The ICJ and the Gaza genocide: Full text of interview with William Schabas

On 4 April 2025, Middle East Eye's Expert Witness podcast sat down with Professor William Schabas for an exclusive, wide-ranging conversation on the pressing legal questions raised by the war in Gaza.

Schabas is Professor of International Law at Middlesex University in London and one of the world’s foremost experts on international criminal law and genocide.

In the interview, Schabas argues that genocide is taking place in Gaza. Drawing parallels to Rwanda in the early 1990s, he argues that the combination of mass destruction, closed borders, and explicit statements by Israeli leaders meet the threshold of genocidal intent. For Schabas, the situation is “clearly such a case of genocide,” one that he views as unparalleled in recent history.

The interview also explores the complex terrain of international courts. Schabas outlines the strengths and shortcomings of the International Court of Justice and the International Criminal Court, dissecting the legal arguments around state immunity, complicity, and the duty to prevent genocide. He warns that while international law has produced powerful rulings, enforcement remains hostage to politics, particularly when powerful states like the United States are implicated.

Looking ahead, Schabas is cautious. The ICC, he notes, is struggling with empty courtrooms and wavering political support, yet the language of international criminal law has never been more present in global debates. From Ukraine to Gaza, calls for accountability echo across continents. Whether the system can rise to the challenge, Schabas suggests, will determine if this moment becomes another lull in history, or the consolidation of a truly global commitment to justice.

Schabas is the author of more than 20 books, including his seminal work Genocide in International Law: The Crime of Crimes, which remains a foundational text for understanding the legal interpretation of the 1948 Genocide Convention.

His writings also include The International Criminal Court: A Commentary on the Rome Statute, a comprehensive guide widely cited in ICC jurisprudence, and Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals, which critically examines the political dimensions of international justice.

In addition to his scholarship, Schabas has served in key roles with international bodies, including as a member of the Sierra Leone Truth and Reconciliation Commission and chair of a UN inquiry into Gaza.

Below is the interview transcript, lightly edited for readability.

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Introduction and personal journey 

Sondos Asem: Welcome to this episode of Expert Witness. Today I'm joined by Professor William Schabas, a leading international criminal law professor and one of the world's top scholars of genocide and international criminal law. We’ll delve into his personal journey and also hear his insights on events in the Middle East from a legal perspective. Thank you for joining us today, Professor Schabas. It’s an honour to have you.

William Schabas: Thank you for having me.

Asem: You’re welcome. First, let’s talk about your personal journey. How did you first become interested in international law? Tell us about your childhood, your Jewish roots, and how that influenced your later interest in human rights law and international criminal law.

Schabas: Well, I grew up in Canada. As you mentioned, I have Jewish ancestry, and I was very much aware of the Holocaust- the Shoah. I had relatives who were affected by it. Of course, I didn’t know them, but some had fled from Germany in the 1930s and gone to South America. I knew my family had certainly been touched by it, and that had a strong influence on me.

I was also influenced by other developments, the Vietnam War, for example. And I had a grandmother who was very engaged in social causes. I remember vividly, when I was probably eight or nine years old, she closely followed the decolonisation of African countries. She kept a scrapbook of newspaper cuttings and had a map of Africa showing all the states as they became independent. So this must have been around 1958, 1959, 1960.

I started doing that as well, following events such as the developments in apartheid South Africa. These were all things that influenced me and gave me a strong interest in international affairs and human rights, although I never imagined at the time that I would work in that field. That came much later in my life. And of course, since I know we’re going to talk about the Middle East and Palestine, that too became part of this broader interest.

I don’t recall in my family any great enthusiasm for Zionism or Israel. I think there’s a sense out there that all Jews, and all people of Jewish ancestry, are somehow very committed to Israel. And I don’t think that is the case. The majority of Jews in the world don’t live in Israel. Many have lived there and then left to live elsewhere. And there are a lot of Jews, I’m in that category, who really feel safest and most comfortable living with other people, in a pluralist democracy, where their identity and rights are respected.

But the idea of living entirely among people “like them” has never appealed to me. I’ve lived in several different countries. I grew up in Canada and lived in both English-speaking Canada and French Canada. They’re all part of one country, of course, but in many respects they are two separate peoples, and I developed close ties and friendships in both parts. I lived in Ireland for about 11 years, and now I divide my time between England and France. So I’m a bit itinerant that way, and very comfortable with it.

Asem: Professor Schabas, could you give us an insight into how you first became interested in international law, and your journey or career as an international law scholar, or, indeed, as an academic lawyer?

Schabas: Yes. Well, that part of my career came relatively late in life, actually. I studied history at university and got a master’s degree in history. Then I worked as a journalist for a number of years, doing what we call trade journalism, I wrote for industrial magazines. That was how I earned a living.

Then, when I was about 30, I went to law school. I qualified as a lawyer in Canada, and then I practised law in a community where I wasn’t doing international law. I was doing family law, small business law, and small-time criminal cases. That was my work. But I continued studying, and I obtained a PhD in international law. That opened up a new career.

I had just turned 40 when I got a teaching position at a university. Around the same time, I also began to be approached to participate in international human rights missions. I went on one of the early missions to Rwanda at the beginning of 1993, about 15 months before the terrible genocide of 1994.

This was when I first developed my interest in genocide. We studied the conflict in Rwanda in 1993. I was part of a group of about ten people from different parts of the world who were investigating human rights. We considered the situation and even used the term genocide to describe what we saw, or what we thought was being threatened in Rwanda.

I’ve been close to that issue ever since, first through the encounter with Rwanda as the genocide was brewing in 1993, then seeing it happen, and later returning to Rwanda many times for various projects and missions after the genocide in 1994. That experience gave me a deep interest in this specialised area of international law known as genocide.

But I’m also interested in broader issues, going beyond genocide to what we call international criminal law, and beyond that to international human rights law, international humanitarian law, and, more generally, public international law. So I fit within those Russian dolls of international law.

