Israel, Hamas and the laws of war: A primer

The UN is investigating whether war crimes have been committed by Israel and by Hamas.

" It doesn't matter whether you have a just cause, whether the war overall is legal," Janina Dill says. "It doesn't matter who's worse, who started the war, the laws of war are the same for everybody."

But what exactly qualifies as a war crime, genocide, or crime against humanity? And why are they so hard to prove – and to prevent?

" It's a pact with the devil, the law permits some morally problematic action in order to prevent even worse morally problematic actions, to put it kind of bluntly," Dill adds.

Today, On Point: Israel, Hamas and the laws of war: A primer.

Janina Dill, chair in global security at Oxford University’s School of Government. Co-director of the Oxford Institute for Ethics, Law, and Armed Conflict.

Michael Bryant, professor of history and legal studies at Bryant University. Vice president of the Bornstein Holocaust Education Center. Author of "A World History of War Crimes: From Antiquity to the Present."

Ben Ferencz, former chief prosecutor in the Nuremberg Trials.

Motti Inbari, religious scholar at UNC Pembroke.

GILAD ERDAN: What we are witnessing are war crimes, blatant barbaric war crimes, slaughtering civilians, abusing hostages. There are no words to describe such savagery.

(COLLEGE PROTEST CHANT)

COLLEGE STUDENT: That's what they are. They are resistance.

STUDENT: Do you think Canada is a colonialist country too?

STUDENT: Everything that they do is justified.

BEN SHAPIRO: Hamas is not like you. They don't think like you. They don't have the same priorities as you. It is a genocidal group.

(COLLEGE PROTEST)

STUDENT: The horror has reached an unimaginable level.

JONATHAN CONRICUS: Hamas cowards as they are hiding all of their military infrastructure beneath the civilians. That is wrong. That is a war crime, to use civilians as human shield.

CRAIG MOKHIBER: The hardest part of proving genocide has been proven for us with these very open statements of genocidal intent by Israeli officials, their intention not to distinguish between civilians and combatants and to carry out the kinds of wholesale slaughter that we are witnessing in Gaza.

MARC LAMONT HILL: Targeting civilians and taking hostages are war crimes. How can you justify attacking civilian targets?

OSAMA HAMDAN: I have to say that this is the story from the Israeli side. This is a story, fake story. Used to kill more Palestinians, but this is that.

HILL: But the question was how do you justify attacking civilian targets? That was the actual question.

HAMDAN: You're asking the wrong question.

HILL: Look, the question was how can you justify attacking civilian targets?

HAMDAN: This is a wrong question. And I'm not going to the same game of the Israelis.

RABBI SHMULEY BOTEACH: He would deny the Jewish people the only dignity left to us, that we were victims of genocide. And he would say that we are the Nazis. We are the Gestapo, for simply wanting to defend ourselves.

CENK UYGER: I didn't say any of that. Can you stop lying.

BOTEACH: Against the brutality and of the savagery of Hamas. Now he is a holocaust denier because he is saying that the Jews are engaged in a genocide of the Palestinians.

UYGER: Nonsense. Total utter lie. Can you please stop this liar.

HILL: Isn't the collective punishment of all Gazans also by definition a war crime?

DANNY AYALON: Not really, because the situation is very clear. The problem with the Hamas is that they're committing a double war crime, because they are targeting honest civilians. We told the Gazan people to clear the area temporarily, we can go and take Hamas out. Hamas has turned Gaza into an enemy state.

EMILY AUSTIN: She's the same woman who said every Zionist before they die should hear pop, before they die. So she probably agrees with the massacre. So why would she condemn them?

NERDEEN KISWANI: I think we're, the media is part of manufacturing consent.

AUSTIN: We're talking about you.

KISWANI: I'm speaking here and I don't, I'm not interested in speaking to genocide deniers.

MEGHNA CHAKRABARTI: Genocide, war crimes against humanity. Words uttered frequently and with passion.

But do those hurling the accusations know exactly what they mean in the eyes of the law? Or are the angry debates a result of international law's failure to adequately prosecute and deter 70 years of violence and civilian bloodshed around the world? Those are urgent questions for today. So we will begin by going back to what was the start of the creation of modern war crimes law, World War II, and the Nuremberg Trials.

It was there that a young Jewish American lawyer, barely 27 years old, gave clear shape to the concept of crimes against humanity.

BEN FERENCZ (ARCHIVAL TAPE): We are now ready to hear the presentation by the prosecution.

