August 31, 2025 • 37 mins
Venture to a pro-Palestinian rally at one of Australia’s capital cities, and you’ll invariably hear calls to “end the genocide” in Gaza.
And in the international court of justice, South Africa has accused Israel of committing genocide as well. It’s a claim Israel strenuously denies.
So what is a genocide?
And what evidence is needed to prove that one is happening?
Today, we bring you a special episode with Geoffrey Robertson, KC, a former United Nations war crimes judge and now a human rights barrister and author, who tells us why this case will become the definitive decision on genocide.
Subscribe to The Age & SMH: https://subscribe.smh.com.au/
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
S1 (00:05):
Venture to a pro-Palestinian rally at one of Australia's capital cities,
and you'll invariably hear calls to end the genocide in Gaza.
S2 (00:17):
It's a mass march for humanity to stop a genocide.
Our politicians have to now listen to the will of
the people and sanction Israel. Stop sending weapons.
S3 (00:24):
We have to end the starvation. We have to stop
Israel's brutal, despicable genocide in Gaza.
S1 (00:34):
And in the International Court of Justice. South Africa has
accused Israel of committing genocide as well.
S4 (00:41):
The court meets today to hear the oral observations of
the parties submitted by the Republic of South Africa in
the case Concerning the prevention and Punishment of the crime
of genocide in the Gaza Strip. South Africa versus Israel.
S1 (00:54):
It's a claim Israel strenuously denies. So what is a
genocide and what evidence is needed to prove that one's happening.
From the newsrooms of the Sydney Morning Herald and The Age.
This is the morning edition. I'm Samantha Cylinder Morris. Today
(01:15):
we bring you a special episode with Geoffrey Robertson KC,
a former United Nations war crimes judge and now a
human rights barrister and author who tells us why this
case will become the definitive decision on genocide. So, Geoffrey,
(01:39):
welcome to the Morning Edition.
S5 (01:41):
Good morning.
S1 (01:42):
Let's start with the basics. What is genocide and what
is not genocide?
S5 (01:46):
Genocide, very briefly, is the intention of killing or dismembering
someone because of their race or their religion. Things they
cannot help but although know they can't help with their religion. Perhaps,
but things which do not set them aside from any
(02:08):
provocation or criminality, but just kill them, like, of course,
the Jewish.
S6 (02:15):
And so what is not genocide? Because I think there's
many misconceptions, right?
S5 (02:19):
That people there certainly is. If there's a lot of killing,
a lot of deaths, people say, oh, it's genocide and
it's not. I mean, they say the British Parliament the
other year decided that the Chinese were guilty of genocide
because of their mistreatment of the Uyghurs. They weren't. It
was actually an offence the way their herding people into
(02:44):
reeducation camps in that part of China. But it wasn't genocide. Similarly,
the a lot of people were arrested after the fall
of Cambodia. If you remember, people were actually wiped out.
Over a million people were killed, but they were killed
(03:07):
pursuant to a Khmer Rouge ideology. They were not killed
because of the race or the religion of the victims.
So it's got to be race or religion. That's wrong,
in my view, because I don't see why Operation Condor,
which was Pinochet's killing of left wingers throughout South America, was,
(03:34):
should be exempt. If you kill Marxists because they're Marxists
and for no other reason, that seems to me as
serious as killing Anglicans or killing black people. But it's
not genocide. Genocide is narrowly defined in the sense as
(03:55):
killing people because of their race or their religion, not
because of their politics. If you kill people because of
their politics, as Israel claims, it's killing Hamas. Uh, that
we could call politicide, but not genocide. Genocide is a
(04:16):
particularly hideous crime and has particular consequences requiring other signatories
to the Genocide Convention to come in and stop it.
That's why genocide is particularly important. Particularly important because America
has signed up to it, which it doesn't to other
(04:37):
international laws, and particularly important historically because it was the first, uh,
way out of this world without law, without international criminal
law and genocide was the first. And it is particularly
important because of Australia's part in it, Which you might
(04:59):
ask me about.
S1 (05:00):
I definitely want to know about that, and perhaps you
can wind that into, I guess, how the crime of
genocide actually came about. Because. Because people always, of course,
refer to the Holocaust as being a crime of genocide.
But of course, that crime didn't actually exist when the.
S5 (05:14):
Holocaust took place at Nuremberg. It wasn't charged.
S7 (05:18):
No, it wasn't mentioned as to describe the crimes, as
I understand it. But it wasn't actually the.
S5 (05:22):
Charge become a crime until 1948 and the Genocide Convention.
Once upon a time, there was no such thing as
international criminal law. And once upon a time, governments could
get away with doing anything to their own people because
(05:44):
they couldn't be prosecuted for killing large swathes of their
own people, which some governments did. And the first government
to do that in spades Was the Ottoman Empire. Basically
Turkey and large Turkey. And they killed millions of Armenians
(06:09):
who were within their borders. And in 1915, after the
beginning of the First World War, there was a conference,
and they discussed the way in which the Turks had
mass murdered the Armenians, and Britain, France and Russia issued
(06:29):
an edict saying, this will be punished. This is a
crime against humanity. This was the first time a crime
against humanity had been mentioned, and it was because of the, uh,
an annihilation, attempted annihilation of the Armenians, who were treated
(06:52):
rather as the Jews were later treated by the Germans.
And the Germans, of course, were there watching and actually
quite horrified at what was happening to the Armenians. But
it was a Polish Jewish law professor who started to
(07:13):
take note and to write about the need for international law,
because the British took 60 or 70 of the Turkish
mass murderers off to Malta, planning to put them on
trial for mass murder of Armenians. And suddenly some British
(07:35):
lawyers for the government said you can't prosecute them. Why?
Because they were obeying the law of their own country.
There was no international law.
S1 (07:48):
And of course, the crime of genocide, though, didn't actually
come into being, I think, until 1948.
S5 (07:53):
That's right.
S1 (07:54):
So I guess maybe just walk us through briefly how
it eventually became a crime.