Gaza and Rwanda genocide

Asem: And can you talk a bit more about your Rwanda experience, and what sort of analogy you could make between that and the situation in Gaza right now?

Schabas: When I visited Rwanda for the first time, as I say, this was 15 months before the full-blown genocide began. That was April 1994. So I was there in January 1993. I had just finished my PhD in international law. The people on the mission I was with were activists. There was a forensic pathologist, and there were people with different areas of expertise. People turned to me as the international lawyer and said, you’re the one with the PhD in international law, so tell us about the law of genocide.

I must confess I was not an expert at all in those days. We treated the Genocide Convention and the subject itself as something of historic interest, rather than a real, present-day concern. At the time, it had been largely neglected by international legal scholars. When we used the term in 1993, the members of the commission turned to me and said, well, can we use it? I read the definition in the 1948 Convention and said, I think maybe it fits. So we used the term, but we were later challenged by others who asked if we really knew what we were talking about. I remember going to the law libraries in Montreal.

There were three university law faculties I visited. Each had a law library, and I went looking for books on genocide, only to discover that legal scholars had not really studied the issue since the 1950s, or had done so only very little. I then developed a research project to learn more about the history of genocide.

We often asked ourselves, why did we use this term in 1993? What was it about what was going on in Rwanda that made us use it? I don’t think it was naive. In a strange way, it was actually well informed, and as history showed, very sadly, we were right. Our conclusion was more intuition than profound legal analysis, but it turned out to be correct. We sensed that genocide was happening.

What determined that was the fact that we saw acts of killing and massacre directed against the Tutsi minority in Rwanda. That alone would not be enough to qualify as genocide. But these acts appeared to have the blessing of the government, of people high up in the government, who had made not just racist statements directed against the Tutsi, but statements suggesting they wanted to destroy them as a group. There was a famous speech at the time by someone very close to the president of the country saying, “Next time we drive them out, we’re not going to drive them into another country, we’re going to drive them into the river.” There was this idea that they were going to destroy them.

That was more than 30 years ago. Since then, I’ve seen many allegations of genocide, many cases where the term has been used. Often I think it has been used in an extravagant way, more as a kind of “super” human rights violation notion, rather than in a strictly legal sense of intent to destroy a group identified by nationality, race, ethnicity, or religion.

When we look at what has been happening in Gaza since October 2023, we see terrible acts of destruction directed against the Palestinian people, accompanied by frequent, regular statements by people at the highest levels in the government of Israel suggesting, “We are going to take over the territory and you will be gone.” Where will they go? We don’t know, except that they will be gone.

Other threats were made, like those of Yoav Gallant back in October 2023, when he was then Minister of Defence, saying, “We are going to cut off all potable water, electricity, food, medical care, and so on.” These types of statements, of which there are many, are quite exceptional.

We have many conflicts that are labelled genocide, some where there are strong elements of evidence. But when we look, for example, at the wars in the Balkans, in the former Yugoslavia in the 1990s, or more recently at Darfur in Sudan, at Syria directed against the Yazidi, or at Myanmar directed against the Rohingya, there is nothing comparable to what we have seen, I think, in terms of the volume of statements from Israeli leaders and the fact that they are coming from people at the top, not from more isolated sources such as a religious fanatic or simply a racist combatant putting out racist tweets.

To me, all of that contributes to the analysis, just as it did in 1993, when we saw preparations for genocide, anticipated them, and then 15 months later witnessed what is now, I think, universally recognised as the greatest genocide since those of the first half of the 20th century: of the European Jews, of the Armenians in 1915, and of the Nama and the Herero in Namibia, South West Africa as it was then called, in the first decade of the 20th century.

Is genocide happening in Gaza?

Asem: As a genocide scholar, would you say there is a genocide now taking place in Gaza, given the evidence you see? There are multiple reports by human rights groups, including Amnesty International, which have concluded that genocide is taking place. Human Rights Watch has concluded that certain acts of genocide have taken place. So what is your own view?

Schabas: Yes, that is my opinion. Absolutely. I have been following this for many years and studying many cases. I have never hesitated in certain situations, especially the historic ones — the Armenians, for example, and more recently Rwanda. But this is clearly another case of genocide. There is nothing comparable in recent history.

The borders are closed, the people have nowhere to go, and life has been made essentially impossible in Gaza. We see that combined with the ambition, sometimes expressed very openly by Trump, by Netanyahu, and by Israelis more generally, to reconfigure Gaza as some sort of Eastern Mediterranean Riviera with hotels, beaches, miniature golf courses, paragliding and the like — which is what they dream of. Above all, it is about expanding Israel’s borders, both by eliminating Gaza as a Palestinian entity, and also by eliminating the West Bank.

Because there is deep resistance in Israel to the creation of a Palestinian state, despite pledges made, including in the Oslo Accords 30 years ago, the promise of a Palestinian state. This refusal, this resistance, encounters a serious obstacle: if you take the borders of the “greater Israel” they dream of, from the river to the sea, you end up with a majority of Palestinian Arabs in that territory.

It becomes impossible unless it is a pure apartheid state. And we know what happens to apartheid states. They are inherently unstable and ultimately they collapse. That will happen here too. There is no future for Israel as an apartheid state, because there is a majority of Palestinian Arabs.

Some are indifferent to the fate of the Palestinians, some no doubt would be happy if they left. But we saw that in Nazi Germany as well. There were Nazis who would have been happy for the Jews simply to leave Europe — go somewhere else, to Africa, the Middle East, Madagascar, North America. There were different plans. But then there were others, those in control, who said: “You cannot leave, you will not leave, but you will disappear.” And I am increasingly convinced that this is the prevailing view of those in charge in the state of Israel.

How strong is South Africa’s case at the ICJ?

Asem: And given these strong pieces of evidence, do you think South Africa has a strong legal case now before the International Court of Justice? What is your anticipation or prediction with regard to this case? I know it is hard to predict the future, but given your legal expertise, do you think the evidence we have, and the ongoing massacres taking place in Gaza, will eventually lead to the Court deciding that Israel has violated the Genocide Convention?

