Experts give 2 perspectives on accusations Israel is committing genocide in Gaza

Nick Schifrin:

So, how strong is South Africa's case against Israel, and what will be Israel's defense when tomorrow it presents its case?

We get two views.

First to Kenneth Roth, the former executive director of Human Rights Watch and now a visiting professor at Princeton University and senior fellow at Harvard University.

Ken Roth, thanks very much. Welcome back to the "NewsHour."

How strong a case do you believe South Africa has that Israel has demonstrated the intent to destroy all or part of a racial, religious or ethnic group, in this case, the Palestinians?

Kenneth Roth, Former Executive Director, Human Rights Watch:

South Africa assembled an incredibly talented legal team and put together a factually detailed, legally compelling case.

I think there's not much question that the level of killing, the level of deprivation is sufficient to meet that predicate part of the crime of genocide. The South African case really had two elements to it in showing genocide intent. One is, they ran through a bunch of statements by senior Israeli officials. They looked at Prime Minister Netanyahu's reference to Amalek, an Israeli enemy where the biblical injunction was to kill every man, woman, child and animal.

They used Yoav Gallant, the defense minister's statement that he's going after — that they're fighting human animals. He says, oh, I just meant Hamas, but, in fact, if you listen to him, he was talking about the siege, which is of everybody in Gaza. So they ran through statements like that.

They had a very moving section where they had a bunch of Israeli soldiers singing and dancing and saying, there are no uninvolved civilians, basically an invitation to war crimes.

So this is all genocidal intent. And then they also kind of worked backwards from the acts on the ground to say that, because Israel is bombing so indiscriminately, because it's using these massive 2,000-pound bombs in heavily populated areas, that this also shows an indifference to Palestinian civilian life, which itself is indicative of genocidal intent.

Nick Schifrin:

Israel says that many of the statements that are cited by the South Africans are about Hamas, not about Gaza.

The official war policy, of course, is to respond to Hamas and prevent it from launching another terrorist attack. But they also say that, for every statement that the South Africans choose, there are many other statements by the same Israeli officials saying that they are trying to avoid civilian casualties. And, again, the official policy is to attack Hamas, not all of Gaza.

Kenneth Roth:

Yes, I mean, they say that's the official policy.

But when you have the prime minister talking about animal life, saying basically you kill everybody, when you have the defense minister saying they're all human animals, not talking about Hamas, this is — this is policy. I mean, these are the top people.

And if you look at the actions of the Israeli soldiers on the ground, whether it's the disproportionate harm to civilians or the siege, this devastating siege that is causing such severe deprivation to so many Palestinians, that has seen a spreading starvation across Gaza, it's hard to say that this isn't policy.

So, I think that that's what they're saying for public relations purposes. I don't think it's going to work as an argument in court.

Nick Schifrin:

Israel, at the same time as what you have just described, has dropped leaflets from the sky urging Palestinians to flee, what the IDF calls safer areas, uses text messages, calls to warn Gazans of strikes about to come. It's created humanitarian zones and corridors in Gaza.

Does any of that suggest that Israel's intentions, again, are less black and white than you suggest?

Kenneth Roth:

Yes, I think that those are going to be the more sophisticated defenses that Israel mounts tomorrow.

And we have heard spokespeople say, oh, they should be charging Hamas with genocide, Hamas committed atrocities. But as Israel, of all places, should know, conduct by one side doesn't justify genocide by the other. Nothing justifies genocide.

Now, with respect to the warnings, yes, that's the right thing to do in principle, but they're giving warnings in an inhumane way. They're sending people to the south, and, as South Africa noted today, they continue to drop 2,000-pound bombs in the south. They are depriving the people in that area of the most basic necessities. They're letting in just drips and drabs of humanitarian aid.

The warnings, again, look almost as if they're public relations. They're not really humane efforts. The bigger defense, I think, is going to be this mantra of human shields, which we hear all the time. And, yes, Hamas uses human shields. Yes, Hamas fights from civilian areas, but there's a duty on the attacker, even if fighting and targeting a military target, to not fire if there will be disproportionate harm, regardless of human shields.

Nick Schifrin:

The text of South Africa's case does not acknowledge that, under the law of armed conflict, Israel has the right to self-defense, nor, as you just mentioned, does it really acknowledge how Hamas fights embedded within civilian areas.

Are those weaknesses in South Africa's case?

Kenneth Roth:

Well, South Africa made a point of saying they condemn Hamas' atrocities on October 7, as they should, as everybody does. Israel has the right to defend itself, but the point is, it has to defend itself lawfully, within the Geneva Conventions, targeting Hamas, not targeting the civilian population, certainly not committing genocide.

And this deprivation of the civilian population, 85 percent displaced, very little food, very little water, the hospitals shut down, this seems to be designed to impose conditions of hardship that, as South Africa says, could lead to massive loss of life, to even more loss of life than the bombing directly.

Nick Schifrin:

And, finally, if the court rules that South Africa has shown the reasonable probability of genocide and imposes what are called provisional measures, how important is that? What's going to be the impact of that?