S5 (07:58):
It became the obsession of this Polish law professor called
Raphael Lemkin. And he became obsessed. He wrote books and
lobbied all at the post-war conferences about genocide. He defined
genocide because he coined the term. He termed the, coined it,
(08:22):
and he argued for an international law to override local law.
And he was such a nuisance he was ended up
in the custody of the Canadians. The Canadian embassy at
the time when the post war post Nuremberg discussions were
(08:47):
taking place. And the Canadian ambassador couldn't stand him and said,
let's get rid of him. Let's palm him off on
the Australians doctor Evatt. He was as mad as he is.
S1 (09:02):
Australian Foreign Secretary.
S5 (09:03):
It so happened Doc Evatt was the Australian Foreign Minister
and had played an enormous part in the post-war order
at San Francisco in 1945 and had become, by popular acclaim,
the third president of the General Assembly of the United Nations.
(09:28):
So what the Canadians didn't realise was that Lemkin and
Evatt got on like a house on fire, and Evatt
was a total recruit to Lemkin's idea, and it was
Evatt who ensured that the Genocide Convention came for decision
(09:50):
in front of the General Assembly on the 9th of December, 1948, 48.
And the next day we had the Universal Declaration of
Human Rights. So even before the Universal Declaration, which Eleanor
Roosevelt presented to Doctor Evatt, saying it would be the
(10:12):
Magna Carta for mankind, we had the Genocide Convention. Without Evatt,
we would not have. Certainly not at that period. A
law against genocide. The next great moment for genocide was
the signing up of the United States, because the United
(10:37):
States historically doesn't do international affairs, doesn't align with international conventions,
and the US did not take on board the Genocide
Convention Until many years later. During the Reagan presidency, Ronald
(11:02):
Reagan went off to Germany and visited Bitburg Cemetery. Now,
Bitburg Cemetery is where a number of SS leaders were buried.
And there was an enormous fuss in America, stoked by
one Michael Moore. Do you remember Michael Moore?
S1 (11:23):
Of course, this is his most successful protest.
S5 (11:26):
I believe his most successful protest was to fly to Bitburg.
At the time, Reagan was visiting and hold up placards
saying SS graves here, you know, beware. And there was
a great fuss in America. The Jewish lobby was outraged,
(11:48):
and to placate them, Reagan presidency adopted it of ratifying
the Convention against genocide. So it was a very important
event that America, as well as most other countries, were
(12:08):
signed up to a convention that required them to intervene
if genocide was being committed. And that, of course, was
the case ten years later in Rwanda. And we had
the most shameful debate in the Security Council, where New
Zealand and Czechoslovakia, who were members, said, we've got to
(12:32):
intervene to stop the genocide, which was obviously genocide in Rwanda.
And the British said, but we'll be bound to put
boots on the ground if we do. And the Americans, too,
started to weasel out to pretend that it wasn't genocide.
It was the breakdown of a peace agreement. It was
(12:53):
black on black violence and so forth. So that was disgraceful.
But they weaseled their way out of their obligations under
the Geneva Convention, for which they were subsequently apologetic. Bill
Clinton visited Rwanda, apologized, but kept his plane engines running
(13:15):
while he made this apology from the steps of the plane.
So the Genocide Convention really, I think, showed its possibilities
and its power and also the desire of the big
nations to avoid the consequences of a rule against genocide. Now,
(13:39):
we have had a number of charges of genocide leveled
in the African wars. We have had a number of
charges brought home to the generals who ordered the extinction
of 8000 Muslim men and boys in Srebrenica. So genocide
(14:02):
is certainly alive in the world, but it's difficult to prosecute.
S1 (14:08):
Well, we're going to get into that in just a moment.
But if you could maybe contextualize, I guess for listeners
just how rare it is, because if I'm right about this,
I think I read this in your book. I think
there's only been has there only been maybe three genocides
that have been successfully prosecuted in international court? Is that right?
S5 (14:23):
Srebrenica is the most important because we have a number
of generals who are in prison for life. General Mladic,
who kept hidden for 17 years, was finally dragged off,
and several other generals have been convicted for genocide for
(14:44):
that particular event, which was involved the killing of 8000
by Bosnian Serb troops who were blessed by the priests
of the Orthodox Serbian Church and then went on a
killing spree and 8000 men and boys were liquidated. Uh,
(15:09):
and so that was that certainly has been a genocide
that all the courts have accepted.
S1 (15:16):
Okay. But is it fair to say that it's rare
to have a conviction for genocide?
S5 (15:21):
Well, that's because it's rare to be prosecuted. The case
of Cambodia, everyone was geared up to prosecute. Someone pointed
out that it wasn't they weren't killed because of their
race or their religion. So that had to be retracted.
And because you've got to prove a specific intention, this
(15:44):
is what is at stake, if you like, in the ICU.
The International Court of Justice case that's been brought by
South Africa against Israel. A question Israel says, and Israel
only defends itself when it's got a good chance of winning.
(16:05):
So this is not it's not game over simply because
the ICJ has said that it's arguable. It's plausible that
Israel is committing genocide. Plausible is a word that, as
far as lawyers are concerned, indicates it may go either way.
(16:26):
And so what the International Court of Justice is doing,
and it's taking them a year to look at the
evidence and decide whether they can infer that Israel's intention
was to kill the Palestinians because there were Palestinians, rather
(16:50):
than because they were tools of Hamas.
S1 (16:54):
Well, take us through this, because my understanding is to
prove genocidal intent or to charge someone with genocide, you
have to prove that genocidal intent was the sole intent
in what motivated your actions. So it can't be that
you perhaps partly intended to wipe out a group based
on its racial or ethnic belonging, and that partly it
(17:15):
was self-defense, and partly it was. Yeah, perhaps, you know,
protecting your country's national security. It has to be the
sole intention. Is that.
S5 (17:23):
Right? Well, that's one view. It's not mine. Because I
think it's crazy because people have two, three intentions in killing.