Schabas: There are, I think, probably three important variables that may change over time. This case, filed by South Africa at the end of December 2023, is unlikely to be heard in oral hearings on the merits until probably 2028, something like that. Four or five years is a normal timespan for a case like this at the International Court of Justice.

So what are the three variables? The first is the evidence itself. I have not seen the evidence because it is not public, it is not accessible. This is the way the International Court of Justice works. The submissions of evidence are, of course, known to the parties. The lawyers for South Africa know what was submitted, and they have already made their main submissions nearly a year ago. As for Israel, their lawyers also know what it is, but neither side will talk about it publicly, because the Court would be very angry if they did. So we do not know exactly what evidence South Africa has submitted. We only know what is in the public domain, and that evidence, in my view, is quite strong and compelling. We do not know what Israel has in reply. There may be aspects of Israel’s conduct for which they have an answer, and we need to hear them. For example, when they are accused of destroying a hospital, did they have serious, credible evidence that the hospital posed such a risk that its destruction was warranted? We will hear what they have to say.

They will have to do more than just say, “Yes, we knew there was a tunnel.” They will need very credible, serious evidence, if they have it. And the destruction is on such a scale that one really wonders what kind of evidence they even have, or whether they have even bothered to gather such evidence.

I chaired the fact-finding mission of the Human Rights Council in 2014. At that time, when the Israeli Defence Forces attacked a building in Gaza with a tank, a cannon, or a bomb from an aeroplane, they would answer by saying, “We warned the people in the building.” And we could interview those people, who would say, “We got a warning, but we did not have enough time to get out of the building.” There were debates about that.

I do not think we have that for most of the destruction in Gaza today. It looks to me to be one of total destruction. We see the pictures from Gaza, and there is nothing comparable in previous conflicts. This material evidence will be very significant before the Court, and it may also evolve, because now, in early 2025, we have a new round of attacks, displacement, and so on. Who knows what will happen in the next two or three years in Gaza, and elsewhere in the West Bank and East Jerusalem as well.

Asem: But they sometimes claim that the targets of their attacks are actually combatants, and that civilians are collateral damage. They also reject that it is genocide, using international humanitarian law arguments of proportionality in attacks, and claiming the right of self-defence. So what is your legal counterargument to that?

Schabas: Well, as I say, the factual evidence I cannot fully comment on because I have not seen it all, and we have not yet heard Israel’s answer. We will see what they have. Of course, it is going to have to reach a level of credibility. They will need documents and evidence to demonstrate their claims. That is the point. And they have to do it in a more serious way than simply saying, “This is self-defence, we can do anything,” which is largely what I think we hear from them at this point.

The second factor that is important here is the legal understanding of the crime of genocide up until now. We have had two major judgments of the International Court of Justice on the Genocide Convention, both in cases directed against Serbia, one filed by Bosnia and one by Croatia, dealing with the wars in the 1990s. Both were unsuccessful. Essentially, the Court adopted an interpretation of the crime of genocide that said, you just do not reach that level. The evidence shows ethnic cleansing, war crimes, but not genocide.

That may be changing. I think there is evidence to suggest an evolution in the understanding of genocide. One of the things we have now, with not just the case brought by South Africa but also several other genocide cases, is that there are currently four other cases at the International Court of Justice dealing with genocide. One of them also deals with the conflict in Gaza, the case brought by Nicaragua against Germany. And there are many states that have intervened in these cases. This has never happened before at the International Court of Justice. Around 45 states have intervened, saying, “Here is what we think the definition of genocide is.” There is therefore a lot of impetus for the Court to develop a more flexible approach to its understanding of genocide. Whether it will do that remains to be seen.

We are going to have some insight into this in the case filed by The Gambia against Myanmar, dealing with the Rohingya, because that is likely to come to oral hearings and judgment sooner than the South Africa case, probably in the next two years. That will be the first time we will be able to say whether the judges have developed a more liberal, generous, flexible approach to genocide.

I think that even based on their rather strict and conservative approach in the two cases against Serbia, South Africa still has a strong case. But if the Court grants the application by The Gambia against Myanmar, then South Africa’s case will be very strong indeed — it will be South Africa’s case to lose. They will have a very good chance.

The final thing that can change at the International Court of Justice is the composition of the Court. There are 15 judges, and every three years five judges rotate through elections. What we have today is a very unified Court, as we have seen in various recent rulings — not just the rulings on provisional measures requested by South Africa, but also, perhaps even more significantly, in the advisory opinion on Israel’s occupation of Palestine issued in July 2024.

So we have a Court that is quite unified, quite progressive in its composition. The judges are dynamic, and perhaps they are reacting to this phenomenal interest from other states in the Court. They want to respond to that by delivering judgments that demonstrate the International Court of Justice is a useful institution where important issues about human rights can be litigated and decided.

These are all variables. If you were a betting shop in London and asked me to say what the odds are for South Africa, I would have to factor in all those elements in giving a percentage for their chance of success. But right now, I think of all the cases that have come before the International Court of Justice dealing with the Genocide Convention — there are now 19 of them — South Africa’s case is the strongest.

What is the importance of ICJ provisional measures?

Asem: And the Court has already issued three provisional measures orders, which are legally binding in theory. But of course, Israel has ignored most of them. So, in your view, how important were these provisional measures orders? And what is their value if Israel has not abided by them?

Schabas: The provisional measures orders issued by the Court are important, not just in terms of compliance by the state. Again, we will wait to hear Israel’s claim as to whether they have abided by them or not. This has not yet been debated. In some cases, for example, they were told to take action about hate speech, which was a factor, and so they will presumably come and give some evidence that there were investigations and so on. The Court will decide how significant that is. We cannot know at this stage.

I cannot say how significant it might have been within Israel itself in terms of influencing the debate. That is hard to judge. But outside Israel, I think the provisional measures orders have had a significant impact on states that are friendly to Israel but also loyal to and supportive of the International Court of Justice. We know that some European states which historically would have been aligned with the European Union in general have now adopted positions that strike one as more critical of Israel and supportive of the Palestinian cause — Ireland, Norway, Spain, Belgium, to some extent Slovenia. And there are debates within other countries as well. Some of that may have been influenced by the provisional measures orders.

