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Former war crimes ambassador-at-large on Israel's defense to genocide allegations

ARI SHAPIRO, HOST:

At the International Court of Justice in The Hague, both sides have now made their arguments in a case accusing Israel of genocide. Yesterday, lawyers from South Africa argued that Israel, quote, "means to create conditions of death in Gaza." Today, Israel's legal team replied, saying the country is defending itself in a war that Hamas began. Our next guest was the first U.S. ambassador-at-large for war crimes issues. He has worked on cases of alleged genocide around the world. Ambassador David Scheffer, thank you for joining us.

DAVID SCHEFFER: Oh, thank you, Ari. It's a pleasure to be with you.

SHAPIRO: Let's start with the arguments yesterday from South Africa's lawyers on behalf of the Palestinians. What stood out to you from the case they made?

SCHEFFER: Well, what they I think argued rather effectively is they wanted to bring the totality of the situation to the attention of the court, not strike by strike, but in the totality of what has occurred against individuals, buildings, residential buildings, hospitals, et cetera. It's the total put together, which, when they say when you look at it that way, then they conclude that there must be a design for genocide against the Palestinians. And they provided a very fulsome list of statements by Israeli officials, legislators, military personnel that would point towards what we regard as incitement to genocide.

SHAPIRO: And what stood out to you about Israel's response today?

SCHEFFER: They had a very strong response today because they focused on, well, frankly, almost the complete lack of recognition in the South Africa application that Israel is at war. It's engaged in combat with an enemy. The enemy is Hamas. That means military force is being used. And Hamas is responding in ways that also violate international law, such as using human shields and embedding themselves in civilian structures, et cetera. By overlooking the war context, you completely miss the point of why there is so much death and destruction. It's not because, in Israel's point of view, there is a genocidal intent. It's because this is the consequence of engaging in urban warfare combat with an enemy against which they have a justifiable right to attack in self-defense.

SHAPIRO: Does the context of war eliminate the potential for genocide? Or could South Africa have said, yes, Israel has a right to defend itself? Yes, Hamas uses human shields, but even so, dot, dot, dot,

SCHEFFER: Yeah. Yes, of course. There's the potential in warfare for there to be genocide. After all, during World War II, the Nazi regime committed the Holocaust in the context of that war. But Israel's argument is that if they had genocidal intent, why would they be announcing and requesting evacuations of Palestinian civilians? Why would they drop tons and tons of leaflets saying please get out of the way of combat? If there was genocidal, why would they do anything to lift a single finger to notify the civilians or to provide any ability for the civilians to have humanitarian assistance or access to water, electricity, et cetera?

Israel could be faulted for war crimes on particular strikes and in the particular conduct of the warfare. It could be faulted even if one wants to allege, you know, crimes against humanity for the way in which it's laid siege to Gaza during this war in terms of access to water, things of that nature. But to go to the extent of charging Israel with genocide is where Israel says that's clearly a line too far to try to argue that it is Israel that actually has the intent to commit genocide when Israel is responding to a genocidal act in order to prevent further genocide against Israel.

SHAPIRO: When you say Israel is responding to a genocidal act, you're referring to the attacks of October 7 by Hamas.

SCHEFFER: Exactly.

SHAPIRO: Do you think the court is likely to act on this case in a way that could meaningfully change the course of the war?

SCHEFFER: I think the court could say, look, Israel does need to conduct its military operations strictly in accordance with international humanitarian law and not in violation of the Genocide Convention. In other words, not in any manner which would be the crime of genocide. That's a fairly simple statement for the court to make. And the court could also say Israel should retain all evidence of all military operations throughout this conflict, so that that evidence is available in the future. And Israel should participate to the greatest extent possible in humanitarian assistance programs to diminish the possibility of any allegation of genocide. I think those would be easy things for the court to say, but it would be years probably before the court would reach the merits of this case.

SHAPIRO: Ambassador David Scheffer is now a senior fellow at the Council on Foreign Relations and professor of practice at Arizona State University. Thanks for your insights.

SCHEFFER: Thank you, Ari. It's been a pleasure. Transcript provided by NPR, Copyright NPR.

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Elena Burnett
Kathryn Fox
Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.