Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. You've been hearing on the news that yesterday and today, the International Court of Justice has been hearing South Africa's claim that Israel is committing genocide in Gaza and hearing Israel's defense. For example, South Africa says Israel is targeting not just Hamas but all Palestinians in Gaza, and that the level of Israel's killing is so extensive that nowhere in Gaza is safe.

Israel presented its case today. What they said going into it was that they're only killing as many civilians as necessary to stop Hamas from staging more attacks like the one on October 7th, an attack that Israel says was itself with genocidal intent, which Israel emphasizes was the most deadly attack anywhere on Jews since the Holocaust. We'll see how the court rules and to what effect.

Meanwhile, since yesterday's show, the US and Great Britain have become more directly involved in the shooting war in the region, dropping bombs that reportedly struck at 60 targets in 16 locations around Yemen, aiming at the military capabilities of the Iran-backed Houthi rebels. President Biden said, "These strikes are in direct response to unprecedented Houthi attacks against international maritime vessels in the Red Sea, including the use of anti-ship ballistic missiles for the first time in history," from President Biden.

We'll talk about both these developments now with Julian Borger, The Guardian's world affairs editor. He was previously a correspondent in the US, the Middle East, Eastern Europe, and the Balkans. He's the author, as some of you may know, of the book, The Butcher's Trail: How the Search for Balkan War Criminals Became the World's Most Successful Manhunt, published in 2017. He has an article in The Guardian now, saying the Gaza case now being heard could usher in a new age of greater relevance for the 75-year-old international Genocide Convention. He has an article called, Strikes on Houthis Could Bring Biden Closer to the Regional War He Has Sought to Avoid. Julian, thank you for coming on. Welcome back to WNYC.

Julian Borger: Oh, pleasure to be with you.

Brian Lehrer: We'll get to the arguments of both sides between Israel and South Africa, but would you explain to our listeners first what the International Court of Justice is? It's not the same as the International Criminal Court. What's the difference?

Julian Borger: The difference is that the International Court of Justice is there to regulate disputes between states. It doesn't attribute individual blame for criminal acts. It's one about adjudicating in disputes between nations. On this case, a dispute over the interpretation of the Genocide Convention.

Brian Lehrer: How is this case being heard? Is it just lawyers for the two countries making oral arguments or do they present witnesses and documentary evidence and other things?

Julian Borger: No, this is lawyers for each side, as you said, presenting arguments. The Israeli lawyers wanted to put on a film of a lot of the footage taken with the Hamas attack on the 7th of October to illustrate the context in which the war in Gaza is going on. That was turned down, so it really has just been a question of oral arguments before the judges.

Brian Lehrer: Who are the judges in this case and who selects them?

Julian Borger: They are elected by the General Assembly. There are 15 judges from all over the world plus another two for this case. One from South Africa and one from Israel.

Brian Lehrer: The Israeli government could have ignored this charge and just criticized it from afar rather than showing up in court to officially defend the way they're fighting the war. Why did they choose to participate?

Julian Borger: I think they saw this case as a severe threat in terms of their international standing. They could see that it had galvanized a lot of interest around the world, particularly in what we call the Global South because it was brought by South Africa, seen as this is the Global South in a way taking Israel to court. Just diplomatically in terms of Israel's global standing, I think the Israeli government just felt that this is something they felt strongly about that they had arguments to make.

Brian Lehrer: On it coming from the Global South as you describe it, you write that the intervention by South Africa, a state not involved in the war after all, is extremely rare but not the first. Would you give us a previous example?

Julian Borger: Yes. The Gambia a few years ago, 2019, took Myanmar to the ICJ for its treatment of the Rohingya and presented this as a genocide case. The court in that case ruled that under the Genocide Convention, outside states could bring genocide cases against other states even if they weren't directly harmed or directly involved in the conflict in question because it was the duty of every state to bring such matters to the international community. That ruling, which they made in 2022, suggests that the precedent has been set for what you might call third-party states to bring genocide cases to the ICJ.

Brian Lehrer: Now, listeners, I don't want the phones to devolve into a predictable, polarized, "Your side is the real monster," "No, your side is the real monster," as often happens with Middle East conversations, but we do want to let you in as well. We understand that people feel very strongly on both sides of this. We can take a few phone calls for The Guardian's world affairs editor Julian Borger on the International Court of Justice case or, and we will get to this, the latest fighting involving the US and the UK and the Iran-backed Houthis in Yemen. 212-433-WNYC, call or text, 212-433-9692.