BEN FERENCZ: This was the tragic fulfillment of a program of intolerance and arrogance.

FERENCZ: My name is Benjamin Ferencz. When I was 27 years old, which was a long time ago, I was the chief prosecutor for the United States at one of the subsequent Nuremberg trials.

FERENCZ (ARCHIVAL TAPE): The case we present is a plea of humanity to law.

FERENCZ: Which tried and convicted 22 high ranking Nazis of murdering in cold blood over a million people, mostly Jews and mostly in the Ukraine.

FERENCZ (ARCHIVAL TAPE): We shall establish, beyond the realm of doubt, facts which, before the dark decade of the Third Reich, would have seemed incredible.

CHAKRABARTI: Benjamin Ferencz died in April of this year. He was 103. He was also the last living prosecutor of the Nuremberg Trials. Almost exactly one year before his death, April 2022, Ferencz gave us one of the final interviews of his life. We talked to him then about civilian deaths and allegations of war crimes in the context of the war in Ukraine.

Ferencz took us back to 1947 and described how the concept of crimes against humanity crystallized at Nuremberg.

FERENCZ: I found, personally, I found the records of the special extermination squads known as Einsatzgruppen in German. Their assignment was to kill all the Jews in Europe.

FERENCZ (ARCHIVAL TAPE): Thoughts will show that the slaughter committed by these defendants was dictated not by military necessity, but by that supreme perversion of thought, the Nazi theory of the master race.

FERENCZ: They sent a daily report back to the headquarters in Berlin, listing which units, A, B, C, or D, of the Einsatzgruppen were located where in the Ukraine, for example, and how many people they had killed. When I totaled a million people murdered on a little adding machine, I went to Nuremberg from Berlin, where my headquarters was then located, and said we have to put on a new trial.

They said," We can't. The lawyers have already all been assigned. The Pentagon is not enthusiastic about this. We can't get approval." I said, "You can't let these people go. I have in my hand here a million people murdered. They're not going to let those bastards get off." And he said, "Can you do it in addition to your other work?"

And I said, "Sure." He said, "Okay, you do it." I ended up there as my first case. And you said it takes a long time. It took me a long time. Two days. Two days, and I arrested the prosecutor's case, and I convicted all of them.

FERENCZ (ARCHIVAL TAPE): We shall show that these deeds of men in uniform were the methodical execution of long-range plans to destroy ethnic, national, political, and religious groups which stood condemned in the Nazi mind. Genocide, the extermination of whole categories of human beings, was a foremost instrument of the Nazi doctrine.

FERENCZ: That was what we were trying to do. We were trying to bring justice in place of vengeance, because vengeance just begets more vengeance. And I made a specific point. I said, the opening statement, vengeance is not our goal.

FERENCZ (ARCHIVAL TAPE): Vengeance is not our goal, nor do we seek merely a just retribution. We ask this court to affirm by international penal action, man's right to live in peace and dignity, regardless of his race or creed.

CHAKRABARTI: The trial of the Einsatzgruppen at Nuremberg was Ferencz's very first case as a practicing lawyer. It was the largest murder trial in history.

All of the defendants, 22 Nazi officials, including six generals, were convicted of war crimes and crimes against humanity. Thirteen were sentenced to death and four were ultimately executed. In a 2018 interview, Ferencz said, quote:

"My problem as the prosecutor was to ask, 'What do I ask for? Do I ask to sentence them all to death?' 22 defendants against a million people murdered? I said there's no way of balancing enough, of doing justice there. But if I could get them to create a more humane world, using this as an example, that would be worthwhile," end quote.

And it was an example. The concept of crimes against humanity began to emerge at the Nuremberg Trials, laying the groundwork for the 1948 UN Treaty on the Prevention and Punishment of the Crime of Genocide.

It also led to the creation of the International Criminal Court in The Hague, which came into force in 2002. The United States, Israel and more than 20 other nations have never joined the ICC. Palestinian leaders recognized the court in 2009. Ferencz remained a towering figure in international human rights law.

He was invited to give the closing statement in the ICC's very first trial, in 2009. In the case of Thomas Lubanga Dyilo, he was accused of the forcible conscription and abuse of child soldiers in Congo. In his closing statement, Ferencz, then 92 years old, repeated purposefully and exactly the words he'd used at Nuremberg.

FERENCZ (ARCHIVAL TAPE): Once again, the case we present is a plea of humanity to law. The hope of humankind, that compassion and compromise may replace the cruel and senseless violence of armed conflict. Vengeance begets vengeance. The illegal use of armed force, which is the soil from which all human rights violations grow, must be condemned as a crime against humanity.