They may also have influenced judges in domestic litigation. When activists have gone to court, for example, to stop the provision of weapons and war materiel to Israel, the provisional measures orders may have carried weight there.

Asem: They do have legal weight as well.

Schabas: If you were a judge in the Netherlands, and the lawyers came and said, “You have to stop sending these weapons because you may be contributing to genocide, and the International Court of Justice has ruled by a strong majority that some of South Africa’s claims based on the Genocide Convention are plausible,” if you are a Dutch judge, you are going to say, “I have to take that seriously.” It does not necessarily bind the judge, but it influences them. So I think there are a lot of influences that are actually hard to quantify.

There is another one that has been important for me in my own engagement, and that of my academic colleagues. At universities in Europe, in North America, and perhaps elsewhere too, we are encountering attempts to muzzle freedom of speech, freedom of expression, and academic freedom in discussions about what is going on in the Middle East. These attempts often come from senior administrators, sometimes under pressure from governments. We have seen this in the United States, but to some extent it is happening in Europe too, in the UK and in France, where there is pressure on universities from the state to ensure they do not become platforms for statements or comments critical of Israel.

I can speak from first-hand experience at my university in London back in 2023. We proposed holding a public session at the university, at which I was to speak, and I had words of caution from the Dean, saying, “Be very careful.”

He referred to the statement by the International Holocaust Remembrance Alliance about antisemitism. I said to the Dean, “I am of Jewish descent, I have ancestors who were Holocaust survivors. You don’t need to lecture me about antisemitism.” But the provisional measures orders have enabled us to talk about these matters at universities and elsewhere in public, and that is a good thing.

So all of these are results. But yes, it is true, the problem of the International Court of Justice is not with its ability to issue good, strong rulings backed by international legal arguments. The problem is that it is a court without enforcement powers. That is the nature of courts, even in a domestic legal system. Courts issue judgments, they do not enforce them. It is up to other mechanisms to enforce, and sometimes they do, sometimes they do not, because they may grant immunity or something of that sort. So it is the same problem at the international level.

Our problem, particularly with the situation in the Middle East, is that our mechanisms for the enforcement of international law, the political mechanisms, are not designed to deal with something where the United States is the main culprit. People ask, why doesn’t the United Nations do anything? The United Nations was created by the United States in 1945. Its headquarters are in the United States. It was created to consolidate American hegemony over the world. Of course, it is not designed to deal with violations by the United States. That is the problem.

As for other organisations like the European Union and the Council of Europe, although they are not beholden to the United States in a legal sense and are not directly controlled by it, they are Western institutions, and they are also led by people who are on the same wavelength as the United States. This is why we are frustrated with enforcement.

But we are getting good law out of the International Court of Justice, and it is credible law because it is being issued by 15 judges from around the world — judges from Africa, the Middle East, Asia, as well as Europe. The fact that they can all sign on to a statement gives a huge amount of credibility to their opinions and rulings.

What does international law say about the duty to prevent genocide?

Asem: You’ve mentioned several cases against Serbia at the International Court of Justice. I know that not all of them concluded there was a genocide, but in one of them, in 2007, there was this landmark ruling that held Serbia failed to prevent genocide. You have used this argument in a case in the United States, making the legal argument that senior US officials, including former President Biden and Secretary of State Blinken, could potentially be held liable for violating the Genocide Convention on the basis of failing to prevent genocide. Could you please talk about that from a legal perspective?

Schabas: I was not counsel in that case. I was an expert witness. I prepared an expert report for the court, for the lawyers making the application. I do not understand all of the technical parts of the application, because they were trying to get US courts to declare that the President, the Secretary of State, and the Secretary of Defence were violating international law. That is a hard hill to climb anywhere in the world, and I think they encountered legal obstacles that had nothing to do with the strength of their argument that those three individuals — Biden, Blinken, and Austin, the Secretary of Defence at the time — were violating the Genocide Convention.

The legal argument is derived from the judgment of the International Court of Justice in 2007 against Serbia. The Genocide Convention itself uses the word “prevention” — it is in the title: the Convention on the Prevention and Punishment of the Crime of Genocide. But 95% of the Convention is about punishment. It is about using criminal justice to prosecute individuals. That is what it was designed for. The definition of genocide, and the other provisions, were all created in that context.

What the judges did in 2007 was to create this new dimension of the Convention, which they drew out of that word “prevention.” It was very radical, because it said that there was a duty to intervene to prevent genocide, even when it was being committed by someone else outside your territory.

Schabas: In the judgment of the Court, they said, well, it is not so unusual. We have a few other treaties where this has been done, dealing with terrorism and torture, I think. But actually, when you read those treaties, they talk about preventing the crime on your territory, not outside it. The judges developed this thesis and said that the duty becomes a legal duty not when genocide is committed, but when there is a serious risk of genocide.

Proving that there is a serious risk of genocide in a court of law is obviously easier than proving that genocide has taken place. It requires a different kind of proof, but it is not as demanding, because you do not have to prove genocidal intent. You have to prove that there is a serious risk of it. I thought there was a very good case for this.

This is what is being litigated in the case Nicaragua filed against Germany. The idea of this obligation is that it is variable, depending on the ability of the state to influence those committing genocide, or where the risk arises. In the case of Bosnia, it was not even a state. It was the entity of the Bosnian Serbs. The Court said the government in Serbia could influence them and failed to do so.

Asem: So that is an even lower bar than complicity, right?

Schabas: Absolutely. It is related to complicity. It is as if there is a spectrum. The duty to prevent is at one end, and complicity is at the other. To prove complicity, you have to prove the crime was committed and that you assisted in its commission. To prove a failure of the duty to prevent, you have to prove there was a serious risk, but you do not have to prove that genocide was committed. You also do not have to prove that you provided assistance, but rather that you failed to use your influence to stop it.

