. Have you witnessed a degradation of the meaning of the term genocide in the popular context?

NG: Yes and no. In the popular context and in the supercharged political context and in the social justice context, then surely the word genocide is tossed around rather cavalierly. And I think it's because genocide is sort of the queen of crimes. Everyone knows what it is or they think they know what it is. And there's a UN convention for it that everybody knows, whereas crimes against humanity, which is actually a much broader term, and would be much more useful in some of these cases because it's just killing civilians as such rather than arming an entire group, that would be a more applicable term, but nobody knows what it means.

It was never defined properly at Nuremberg and that it was never really taken up by the UN and it wasn't until the formation of the International Criminal Court and the Rome Statute, you know, that you really began to get a definition of this. So genocide is the queen of crimes, and if you want to sort of go from zero to 60 in your rhetoric, you use the word genocide. That's true on the popular level.

On the state level, there's a real reluctance to use the word genocide, because if a genocide is being committed, then according to the Genocide Convention itself, any signatory to the Genocide Convention has a responsibility to act. And so the US did not admit in 1994 that a genocide was happening in Rwanda. It was years until the word genocide was used, and it wasn't until the 2000s that the British, the French, and the Americans were even using the term genocide within the Security Council itself to describe what happened in Rwanda.

One used other terms for which there's no legal definition, right? Like ethnic cleansing is one for which there's no set legal definition. Massacre, you know, is another one for which there is no set legal definition. But states, to use the word genocide, implies that the Security Council or other countries are obligated to do something about it.

So I would agree with you that the word is tossed around very cavalierly in the press and in protests and on protest signs and all of these sorts of things. But when it gets down to the serious business of enforcing the convention, states are a lot less willing to use the term. And we saw this with Darfur as well, and a certain reluctance with the Rohingya and Myanmar too.

JK: In the theoretically possible event that Israel was judged culpable of genocide, would that then trigger a theoretical obligation to end in paratroopers and take over Tel Aviv or something?

NG: I think it creates a theoretical obligation within the UN bodies themselves and particularly within the Security Council. And there would be, in theory, a call for an immediate ceasefire when it becomes very easy to label Israel a genocidal state. Now, of course, a lot of people do that now anyway. But once you have the imprimatur of the International Court of Justice behind you, then that becomes a mark that's rather indelible.

The problem here is, I think, the evidentiary basis and the fact that this entire business is entirely politicized. Not to mention that even the International Court of Justice has been extremely cautious in interpreting the Genocide Convention. In the Myanmar case, there had been an extensive study done by UN researchers and others that took something like two years. Hundreds of thousands of Rohingya had fled into Bangladesh and they were living in sort of makeshift conditions there. And many of them were witnesses to the atrocities that the state had committed against them and that locals had committed against them and that sort of thing.

And so you had thousands upon thousands of witness statements and indeed witness statements that corroborated one another. And you had thousands of examples of anti-Rohinga hate speech, you know, not only from government officials, but also on Facebook, on television, on the radio, you know, things like that. And so you could make certain connections there and say that a prima facie a case existed. But it was only after examining a great deal of evidence over a number of years that the court made this decision.

In the case of Bosnia against Serbia, and this case took place in 2007, that's a very interesting case because Bosnia was charging Serbia with genocide on this going back to the war that took place in Bosnia in the mid 1990s. Genocide requires a lot of evidence and it requires also a lot of evidence of very specific intent, right, to destroy the group in whole or in part. And what the court ruled was that the massacre at Srebrenica in 1995, in which some 8 ,000 civilians were killed and buried in mass graves was a genocidal act, but that it was carried out by Bosnian Serb commanders. And to sue Serbia, you actually had to show that those Bosnian Serb commanders were under the command of the Serbian government in Belgrade. The Bosnians could not show this. And the court rejected the claim that related to Serb responsibility for genocide.

On the other hand, the Genocide Convention also has an article that describes the obligation to prevent and punish genocide. And here the International Court of Justice did find the Serbs liable because there was evidence that the president of Serbia, Slobodan Milošević, knew that some genocidal act could possibly take place in Srebrenica once it was occupied by Bosnian Serb troops. And also the court found that the Serbs had withheld evidence to the International Criminal Court, which would have been detrimental to Bosnian Serb leaders.

Now, I'm saying all of this not to bore everybody to death, but just to make the point that the courts, even the International Criminal Court, is very, very careful with this statute. I mean, you've got to show intent to commit genocide. You've got to show that the act committed is a genocide, which means the killing of a group that is very deliberate, right, and not not just bombing strategic targets and killing civilians, you know, sort of as a collateral damage in war.

