International Law and the Israel/Hamas Conflict

Cover image Borderlines #23 Israel-Hamas

Episode 23 of Borderlines features our guest host, Chancellor’s Clinical Professor of Law Laurel E. Fletcher (Berkeley), in conversation with Professor of Practice Gabor Rona (Cardozo) on the Israel/Hamas conflict from an international law perspective. Fresh off of speaking at Berkeley Law on 22 February 2024 as part of a Bay Area campus lecture series on the crisis, Professor Rona sat down with Professor Fletcher to discuss the relevant frameworks of international law and its institutions, including the UN Charter and the Geneva Convention on Genocide, as well as current cases before the International Court of Justice regarding Israel/Palestine. Listeners will learn how the laws of armed conflict and international humanitarian law are invoked, how historically pressure is brought to bear on governments from international organizations and actors, and why the Red Cross/Red Crescent has been prevented from aiding both Israeli hostages and Palestinian civilians in Gaza despite human suffering. Students in particular will take away powerful lessons about the need to combat misinformation and to seek “justice for an eye” in their pursuit of peaceful solutions to war and violence.

Professor Rona has worked in armed conflict settings for the International Committee of the Red Cross (ICRC), the UN Office for Coordination of Humanitarian Affairs (OCHA), and as International Legal Director at Human Rights First. He now teaches various international law subjects at both Cardozo and Columbia Law Schools. Professor Fletcher is the International Human Rights Law Clinic Co-Director and the Faculty Co-Director of the Miller Institute for Global Challenges and the Law at Berkeley Law.

Be sure to follow Borderlines on Apple Podcasts, Spotify, Google Podcasts, or wherever you get your podcasts to be notified about upcoming episodes. Our host is Katerina Linos, Tragen Professor of International Law and co-director of the Miller Institute for Global Challenges and the Law. Katerina has spent 15 years researching how nations make war with one another, spreading devastation. But she has also seen how countries work together to build global institutions and learn from one another. She has met brilliant scholars, visionary leaders, brave advocates, and Machiavellian strategists. In each episode of Borderlines, Professor Linos invites experts to discuss cutting edge issues in international law. Thanks for listening!

Episode Transcript

Laurel Fletcher: [00:00:00] Welcome to Borderlines. I am Laurel Fletcher, and I co-direct the Miller Institute for Global Challenges in the Law and am so delighted to be here in conversation with Professor Gabor Rona, a Professor from Practice at Cardozo Law School.

He was the international legal director of Human Rights First, where he guided the organization’s programs on questions of international law and represented Human Rights First with international stakeholders. But probably most relevant for today’s conversation is that Professor Rona served as a legal advisor in the division of the International Committee for the Red Cross and Red Crescent in Geneva.

The ICRC is an independent organization with a humanitarian mission to protect victims of armed conflict. It also works to promote and to strengthen humanitarian law, which are also called the Laws of Armed Conflict or the [00:01:00] Laws of War. At the ICRC, Professor Rona focused on the application of international humanitarian and human rights law in the context of counter terrorism policies and practices.

And he also represented the ICRC in connection with the establishment of international and other criminal tribunals, including the ICC.

[ Music ends]

Laurel Fletcher: Well, welcome to Borderlines, Gabor.

Gabor Rona: Thank you so much, Laurel.

Laurel Fletcher: So we’re here today to talk about the conflict in Gaza through the prism of international law. International institutions have taken different approaches to the underlying legal questions and implications, that are quite interesting.

And so I wonder if you could start off by talking a little about what are the different international bodies at play here? What is their institutional role? What are they doing on this conflict? And [00:02:00] how do you assess their performance? So I’m thinking in particular, where is the UN General Assembly and its resolutions?

Where is the Security Council? Where is the International Court of Justice? And, the UN Secretary-General?

So, start anywhere you like, talk about as many or a few of them as you like, but I think it is quite interesting to see that when we think about international institutions, they’re not all the same. And they’re actually — can be talking at cross purposes even with each other. So, help us untangle that.

