Wars have rules

Noelle King: During World War II, something like 60 million people died. Humanity had never seen anything like this. So with great post-war optimism, people decided, never again. We built a legal infrastructure, we called it international humanitarian law, that essentially said this, you can wage a war, but while you are waging a war, there are certain things you can't do. And we labeled them, war crimes, crimes against humanity, and genocide. We built courts where you could take people who were accused of breaking the law. And we believed that, while imperfect, the laws backed up by the courts could prevent and prosecute crimes of war. Then came Hamas' attack on Israel and Israel's war in Gaza, and that legal infrastructure fell apart. And it fell apart as Israel was accused of the most serious of the crimes, genocide.

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Noelle King: This is Today Explained. I'm Noelle King. Susie Hansen is a journalist and writer who has spent much of her career in the Middle East. New York Magazine recently published Susie's piece, Crimes of the Century. It's in part an examination of why we created international humanitarian law after World War II. To prevent the kind of horrors that we saw in that war, not only ethnic cleansing, genocide, all different kinds of crimes against humanity, torture. And how it fell apart. I asked Susie first about Hamas' attack on Israel and whether the experts that she spoke to say that was a war crime.

Susie Hansen: People can debate those things, but I would say yes. Generally, people do agree that the attack on October 7th was a war crime. I think that it's debatable whether or not it was an act of genocide. But some people would argue that. I mean, people can argue different things about this.

Noelle King: And then comes Israel's response, which has unfolded over about 90 weeks. Has Israel followed international humanitarian law? Again, I think that that is debatable. I think many people would argue no. I think in some cases they would argue yes. But I think that the main points of contention here are about the deprivation and starvation, which is a war crime. and the nature of the bombing campaign. And those were certainly the two things that I was most interested in for this piece.

Susie Hansen: Israel has been accused of withholding food, water, cutting off electricity, withholding fuel. Remember, it controls everything that goes into Gaza. And it also prevents people from leaving. As of May 2024, no one can leave. OK, so many people have been arguing as early as, you know, probably 2023, but certainly 2024, that Israel has been withholding, deliberately withholding those things. And certainly there have been various points in the last few years in which there have been sieges where they have said openly, we are doing a total siege on Gaza. No electricity, no food, no water, no gas. It's all closed. We're fighting animals and acting accordingly. They say it's to bring Hamas to the table. They say it's to release the hostages. But what Ken Roth at Human Rights Watch and many other people told me is that there is an obligation on the part of states to allow access to food. And this is something that nobody debates. So that's one area that I would point to.

Susie Hansen: The second point is indiscriminate bombing. And I think this is something that anyone who has been witnessing this catastrophe, who has been on social media, has seen day in and day out these absolutely lethal bombing campaigns that target, seem to target, end up targeting civilians, women, children. I think that has been one of the most heartbreaking aspects of this war. And so it raises the question, are these attacks proportionate to the military aims? And I think what has been found by many other journalists' investigations is that Israel has changed its tolerance of proportionality in this war. It seems to me that for much of the war, they have tolerated an unbelievable amount of civilian deaths. I think now what we're seeing is something way even beyond what was the norm of this war. Because as you can see, there are people simply coming to aid sites to try to get food, and they are being shot at. The tolerance for killing in this war seems to be off the charts as compared to the norms of international law.

Susie Hansen: If the law is being violated, there are places you can go to prosecute. There are places you can go to say, this shouldn't be happening. Somebody needs to make it stop. So let's talk about the attempts to prosecute. In May of 2024, Karim Khan, the International Criminal Court prosecutor, issued warrants for three leaders of Hamas and for two leaders of Israel, including Benjamin Netanyahu. So warrants issued on both sides and the charge was war crimes

Noelle King: My office submits that there are reasonable grounds to believe that these three Hamas leaders are criminally responsible for the killing of Israeli civilians and attacks perpetrated by Hamas and other armed groups on the 7th of October 2023

Susie Hansen: Walk us through what happened. Well, they've issued these warrants, and I think that you could say that that establishes a sense that what they are doing is inhumane. Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Galant bear criminal responsibility for the following international crimes, starvation of civilians as a method of warfare, willfully causing great suffering, serious injury to body or health or cruel treatment, willful killing or murder. I think that one thing that's very important with war crimes and certainly with genocide is intent. And I think in this case, you have a lot of statements of intent on the part of Netanyahu and Gallant. But these are warrants. And so that means that they would have to be arrested or submit to being arrested. And I think that the problem is that it's very difficult to apprehend these leaders. So I think, you know, again, there is an apparatus. There is an idea of apprehending people who are accused of war crimes, putting them on trial and bringing them to court. But whether or not that will happen is a totally different story.

Noelle King: The term, the formal term that the ICC used was war crimes. But South Africa brought to the International Court of Justice a charge that Israel was committing genocide. Did that go anywhere?