My point is just that the court has historically been very conservative with the Genocide Convention and interpreting what it means. And the International Criminal Court has done the same way.

JK: So you say that the court has been conservative, but courts are composed of judges. Are you familiar with the judges in this case?

NG: The judges come from all over the world. There is a balance of judges from Europe and a balance of non -Western judges. And again, this is a highly, highly politicized issue because it involves Israel. there's no predicting really what they were going to do.

JK: Let me just acknowledge, because I think a lot of listeners will want this acknowledged, sterile terms like collateral damage and strategic targets and stuff like that, you are dealing with the deaths of, we don't know exactly how many because the statistics come from a Hamas -controlled health ministry in Gaza, but even so, I think most people would agree that there have been five figure deaths, probably more than 20 ,000 people. Many of them, I realize that there's disagreement on this for propaganda purposes and Hamas itself doesn't distinguish between its fighters and civilians, but many of the dead are women and children. Certainly a lay person coming to this would say, isn't like the basic building block of a genocide case at court, just the sheer number of people who have died?

NG: I don't think that there's a civilized person any place who enjoys reading about civilian deaths on any scale, particularly a high scale. However, in order to make a genocide charge stick, you have got to show that the Israeli governmental intent is specifically to kill civilians, to kill the group in whole or in part.

And in fact, what the Israelis argue is that because Hamas has its bases underground and because they use civilian buildings like schools and mosques and hospitals as bases for weapons and bases for operation, then those are strategic targets.

The problem here is twofold. One is that the armed enemy is sort of hiding behind and under and among civilians. And the other is sort of the dense nature of the Gaza Strip itself and also the very dense nature of places like Gaza City. And so in the urban warfare scenario, when you're taking out targets like this, given the fact that Hamas embeds itself among civilians, then it's a very sad fact that civilians are going to be killed. And the word collateral damage, of course, when it's heard, it always sort of conveys a certain amount of insensitivity. But in the legal sense, it's very different than saying that the Israeli aim here is simply to kill civilians, right?

I mean, the Hutu intent in Rwanda was to destroy the Tutsis as a group. The German intent in Europe was to destroy the Jews as a group. And of course, they see them as ethnic enemies and conspirators and all of these sorts of things.

But this is actual combat. These are actually combat operations aimed at taking out military targets. They are not operations and certainly cannot be shown right now that these are operations aimed at killing civilians as such.

JK: So the South African submission, hundreds of pages, over 500 footnotes, you have read it. On those numbers, it sounds like an imposing legal document. Am I correct, this is based on your Quillette article summarizing the South African submission, a lot of it is just sort of a repetition of the same dubious factoids over and over?

NG: There's a certain amount of sleight of hand going on in that application. One of the things they do is cite past UN reports that were highly critical of Israel. One was a report written by a commission in 2009, after a three-week engagement, where this commission did an investigation to see if criminal acts had taken place. There wasn't much research involved in this. The investigation is available online. Anybody can read it.

There were two days of televised interviews in Gaza and a couple of days of testimony in Geneva. And the Israelis didn't really cooperate with that commission at all. And that commission found based on testimonies from Gaza, where the witnesses were certainly hand -picked, That Israel had deliberately targeted civilians, that they used rocket attacks as a simple pretext to wipe out and humiliate civilians. And this report from 2009 is cited in the South African application.

But the South Africans leave out that two years later, the head of that commission, a South African Supreme Court justice named Richard Goldstone, disavowed the main conclusions of the report. He had seen more evidence. He was irritated that the commission was set up in such a way as to hurt Israel politically. And he wrote a piece for the Washington Post that said it was never true that the Israelis targeted civilians specifically. There were war crimes, he said. There were individual crimes on the ground, as oftentimes happen in war. But as a matter of policy, he said, it was not true that the Israelis deliberately targeted civilians.

Well, the South African application to the International Court of Justice completely leaves this out and doesn't even mention Richard Goldstone. It wants you to think that the initial 2009 report that there was nothing wrong with the methodology and that it was biblical truth. So this is one kind of evidence they use is recycled reports from years ago that were badly flawed to begin with and disavowed by their authors.

The other kind of evidence they use are these sort of real-time reports. They're called flash updates and they come out from the UN officer, the UN human rights office, which is set up in Ramallah. They come out each day with new statistics. And each flash report also has a chart with statistics on the killed and the wounded and that sort of thing. You know, whether you think that these flash reports are evidence, that's something for the court to determine. But they cite these reports again and again and cite the same reports again and again.