Gabor Rona: Well, first of all, thanks very much for, giving me the opportunity to have this platform, Fletcher. I really appreciate it. If I may, I would add one more institution to the ones you’ve mentioned, and that is the International Criminal Court, although that is a separate category of institutions from the others that you mentioned that are UN based.

So let me start with the [00:03:00] UN entities first. The most obvious place theoretically to go to for enforcement of international law I think is to the Security Council. In this event, as in many other cases concerning contemporary conflicts, the Security Council is anywhere from useless to of limited utility, and that’s because the way the prevailing parties of the Second World War decided to construct the new international legal order, was a way in which they, the five permanent members of the Security Council, have veto power over any resolution that comes before the Council.

And what that has meant, given the divisions of the Cold War, and even since the end of the Cold War, the divisions between the United States [00:04:00] and Russia and China, that precious little can be expected to get done at the Security Council level. Someone is always going to want to take a veto over the proposal of someone else.

In more recent times and in recognition of the Council’s frequent ineffectuality, and led by the government of Lichtenstein, the General Assembly has taken upon itself and has passed a resolution that requires the General Assembly to at least conduct debate, if not issue a resolution, any time the Security Council is stymied from dealing with matters of humanitarian concern by the use of the veto power.

So, this, of course, does not [00:05:00] guarantee that action will be taken in situations where the Security Council doesn’t act. And in fact, even if the General Assembly does issue a resolution on the issue that the Security Council has passed upon, the General Assembly doesn’t have the same powers that the Security Council has. The General Assembly, for example, cannot order the use of force, or cannot order the the introduction of peacekeeping troops into a situation the way the Security Council can.

Laurel Fletcher: But it does have the power, by calling for debate, to allow there to be discussion that is on the record, that is accessible to all of us. The Security Council can refuse to act, but it can’t set conditions under which no action is taken.

Gabor Rona: Exactly. It perhaps used to [00:06:00] be the case that once the Security Council washed its hands of something, everybody just shrugged their shoulders and said, “Move on.” It is now the case that the Security Council no longer has the power to stifle debate, and that debate still can, and I think does result in sometimes concrete international legal consequences, in situations of humanitarian concern.

Laurel Fletcher: So, how would you assess how that is working in the context of the conflict in Gaza?

Gabor Rona: Remains to be seen. So, so far there have been three attempts to bring Security Council resolutions to bear in order to order a ceasefire in the Gaza conflict. The United States has vetoed each of those. [NB: Since recording this episode, as of publication the U.S. has allowed one resolution to pass the UN Security Council.] Those vetoes trigger debate in the General Assembly. And I think it’s too early to tell what the General Assembly is going to do [00:07:00] with that. But I think there’s a very kind of significant prognosticator, in the fact that, and now moving to the International Court of Justice where there is now a case that’s being heard, requesting from the International Court of Justice an advisory opinion on the legality of Israel’s longstanding and continued occupation of Palestinian territory. That case is also the consequence of a General Assembly resolution asking the International Court of Justice to issue this opinion. Hearings started on that case this week, and there are already some 50-odd, if not more, states that have sought to intervene in that conversation. I can’t recall the exact number of states that voted in favor of sending this question to the ICJ. It was quite substantial. But I do know that the number of states that [00:08:00] have now weighed in and sought to weigh in in the ICJ on that case is unprecedented. And virtually all of them, except the United States, are weighing in, in favor of the argument that the continued occupation of, by Israel into Palestine’s territory is a violation of international law.

So despite the fact that the Security Council is stymied, I think the increasing robustness of the General Assembly in picking up in the vacuum that the Security Council leaves, is having a significant effect, even though the General Assembly itself does not have the same kind of enforcement powers that the Security Council does.

Laurel Fletcher: So speaking of enforcement, what about the ICJ? As both part of the U.N. apparatus it is seized of these issues, at least in two ways, with the South African case and now with the advisory opinion. [00:09:00] So I wonder what you’re thinking about the role of the ICJ in this, what you’ve seen so far, any kind of speculation about where you think we may be headed.