It's quite possible for Israelis to kill because of they
hate Palestinians. It's also quite possible for them to think
(17:45):
that they are destroying Hamas, which is a political organization.
Or they may have no view, but uh, it's possible
to have a number of intentions. So if I were
a judge, which I've been, uh, on this particular question
of interpreting the genocide convention, I would say that it
(18:07):
has to be the dominant intention. But there are other views. Uh,
some would say if it's one intention among a number,
you can still be guilty of genocide. So that's a
matter that the ICJ will no doubt pass upon.
S1 (18:25):
And so how is genocidal intent actually proven?
S5 (18:28):
Well, often by speeches, by public speeches, the several of
my members of my chambers were on the South African
team that presented the case to the International Court of Justice,
and they rather wisely began their submissions with statements from
(18:53):
Israeli leaders which were obviously dripping with genocidal intention, calling
Palestinians animals they were all guilty. And as far as
collective responsibility was concerned, this was the basis of a
number of Israeli politicians, including the president, who then ticked
(19:15):
off the Australian government, I think, with ultimate hypocrisy. But
that was the basis for launching the South African case,
the genocidal intent shown by politicians from their public speeches.
(19:36):
Of course, there are other private speeches, private minutes of
meetings and so forth are very important. Um, it was
As Robert Jackson, who was the prosecutor at Nuremberg, said, well,
(19:57):
it was the Teutonic habit of writing everything down that
enabled the prosecution at Nuremberg to show that the Nazis
were malign in their private meetings and had planned the
destruction of the Jewish people. There was a long, long
(20:17):
line of memoranda, so that can also be important. And
of course, you can infer an intention from what is done.
So can you give me the killing? Well, look, there
are 62,000 deaths, mainly of young people and women in Gaza.
(20:43):
There were in the Blitz, 60,000 killed. I mean, this
is more than Dresden, more than the Blitz, more than
died in these other devastating bombings and so forth. You
could infer from that. And the South Africans are inviting
(21:05):
the court to infer that this is the intent behind
it must be to kill Palestinians, rather than only officers
of Hamas.
S1 (21:21):
And why is it so crucial if it is to
determine whether a genocide has actually taken place? And what
are the real world consequences after a genocide has been declared?
S5 (21:31):
Well, the question is, what should be the real world consequences?
Because the declaration of genocide is a green light for
all decent countries to get together and to stop it.
This is what should have happened in the three months
in Rwanda, the Hutus were butchering the Tutsi minority. So
(22:01):
that should have been the subject of an intervention by
the United Nations. It wasn't. So what happened? The killing
of tissue factor emerged. America was not keen to put
more lives, its own people, at risk. There was no
intervention and the killing continued until about 800,000 were dead.
(22:28):
So Genocide Convention was meant to have plugged in then?
It didn't. And that is something that we have to
consider that while the Genocide Convention should require the Why
(22:49):
the United Nations to intervene? The United Nations at the
moment is permanently polarized, because the idea in 1945 was
that the Security Council would run the General Assembly as
a kind of talking shop. The Security Council is where
(23:10):
the power lies. But as time went by, the Security
Council became poleaxed between Russia and China on one hand,
and America and America is unsafe at the moment because
it's generally dictated to by Israel, so that it's not
(23:34):
a body that is reliable in terms of keeping the peace.
S1 (23:39):
And what you're referring to there is the fact that
Russia and China and America, they've all got veto power.
Of course. So that's what you're saying. They're just going to,
you know.
S5 (23:46):
It's the destruction of the world order is really the
Security Council veto powers, where Russia will veto any resolution
for peace in Ukraine, just as America will veto any
resolution for peace in Gaza. Really, it sums up the
(24:08):
impotence of the Security Council by saying that if Russia
were to drop a nuclear bomb on Kiev tomorrow, Russia
could not be expelled from the United Nations because it
requires a resolution from the Security Council, which Russia would veto.
(24:30):
So the Security Council is worthless when it comes to
great power. In a sense, the powers of 1945, which
were assumed to guarantee the peace. And now the war
mongers of 2025.
S1 (24:52):
We'll be right back. Okay. Now I'm hoping you can
walk us through in really sort of easy to understand steps.
Perhaps what would be the case against the charge that
Israel is committing genocide in Gaza? Like if you were Israel's,
you know, lawyer, what would you be arguing?
S5 (25:12):
You'd be arguing. And Israel does have a very good lawyer,
and you can tell whether Israel has a case or
not from the fact that they actually send lawyers to
argue it. Very often they don't. The wall, they simply
stood aloof. They had no case. So they didn't have
(25:35):
anyone arguing it. But they have a top British academic
putting their case that this is an attack on Hamas,
that Hamas provoked them with the obscene action on October
the 7th. This is all within their right to self-defense,
(25:58):
and so they and they particularly avoid the genocide label
because they're not collectively punishing, they would argue, Palestinians, they
are only punishing Hamas. And anyone else who gets in
(26:20):
the way is what is called collateral damage. That would
be their argument. That is their argument. We wait to
see their final submissions and their evidence to support it.
S1 (26:35):
And so let's take the opposite side of the coin.
What is the case that Israel is committing genocide in Gaza?
What would you be arguing?
S5 (26:42):
Well, they've committed, what, 62,000 more than the deaths from
the Blitz during the war, which was the archetypal terrorizing
of a population by bombing, that the intention can be
inferred to be that of killing Palestinians because they're Palestinians,
(27:07):
not because they're members of Hamas, that the particular actions,
the bombings, the use of drones on residential areas, burying
large swathes of the population under rubble and having them
retrieved dead, uh, is indicative of a determination to collectively
(27:36):
punish the Palestinians for being Palestinian, and there have been
statements that will be used are being used by Israeli leaders,
more or less saying all Palestinians are complicit in the
(27:58):
Hamas attack. So that will be the argument for South Africa.
And how it will play out will depend on evidence.
So we may not get a decision.
S1 (28:14):
For how long?
S5 (28:15):
For another year.