International disputes must be resolved, not by armed force, but by peaceful means only. Let the voice and the verdict of this esteemed global court now speak for the awakened conscience of the world.

CHAKRABARTI: And, also, as he'd done in Nuremberg, at the Lubanga trial, Ferencz urged the International Criminal Court never to drift from its duty to deter future war crimes.

FERENCZ (ARCHIVAL TAPE): Punishing perpetrators was recognized as a legal obligation. What makes this court so distinctive is its primary goal to deter crimes before they take place. By letting wrongdoers know in advance that they will be called to account by an impartial international criminal court. The law can no longer be silent, but must instead be heard and enforced to protect the fundamental rights of people everywhere.

CHAKRABARTI: When Ben Ferencz spoke with us last year, age 102, he had not lost faith in the power of international human rights laws, even as he acknowledged successful prosecutions are exceedingly difficult and exceedingly rare.

FERENCZ: But we can't be defeated by the fact that there are some people who don't believe in the rule of law. They believe in power, and they want to exercise it whenever they think it's in their interest to do and they're very sizable number of people. So it's not something where everybody is of one mind. There are some people who believe in the rule of force. The only hope, really, is law, not war. The three words, law, not war.

CHAKRABARTI: Benjamin Ferencz. He was the last living prosecutor from the Nuremberg trials, and he gave us one of his final interviews in the spring of last year. Ferencz died this past April at the age of 103. In the context of the kinds of wars and conflicts we're seeing now, specifically between Israel and Hamas, what are the international laws of war and human rights that determine when a war crime or genocide has been committed, and why is it so hard to bring alleged criminals to trial? We'll hear from two experts on those critical questions when we come back.

Part II

You're back with On Point. I'm Meghna Chakrabarti. Joining us now is Janina Dill. She holds the chair in global security at Oxford University School of Government, and she's co-director of the Oxford Institute for Ethics, Law and Armed Conflict. Professor Dill, welcome to On Point.

JANINA DILL: Thanks. Hi Meghna.

CHAKRABARTI: Also with us today is Michael Bryant.

He's a professor of history and legal studies at Bryant University. No relation between the two, he tells us. He's also vice president of the Bornstein Holocaust Education Center and author of  "A World History of War Crimes: From Antiquity to the Present." Professor Bryant, welcome to you.

MICHAEL BRYANT: It's a pleasure to be with you.

CHAKRABARTI: Let me start with this basic question that takes us from Ben Ferencz, which we heard from in the past segment, to now. Professor Bryant, how was the concept of crimes against humanity really defined at Nuremberg?

BRYANT: The great cradle for the crime against humanity in international law really is the Nuremberg War Crimes Trials of 1945 and 1946, in particular the Charter of the Nuremberg War Crimes Trial. Sometimes referred to as the London Charter because it was written in London and published in August of 1945. The London Charter set forth the substantive offenses that would then be woven into the indictment of the major war criminals, as they were called, in October of 1945 when the indictment was rendered.

So what were these offenses? The big ones were crimes against peace, crimes against humanity, of course, and war crimes. There was also a charge of membership in a criminal organization and a charge of conspiracy leveled against the major war criminals. But the crimes against humanity charge was really pioneered there.

And there was some talk at the time about going back to World War I and some statements that were made by diplomats at that time, expressing horror at what was happening to Armenians in the Ottoman Empire. And of course, this is considered the first great genocide of the 20th century, the destruction of Armenians at the hands of Ottoman Turks.

Some diplomats, primarily in Eastern Europe, were referring to these crimes already as crimes against humanity or against the law of humanity.

CHAKRABARTI: So can I just jump in here for a moment? Because the phrases crimes against peace, crimes against humanity, genocide, I guess genocide has a very clear definition. But the first two, and especially the big one you said, it seems like almost a foggy term for a specific set of actions, right?

How were those actions, what were they or how were they defined?

BRYANT: I think you're right that it, especially at that time, was a fairly foggy, kind of nebulous term, and this created some problems at Nuremberg, especially the charge of retroactive prosecution, which the Nazis raised against the prosecution, claiming that these offenses had no anchorage in international law and were simply the whim of the victor after winning a major conflict.

Of course, the court did not accept that interpretation and was able to go back and demonstrate how there were always these principles seeking to defend, for example, the integrity of civilians, or to preserve civilian property or the lives of civilians. Which really go way, way back and the basis really of what's called today international humanitarian law has very ancient roots.