The one from mid -December of 2023, that says that over 20 ,000 civilians have been killed is cited again and again and again to make this point. But we know that the numbers that come from the Gaza Health Ministry are sort of fudged and are sort of flawed in various ways. In fact, on the bottom of each UN chart, there is a disclaimer saying these numbers are not verified and the UN has not been able to verify these numbers independently.

And then the third kind of evidence that they cite are furious statements by Israeli officials on October 7th itself, you know, or just a couple of days after as proof somehow that these are genocidal orders, but in fact they're not. And so the defense minister Yoav Galant shortly after the Hamas attack said that "We are dealing with human animals here."

And the argument is that this kind of speech is dehumanizing. Which it is. It's dehumanizing, but yelling at the moon because you're furious and you're in anguish and you're upset and you simply cannot believe the crimes that have been committed, you know, against infants and old people and kidnappings and mass rapes and these kinds of things. Howling at the moon after these things because you're so sputtering mad that you don't know what to do. Yes, it's dehumanizing. Is it an order for genocide? Courts have not argued that dehumanizing speech on itself is the encouragement or the aiding or abetting of genocide.

There's a quote that everybody should know. Some of your listeners, I guess, have heard of Ilya Ehrenberg. He was a Soviet Jewish writer during the war. And it was one of Ehrenberg's jobs to compile something that was later known as the Black Book, right? And these were accounts of the mass shootings of Jews on the Eastern Front by the Germans. And Ehrenberg wrote in 1942 exhorting the Red Army as follows, and I'll quote,

The Germans are not human beings. From now on, the word German is for us the worst imaginable curse. We shall kill, kill the Germans. If you cannot kill your German with a bullet, hit him with your bayonet. If there is calm on your part of the front or if you are waiting for the fighting, kill a German in the meantime.

Well, Ehrenberg was a little bit upset at the fact that half a million Jews had been killed in the Soviet Union in mass graves within six months.

And yet today, 83 million people are living in Germany. I think it would have been a little bit hard had the statute been there in 1942 to say, "Ah, Ehrenberg is exhorting genocide here." He was in a frenzy over the things he was learning. And I think that we have to see a lot of the Israeli statements in somewhat the same way.

Now, there have been other statements that have been just dumb, you know, statements to nuke Gaza, you know, statements that they're all guilty and that sort of thing. But again, these aren't orders and they don't reflect policy. And if a court is considering this, the Applicant has to show that these statements are connected to either orders or policy somehow. And the South Africans don't do that.

They say, "Well, there are all these statements and well, a bunch of people are being killed, and therefore this particular 2 plus 2 equals 4 and it must be genocide." But the law doesn't necessarily work that way.

JK: Also quoted by the South Africans are pronouncements by the UN Special Rapporteur under the UNHCR. That sounds authoritative, but you in your Quillette article you identify some issues with that.

NG: Look, the UN has something like 45 special rapporteurs. And what a special rapporteur is supposed to be is an expert on a particular problem. And that special rapporteur is to examine that problem and then report back to the UN. So there was a special rapporteur, for example, for Myanmar. And there are special rapporteurs for other humanitarian problems around the world.

The special rapporteur for Israel, I would argue, is really special. The office was created in 1993 by a UN resolution which said that the rapporteur's job was, and I quote, "to investigate Israel's violations of the principles and bases of international law." You know, the assumption here... This was after the launching of the first Intifada in the West Bank, was that Israel was sort of automatically guilty and that all one really had to do was sort of investigate. There was no pretence of impartiality.

If you read the resolution from 1993, the reporter's job is, quote, "to investigate Israel's violation of the principles and bases of international law." It's not to investigate whether Israel committed violations of the principles and bases of international law, but rather, quote, "to investigate Israel's violations." And so the assumption is that the violations have already taken place and that all the rapporteur has to do is sort of list them in a report and submit them. And this is typically what they've done.

And the current rapporteur is a woman named Francesca Albanese, who is extremely biased in all of her reporting and can't seem to stay off of her Twitter feed and this sort of thing, and has essentially called for the eradication of Israel as such. And yet her reports are one of the other things that are repeatedly cited by the South Africans.

If you read the evidence in the South African report, and then you, you know, which is sort of just compiled off the cuff in many ways by, by institutions that go in with a certain amount of bias, and you compare this with the evidence from the case from Bosnia versus Serbia, or the case of the Gambia versus Myanmar, the thing that really strikes you is that those decisions were based on evidence that was very, very carefully put together with documents, cross-examinations, interviews, these sorts of things.