Julian, why genocide, people will ask, according to South Africa, and not some lesser war crimes charged, let's say? I think the common understanding of genocide is an attempt to wipe out a whole people like the Holocaust in the 1940s or the Rwandan genocide of the '90s, which many observers would say this is not, even though Israel clearly is willing to kill thousands of civilians to get more quickly at the Hamas fighters and more safely for its troops.

Controversial, obviously. We know even President Biden is criticizing how they're fighting the war with respect to civilian casualties, but maybe not the same as how we think of genocide, the argument goes. It's just the most monstrous word that Israel's enemies want to tag it with to make it look as bad as possible, the argument goes. Is South Africa addressing that possible difference?

Julian Borger: Yes, absolutely. In their presentations yesterday, they laid out the provisions of the Genocide Convention, which refers to attempts to destroy people or a nation as a whole or in part. The nature of the convention doesn't say you have to be seeking to just kill everyone in that group, which, of course, was the case in the Holocaust. That was the aim. It is an intent to wipe out at least a part of it and destroy the things that make it a people, a nation, so culture, economy, and so on, an attempt to wipe it off the map.

They've pointed not just to the blanket bombing techniques that the IDF have used, but also depriving the population there of water, humanitarian supplies. They also pointed to some of the rhetoric that has come out of the Israeli government talking about Gazans as human animals, for example, members of the cabinet talking about shifting the whole population out of Gaza.

Brian Lehrer: Israel would say things that individual cabinet members have said. It's not country policy.

Julian Borger: It is not stated policy and that is a point that Israel's lawyers made today that these were individual statements. It doesn't help the case that some of them came from the prime minister, Benjamin Netanyahu. For example, his reference to Amalek, Old Testament story of how the Israelites were told by God to go and wipe out an entire other tribe, the Amaleks, and were told to kill every man, woman, and child.

They pointed to this. The South Africans pointed to this as incitement. The Israelis came back today and said, "Well, these are things said in the heat of the moment. They are taken out of context and it is not Israeli government policy. The policy of the IDF is to try and discriminate between civilians and military targets, to try and minimize harm to the civilian population, and to try and to bring humanitarian assistance into Gaza." They say these are the real stated aims of Israel as a state.

Brian Lehrer: I see this quote from the Israeli lawyer, Tal Becker, in the proceeding from just a short time ago. This is in The New York Times. It says, "There can hardly be a charge more false and more malevolent than the allegation against Israel of genocide." The lawyer said, "Israel is in a war of defense against Hamas, not the Palestinian people." The quote concludes.

I'm sure Israel would like to cross-examine a representative from Hamas if they could. Does Israel's defense include or did Africa's argument address the argument that Hamas has vowed more on October 7th if they're able and Hamas has a policy of embedding the fighters among civilians so that Israel has to kill civilians, Israel would say, in pursuit of the Hamas fighters?

Julian Borger: Yes, this is an argument that the Israeli lawyers made today that the South African case had omitted the fact that among the population was this group that has carried out this horrendous massacre on 7th of October and has vowed to do it again and has vowed to destroy Israel as a nation. The Israeli argument was the whole case was being brought out of context, and that if the court was to issue the provisional measures, interim measures that South Africa was calling for that included a ceasefire, it would be tying Israel's hands behind their back and making them defenseless in the face of Hamas.

Brian Lehrer: Listener texts, "Can Israel or can't Israel," they write, "counterclaim against Hamas?"

Julian Borger: Yes, they could. They could bring a case against Hamas to the ICJ. Obviously, it's not the route that they have taken. A significant vow in terms of the legal status is that whatever they say about Hamas' attack, the horrendous attack on 7th of October, which hundreds of civilians were killed, it does not directly impact the status of the analysis of the Israeli campaign and that one genocide does not justify another. Under the law, under the Genocide Convention, it does not matter what happened before. That does not mitigate the crime of genocide.

Brian Lehrer: Another listener writes, "Why South Africa? Why not Jordan or Pakistan or Iran?"

Julian Borger: Yes, it's a really good question. Why South Africa? There's a lot of politics here. It's surprising in a way that before Gambia, no other countries had tried to do this because it's a way in which one country, it doesn't matter the power of that country, can bring a major power into court or the main court even if they're not involved in whatever conflict is going on and call that major power to account.

In terms of looking at poor Global South countries seeking to redress the balance, the imbalance of power in the world, it seems a very inviting avenue. There are various reasons why it hasn't happened in the past. Partly because when they tried to do it in the past, smaller countries have wanted a big European power to take the case into the court and didn't want to do it on their own. Now, that's changed.