It goes back at least to the Middle Ages. I argue in my book that it goes back even further than that. But at the very least, in the West, it goes back to the Middle Ages with canon law and other bodies of law that expressed a concern for the wellbeing of not just combatants, but also of civilians.

CHAKRABARTI: Okay. So Professor Dill, let me turn to you, then. Have those concepts, and I'm really trying to understand the specific legal definitions of those concepts, have they changed significantly since 1947 to now? Or here's another way of asking it, what specifically would have, would need to happen for international prosecutors to think, yes, this qualifies as a crime against peace or a crime against humanity?

DILL: So what has happened really over time is, in some sense, what we would call a crystallization of these terms, so they have become clarified over time, and they're now really anything but nebulous. They're all spelled out very clearly in the Rome Statute, which is the treaty that founded the International Criminal Court.

And the three types of crimes that are particularly relevant to us when we talk about the current conflict in Gaza would be war crimes against humanity, and genocide. And they have very clear definitions that are spelled out. Every crime has always two elements. One is an act that is outlawed and even criminalized.

And the Rome Statute lists the acts that fall under these three types of crimes. And then each crime also has a mental element. So that's the state of mind that the perpetrator had to have had while doing the criminal act, for it to count as a crime. And war crimes always have to be committed with intent and knowledge.

And then the difference to crimes against humanity and genocide is that they have a so-called special intent requirement. So the act has to be committed with the intent to destroy a group. In whole or in part, that makes it genocide. And for an act to fall under the category of crimes against humanity, the perpetrator has to have known that it is part of a large, widespread systematic attack against the civilian population.

CHAKRABARTI: Okay.

DILL: So some acts overlap, right? So a murder can be a war crime or it can be crime against humanity. The difference would be the intent attached to it.

CHAKRABARTI: Okay. So in that case, as you heard at the very beginning of the show, there has been a lot of back-and-forth accusation of allegations of crimes against humanity or genocide in the current war between Israel and Hamas.

Do you see, given the intent requirement that you just described, Professor Dill, and the specific actions, do you see potential evidence of crimes against humanity having happened in Israel and Gaza.

DILL: Yeah, intent is always the hardest part to see from the outside, which is why we can never have a definitive judgment that a crime has been committed.

Even just seeing intent, not a special intent, but any kind of intent is difficult. But when we look at the attacks by Hamas on October 7th. Then some of these sorts of repertoires of violence that we see here, for instance, rape, torture, hostage taking, and murder, they in some sense carry evidence of their intent, that they are necessarily direct against the civilian population.

There's no really like legitimate military purpose that could, in principle, attach to them. So rape and murder in particular can be crimes meant against humanity if they are committed in this context of a widespread systematic attack. So we would have to then show that the people involved in these attacks actually knew that this was happening.

And while it is not possible from the outside to definitively say that's the case, I think there's enough evidence here to warrant an investigation and also to express that as part of the public discourse, I'd say.

CHAKRABARTI: Investigation into whom?

DILL: In this case, it would be into Hamas, right? That doesn't mean there isn't also enough evidence to investigate the IDF, I think in this case, for a different type of repertoire of violence.

And here, it's sometimes harder to see the intent at work. For instance, attacking the civilian population intentionally, or intentionally attacking a civilian object, that can be a war crime, right? But unlike, say, in the case of rape, the intent isn't necessarily visible in the action itself, because an airstrike by the IDF against Gaza can also be a legitimate act of warfare.

So in some sense, the evidentiary threshold here is a little higher and it's a little harder to say from the outside. But I think as we've already heard statements by senior military and political leadership in Israel, and the context of these attacks, provides enough evidence to suggest again, an investigation here is warranted.

CHAKRABARTI: Professor Bryant, go ahead and respond to that. What do you think?

BRYANT: No, every, I agree entirely with what Professor Dill is saying. Of course. These developments are all post 1945. And before the Nuremberg war crimes trials, there really was no concept of crimes against humanity in international law.

Again, we have expressions of concern for protecting civilians that you will find, for example, in the in the 1899 Hague Convention, and then its successor convention in 1907. But the Geneva Conventions, and even much of the Hague Convention, the Brussels Declaration, the St. Petersburg Declaration, these are all instruments of the late 19th century.