Susie Hansen: The judges released a ruling that it was plausible that genocide was happening, and they ordered, or they voted to order Israel to take measures to prevent genocide, and that they must punish those who are inciting genocide. So they did not say that it is happening, and they, to a lot of people's disappointment, didn't order a ceasefire, but they did say that it was plausible. And I have to say, I think this was very meaningful to many people around the world. Even if people are cynical about the ability for these courts to actually prevent things like genocide, to prevent war crimes, or to bring people to justice, I think the fact that South Africa brought this case might have even reinvigorated some faith in international humanitarian law. But again, if you take a darker view, it hasn't prevented anything. It hasn't prevented anything from happening. And in fact, things right now, as we speak, are getting worse and worse and worse.

Noelle King: You can look at this through a very dark lens and say it hasn't prevented anything, or you can be more hopeful and say there still has been movement within the legal architecture that we set up after World War II, that the world set up. But those processes don't seem to be working in this case, this time around.

Susie Hansen: Is there something about this conflict that has seemed to defenestrate or disembowel the institutions that we set up to prevent exactly this?

Noelle King: Unfortunately, yes, because the United States has been supporting this war and it has been blocking any efforts to even bring a ceasefire. The United States has taken the very clear position since this conflict began that Israel has a right to defend itself, which includes defeating Hamas and ensuring they are never again in a position to threaten Israel. at the UN, you know, there were Security Council resolutions. The U.S. blocks them. And I think, you know, I saw that a former war crimes prosecutor in the Bosnia case said, yes, you should not expect these courts to be able to prevent these things from happening or stop these things from happening. It's up to governments, up to governments to uphold these laws. It's up to governments to prevent atrocities from happening, to stop supplying weapons when they know that the country they're supplying weapons to are breaking international humanitarian law. I mean, let's not forget, it's in the piece that I wrote. They knew at the State Department that Israel was committing war crimes, that Israel was depriving Gaza of food. It wasn't even a debate, as Stacey Gilbert told me in the piece. But they said that they weren't doing it anyway. And the reason why they said that is because then it would trigger, according to our own U.S. laws a cessation of weapons to Israel. And the fact of the matter is, the Biden administration was never going to stop giving weapons to Israel. That was the policy. And so I think that we have to take a really hard look at these policies within the United States, within the Democratic Party, within the Republican Party, and try and understand why they are so ironclad, why they have been so unchanging, even in the face of moral outrage of unrest in the United States, of pain and heartache all over the world, and a total loss of faith in the United States, frankly, which I don't know, I actually don't believe we will ever recover from.

Noelle King: Susie Hansen is a journalist and writer who wrote Crimes of the Century for New York magazine. Coming up, is Israel committing genocide in Gaza? An Israeli historian of genocide explains how he got to yes.

Noelle King: This is Today Explained. My name is Omer Bartov and I a professor of Holocaust and Genocide Studies at Brown University

Omer Bartov: I took a class with you on genocide at Brown. Very good class, very memorable class. How did you end up developing expertise in this very troubling area?

Noelle King: Well, thanks for saying that. First of all, it's always nice for a teacher to hear that. And that was a long time ago, I gather, right?

Omer Bartov: Yeah. Yeah.

Noelle King: Professor Bartov is Israeli. He is Jewish. And his interest in genocide started many years ago with what he believed to be an incorrect narrative. That the German army fought honorably in World War II and that the Gestapo were just like bad apples. They were acting behind the army's back. Now, Bartov was ultimately right about that. He's a serious scholar of genocide. And about a month after Hamas' attack on Israel on 10-7, he wrote an op-ed for the New York Times saying what was happening in Gaza was not a genocide yet. He said it didn't meet the UN's definition. One, that there is an intent to kill or to destroy a particular group, to destroy the group as a group. And the second is that that intent is being implemented. And that was still unclear at the time. But he warned that it could become a genocide. And now he says it is, undeniably.

Omer Bartov: I felt that evidence became undeniable in early May 2024. And the reason was that at the time, the IDF was about to launch an operation against the city of Rafah. by the way, a city that no longer exists. And there were, at the time, about a million displaced persons in that city. That is, half the population of Gaza was in that city. And the Americans were saying, if you go into Rafah, you're going to kill a lot of civilians. And the IDF said, don't worry about it. We're going to move them for their own safety. And then once they were removed from that area, the IDF moved in and began demolishing Rafah. By July, much of it was destroyed. Now, according to current reports, there's simply nothing there anymore. The city has disappeared.