I think a growing feeling among poor developing countries that the whole structure of international relations, international institutions is slanted against them. There's a growing ideological feeling that we can do this on our own. We can hold the powerful nations of the world to account. I think that shift is what has brought South Africa, which projects itself as a leader in the Global South. That is what lies behind the South African case.

Brian Lehrer: Supporters of Israel say, and I don't know if this came up in their form of defense in court today, that they are singled out and treated differently than other countries and that it's anti-Semitism in that respect. The question is, what about other things going on in the world right now, they would ask, that could hypothetically be labeled genocide? What China is doing to the Uyghur Muslims there, Human Watch describes that as break their lineage, break their roots. It's really genocide.

What's happening in Darfur? Human Rights Watch says, "Close to half a million refugees fled to Chad from their last year alone." They label it "mass ethnic killings." That's from Human Rights Watch. 450,000 refugees and mass ethnic killings. By contrast, Israel doesn't want to resettle Gaza with Israelis. Is Israel raising that claim that it's being singled out as a matter of bias and the South Africa being required to or did they voluntarily address it?

Julian Borger: Yes, that is a really interesting question. South Africa here could be held up for hypocrisy because they have hosted, in particular, Sudanese figures who have been accused. In one case, Sudanese President Omar al-Bashir indicted for genocide acts in Darfur. They've hosted them and then they have not. There was a time when Vladimir Putin, also facing crimes against humanity charges, was invited to South Africa.

They have not been consistent when it comes to other countries. We mentioned that Myanmar was brought to the ICJ for genocide. Ukraine has brought Russia to the ICJ for genocide. The ICC has brought genocide-- or rather the Hague war crimes tribunals on US sovereign, Rwanda brought genocide cases. It's not entirely true that Israel is alone here. Good point about China. Maybe it's a shoe we're waiting to drop. Who brings China to the ICJ?

Brian Lehrer: With Julian Borger, The Guardian's world affairs editor. Ed in the Bronx, you're on WNYC. Hi, Ed.

Ed: Hi. I would start by saying, I'm not aware of China carpet-bombing the Uyghurs. I think that's a false analogy, the choice of comparison to why are we being singled out. I think you're being singled out because you're committing genocide against tens of thousands of civilians, that combatants-- sorry, you can't bomb--

Brian Lehrer: Well, we could get into the details of what China is doing to the Uyghurs, but that's not really for this segment in such detail. Ed, continue. Go ahead.

Ed: You brought it up. You brought that up about the Uyghur analogy. That's why I'm commenting on it. Now, the reason why I called was I asked your screener two questions basically. One, what would a ICJ decision, let's say, finding that Israel, in fact, it's not just the IDF, it's Israel, this mass destruction of a people? It's not just what's happening in Gaza. It's also what's happening in West Bank. Let's look at it in totality.

It's not just happening these last couple of months. It's been happening over decades. The bottom line is South Africa is speaking up for a lot of people around the world. There's a sign in Upper Manhattan that says, "We stand united with Palestine." Why is that? Because people tend to root for underdogs, people that are being held in intolerable situations. What could the ICJ decision do to mitigate the problems in the Middle East? Also, does it have jurisdiction to look at past genocides like the ones that have occurred on this continent and other continents, whether in the recent past or more distant past?

Brian Lehrer: Ed, thank you very much. It's a good question there. What can the ICJ, the International Court of Justice, do if it finds that Israel is guilty of genocide?

Julian Borger: Well, a decision on genocide will probably take years, but what it can do in the next few weeks is issue what are called provisional measures, which has said while we can contemplate this, do this as to mitigate any risk that genocide might take place. By issuing these provisional measures, it's not necessarily saying that genocide is taking place, but there is a risk that it could happen. It's quite possible that they will issue such provisional measures. The ones that the South Africans asked for includes a ceasefire but also involved opening the gates to humanitarian supplies in a way that they haven't up to now. They have very limited supplies of food, water, medicine, and so on. We could see that.

Brian Lehrer: What do you think would happen if they do that? At that point, does everyone expect Israel, though it participated in the proceeding, would then ignore that direction?

Julian Borger: Yes, people expect that Israel would denounce it. They already are denouncing the whole process, made quite clear they will not follow any provisional measures laid down by the court. Court does not have enforcement mechanisms. It could then go to the Security Council. Again, the US will be in a difficult position. Again, it's a loan veto against the enforcement of these provisional measures.

Overall, it will, I think, significantly increase the international political pressure on Israel around the world. That pressure is already immense. To have the court come up against you and for an international court founded in the aftermath of the Holocaust to issue these orders, I think that would put Israel in a very difficult international situation.