On the cusp of World War I, nearly all of these instruments really focused upon combatants and protecting combatants, limiting the kinds of instruments of war that could be used, the weaponry of war that could be used. There were relatively few protections afforded to civilians. And whatever protections were afforded, such as in siege conditions in the 1899 Hague Convention, talks about what could be done and what could not be done in a siege situation during war.

But nearly all of these protections proved to be completely ineffective in World War I. They were just widely disregarded on both sides. And so there was a perception then after World War I that the steps had to be taken to try to remedy the situation. There was some discussion of revising the Geneva Conventions to make them more centered upon protecting civilians.

But of course, with the rise of fascism in the 1930s and eventually the outbreak of World War II, those sorts of concerns were swept away. And then we have World War II, which just saw rampant and wholesale destruction of civilian populations. Either in death camps with poison gas or in aerial bombardment. Millions, tens of millions of people, both in Asia and also in Europe, wiped out.

And 1945 then represents yet another moment when policymakers and political leaders come together and say, "We need to do something about this."

CHAKRABARTI: Okay. So I'm really glad you brought up that point. And let me turn back to Professor Dill here, because in comparing, or Professor Bryant just completely accurately laid out the fact that, yes, there were the Nazi death camps that resulted in the murder of millions of people. There were also like the firebombing of Dresden, the use of two atomic weapons in Japan. However, only one group was actually brought to trial, right? It was the Nuremberg trials against Nazi crimes.

This may be too obvious to ask, but are we simply in a situation that the victor determines who comes to trial, Professor Dill?

DILL: That is what the International Criminal Court is meant to remedy. The idea that after a war ends, only one side gets systematically brought to justice, and we put the sort of cone of silence over what the other side did.

There have been attempts to remedy this before, with the principle of universal jurisdiction, where in principle, every domestic court can try someone for crimes against humanity or genocide. But it is really the establishment of the International Criminal Court that is supposed to be that quantum leap.

Where is it like we have a permanent institution, dedicated specifically to trying perpetrators of these heinous crimes wherever they are and whichever party to the conflict they belong to. So in some sense, we are supposed to be in a new era. It's not supposed to be about victors' justice anymore, but of course there are political barriers to the realization of that vision.

CHAKRABARTI: So I was just examining the ICC website here. And its own website says that it's held, what, 31 trials so far. And I looked at the list of all of the defendants. And interestingly, almost all of them are from Africa, regarding crimes committed in Africa. There are a few from the Middle East.

There are curiously, no American, no European or no Asian defendants that have come to the ICC, meaning that there are many instances of mass civilian death or cultural genocide that have never been prosecuted, right? A couple obvious ones, the bombing and starvation of Yemeni people at the hands of the Saudis, the treatment of the Uyghurs in China.

The United States invasion of Iraq and the deaths of hundreds of thousands of Iraqis. So it seems like those political considerations, which you accurately pointed out, are very much hampering how far the ICC is willing to go.

DILL: Yeah, somewhat is built in the system, right? The court is supposed to be a court of last resort.

So in the first instance, domestic courts are meant to deal with war criminals and crimes against humanity. So the court will never be in a position, even in a world where every major power supported it, it would never be in a position to do everything, right? To deal with all the atrocities committed in the international system.

Of course, the pattern of which atrocity it deals with and which it doesn't deal with is very much related to the question which states have signed on to the Rome Statute, and how the major powers of the day, particularly the permanent members of the Security Council, support this court when they support it.

The United States is in the very sort of hypocritical position, where it hasn't signed on to the Rome Statute, partly to insulate its own military and also the military of its allies, like in Israel, from the jurisdictional reach of the court. But it has occasionally supported the use of the court in context where the Security Council referred cases to the ICC, for instance, in Darfur.

So that has a lot to do with the question of which conflicts we see subject to investigation.

CHAKRABARTI: I see. Professor Bryant, I actually saw you nod your head when I described the list of defendants that have appeared before the International Criminal Court thus far.

Interesting. What I actually wanted to ask you is I keep coming back in my mind to what both of you have said about the centrality of proving intent. When it comes to any of these really horrible and morally repugnant kinds of crimes. But few groups say these days, overtly, "We want to murder millions."

They're not as proudly systematic as the Nazis were. Nowadays we call it collateral damage, right? And so if the stated intent is not to kill civilians, but that is the actual outcome made by the decisions of the warring parties, is it time to change international law to prevent those outcomes? Yeah. Professor Bryant, go ahead.

BRYANT: This is where I think international law has some comparison with domestic law. If somebody is accused of a crime, whether it's homicide or arson or whatever it is, this is a specific intent crime, right? You typically, as a prosecutor, have to prove that the person specifically intended to commit that crime.