S1 (28:16):
Another year. Okay. And I wanted to ask you about
one particular, I guess, type of action that Israel has
used in Gaza, which of course is the cutting off
of fuel and food, medicine and water supplies. So because
people use that on both sides to argue for and
against the case that genocide is happening. So how would
you use that for the case of genocide that that
(28:38):
is an example that this is genocide.
S5 (28:40):
Yeah. Well, it is clearly one of the actions that
is Non-specific to Hamas. It isn't only Hamas fighters who
are hungry. In fact, some evidence to show that they
are in fact the best fed. That starvation is particularly
(29:03):
of babies, children who are not capable at their age
of forming a political intention. So that would be used.
But starvation is of itself a war crime. It is
one of those crimes that is specified by article eight
(29:24):
of the Treaty of Rome, which is a 1998 convention
setting up the International Criminal Court. So starvation can be
prosecuted and is in fact being prosecuted against Netanyahu and
his defense minister by the ICC, the International Criminal Court.
S1 (29:49):
But tell us what Israel would say in their own defense,
because I believe their line is they say, well, no,
this is you know, we want to stop this aid
from getting to Hamas. This is yes.
S5 (29:59):
We've got they've got a whole list of defenses that
they've run publicly. But how it all shakes down will
not be known until next year.
S1 (30:11):
And so from a legal standpoint, do you have an
opinion as to whether Israel is committing genocide in Gaza?
S5 (30:15):
No, of course not. The court has to decide a
number of issues. Firstly, about the definition of genocide, whether
they're going to say it has to be one intention
or whether there can be multiple intention, or whether, as
I think it should be dominant intention. So that's one
(30:37):
question that the court will have to resolve. And there
are other legal issues as well that it will have
to decide, because while there have been quite a few
genocide cases over the years decided by lesser courts, the ICJ,
the International Court of Justice is the World Court and
(31:01):
this will be the definitive decision on genocide.
S1 (31:07):
Okay, so I really wanted to ask you, and this
is a hypothetical, you know, should the ICJ actually rule
that Israel has violated the 1948 convention on the Prevention
and Punishment of the Crime of Genocide? Who would or
could be actually charged with that crime, which we were
discussing before we started recording? That would only happen if
the International Criminal Court, which is a separate court to
(31:27):
the International Court of Justice. Um, because I'm just going
to let listeners know what I only learned from reading, uh,
parts of your very big book, which is that of
the International Court of Justice, only resolves disputes between states,
but the International Criminal Court actually prosecutes crimes such as genocide.
So I guess, would it be Prime Minister Benjamin Netanyahu?
(31:48):
Would it be others? Who would it actually be?
S5 (31:50):
Well, as we know from various local proceedings in relation
to rape and so forth, that criminal courts must deliver
verdicts on evidence that decides beyond reasonable doubt of guilt.
Civil courts, on the other hand, apply the test of
(32:12):
more likely than not. So the ICJ ruling on. Israel
being genocidal is not. That can have consequences in civil law.
It can require Israel to repay a lot of the
(32:36):
damage or pay for some of the damage it's done,
but it cannot have direct criminal consequences. It's the ICC
that can bring a charge of genocide against Israeli leaders.
And no doubt with the evidence from the ICJ collected
(32:59):
as part of it, can produce that evidence for a prosecution.
Whether it will succeed in the heavier burden of proof
is another matter.
S1 (33:11):
And do you have any opinion as to who would
be more likely than not to be charged with genocide?
S5 (33:17):
Well, obviously Netanyahu would be prime and a number of
his cabinet ministers. I don't know what the evidence is. Yeah.
But could it be to them? But it if it
emerges that a majority of the cabinet or certain members
of the cabinet have insisted upon the kind of total
(33:42):
annihilation of sections residential areas in Gaza. Well, that may
well be the case that they'll be prosecuted, however. Of course,
the ICC does not do trials in absentia, so they
(34:02):
will have to be arrested. And America, without doubt, will
act so as to prevent that. So this is where
the ideal of law comes up against the brick wall
of political favoritism, and the fact that America will protect
(34:26):
Israel from any consequences.
S1 (34:29):
So what you're saying is, is that and this is
obviously quite a hypothetical because we're nowhere near this point.
But if the International Criminal Court actually did charge the
Israeli prime minister and his ministers and whoever else of genocide,
they could just refuse to go to The Hague because
the ICC does not, as you say, hold. Trial in absentia.
So they could just refuse to go and therefore they
(34:50):
could not be held to justice. Is that right?
S5 (34:52):
That's so unless the ICC is. I've recommended and others
change and allows trials in absentia, because that is a
way at least of getting a record, getting a historical record.
And this, we've got to remember, is the great thing
(35:14):
that the trial at Nuremberg did. The trial at Nuremberg
produced an imperishable record that has confounded Holocaust deniers ever since.
And I think that to get an such a record
of what actually was behind the mass killings that I
(35:36):
think have shocked the conscience of the world, 62,000, mainly
women and children, is something that increasingly has seen, sadly,
increased antisemitism around the world. Illogically, and I think that
(35:57):
is something that is the world over the years to come,
will want an answer for. And if Israel is seen
to be ducking it, if Netanyahu and his more right
wing cabinet ministers are indicted and then failed to surrender
(36:23):
to a court, which itself is the result of the
world's concern about the Holocaust, it live on their conscience.
S1 (36:38):
Well, thank you so much, Jeffrey, for your time.
S5 (36:41):
Good to meet you. good to be here.
S1 (36:55):
Today's episode of The Morning Edition was produced by myself
and Josh towers, with technical assistance by Kai Wong. Our
executive producer is Tammy Mills. Tom McKendrick is our head
of audio. To listen to our episodes as soon as
they drop, follow the Morning Edition on Apple, Spotify, or
wherever you listen to podcasts. Our newsrooms are powered by subscriptions,
(37:18):
so to support independent journalism, visit The Age or smh.com.au.