With a country like Germany, which is providing material support to Israel, if they were really trying to use their influence on Israel not to commit genocide, they would at the very least say, “We are going to cut off the material support,” not just material, but political, diplomatic, financial support as well. They would have to show evidence that they took such measures to try to influence Israel, instead of what we suspect, which is the German Chancellor talking to Netanyahu on the telephone, saying, “Keep going, finish the job.”

We cannot prove that. If we had evidence of it, we would have evidence of complicity. We do have lots of evidence of complicity in the case of the United States, if we can get them into court, not just for failure to prevent. Our best witness in that case would be Netanyahu himself, because he has said, “I went ahead and did this after I spoke to Trump. Trump gave me his blessing.” Unless Trump denies that he gave him the blessing — and Trump is capable of saying anything — Netanyahu is saying they encouraged us to do it. We told them what we were going to do, and they said, go ahead. That is clear evidence of complicity. But as I say, to convict them for complicity, you also have to prove that genocide was being committed.

Asem: But is not the fact that the US continues to provide most of the arms to Israel itself evidence of complicity?

Schabas: Yes, of course, absolutely. I do not think there is anything mysterious about that. The only real question between Israel and the United States is which is the dog and which is the tail being wagged. Many people, perhaps some of the listeners, saw Jeff Sachs speaking before the European Parliament a few weeks ago. He said it is Israel calling the shots, and the United States is the tail being wagged by Israel. Maybe. Or maybe not. I think the US is the one wagging the tail, and Israel is the tail.

Whatever the case, it is clear these two entities are joined at the hip, acting in collaboration. It is a strong collaboration. That being said, perhaps the United States is happy to have Israel as a kind of mad, uncontrolled pit bull in the Middle East. But clearly, the two are joined in a way we do not see with the European powers, at least not to the same extent.

Can US, German or UK officials be prosecuted for complicity in genocide?

Asem: Concerning complicity and the potential criminal liability of third states, if there is a conclusion by any court that genocide is happening, do you think there is a strong legal case to make, based on the 2007 judgment at the ICJ, and perhaps other precedents, that US officials, as well as British and German officials, could be held liable for complicity?

So far, the two genocide cases are before the International Court of Justice, which does not hear cases against individuals but deals with state responsibility. The ICC has not yet used the genocide accusation in its ongoing investigation. So do you think there is a strong legal argument to say that US officials - whether the former president or the current president - along with British and other Western officials, could be complicit in what is going on, or even guilty of aiding and abetting by providing arms to Israel?

Schabas: There is certainly a good case to be made. Bear in mind that we are talking about the genocide issue at two levels. One is the responsibility of states for committing genocide, and the other is the responsibility of individuals who could be individually convicted of the crime.

With regard to states, one of the obstacles we face is jurisdiction at the International Court of Justice- finding a court with authority to rule against a state. This is not always straightforward. The United States is fairly well insulated from the International Court of Justice. It is not a simple matter to get the US into the ICJ.

With Germany, it is a different case. Nicaragua has taken the lead in suing Germany at the ICJ for failure to prevent genocide and for complicity in genocide. We will see how that case evolves, and what evidence they have. To some extent, it will also depend on the South African case. I am sure that when Nicaragua filed its case, it even indicated it was considering suing other countries as well. There are certainly some good candidates among the wealthy Western countries that have been strongly supportive of Israel.

That is the first level. The second concerns individuals.

So, individuals in a state who play some role do have to be individually responsible. It is not enough to say, “He is a Canadian politician, he voted for this, therefore he is an accomplice in what is happening in Israel.” It would have to be something far more serious, and there would have to be a willingness at the International Criminal Court to take that on.

So far, the ICC has decided, through the prosecutor, to pursue two Israeli leaders for crimes against humanity and war crimes, but not for genocide. That could change. It could also change at the initiative of the judges. In one of their rulings, the judges hinted that they already had a case for genocide. It was premature for them to proceed then, but certainly, as the case advances, the three judges of the Pre-Trial Chamber, or the judges at trial if it goes that far, could say, “We have enough evidence for genocide as well, we are going to add that to the charges.”

The problem at the ICC is that it is a court with quite limited resources. It has been in existence for more than 20 years, and in that time it has had only five or six successful prosecutions. They have conducted barely a dozen trials. There are limits to whether they can take on all the defence ministers in all the NATO countries and charge them with complicity in genocide. But theoretically it is possible.

It is also possible because the ICC’s jurisdiction is based on crimes committed in Palestine. The Court, as a general principle, has jurisdiction over crimes committed on the territory of a state that has joined the Court. Assistance to Israel in committing genocide, or for that matter crimes against humanity and war crimes, from Washington could in theory be punishable by the ICC. It has not really been done yet, to prosecute the leaders of one country for the effects they have on crimes committed in another territory. But if the United States has contributed to genocidal acts or war crimes in Gaza, which is the territory of the State of Palestine, then in principle American leaders could be prosecuted today at the ICC.

Asem: Charles Taylor, for example, the former president of Liberia, was convicted on the accusation of aiding and abetting crimes in another country, Sierra Leone. He is now serving his prison sentence in the United Kingdom. So there is precedent in case law. But for the US, this could be unprecedented.

Schabas: Well, it would be unprecedented, and it would severely anger the United States. But listen, they are already angry. They have already turned on the Court and adopted various measures to try to attack it. It is rather pathetic, really. The measures they have taken mean, for example, that the prosecutor, Karim Khan, cannot travel to the United States. If he has assets in the United States, they could seize them. I do not believe they have done so.

Reaction to US sanctions on ICC Prosecutor Karim Khan

Asem: Professor Schabas, what was your initial reaction when you heard that President Trump had issued his executive order to sanction members of the International Criminal Court?

Schabas: Well, of course, I was not surprised. He had done this before, four years ago. It was entirely predictable that the United States would act in this way. They have tried at various stages to attack the Court, but they have yet to find its Achilles heel. They have not found anything that really damages the Court or the individuals around it.