That doesn't mean that a prosecutor has to show that the person declared, as he was burning a house down, that he was committing arson. Oftentimes, you can infer the intent from the nature of the act that is being carried out. And this is also true in international law. There's a concept called foreseeability.

If a course of action will result in a certain outcome that is reasonably foreseeable, then international law, much as domestic law, will infer a specific intent to commit that act. And in military affairs, there's a certain standard that is sometimes used, oftentimes used, called the reasonable hypothetical military commander.

It's the counterpart to the reasonable person standard under our domestic law. And it takes essentially a rational person or the model of a rational person and asks whether that person would have been able to foresee. The nature of the damage arising from the course of conduct he or she is engaged in.

And if it is, then that is reasonably foreseeable. And then we could infer a specific intent from that.

CHAKRABARTI: Okay. So Professor Dill, we only have about 30 seconds before we have to take our next break here. But so much of the frustration that was mirrored in the beginning bits of tape that we heard in this hour comes, I believe, authentically from people who say, "Waiting for provable acts of genocide or provable crimes against humanity, per the list in the Rome Statute, for example, you're just waiting too long."

It's the allowing of the deaths or harms of millions of people prior to things reaching the standard of being able to be prosecuted. What do you think about that?

DILL: Law has different functions, right? Criminal law has the function of holding people to account and expressing our strong opprobrium.

And that takes time, and it should take time, right? We shouldn't try to leap over standards of due process because we're frustrated. But that also means we need law, other law to do the prevention and the protection of civilians, which is also crucial. And here again, there are questions about whether international law does what we need it to do, but I don't think we can ask that of international criminal law.

Part III

CHAKRABARTI: I just want to let us listen in on a couple of previous trials that have happened in the late 20th and early 21st century, for example, the special tribunal that dealt with former Serbian President Slobodan Milosevic. He was tried in The Hague on 66 counts of crimes against humanity, genocide, and war crimes.

And on the first day of his trial, Milosevic said he would represent himself. The judge asked him to reconsider.

JUDGE: Now, do you want some time to consider now whether you wish to be represented?

PRES. MILOSEVIC: I consider this tribunal false tribunal, and indictments false indictments. It is illegal being not appointed by UN General Assembly. So I have no need to appoint counsel to illegal order.

CHAKRABARTI: So that's former Serbian President Slobodan Milosevic rejecting even the existence or the legal existence of the special tribunal that was created to deal with the crimes in former Yugoslavia. Now, moving towards the Rwandan genocide. Félicien Kabuga was a Rwandan businessman whose radio station infamously called on Hutus to murder their Tutsi neighbors, quote, "Like snakes in the grass."

And after years of invading capture, he was brought before the International Criminal Tribunal for Rwanda and charged with genocide.

In support of the genocide, Kabuga did not need to wield a rifle or a machete at a roadblock. He did not need to pick up a microphone to call for extermination of Tutsi on the radio. Rather, he founded, funded, and served as president of the Radio Télévision Libre des Mille Collines.

CHAKRABARTI: Now, let's move towards the intricacies of the current conflict between Israel and Hamas. We spoke with Israeli religious scholar Motti Inbari. He's at the University of North Carolina Pembroke, and he says Hamas's repeated calls for the killing of Jews are more than just words, as we saw on October 7th.

MOTTI INBARI: Both sides of this conflict have used the terminology of genocide. Hamas covenant clearly calls for the killing and the destruction of the Jews, and quoting a Hadith, which is a religious text that calls for Muslims to murder Jews and destroy them completely. And Hamas hvve already proved that they are committed to their words, and so we should believe them.

CHAKRABARTI: Inbari also told us that Israeli Prime Minister Benjamin Netanyahu gave a speech not that long ago about the war being waged inside Gaza. And to Inbari's ear, he's an Israeli religious scholar, remember that, he said Netanyahu's speech made him nervous, because it seemed to justify genocide.

INBARI: Prime Minister Benjamin Netanyahu, in his last speech, made references to two biblical stories. One is about the Amalekites, and the second is about Joshua ben Nun. The biblical commandment is to obliterate the memory of Amalek, which basically means to commit a genocide against Amalek. The case of Joshua ben Nun is that, according to the biblical story, he completely destroyed every town that he reached.

And the destruction included all men, women, children, also including their properties and their livestock. Everything was considered to be completely destroyed as a commandment made by God.