Subscribe and to stay up to date, sign up to
our Morningedition newsletter to receive a summary of the day's
most important news in your inbox every morning. Links are
in the show. Notes. I'm Samantha Selinger. Morris. Thanks for listening.
Venture to a pro-Palestinian rally at one of Australia's capital cities,
and you'll invariably hear calls to end the genocide in Gaza.
S2 (00:17):
It's a mass march for humanity to stop a genocide.
Our politicians have to now listen to the will of
the people and sanction Israel. Stop sending weapons.
S3 (00:24):
We have to end the starvation. We have to stop
Israel's brutal, despicable genocide in Gaza.
S1 (00:34):
And in the International Court of Justice. South Africa has
accused Israel of committing genocide as well.
S4 (00:41):
The court meets today to hear the oral observations of
the parties submitted by the Republic of South Africa in
the case Concerning the prevention and Punishment of the crime
of genocide in the Gaza Strip. South Africa versus Israel.
S1 (00:54):
It's a claim Israel strenuously denies. So what is a
genocide and what evidence is needed to prove that one's happening.
From the newsrooms of the Sydney Morning Herald and The Age.
This is the morning edition. I'm Samantha Cylinder Morris. Today
(01:15):
we bring you a special episode with Geoffrey Robertson KC,
a former United Nations war crimes judge and now a
human rights barrister and author who tells us why this
case will become the definitive decision on genocide. So, Geoffrey,
(01:39):
welcome to the Morning Edition.
S5 (01:41):
Good morning.
S1 (01:42):
Let's start with the basics. What is genocide and what
is not genocide?
S5 (01:46):
Genocide, very briefly, is the intention of killing or dismembering
someone because of their race or their religion. Things they
cannot help but although know they can't help with their religion. Perhaps,
but things which do not set them aside from any
(02:08):
provocation or criminality, but just kill them, like, of course,
the Jewish.
S6 (02:15):
And so what is not genocide? Because I think there's
many misconceptions, right?
S5 (02:19):
That people there certainly is. If there's a lot of killing,
a lot of deaths, people say, oh, it's genocide and
it's not. I mean, they say the British Parliament the
other year decided that the Chinese were guilty of genocide
because of their mistreatment of the Uyghurs. They weren't. It
was actually an offence the way their herding people into
(02:44):
reeducation camps in that part of China. But it wasn't genocide. Similarly,
the a lot of people were arrested after the fall
of Cambodia. If you remember, people were actually wiped out.
Over a million people were killed, but they were killed
(03:07):
pursuant to a Khmer Rouge ideology. They were not killed
because of the race or the religion of the victims.
So it's got to be race or religion. That's wrong,
in my view, because I don't see why Operation Condor,
which was Pinochet's killing of left wingers throughout South America, was,
(03:34):
should be exempt. If you kill Marxists because they're Marxists
and for no other reason, that seems to me as
serious as killing Anglicans or killing black people. But it's
not genocide. Genocide is narrowly defined in the sense as
(03:55):
killing people because of their race or their religion, not
because of their politics. If you kill people because of
their politics, as Israel claims, it's killing Hamas. Uh, that
we could call politicide, but not genocide. Genocide is a
(04:16):
particularly hideous crime and has particular consequences requiring other signatories
to the Genocide Convention to come in and stop it.
That's why genocide is particularly important. Particularly important because America
has signed up to it, which it doesn't to other
(04:37):
international laws, and particularly important historically because it was the first, uh,
way out of this world without law, without international criminal
law and genocide was the first. And it is particularly
important because of Australia's part in it, Which you might
(04:59):
ask me about.
S1 (05:00):
I definitely want to know about that, and perhaps you
can wind that into, I guess, how the crime of
genocide actually came about. Because. Because people always, of course,
refer to the Holocaust as being a crime of genocide.
But of course, that crime didn't actually exist when the.
S5 (05:14):
Holocaust took place at Nuremberg. It wasn't charged.
S7 (05:18):
No, it wasn't mentioned as to describe the crimes, as
I understand it. But it wasn't actually the.
S5 (05:22):
Charge become a crime until 1948 and the Genocide Convention.
Once upon a time, there was no such thing as
international criminal law. And once upon a time, governments could
get away with doing anything to their own people because
(05:44):
they couldn't be prosecuted for killing large swathes of their
own people, which some governments did. And the first government
to do that in spades Was the Ottoman Empire. Basically
Turkey and large Turkey. And they killed millions of Armenians
(06:09):
who were within their borders. And in 1915, after the
beginning of the First World War, there was a conference,
and they discussed the way in which the Turks had
mass murdered the Armenians, and Britain, France and Russia issued
(06:29):
an edict saying, this will be punished. This is a
crime against humanity. This was the first time a crime
against humanity had been mentioned, and it was because of the, uh,
an annihilation, attempted annihilation of the Armenians, who were treated
(06:52):
rather as the Jews were later treated by the Germans.
And the Germans, of course, were there watching and actually
quite horrified at what was happening to the Armenians. But
it was a Polish Jewish law professor who started to
(07:13):
take note and to write about the need for international law,
because the British took 60 or 70 of the Turkish
mass murderers off to Malta, planning to put them on
trial for mass murder of Armenians. And suddenly some British
(07:35):
lawyers for the government said you can't prosecute them. Why?
Because they were obeying the law of their own country.
There was no international law.
S1 (07:48):
And of course, the crime of genocide, though, didn't actually
come into being, I think, until 1948.
S5 (07:53):
That's right.
S1 (07:54):
So I guess maybe just walk us through briefly how
it eventually became a crime.
S5 (07:58):
It became the obsession of this Polish law professor called
Raphael Lemkin. And he became obsessed. He wrote books and
lobbied all at the post-war conferences about genocide. He defined
genocide because he coined the term. He termed the, coined it,
(08:22):
and he argued for an international law to override local law.
And he was such a nuisance he was ended up
in the custody of the Canadians. The Canadian embassy at
the time when the post war post Nuremberg discussions were
(08:47):
taking place. And the Canadian ambassador couldn't stand him and said,
let's get rid of him. Let's palm him off on
the Australians doctor Evatt. He was as mad as he is.