I know there was a bit of a panic. It was said that the Court decided to pay the salaries of all employees three months in advance, because they feared that US domination of the banking system would make it impossible to pay them. But the Court is based outside the United States, in Europe. So far, the US has not come up with anything particularly effective.

The first time they attacked the Court was back in 2002 under the first George Bush administration, and it had no impact. In my opinion, it was of no significance. Eventually, they dropped it, having discovered that some of the measures they had taken caused more harm to their own interests than anything else. So, so far, I think their efforts are quite pathetic.

I feel sorry for poor old Karim that he cannot take his holidays in Disney World this year. And if he still has an American bank account and has not closed it, then I feel sorry for him for leaving himself exposed in that way. But he has had plenty of time to withdraw his money from the United States if he has any there. This is nothing. How could this stop a global institution like the International Criminal Court?

The Americans can inflict pain on people, but there are limits to what they can accomplish. If they really want to have an impact, they need the cooperation of their allies in Europe, especially when banking measures are concerned. But they are not going to get that against the ICC. Here we see a profound difference between the United States and the Europeans. The Europeans are committed to the ICC, just as they are to the International Court of Justice. They are in a very different place from the United States, which is still the Wild West. We have always known that. But this is where there is a real split with Europe.

Hungary’s withdrawal from ICC

Asem: What's your reaction to the latest decision by Hungary to withdraw from the Rome Statute? It is the first EU country to leave the treaty that established the International Criminal Court, and it was one of the first to join. What is your reading of that?

Schabas: Well, this was predictable as well. Even back in November, when the arrest warrant was issued against Netanyahu, Orbán in Hungary said he would invite him to come to Hungary. It is unfortunate that Hungary has taken this step. I hope it will be the last EU state to withdraw. There have been threats before of mass withdrawals from the Court, but they have not materialised. Two other states have withdrawn — Burundi and the Philippines — but other states that threatened to withdraw later retreated from that position.

We do not have any sign elsewhere in Europe of states threatening to withdraw. 

A lot of this problem might have been avoided if the Court had adopted a slightly more cautious approach to the issue of immunity for heads of state and government. There is an international law argument, with some substance, that someone like Netanyahu benefits from a form of immunity before a court like the ICC. This argument is based on a judgment of the International Court of Justice.

We cannot entirely reconcile the position of the ICJ with that of the ICC. There is some evidence that Hungary is not the only state uneasy with the ICC Appeals Chamber decision of 2019, which said that nobody has immunity before the ICC. That was a bold step into the unknown, and perhaps the Court is now paying a little price for it.

Asem: But isn't this stipulated in the Rome Statute?

Schabas: Not really. It is a debate about what is in the Rome Statute. It is true that the Rome Statute says there is no immunity — it says that explicitly, because that was the agreement of the states that joined. But Israel did not join the Rome Statute, so Israel never agreed to that. Hungary did, so Orban can be prosecuted by the ICC. But Israel did not.

It is the same problem with Putin. When Putin was charged, some European states, such as France, did not rejoice or say, “Yes, the ICC is finally delivering.” France merely said, “We take note of the fact that Putin has been charged.” My suspicion is that France also disagrees with the ICC’s position. That does not mean they will invite Netanyahu to France, and it does not mean Netanyahu would go.

If Netanyahu were to travel to France, Macron would not decide whether he was arrested. France has an independent justice system, and Macron cannot control that. Even if Orbán says to Netanyahu, “You can come to Hungary, do not worry,” Netanyahu trusts him because Orban has already weakened the courts in Hungary to the point where they will not cause him a problem. But Macron will not do that, and neither will Starmer in the UK.

If someone asked Starmer what would happen if Netanyahu visited the UK, he would say, “I do not know, because the courts decide that.” Starmer knows the courts are independent, and Netanyahu knows it too. That is why he will not come to the UK or to France.

I do not think this development is devastating, but it is unfortunate. Let us see how many other places Netanyahu is actually willing to travel to.

Are heads of state immune before international courts?

Asem: But why does it matter that Israel is not a signatory to the Rome Statute in this instance? The jurisdiction is not based on Israel’s membership of the Rome Statute. It is based on the Court’s jurisdiction over the situation in Palestine. So theoretically it does have jurisdiction over nationals of non-members of the ICC.

Schabas: Well, this is the argument. Legally, there are two credible positions, and it has been resolved in different ways by the International Court of Justice and by the International Criminal Court.

Asem: Could you unpack that, please? Not all our viewers are familiar with the ICJ case of 2002.

Schabas: Basically, the principle is that heads of state are immune from prosecution by the courts of another state. I do not think many countries would dispute that. For example, it is not possible for Ukraine to prosecute Putin, and it is not possible for the courts of Palestine to prosecute Netanyahu, because of head-of-state immunity vis-à-vis the courts of another state.

It is different for certain international criminal tribunals, according to the ICJ. The examples are the Yugoslavia and Rwanda Tribunals — especially the Yugoslavia Tribunal — and the Special Court for Sierra Leone, which was also created by the United Nations, essentially by the Security Council. In those cases, the idea is that since it is the UN, it represents the whole world coming together, so it is not the same issue as one state judging the head of another.

The problem with the ICC is that it sits between those two models. It is a club of 125 states, and they have agreed in their Statute that there is no immunity. But head-of-state immunity in general is created by international law, by what we call customary international law. That is why it is in the Rome Statute. The 125 members of the Statute have agreed there is no immunity for members of their club. But they cannot take away the immunity of those who are not members.

That is the argument. Countries that have not joined the ICC — starting with the United States, Russia, China, Israel, Indonesia, India, Pakistan, and most Arab states other than Palestine and Jordan — can say: “Our head of state’s immunity cannot be taken away from us.” All the 125 states have done is collectively what they cannot do individually: repudiate their own immunities.

Asem: But in the case of Sudan, for example, Bashir was not the head of a state that was a member of the Rome Statute.

Schabas: That is right.

Asem: There was no backlash at the time.