CHAKRABARTI: Janina Dill, why is it important that that Professor Motti Inbari pointed that out?

DILL: So we have clearly seen a number of statements from the Israeli political and military leadership that would express something that we call genocidal intent.

Not just the sort of systematic lack of needing to distinguish between Palestinians and Hamas, but also the linking of Palestinians to the dehumanization of Palestinians and these kinds of biblical quotes. In international criminal law, what we would be looking for is this kind of intent, this expression of intent is actually invested in action.

So expressions of genocidal intent by themselves are not necessarily definitive indications that genocide is being committed. You have to have a unity of the act and the intent to actually show genocide. There's also been pointed out that some of these statements were made by people who don't actually make decisions about the war.

I am really worried about these statements, nonetheless. Which are much, much more to the surface in this conflict than in any prior military action that the IDF undertook in Gaza. I'm worried because they set a tone within which often very young and conscripted IDF soldiers are sent into this incredibly difficult environment of urban warfare, where they are themselves threatened and they go in there with the notion, with the images of October 7th in their mind.

If these statements set the tone in the way they do, this just exponentially raises the likelihood of atrocities being committed, of these soldiers not necessarily sticking even to their rules of engagement, provided these rules of engagement comply with law. So these statements are incredibly dangerous, even if they are not necessarily themselves definitive proof that the IDF is engaging in genocide.

CHAKRABARTI: I see. But Michael Bryant, to be clear, Hamas has made similar statements about its intent regarding Israel for decades, right? And can't we say also that those, they're still saying them. There's audio of television news clips of Hamas leaders saying their intent is to wipe Israel off the face of the earth.

And we could see, at least, that made real on October 7th. The intent. And maybe because they're not as militarily powerful as Israel they brought the destruction that they could. But is there any difference between the two?

In terms of what Netanyahu and other Israeli leaders have been saying versus what Hamas has been saying.

BRYANT: One thing I would say is that thus far, there is no evidence whatsoever that Israel has committed genocide in Gaza. I think that Professor Dill's point is extremely important though. There is a tone, that's a word that Professor Dill used, that I really agree with, there's a tone that's been established thus far by leading figures of the Israeli government, Benjamin Netanyahu being one, but some of his members of his cabinet and even members of the military, high ranking military officers who have used language that you frequently encounter in genocidal episodes. And it has not gotten to this point at this juncture.

So I would really resist any effort to label what Israel is doing as being in any way genocide. But as we know from past experience, language can lead over time to actions that slide in a genocidal direction. There's some question as to whether, at some point, ethnic cleansing, what is referred to under international law as ethnic cleansing, might arise perhaps in the West Bank, perhaps in Gaza, which, as we know, based upon historical precedent, has oftentimes eventuated in genocidal outcomes.

I'm very troubled by the use of biblical precedent in particular, the reference to Amalek and the Amalekites and to Joshua. This is an actual phenomenon that has been verified by archeologists. It's called herem the solemn ban. It goes back to the Torah, the books of the Torah. And it has to do with the commandments that were given by the Hebrew God, Yahweh, to the Hebrew people to wipe out entire peoples like the Amalekites or the Jebusites, the people of the so-called seven nations. Whether this actually happened, in fact, we, in historical record, we don't really know.

But the fact that Netanyahu and some other figures in the government are citing this, in support of future policies, is troubling and should really raise the alarm for the world community that is concerned about the possibility of genocide at some point in the future.

CHAKRABARTI: Yeah. And of course, just to circle back to where we were earlier, genocide is only one of the types of crimes that an international court might look at.

There's obviously crimes against humanity. General war crimes as well, right? Did you want to add to that professor?

BRYANT: Yes, that's right. And of course, everybody has been talking on the news as I was driving in today to your studio. The news was fraught with reports of the suffering in the main hospital in Gaza today, which has been cut off from fuel, from electricity, and causing all kinds of havoc with the well-being, the lives of patients there. Arguably, this is condemned under international law. Geneva Conventions, Hague Conventions, a long line of international principles and international precedents. This would be arguably, depending on the circumstances which would have to be ascertained, it could be a violation of the law of war.

CHAKRABARTI: Janina Dill, though, let's take a moment to focus on Hamas, right? Because as you said earlier, Hamas declared its intent. And it acted on it on October 7th, deliberately targeting citizens, deliberately. Or civilians, I should say. Deliberately kidnapping and taking hostages. There were the rapes and the murders of children, to the elderly.