Brian Lehrer: Do you think such a ceasefire order from the court would also be stated as applying to Hamas or would the court not reference Hamas and implicitly take a position that Hamas violence is justified because it's a resistance organization against a powerful country?

Julian Borger: Oh, I don't think it would go there at all. It may not order a blanket ceasefire in the light of Israel's point that it is a conflict. If Israel was alone to stop fighting, it would be defenseless in the Israeli argument against Hamas. It may not issue provisional measures that calls for a blanket ceasefire. It may say, "We need you to stop the manner in which you were carrying out this war." I'm just speculating here, but these are the options on the table.

Brian Lehrer: In our remaining minutes, let's go on to the other development in the last day with Iran-backed Houthi rebels attacking commercial vessels in the Red Sea in what the Houthis say are attacks meant to support the Palestinian cause. The US and UK launched what The Guardian is reporting as 60 strikes against 16 Houthi targets. Your article on this in The Guardian is called, Strikes on Houthis Could Bring Biden Closer to the Regional War That He Sought to Avoid. Julian, does it appear to you that the Houthis or their backers in Iran are trying to draw the US and the UK further in?

Julian Borger: Yes, they are. They're seeking to inflict pain on Israel and the US and their allies in the region. The ultimate goal of Iran is to drive the US out of the region, the US and its allies in the region. The more uncomfortable it can make life for Western powers in Israel, the more it's fulfilling its aims. From what we've seen up to now, it doesn't look like Iran wants a full-on war. It wants to avoid a situation where it finds itself in conflict with Israel and the US in a major war. It far prefers to operate with proxies, partners in the region like Hezbollah in Lebanon, like the Houthis in Yemen.

Brian Lehrer: Let's take one phone call on this. It's Justin in Clinton Hill. You're on WNYC. Justin, hello.

Justin: Hi, Brian. Thanks so much for taking my call. Can you hear me?

Brian Lehrer: Yes.

Justin: I'm a lifelong Democratic voter. I voted somewhat reluctantly for Joe Biden and seeing these moves, which appear to be only aimed at really protecting economic security. Meanwhile, as you've mentioned, we can get into all of the things that the Israelis have done, killing children by the thousands. From this issue, seeing escalation, which was an illegal act, didn't get approved by Congress. Seeing that the only thing he's offering us is more war, whether it's in Ukraine, no plan for how that war is going to be resolved.

In fact, last year, he and Boris Johnson intervened in an effort to try to make a peace deal between Russia and Ukraine. Now, Russia is in a much stronger position and there's no end in sight. All of this just points to Joe Biden is a war hawk president. I'm so frustrated by the naivety of including from this show sometimes that, "Oh, yes, shucks, I'm just really working hard to quell the atrocities of Israel." Meanwhile, they've offered no conditions. Supposedly, there's these backroom deals happening without material things on the line. It's all talk.

Brian Lehrer: That's certainly true that they have not put any conditions out there on the line. That's certainly something we've talked about multiple times and with members of Congress on the show as well. I hear that your critique is even broader than that with respect to Biden. It sounds like you don't like the war in Ukraine either. You consider Biden a warmonger for that conflict, which we hear you, but it's out of the scope of this segment.

To wrap up, Julian, what does either side see as an end-point? By either side, I'm talking really now not about Israel and Hamas but the US-UK versus Iran and the Houthis. Why do the US and UK think escalating will make the Houthis in Iran stop it and what does that side hope to accomplish by disrupting non-military trade ships?

Julian Borger: The US and allies are in a fairly difficult position and that they-- I don't know, I think trying to avoid this. Biden put off a response for several weeks to the shelling of ships. He got a coalition together to defend commercial shipping and then they issued this warning, "Don't do it again because there'll be consequences," and the Houthis kept on firing. It is not just economic impact. There was close to an environmental disaster. One of these missiles almost hit a tanker ship carrying jet fuel. These are big stakes.

I think probably they don't expect to deter Houthis because what the Houthis are after is, in the international role, they want to be seen as a leading figure in what they call and Iran calls it "Axis of Resistance" against the West and Israel. This was really on the stage. In a way, this is why they're doing it. It's out of solidarity for Gaza, but they see themselves as not just a Yemeni player but a go-global player in this struggle with the West. In a way, you could argue and some analysts have argued that these strikes only strengthened them. It makes them easier to recruit. It raises their profile and it's what they want.

Brian Lehrer: Julian Borger, The Guardian's world affairs editor and also author of the 2017 book, The Butcher's Trail: How the Search for Balkan War Criminals Became the World's Most Successful Manhunt. Julian, we really appreciate this appearance. Thank you very much.

Julian Borger: Pleasure. Thank you.