S1 (09:02):
Australian Foreign Secretary.
S5 (09:03):
It so happened Doc Evatt was the Australian Foreign Minister
and had played an enormous part in the post-war order
at San Francisco in 1945 and had become, by popular acclaim,
the third president of the General Assembly of the United Nations.
(09:28):
So what the Canadians didn't realise was that Lemkin and
Evatt got on like a house on fire, and Evatt
was a total recruit to Lemkin's idea, and it was
Evatt who ensured that the Genocide Convention came for decision
(09:50):
in front of the General Assembly on the 9th of December, 1948, 48.
And the next day we had the Universal Declaration of
Human Rights. So even before the Universal Declaration, which Eleanor
Roosevelt presented to Doctor Evatt, saying it would be the
(10:12):
Magna Carta for mankind, we had the Genocide Convention. Without Evatt,
we would not have. Certainly not at that period. A
law against genocide. The next great moment for genocide was
the signing up of the United States, because the United
(10:37):
States historically doesn't do international affairs, doesn't align with international conventions,
and the US did not take on board the Genocide
Convention Until many years later. During the Reagan presidency, Ronald
(11:02):
Reagan went off to Germany and visited Bitburg Cemetery. Now,
Bitburg Cemetery is where a number of SS leaders were buried.
And there was an enormous fuss in America, stoked by
one Michael Moore. Do you remember Michael Moore?
S1 (11:23):
Of course, this is his most successful protest.
S5 (11:26):
I believe his most successful protest was to fly to Bitburg.
At the time, Reagan was visiting and hold up placards
saying SS graves here, you know, beware. And there was
a great fuss in America. The Jewish lobby was outraged,
(11:48):
and to placate them, Reagan presidency adopted it of ratifying
the Convention against genocide. So it was a very important
event that America, as well as most other countries, were
(12:08):
signed up to a convention that required them to intervene
if genocide was being committed. And that, of course, was
the case ten years later in Rwanda. And we had
the most shameful debate in the Security Council, where New
Zealand and Czechoslovakia, who were members, said, we've got to
(12:32):
intervene to stop the genocide, which was obviously genocide in Rwanda.
And the British said, but we'll be bound to put
boots on the ground if we do. And the Americans, too,
started to weasel out to pretend that it wasn't genocide.
It was the breakdown of a peace agreement. It was
(12:53):
black on black violence and so forth. So that was disgraceful.
But they weaseled their way out of their obligations under
the Geneva Convention, for which they were subsequently apologetic. Bill
Clinton visited Rwanda, apologized, but kept his plane engines running
(13:15):
while he made this apology from the steps of the plane.
So the Genocide Convention really, I think, showed its possibilities
and its power and also the desire of the big
nations to avoid the consequences of a rule against genocide. Now,
(13:39):
we have had a number of charges of genocide leveled
in the African wars. We have had a number of
charges brought home to the generals who ordered the extinction
of 8000 Muslim men and boys in Srebrenica. So genocide
(14:02):
is certainly alive in the world, but it's difficult to prosecute.
S1 (14:08):
Well, we're going to get into that in just a moment.
But if you could maybe contextualize, I guess for listeners
just how rare it is, because if I'm right about this,
I think I read this in your book. I think
there's only been has there only been maybe three genocides
that have been successfully prosecuted in international court? Is that right?
S5 (14:23):
Srebrenica is the most important because we have a number
of generals who are in prison for life. General Mladic,
who kept hidden for 17 years, was finally dragged off,
and several other generals have been convicted for genocide for
(14:44):
that particular event, which was involved the killing of 8000
by Bosnian Serb troops who were blessed by the priests
of the Orthodox Serbian Church and then went on a
killing spree and 8000 men and boys were liquidated. Uh,
(15:09):
and so that was that certainly has been a genocide
that all the courts have accepted.
S1 (15:16):
Okay. But is it fair to say that it's rare
to have a conviction for genocide?
S5 (15:21):
Well, that's because it's rare to be prosecuted. The case
of Cambodia, everyone was geared up to prosecute. Someone pointed
out that it wasn't they weren't killed because of their
race or their religion. So that had to be retracted.
And because you've got to prove a specific intention, this
(15:44):
is what is at stake, if you like, in the ICU.
The International Court of Justice case that's been brought by
South Africa against Israel. A question Israel says, and Israel
only defends itself when it's got a good chance of winning.
(16:05):
So this is not it's not game over simply because
the ICJ has said that it's arguable. It's plausible that
Israel is committing genocide. Plausible is a word that, as
far as lawyers are concerned, indicates it may go either way.
(16:26):
And so what the International Court of Justice is doing,
and it's taking them a year to look at the
evidence and decide whether they can infer that Israel's intention
was to kill the Palestinians because there were Palestinians, rather
(16:50):
than because they were tools of Hamas.
S1 (16:54):
Well, take us through this, because my understanding is to
prove genocidal intent or to charge someone with genocide, you
have to prove that genocidal intent was the sole intent
in what motivated your actions. So it can't be that
you perhaps partly intended to wipe out a group based
on its racial or ethnic belonging, and that partly it
(17:15):
was self-defense, and partly it was. Yeah, perhaps, you know,
protecting your country's national security. It has to be the
sole intention. Is that.
S5 (17:23):
Right? Well, that's one view. It's not mine. Because I
think it's crazy because people have two, three intentions in killing.
It's quite possible for Israelis to kill because of they
hate Palestinians. It's also quite possible for them to think
(17:45):
that they are destroying Hamas, which is a political organization.
Or they may have no view, but uh, it's possible
to have a number of intentions. So if I were
a judge, which I've been, uh, on this particular question
of interpreting the genocide convention, I would say that it
(18:07):
has to be the dominant intention. But there are other views. Uh,
some would say if it's one intention among a number,
you can still be guilty of genocide. So that's a
matter that the ICJ will no doubt pass upon.