How would Hamas, or how is Hamas seen in the eyes of international law? Does it fall under the jurisdiction of something like the International Criminal Court?

DILL: Yeah, yes, of course, entirely, right? Hamas is, the actions of Hamas are not necessarily attributable to Palestine as a state, if you are inclined to think it is a state, which I am.

That doesn't at all mean that Hamas is not bound by international law. Non-state armed groups like Hamas are entirely bound by international humanitarian law. They are also under this jurisdiction of the International Criminal Court. So it's the same rules apply to them as apply to the IDF. And you're entirely right that the atrocities committed on October 7th fall under quite a sort of a laundry list of crimes, war crimes and crimes against humanity that are under the jurisdiction of the Rome Statute. That includes hostage taking, it includes sexual violence, outrageous upon personal dignity, murder and willful killing.

So it's a really long list. And in some sense, the intent here to terrorize and attack the civilian population is relatively easily visible in this particular repertoire of violence. Because it's very hard to see any kind of military purpose behind it. It's also that some of these crimes really have no legitimate military purpose.

So they are, very obviously, just that. They are means to terrorize the civilian population. And in the fullness of time, we will see whether it can be shown that the perpetrators of these attacks were aware that it was part of a widespread and systematic attack against the civilian population, in which case it would also be crimes against humanity.

This is in some sense beyond doubt, it's very hard to doubt that international lawyers spend less time talking about this, because in some sense it's less doctrinally difficult to assess.

CHAKRABARTI: I see. Okay. Point well taken. But then that also means that if it's beyond doubt. What will international law do? You cannot talk about it because it seems so obvious, but then, isn't there the obligation to take action?

DILL: Of course, we must talk about it. And I think if you followed the statements of Karim Khan, the prosecutor of the international criminal court, they very much always start with just acknowledging that. That these crimes are under the jurisdiction of the court. That there is enough evidence here to investigate, that he takes this very seriously, condemns that, et cetera.

So absolutely, we must take action.

CHAKRABARTI: Okay. So in the last few minutes of the program that we have today, I'd love to hear from both of you about whether you believe international statutes on war crimes, et cetera, are adequate for the kinds of conflicts we see today. Because Professor Bryant, you've written about the world history of war crimes and a very strong through line there is that humanity has always had a kind of repugnance for the wanton killing of civilians, right?

Or the targeting of civilians. But as the technology of war changes. We've seen sort of an evolution, a corollary evolution in the laws surrounding that. Civilians are the number, the highest number of casualties in modern wars. So it seems like there is some kind of disconnect between the law and what conflict is like today.

What would you change or evolve, if anything?

BRYANT: Yeah, one of the things that's really bedeviled attempts to hold perpetrators accountable for the things that they do, is this concept of military necessity. And the idea that in order to win a war, in order to achieve some great breakthrough in a war, we need to consider suspending the law of war.

So if we have to bomb a target in order to get at the enemy and enemy soldiers, if that also means that kill, and sometimes, oftentimes, the decision is made to do that. Which, of course, would be a violation of the principle of proportionality. And yet if you are a powerful country, and you are able to resist criminal indictment for yourself and the people acting under your orders, then you can effectively act with a certain degree of impunity.

So if there's anything that I could change it would be trying to pare back on impunity and to compel or to persuade very powerful countries that it is in their interest to pursue international justice, including for themselves, as well as other countries.

CHAKRABARTI: There seems to be space for greater moral leadership then, amongst the most powerful nations.

BRYANT: This is one of the examples in which morality, I think, does coincide with law. Oftentimes, the two are quite a distance from each other, but on this occasion, I think it's really important.

CHAKRABARTI: Professor Dill, you have the last minute of the show. Same question to you.

DILL: Law permits some morally abhorrent things, it brackets morality in some sense. And it also occasionally takes off the table, militarily, really effective and important courses of action. And we have to accept both of those things, that law isn't morally everything and that it can be militarily hampering us in order to basically uphold it for what it is.

And that is our very last and best hope in a conflict like the one we are currently seeing, where both sides have really legitimate moral grievances against each other, and where even outside unbiased observers can't really arbitrate between them very effectively. Law is a minimum standard, so if it looks like you're falling short of it, you're already massively in moral trouble.

But it is really our best hope here for communicating across the divide and upholding some very minimal humanitarian standards. It's all about compliance, not about changing the law. It almost also sounds like, in a sense, a pact with the devil, right? In order to target what can be prosecuted, in order to hopefully deter the worst of the worst crimes.