The evidence in the South African case against Israel is really based on a lot of say-so. That doesn't amount to a lot of corroborating evidence. It amounts to a lot of evidence that there was a war going. It amounts to a lot of evidence that the Israelis are determined to destroy Hamas once and for all because the last attack cannot be allowed to happen again. And it is evidence that a lot of civilians are unfortunately being killed by Israeli ordinance when they're trying to take out Hamas targets. And it's evidence even that mistakes might get made in targeting certain things.

But is it evidence of a concerted Israeli policy to destroy the Palestinian people as a whole in Gaza? That's a hard case to make.

JK: Can you tell me what the ICJ said in its interim ruling?

NG: The key phrase in provisional ruling is this, and I'll quote it,

At least some of the acts and omissions alleged by South Africa to have been committed by Israel and Gaza,

and here's the key part,

appear to be capable of falling within the provisions of the convention.

Meaning the genocide convention, meaning that to the court, the South African motion has reached what one might call the plausibility standard.

And once you reach the plausibility standard for the court, the court can order provisional measures. And then this is what the court does at the end. And what are those provisional measures?

Well, it's important to note what they're not. The South Africans wanted the court to order a ceasefire as a provisional measure. And this is not ordered. But what is ordered is this:

Israel accordance with its obligations under the Convention, the Genocide Convention, take all measures within its power to prevent the commission of acts of genocide. The State of Israel shall ensure that its military does not commit any acts of genocide. The State of Israel should take all measures to prevent and punish incitement to commit genocide. Israel shall take immediate and effective measures to enable provision of urgently needed basic services, others humanitarian assistance. Israel will prevent the destruction and ensure the preservation of evidence related to allegations of genocide. And Israel shall make a report to the International Court of Justice as to how it's doing on these things within one month.

And so basically what the court is saying is that, yeah, it's possible that some of these things fall within the Genocide Convention and Israel is obligated to take the following provisional measures.

There were two dissents to the decision. This was sort of a 15 to two vote on every one of the provisional measures. One of the dissents came from the ad hoc Israeli judge, Aaron Barak, a very distinguished jurist, and the other came from the judge from Uganda, Julia Sabutindi, and she said that every one of these measures is one of Israel's obligations under the Genocide Convention anyway, and therefore the entire ruling is a redundancy, which by the way, she continues, is based on a real paucity of evidence.

JK: The reaction to this decision has been a little odd because when I look at people who take a pro-Palestinian position, they're either extremely disappointed because the court didn't order a ceasefire, which is what they wanted, although as we've discussed, a ceasefire would have been nice on October 6th. But then the other response you see is this is this groundbreaking ruling and what a takedown of Israel.

So we have this website in Canada, it's a Canadian version of something called The Conversation, which is, at least in Canada, is sponsored by all kinds of universities. And it's basically like op-eds by university professors. And there's one here that's titled, this is January 28th, Ruling by UN's Top Court Means Canada and the US Could Be Complicit in Gaza Genocide. It starts off by calling the ICJ ruling a groundbreaking decision and one that should dramatically alter both the foreign and domestic policy decisions of Israel's allies, including Canada and the United States. Is that true?

NG: I think it's groundbreaking, but I think it's groundbreaking for different reasons. I think it's groundbreaking in its irresponsibility. I think it's groundbreaking in its decision to simply give plausibility to evidence, which was not in evidence. I think it's groundbreaking in the fact that we can honestly say that this is a much more political decision than it is a real judicial ruling. I think it's groundbreaking in those ways. I think it's groundbreaking in that people are going to look back on this years from now and say it really hurts the credibility of the court, which wasn't great to begin with.

JK: The major desire for many activists on the pro -Palestinian side seemed to be to advocate for a ceasefire. But that didn't happen. And it's not clear to me what this ruling, why will it have any practical effect?

NG: I'm not sure what the practical effect is at this moment. But, you know, the people who are saying that it's a groundbreaking ruling or that it's pro-Israeli or that it's pro-Hamas, I don't think they're looking at the entire body of case law that the court should have been using and instead decided to ignore. I mean, I see it as an anti-Israeli ruling myself. I mean, yes, Hamas didn't get its ceasefire without having to give back hostages, and yes, South Africa's full aims here weren't met.

But the court, instead of throwing this thing out and saying the standard of plausibility has simply not been met here, said that the standard of plausibility was met, and that the things Israel is accused of possibly fall within the scope of the Genocide Convention. It's not a fact-finding mission. The court is not a fact -finding body. It simply has the documents that are put before it. But the fact of the matter is, Sebutende pointed this out, is that South Africa did not come close to meeting an evidentiary standard. And she practically accused the South Africans of fabricating evidence as well.