S1 (18:25):
And so how is genocidal intent actually proven?
S5 (18:28):
Well, often by speeches, by public speeches, the several of
my members of my chambers were on the South African
team that presented the case to the International Court of Justice,
and they rather wisely began their submissions with statements from
(18:53):
Israeli leaders which were obviously dripping with genocidal intention, calling
Palestinians animals they were all guilty. And as far as
collective responsibility was concerned, this was the basis of a
number of Israeli politicians, including the president, who then ticked
(19:15):
off the Australian government, I think, with ultimate hypocrisy. But
that was the basis for launching the South African case,
the genocidal intent shown by politicians from their public speeches.
(19:36):
Of course, there are other private speeches, private minutes of
meetings and so forth are very important. Um, it was
As Robert Jackson, who was the prosecutor at Nuremberg, said, well,
(19:57):
it was the Teutonic habit of writing everything down that
enabled the prosecution at Nuremberg to show that the Nazis
were malign in their private meetings and had planned the
destruction of the Jewish people. There was a long, long
(20:17):
line of memoranda, so that can also be important. And
of course, you can infer an intention from what is done.
So can you give me the killing? Well, look, there
are 62,000 deaths, mainly of young people and women in Gaza.
(20:43):
There were in the Blitz, 60,000 killed. I mean, this
is more than Dresden, more than the Blitz, more than
died in these other devastating bombings and so forth. You
could infer from that. And the South Africans are inviting
(21:05):
the court to infer that this is the intent behind
it must be to kill Palestinians, rather than only officers
of Hamas.
S1 (21:21):
And why is it so crucial if it is to
determine whether a genocide has actually taken place? And what
are the real world consequences after a genocide has been declared?
S5 (21:31):
Well, the question is, what should be the real world consequences?
Because the declaration of genocide is a green light for
all decent countries to get together and to stop it.
This is what should have happened in the three months
in Rwanda, the Hutus were butchering the Tutsi minority. So
(22:01):
that should have been the subject of an intervention by
the United Nations. It wasn't. So what happened? The killing
of tissue factor emerged. America was not keen to put
more lives, its own people, at risk. There was no
intervention and the killing continued until about 800,000 were dead.
(22:28):
So Genocide Convention was meant to have plugged in then?
It didn't. And that is something that we have to
consider that while the Genocide Convention should require the Why
(22:49):
the United Nations to intervene? The United Nations at the
moment is permanently polarized, because the idea in 1945 was
that the Security Council would run the General Assembly as
a kind of talking shop. The Security Council is where
(23:10):
the power lies. But as time went by, the Security
Council became poleaxed between Russia and China on one hand,
and America and America is unsafe at the moment because
it's generally dictated to by Israel, so that it's not
(23:34):
a body that is reliable in terms of keeping the peace.
S1 (23:39):
And what you're referring to there is the fact that
Russia and China and America, they've all got veto power.
Of course. So that's what you're saying. They're just going to,
you know.
S5 (23:46):
It's the destruction of the world order is really the
Security Council veto powers, where Russia will veto any resolution
for peace in Ukraine, just as America will veto any
resolution for peace in Gaza. Really, it sums up the
(24:08):
impotence of the Security Council by saying that if Russia
were to drop a nuclear bomb on Kiev tomorrow, Russia
could not be expelled from the United Nations because it
requires a resolution from the Security Council, which Russia would veto.
(24:30):
So the Security Council is worthless when it comes to
great power. In a sense, the powers of 1945, which
were assumed to guarantee the peace. And now the war
mongers of 2025.
S1 (24:52):
We'll be right back. Okay. Now I'm hoping you can
walk us through in really sort of easy to understand steps.
Perhaps what would be the case against the charge that
Israel is committing genocide in Gaza? Like if you were Israel's,
you know, lawyer, what would you be arguing?
S5 (25:12):
You'd be arguing. And Israel does have a very good lawyer,
and you can tell whether Israel has a case or
not from the fact that they actually send lawyers to
argue it. Very often they don't. The wall, they simply
stood aloof. They had no case. So they didn't have
(25:35):
anyone arguing it. But they have a top British academic
putting their case that this is an attack on Hamas,
that Hamas provoked them with the obscene action on October
the 7th. This is all within their right to self-defense,
(25:58):
and so they and they particularly avoid the genocide label
because they're not collectively punishing, they would argue, Palestinians, they
are only punishing Hamas. And anyone else who gets in
(26:20):
the way is what is called collateral damage. That would
be their argument. That is their argument. We wait to
see their final submissions and their evidence to support it.
S1 (26:35):
And so let's take the opposite side of the coin.
What is the case that Israel is committing genocide in Gaza?
What would you be arguing?
S5 (26:42):
Well, they've committed, what, 62,000 more than the deaths from
the Blitz during the war, which was the archetypal terrorizing
of a population by bombing, that the intention can be
inferred to be that of killing Palestinians because they're Palestinians,
(27:07):
not because they're members of Hamas, that the particular actions,
the bombings, the use of drones on residential areas, burying
large swathes of the population under rubble and having them
retrieved dead, uh, is indicative of a determination to collectively
(27:36):
punish the Palestinians for being Palestinian, and there have been
statements that will be used are being used by Israeli leaders,
more or less saying all Palestinians are complicit in the
(27:58):
Hamas attack. So that will be the argument for South Africa.
And how it will play out will depend on evidence.
So we may not get a decision.
S1 (28:14):
For how long?
S5 (28:15):
For another year.
S1 (28:16):
Another year. Okay. And I wanted to ask you about
one particular, I guess, type of action that Israel has
used in Gaza, which of course is the cutting off
of fuel and food, medicine and water supplies. So because
people use that on both sides to argue for and
against the case that genocide is happening. So how would
you use that for the case of genocide that that
(28:38):
is an example that this is genocide.
S5 (28:40):
Yeah. Well, it is clearly one of the actions that
is Non-specific to Hamas. It isn't only Hamas fighters who
are hungry. In fact, some evidence to show that they
are in fact the best fed. That starvation is particularly
(29:03):
of babies, children who are not capable at their age
of forming a political intention. So that would be used.