Kenneth Roth:

I think that would be extraordinarily important, because, even though the court has no direct means of enforcement, it has to look to the Security Council, and the U.S. could use its veto to stop any coercive measures against Israel, nonetheless, for Israel, a state that was founded because of genocide, because of the Holocaust, to be found to probably be committing genocide would be a huge stigma and would put real pressure on Netanyahu finally to stop the killing.

It would put pressure on Biden to stop funding and arming this effort. It would, I think, make an enormous contribution to saving Palestinian civilian lives.

Nick Schifrin:

Kenneth Roth, longtime head of Human Rights Watch, thank you very much.

Kenneth Roth:

Thank you.

Nick Schifrin:

And now we get a different view from Yuval Shany, the chair of international law at Hebrew University in Jerusalem. He's written extensively about international courts and tribunals and was a member of the U.N. Human Rights Committee.

Yuval Shany, thank you very much. Welcome to the "NewsHour."

Do you think that South Africa has shown Israel's intent to destroy, in whole or in part, Palestinians?

Yuval Shany, Hebrew University of Jerusalem: No, I think South Africa did work quite effectively on introducing some circumstantial evidence for its claim.

It did point to a lot of harm, a lot of suffering, a lot of damage inflicted on Palestinians in the Gaza Strip. And it also was — it allocated significant time also to flesh out a lot of statements that were given by Israeli officials.

There are still many, many holes in the narrative that they are presenting before the court.

Nick Schifrin:

So let's talk about some of those statements.

Ken Roth and the South African cited the same one. When Prime Minister Netanyahu cites a biblical story in which the enemies of Jews are destroyed and vows Israel should achieve the same aim in Gaza, does that not show intent to destroy at least part of Palestinians in Gaza?

Yuval Shany:

I think these are very ambiguous statements. I mean, I wouldn't say — I wouldn't defend this statement. I think — I wish they wouldn't have been uttered.

I think they were playing to a political base. But in the Israeli context, calling an enemy like Iran or like the Nazis or like Hamas Amalek is something that is done all the time. And this is — in the Israeli context, this is what you refer to your mortal enemies. And you use a biblical reference in order to beef it up and make it sound a little bit more flashy to your home base.

Actually, in the first statement that Netanyahu issued, which is cited in the South African application, he also emphasized that the IDF, unlike Hamas, is observing the laws of war and that it is not harming civilians. So I think it's quite a stretch to build the entire case and to basically allege that there is a genocidal plan, an actual plan of action, on the basis of an imprudent statement that was made by a politician.

In the end, the Israeli military is an organized military, and it operates on the basis of Cabinet decisions and specific directives. It doesn't listen to what a politician say and then goes and changes its plans of action. This is not how things work.

Nick Schifrin:

Staying on…

Yuval Shany:

Every specific attack has to be cleared by lawyers who work for the IDF. This is simply — the insinuation that the statement by a minister would then lead the chief of staff to change the operational plan simply has limited bearing to reality.

Nick Schifrin:

Staying on statements for a minute, the convention also requires Israel to prevent and not incite genocide.

Has Israel punished some of perhaps the lower-level officials when they suggest the goals of the operation are to destroy not just Hamas, but all of Gaza?

Yuval Shany:

Well, here, I think the South Africans do have a point. I think, so far, Israel has not been diligent in taking steps against public figures who have made some outrageous statements that seem to violate international law.

I would note that the attorney general this week has issued a statement that she will actually prosecute, consider prosecuting individuals who have incited to harm uninvolved civilians. But one could say that this is a little bit late in the game. So, by and large, I would say that Israel has not handled this aspect of the war quite well.

And there has been too many wild statements out there which have not been adequately responded. But there is a huge distance between not dealing sufficiently tough, not cracking down on hate speech and on incitement, and actually attributing those statements to the actual conduct of the IDF on the field, which, like you said before, the IDF operation is a war, which is a very difficult and very tough urban warfare with an enemy that is completely embedded within and below the civilian population, and actually trying to — this is something, by the way, the South African team completely left out from its narrative.

So, according to the presentations we have heard today, there was a tragedy, a massacre in October 7, and then nothing. Then Hamas disappears from the story. It's only the Israelis who are dropping bombs. The story is much more complex. And the statements are background noise, which is indeed annoying, and it is, indeed, at some level, even dangerous, but it is not really the driving force of the story.

Nick Schifrin:

And, finally, as I asked Ken Roth at the end, what do you believe the impact would be? How important would it be if the court does impose what are known as provisional measures on Israel, whether that's about aid or about the conduct of the war itself?

Yuval Shany:

I think the case, as presented by South Africa, doesn't have a lot of chance to actually prevail on the merits, but they may cross the threshold of plausibility, which is sufficient for the court to issue provisional measures.

And this is, of course, something that the government of Israel is concerned about and should be concerned about. And we will have to see what sort of provisional measures the court can issue. In a previous genocide allegation case involving Myanmar, the court issued relatively generic remedies, calling on the states not to commit a genocide and to preserve evidence regarding genocide.

However, in the Russia-Ukraine case, the court ordered Russia to stop the war, something which, of course, has not happened as of yet. So we have to see what sort of remedies, what sort of measures would be indicated.

Nick Schifrin:

Yuval Shany, thank you very much.

Yuval Shany:

Thank you very much.