Schabas: There was backlash. Many states, including members of the Court, refused to arrest Bashir.

Asem: I meant there was no backlash from the same states that are now supporting the immunity of Prime Minister Netanyahu.

Schabas: Well, it depends on where Bashir went. He went to states that were friendly to him, which are not the same states Netanyahu would go to, for obvious reasons. He went to China, but China was not a state party. He also went to Jordan and to South Africa, where the governments said they did not want to arrest him. That led to the bold decision of the ICC Appeals Chamber in 2019, which said there is no immunity, and it does not matter whether your state has joined the Court or not.

I am not arguing for one position or the other. I am speaking as an academic lawyer and saying there are legal arguments here.

Asem: There was also a more recent argument in the Putin case, right? In Mongolia, when he visited.

Schabas: Yes, Putin did the same thing in Mongolia. What is troubling is that these are states that are members of the Court. Mongolia is a member of the Court, Hungary is a member of the Court. It is troubling to see them act in this way, because they should be respecting the judgments of the Court, even if they do not agree with them.

But this is the dilemma we are in, and this is the argument. The ICC is, in effect, a club. And when members of the club lose confidence, or when they dispute its judgments, they can leave. That has happened in a few cases already. I suspect there are other members among the 125 who are also not entirely comfortable with the idea that immunity is taken away not only from members of the club who joined, but from non-members as well.

France would be an example. They are not really comfortable with that. When Putin was charged, France did not show much enthusiasm. Although they dislike Putin, obviously detest him, and should have been rejoicing when he was charged, they did not. They simply acknowledged that it had happened.

I think these are matters that are difficult to fully appreciate because they are decided by governments within their own foreign ministries, behind closed doors. We do not know exactly what their views are, or what debates they are having. We only see glimpses of it. For example, when France said, “We take note of the arrest warrant against Putin,” that was inconsistent with France’s supposed enthusiasm for holding him accountable.

So this is the problem the Court is confronting. I think the problem will disappear when the ICC becomes a true World Court with 195 members. But it is not there yet.

The Rome Statute and immunity

Asem: You were present at the Rome Conference where the Statute was being negotiated.

Schabas: Yes, I was.

Asem: What did you hear at that time when they were discussing Article 27 and Article 98 — the articles related to immunity? Did this issue come up during the Rome Conference?

Schabas: Not this exact issue. Something related came up, which was not the immunity of heads of state, but the immunity of diplomats. States said, “We cannot arrest foreign diplomats. What if the ICC asks us to arrest Ambassador So-and-so of another country?”

So we do have a provision in the Rome Statute that addresses how this is supposed to be handled. It does not give a clear answer, but it acknowledges the problem. The judges of the Appeals Chamber in 2019 basically disregarded that part of it.

There are other interesting facets as well. Article 27 of the Rome Statute has two paragraphs. The first says you cannot invoke your official capacity as a defence. This text is borrowed from the Nuremberg trial and from the Yugoslavia and Rwanda Tribunals. It essentially says that as an individual you cannot claim, in your defence, that you were merely acting as an instrument of the government, rather than as an individual with your own criminal intent.

That is paragraph one of Article 27. Paragraph two is about immunity. It says there is no immunity for a head of state or government. So why are there two paragraphs? Because they do two different things.

The first paragraph is a defence available to an individual once a trial is underway. At trial, the prosecution presents its evidence, and then the judge turns to the defence lawyer and asks, “What do you have to say?” That is when the defence lawyer might argue, “My client was the Prime Minister, he was just doing what the state required.” The judge will reject that argument, because paragraph one says it cannot be invoked.

Paragraph two, the immunity issue, arises at a different point in the proceedings. It is not a defence. It is invoked at the beginning of the trial, before any evidence is heard, when the lawyers for the government concerned say, “You are prosecuting our head of state, and you cannot do so because he has immunity.”

By the way, immunity is something a government can waive. Governments can renounce immunity, and they do so regularly. For example, here in London, if a diplomat commits a crime, the government of that diplomat can notify the court and say, “That is fine, we waive immunity. You can prosecute him, and if he is guilty, send him to prison.” Governments do that often, because the immunity belongs to the government.

By contrast, the defence of official capacity belongs to the individual. That is the nuance. To be quite frank, it was never really discussed in Rome.

Is Netanyahu immune before the ICC?

Asem: Where do you stand on this? As a serving Prime Minister, does Netanyahu enjoy immunity before the International Criminal Court? Should states that are members of the Rome Statute have the legal obligation to arrest and surrender him to the Court?

Schabas: Yes, they do. You have asked me for my view, and I am presenting you with the arguments on both sides. I am saying it is debatable, and not unreasonable to think that the judges of the ICC could have accepted the arguments I outlined, and said, “This goes too far — prosecuting the head of state of a country that has not joined the Court.” But they did not. They took a decision, and before the ICC that is the law.

So Netanyahu can raise the argument, but in principle the judges — the first time it would arise — would be if he were brought before the three judges of the Pre-Trial Chamber. If he said, “I have immunity,” they would say, “No, you do not, read the judgment of the Appeals Chamber of 2019.”

And I say the same thing to France, Hungary and the other countries. They have to respect the judgment of the Court, regardless of what they think. I am an academic and a lawyer, I can argue both sides, and there are arguments on both sides. But at the ICJ, if the issue were to come before it in some form, it would be difficult to predict the outcome. At the ICC, however, the result is entirely predictable, because we already have the judgment of the Appeals Chamber. Netanyahu will be confronted with that, the judges of the Court will respect it, and so should the states that are members of the Court. Hungary is not doing so, and that is a problem. Hungary has gone a step further. They did not have to quit the Court to do this.

Asem: But do they still have a legal obligation?

Schabas: Absolutely they do. The provision that allows them to withdraw from the Court says that withdrawal only takes effect one year later. So today, by failing to arrest him, they are violating the Statute of the International Criminal Court. Hopefully there will be some consequence, some penalty inflicted on them for acting in this lawless way.