And so, if you look at this within the body of cases that the court has been hearing lately, the provisional measures adopted for Israel are almost exactly the same as the provisional measures adopted for Myanmar. In Myanmar, there's an actual genocide going on. I mean, everybody calls it a genocide. The State Department calls it a genocide. What the international court ruled, with regard to that in 2019 is this:

At least some of the acts alleged by the Gambia are capable of falling within the provisions of the convention.

That's almost exactly the same ruling they give to the Israelis when they say at least some of the acts alleged by South Africa appear to be capable of falling within the provisions of the convention. It's not quite as strong with Israel.

You know, with Myanmar, where there was actually a genocide going on, they say they are capable of falling within the provisions of the convention. And with Israel, they say they appear to be capable of falling within the provisions. So it's a little bit weaker, but it's pretty close. But it's done on an evidentiary basis that is much, much weaker in the case of the South African application than it was with regard to the case against Myanmar.

With Myanmar, you had several fact-finding missions. You had a couple of reports by the special rapporteur. There was tons of evidence in those reports. With South Africa, you had none of these things. You know, you just had a bunch of allegations that the court eventually swallows. If you read the court's ruling, what they basically say is, well, there were a lot of hateful statements that the Israeli government made right after October 7th, and a lot of people are being killed in Gaza, therefore this is potentially a genocide. That's not evidence.

If you get into the meat of their order, it's basically based on two legs. One is that certain Israeli officials, including Defense Minister Yoav Gallant, said things right after October 7th that seem to hint At mass destruction, even though it was clear that they meant these things for Hamas and not the Palestinian people as a whole. And the second leg is that according to UN reports, there's a frightful loss of civilian life. Well, yes, those two things are very much there. But do those two things add up to genocide? What the dissents make clear is that they really don't add up to genocide- they add up to war. They add up to possibly a lot of civilians losing their lives in the middle of a war zone, which is terrible. But in order to have the plausibility standard for genocide, you have to establish the intent of genocide. And that simply isn't done here.

JK: What is to stop anybody from now going to the ICJ? You know, here in Canada, everybody and his uncle is claiming that there's ongoing genocides of Indigenous people. It's a frequent claim in the media. They could say there's a genocide going on in the West Bank now. Maybe the Houthis are performing a genocide in Yemen. What's to stop any activist group or sect or faction within a civil war from now going to the ICJ and claiming the other side is committing genocide? It strikes me there'd be so-called plausibility in all kinds of contexts.

NG: Well, the ICJ typically hears complaints from countries against other countries or governments against other governments.

JK: Well, in the case of the Houthis, you could say, well, Iran is committing genocide by sponsoring the Houthis. A lot of these are proxy conflicts, right? Is this the first of many, many cases the ICJ will be ruling on?

NG: I think they've opened the door. I think they've certainly opened the door to it. Because when you lower the standard of plausibility, then you've opened the door to exactly that.

There was a case in 2017 where Ukraine brought a complaint against the Russian Federation. And this was before Putin's war and everything, but there were these separatists, these Russian separatists in Ukraine that were trying to separate and were attacking Ukrainian cities and that sort of thing. And the Ukrainian case argued that the Russian government was financing terrorism within the Ukraine. And the International Court of Justice said: the plausibility standard here has not been met. You haven't produced the evidence that the Russians are financing this and you haven't produced the evidence that the Russians are ordering this. And here we are in 2024, where the South Africans allege that the Israeli government is consciously carrying out a genocide. They don't have a single order to this effect. They don't have a single command to this effect. They don't have a single mass shooting to this effect.

Normally the kinds of things we associate with a crime on that scale would be mass shootings of civilians, you know, and yet there's nothing like that going on. All they have is a bunch of hateful statements made in the heat of the moment and a lot of collateral damage in wartime. The court should have said: I'm sorry. The Ukrainians didn't meet the plausibility standard in 2017. In the case of Myanmar, the plausibility standard was met with an awful lot of study and an awful lot of interviews and an awful lot of documentation and that sort of thing. The court should have said to South Africa, you haven't done any of this. Go back, read up on what evidence is, you know, and come back when you have some.

JK: I know how a lot of people would answer this question, but why is Israel being held to a higher standard than other nations?

NG: I don't think Israel is being held to a higher standard. I think it's just because it's Israel that the court isn't holding itself to a higher standard. Look, it's a brutal war. There's simply no question about this, but there's an awful lot that isn't known. And in any war, what you have is a series of engagements over strategic targets.

You have an overall plan to try and win the war by taking out Hamas's military power. But there's absolutely no evidence that the Israelis are going in there to try and kill all civilians.

JK: Professor Goda, thank you so much for taking the time to talk to the Quillette podcast.

NG: Thanks for having me.

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