But starvation is of itself a war crime. It is
one of those crimes that is specified by article eight
(29:24):
of the Treaty of Rome, which is a 1998 convention
setting up the International Criminal Court. So starvation can be
prosecuted and is in fact being prosecuted against Netanyahu and
his defense minister by the ICC, the International Criminal Court.
S1 (29:49):
But tell us what Israel would say in their own defense,
because I believe their line is they say, well, no,
this is you know, we want to stop this aid
from getting to Hamas. This is yes.
S5 (29:59):
We've got they've got a whole list of defenses that
they've run publicly. But how it all shakes down will
not be known until next year.
S1 (30:11):
And so from a legal standpoint, do you have an
opinion as to whether Israel is committing genocide in Gaza?
S5 (30:15):
No, of course not. The court has to decide a
number of issues. Firstly, about the definition of genocide, whether
they're going to say it has to be one intention
or whether there can be multiple intention, or whether, as
I think it should be dominant intention. So that's one
(30:37):
question that the court will have to resolve. And there
are other legal issues as well that it will have
to decide, because while there have been quite a few
genocide cases over the years decided by lesser courts, the ICJ,
the International Court of Justice is the World Court and
(31:01):
this will be the definitive decision on genocide.
S1 (31:07):
Okay, so I really wanted to ask you, and this
is a hypothetical, you know, should the ICJ actually rule
that Israel has violated the 1948 convention on the Prevention
and Punishment of the Crime of Genocide? Who would or
could be actually charged with that crime, which we were
discussing before we started recording? That would only happen if
the International Criminal Court, which is a separate court to
(31:27):
the International Court of Justice. Um, because I'm just going
to let listeners know what I only learned from reading, uh,
parts of your very big book, which is that of
the International Court of Justice, only resolves disputes between states,
but the International Criminal Court actually prosecutes crimes such as genocide.
So I guess, would it be Prime Minister Benjamin Netanyahu?
(31:48):
Would it be others? Who would it actually be?
S5 (31:50):
Well, as we know from various local proceedings in relation
to rape and so forth, that criminal courts must deliver
verdicts on evidence that decides beyond reasonable doubt of guilt.
Civil courts, on the other hand, apply the test of
(32:12):
more likely than not. So the ICJ ruling on. Israel
being genocidal is not. That can have consequences in civil law.
It can require Israel to repay a lot of the
(32:36):
damage or pay for some of the damage it's done,
but it cannot have direct criminal consequences. It's the ICC
that can bring a charge of genocide against Israeli leaders.
And no doubt with the evidence from the ICJ collected
(32:59):
as part of it, can produce that evidence for a prosecution.
Whether it will succeed in the heavier burden of proof
is another matter.
S1 (33:11):
And do you have any opinion as to who would
be more likely than not to be charged with genocide?
S5 (33:17):
Well, obviously Netanyahu would be prime and a number of
his cabinet ministers. I don't know what the evidence is. Yeah.
But could it be to them? But it if it
emerges that a majority of the cabinet or certain members
of the cabinet have insisted upon the kind of total
(33:42):
annihilation of sections residential areas in Gaza. Well, that may
well be the case that they'll be prosecuted, however. Of course,
the ICC does not do trials in absentia, so they
(34:02):
will have to be arrested. And America, without doubt, will
act so as to prevent that. So this is where
the ideal of law comes up against the brick wall
of political favoritism, and the fact that America will protect
(34:26):
Israel from any consequences.
S1 (34:29):
So what you're saying is, is that and this is
obviously quite a hypothetical because we're nowhere near this point.
But if the International Criminal Court actually did charge the
Israeli prime minister and his ministers and whoever else of genocide,
they could just refuse to go to The Hague because
the ICC does not, as you say, hold. Trial in absentia.
So they could just refuse to go and therefore they
(34:50):
could not be held to justice. Is that right?
S5 (34:52):
That's so unless the ICC is. I've recommended and others
change and allows trials in absentia, because that is a
way at least of getting a record, getting a historical record.
And this, we've got to remember, is the great thing
(35:14):
that the trial at Nuremberg did. The trial at Nuremberg
produced an imperishable record that has confounded Holocaust deniers ever since.
And I think that to get an such a record
of what actually was behind the mass killings that I
(35:36):
think have shocked the conscience of the world, 62,000, mainly
women and children, is something that increasingly has seen, sadly,
increased antisemitism around the world. Illogically, and I think that
(35:57):
is something that is the world over the years to come,
will want an answer for. And if Israel is seen
to be ducking it, if Netanyahu and his more right
wing cabinet ministers are indicted and then failed to surrender
(36:23):
to a court, which itself is the result of the
world's concern about the Holocaust, it live on their conscience.
S1 (36:38):
Well, thank you so much, Jeffrey, for your time.
S5 (36:41):
Good to meet you. good to be here.
S1 (36:55):
Today's episode of The Morning Edition was produced by myself
and Josh towers, with technical assistance by Kai Wong. Our
executive producer is Tammy Mills. Tom McKendrick is our head
of audio. To listen to our episodes as soon as
they drop, follow the Morning Edition on Apple, Spotify, or
wherever you listen to podcasts. Our newsrooms are powered by subscriptions,
(37:18):
so to support independent journalism, visit The Age or smh.com.au.
Subscribe and to stay up to date, sign up to
our Morningedition newsletter to receive a summary of the day's
most important news in your inbox every morning. Links are
in the show. Notes. I'm Samantha Selinger. Morris. Thanks for listening.
Popular Podcasts
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
NFL Daily with Gregg Rosenthal
Gregg Rosenthal and a rotating crew of elite NFL Media co-hosts, including Patrick Claybon, Colleen Wolfe, Steve Wyche, Nick Shook and Jourdan Rodrigue of The Athletic get you caught up daily on all the NFL news and analysis you need to be smarter and funnier than your friends.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.