The fact that you disagree with the judgments of a court does not give you the right to ignore them. I live in the UK, and I may disagree with certain judgments of the Supreme Court, but I cannot refuse to respect them. I have to abide by them. And the same applies to members of the ICC.

Asem: And does it not also set a precedent for other nations to disregard the decisions of the Court? Today the Belgian Prime Minister declared that Belgium would not arrest Netanyahu if he visited.

Schabas: Well, I have not seen that statement, but I think the Belgian Prime Minister is in the same situation as the Prime Minister of the United Kingdom or the President of France. They do not control the courts. They cannot rule that out, because they do not know what a prosecutor might do in Belgium, and they do not know how the courts would respond. They would be wise not to suggest they are in the same position as Orbán, who is a tyrant and who has spent several years emasculating the courts in Hungary. Perhaps Orban can say confidently, “Do not worry, I control the courts, I control the judges.” That may be true in Hungary, but it is not true in Belgium.

Asem: Are you concerned that other countries will follow suit and decide to withdraw from the Court? What do you think would be the impact of Hungary leaving? Are you expecting a domino effect?

Schabas: No, I am not expecting a domino effect. Anything is possible, of course. I was actually more concerned about states leaving the Court three or four years ago, because the Court has underperformed in terms of its ability to deal with a significant number of cases, including important cases from major conflicts.

There was great resistance that became very visible after Karim Khan became prosecutor in 2021. He said, “I do not have enough money. I need a bigger budget to do what you are asking me to do.” States replied, “You have enough money, we are not giving you more.” There was impatience. The British in particular expressed frustration and made critical statements about the Court.

Then the Court became involved in Ukraine, and the wind changed. States that are members of the Court, especially the Europeans who bankroll it, were suddenly enthusiastic because the Court engaged actively in investigating Russian actions in Ukraine. They did not really expect it to investigate Palestine, but they could not control that either. For a few years the prosecutor was quite indifferent to Palestine, focusing instead on Ukraine. But by 2024 that became untenable. He pursued a more serious investigation and issued charges. That is part of the problem for the future of this institution.

It has 125 member states, and they are not all wealthy Europeans. The largest group are African states, who as a general rule are pleased to see Israel and Israelis investigated over Palestine, and who are more indifferent to the conflict between Ukraine and Russia, which they view as a border war between two wealthy, developed countries. They feel much greater sympathy with the Palestinians, whom they see as an oppressed people in a colonial context, because of their own history.

Schabas: The Court cannot please all of its members all the time. The challenge is whether it can give enough satisfaction to different constituencies that none of them lose patience. Around 2011–12, there was the threat of withdrawal by several African states, because the Court appeared too focused on Africa and was not investigating situations elsewhere. The African Union even threatened a mass withdrawal, though it never happened.

We might see that in Europe as well. But Europeans have invested huge amounts of money in the Court, including recently for the Ukraine investigation. I do not see them turning their back on the Court immediately. Certainly, they did not want the Court to go after Israel, but that is what happens when you have an independent Court. Sometimes it will go after your enemies, which you welcome, but sometimes it will go after your friends. And you just have to accept that and live with it.

What is the future of international criminal justice?

Asem: Professor, Schabas, to conclude, how do you see the future of international criminal justice? Are you hopeful? Are we in a better place now compared to the early days, when the Rome Statute was still being negotiated? The purpose of the Statute was to fight impunity and to hold people at the most senior levels of government accountable. Do you think the institution has succeeded so far in achieving its objectives? And what do you hope for?

Schabas: You know, I have done a lot of writing and research on the history of international criminal justice, and I am better at understanding the past than predicting the future, I am afraid. 

So how do we know the future? We know it by looking at the past and wondering if it will resemble what came before. International criminal justice, as we know it, began around 1919, at the end of the First World War. There was a wave of activity that lasted only a year or two, but it was clearly the birth of the idea that individuals, including leaders, could be held responsible for crimes of concern to the international community - not ordinary crimes like murder or drug trafficking, but crimes against humanity, war crimes committed in international conflict, and so on. Then it all went dormant for about 20 years.

It revived during the Second World War. We had the Nuremberg trials, the Tokyo trial, the adoption of the Genocide Convention - a whole blossoming of activity. But it died out again in the early 1950s. There were attempts to revive it in the 1960s and 70s, but they did not gain enough traction.

It was only in the 1990s that it revived once more. For years after, I used to wonder, “When does this wave end? When does it cool down and stop again, as it has twice before?” But that has not really happened, though we have gone through phases. In the first decade of the 21st century, we had the temporary tribunals for Yugoslavia, Rwanda and Sierra Leone. They were quite successful. Their mandates were clearly defined, they did their work reasonably well, and then they closed. You could say they achieved what they were supposed to.

The ICC, by contrast, has struggled to find its way, and I think it still is. As we speak in early 2025, the three ICC courtrooms are empty. They have no trials under way. One trial has stalled, with defence lawyers asking for more time to bring witnesses. Another case, involving the former president of the Philippines, has reached custody, but his trial will not start for a couple of years. So for perhaps the next year or more, the ICC courtrooms will remain empty. States are spending millions of euros on this institution, and taxpayers will ask: “What are we paying for?” With a staff of a thousand, they are supposed to be trying cases, not leaving courtrooms idle.

That may reflect bad management at the Court, but it also reflects an institution still struggling to find its direction. Will that be resolved? Hopefully yes. If not, states may lose patience. They may say, “You are like the League of Nations - we need to start again, as we did with the United Nations. We will rewrite the Rome Statute, learn the lessons, and create something new.” Maybe.

Meanwhile, there is a heightened sense of the importance of international criminality. Everywhere in the world, when a conflict breaks out, people use the language of international criminal law. They talk about war crimes, crimes against humanity, genocide. They call for prosecutions, for special courts, for transitional justice. All of that is now part of the broader landscape of international law and human rights. I do not see that changing in the next five or ten years. Beyond that, it is difficult to say.

Asem: Professor Schabas, thank you so much for your time today. 

Schabas: My pleasure.

Asem: It’s been a pleasure.