Omer Bartov: It was at that point that I started looking back at everything that had happened between October of 2023 and May of 2024. And what you could see was a pattern of operations. And that's important to understand because often regimes that carry out genocide don't say we are carrying out genocide. They say, well, with security reasons, we're attacked, it's a war of defense and so forth. In this case, there were, as I said before, many people, many leaders in Israel who said we have to wipe out Gaza, we have to flatten it, nobody's uninvolved. And the pattern of operations showed that there was implementation of those early statements. They were not simply made at the heat of the moment. And what it meant was that there was systematic destruction of schools, of museums, of hospitals, infrastructure, that makes it possible for a population to live, and that it makes it possible for it, if it survives that calamity, to reconstitute itself as a group. And it was at that point that it appeared to me that the goal was actually what was said right at the beginning, to destroy the ability of Palestinians to live as a group in Gaza.

Omer Bartov: What about the number of people killed? Does that figure into your thinking on defining this as a genocide?

Noelle King: Well, yes, of course. I mean, if you see what is happening since May 2024, but much more so now, not only are the numbers of those who were killed very high, we're talking about 55,000 or so right now, about half of those are children. and then you have large numbers of children who will, even if they survive this, who will suffer for the rest of their lives from years of trauma. Gaza has the distinction now of having the largest number of child amputees per capita in the world, children who have not received enough food, who will never grow up to be normal, healthy human beings because of what they underwent. When you put all of that together, and of course they've been living in atrocious conditions, then it's very hard to call this anything but an attempt to destroy the ability of that group, and that group is made up of Palestinians, to survive as a group.

Omer Bartov: Israel, of course, is aware of these facts on the ground because the Israeli army is perpetrating the facts on the ground. Israel still says this is not genocide. What is Israel's claim? What does Israel say is happening if not genocide?

Noelle King: So for one thing, in Israel, if you use the G word, everyone gets very uncomfortable because genocide is associated with the Holocaust. and Israel sees itself as a country that was created in response to the Holocaust. So in that sense when you say genocide in Israel it like saying the country that was created in the wake of genocide in the wake of the largest modern genocide is now being accused of doing it itself. It appears to be impossible to grasp, to accept such a statement. So there's huge resistance to even invoking this word. But specifically, what the Israeli media is saying is that there is no other way to destroy Hamas. There's no way of doing that without causing major damage to the population because Hamas is using the population as human shield. And the argument is that generally there is large support for Hamas among the population. So if they get killed, then so be it. The other argument, I'd say, is that if Hamas just returned the hostages, then the war would end. Now, of course, that is completely false because the only thing that is keeping the IDF from moving even more aggressively into all areas of Gaza is the fear that generals in the IDF have that by doing so, they will also kill the remaining hostages. And so if Hamas were to return the hostages, then Gaza would be immediately completely destroyed because there would be nothing to stop the idea from doing that.

Omer Bartov: That's your belief. That's not something that Israel has said, though, right?

Noelle King: Actually, what is being said right now in Israel, interestingly, and that's sort of out there. Many people have spoken about it in Israel on mainstream media. The plan of the IDF, and it's implementing it as we speak, is to take over 75% of the Gaza Strip and to concentrate the entire population of Gaza in 25% of the territory. So to squeeze 2 million people into an area that has no infrastructure, to enclose them there, to completely empty the rest of the Gaza Strip. And as a very detailed report in Haaretz actually showed just about a week ago, to carry out systematic destruction of everything, literally everything, in the rest of the Gaza Strip. So this is not, you know, hypothesizing. This is what is actually happening on the ground.

Omer Bartov: What do you make of this?

Noelle King: There are limits to the legal architecture that we use. The enforcement agency, the UN is dysfunctional. The United States is standing in the way. And then on top of that, it's usually only in the aftermath that people say, okay, it was indeed a genocide. What do you think should happen?

Omer Bartov: The fact, for instance, that right now, Prime Minister Benjamin Netanyahu and former Defense Minister Joab Gallant have an arrest warrant in their name by the International Criminal Court and therefore cannot travel to signatory states without being in fear of being arrested and brought to the International Court, to the ICC in The Hague. That alone matters. You are not hopeless. I've always said I'm pretty hopeless in the short run. In the long run, things change. One thing that I've been thinking about just recently is that Israel, the state that I grew up in and in whose military I served and where I have many friends, that state has used up its argument for impunity. It's used that argument for many years, for decades since its creation by saying there was a Holocaust of the Jews and therefore no one can tell us what to do. We don't operate according to the rules of the rest of the world because the rest of the world stood by while millions of Jews were murdered. and I think that has run out. This case, which is a huge challenge to the entire regime of international law, in the long run may perhaps also teach the international community that it has to act more expeditiously, that it has a responsibility to stop these actions, lest it itself find itself in that other era that existed before the creation of all these international bodies where strong states could do anything they liked to their weaker neighbors.

Noelle King: Omar Bartov is a historian and a professor at Brown University of Holocaust and Genocide Studies. Victoria Chamberlain produced today's show and Jolie Myers edited. Laura Bullard is our senior researcher. Andrea Christensdottir and Patrick Boyd are our engineers. I'm Noelle King. It's Today Explained. Thank you.