Gabor Rona: I always want to come at this question of enforcement, of international legal obligations, with a disclaimer. And the disclaimer is that, you know, a lot of people who are unfamiliar with how international law works, but are quite familiar or comparatively familiar with how domestic law works, will often note, “Well, what’s the use of going to the International Court of Justice, which doesn’t have its own enforcement mechanism?”

And as a matter of fact, there is an enforcement mechanism, but it brings us back to the same problem that we started with concerning the Security Council, and that is the Security Council is the enforcement mechanism for the ICJ, and there’s precious little reason to believe that the [00:10:00] Security Council will engage in any coercive enforcement measures of an ICJ decision that declares Israel’s occupation to be unlawful.

That said, I think it’s a mistake to look at the question of international legal enforcement through the same kind of prisms that we use for the domestic counterpart. We are so used to the fact that when a court makes a ruling, it has the capacity itself to enforce it through the control of police forces and, you know, the rest of government bureaucracy.

But remember, there’s such a qualitative difference between how states function and how the international legal system functions, and that’s because we still live in a system of sovereign states. The state is king. The state is sovereign. And states constructed it that way because they wanted it that way.

So, to [00:11:00] the extent that international legal mechanisms don’t have the teeth that we expect courts to have in order to enforce their judgments: first of all, it’s because that’s the way states constructed it. But, I always want folks to bear in mind that the enforcement of international legal determinations, that are made by institutions like the ICJ are so much more dependent on political will than is the case in domestic law enforcement.

And domestic law enforcement is also plenty subject to political will. So I think it’s necessary when passing judgment on the utility of an ICJ decision, that one looks well beyond the fact that the ICJ can’t enforce its own decisions and the Security Council is unlikely to do so.

What you also [00:12:00] have to look at, is how are states responding to an ICJ decision? How are international organizations responding? How is civil society, you know, human rights organizations, how are they responding? And I think we can see, for example, in connection with the ICJ’s decision to make orders against Israel in the case brought by South Africa claiming violations of the Genocide Convention, that there already has been, a substantial number of political dominoes that have fallen against Israel and in support of the ICJ’s determination that steps need to be taken at least to protect against genocide occurring in the Gaza conflict.

I don’t think that the number of states that have lined up to speak against the occupation in the ICJ case dealing with the occupation, [00:13:00] would have been doing so, but for the fact that the ICJ previously determined that there was a risk of genocide. I don’t think that, for example, a domestic court in The Netherlands, as it did last week, or maybe the 10 days or so ago, would have ruled that it would be a violation of international law for the Dutch government to continue to provide parts for Israeli F-35 aircraft that are being used in air raids in Gaza.

I don’t think that decision would have come down if the ICJ hadn’t made the determination that there’s a real risk of genocide occurring.

Laurel Fletcher: Let me ask you right there, what will the significance be if the Court, when it rules on the merits of South Africa’s petition against Israel alleging [00:14:00] violations of the genocide Convention, that the Court actually finds that Israel has not committed — on the merits — has not committed violations?

Do you think that if that were to transpire, that we would see courts, domestic courts, and other jurisdictions then retreat from taking cases or making decisions that are adverse to the interests of the State of Israel? Or do you think having found on provisional measures against Israel that in some sense, that floodgate has been, broken and that really we’re seeing just a sea change in international opinion on the State of Israel and its legitimacy and in its use of force in Gaza?

Gabor Rona: Well, do I have to choose [00:15:00] between one or two of those alternatives? Because I prefer to think that–

Laurel Fletcher: There’s always door number three.

Gabor Rona: Good. So I’m taking door number three, behind which I think, yes, the floodgates have opened. But I think it’s still conceivable that if the ICJ  — and again, this is going to be two years or more down the road — if the ICJ does eventually conclude that there were no violations of the Genocide Convention, I think that is just as likely to influence how other countries behave as the fact that, ICJ has now decided that there is a risk of genocide.

But, and here’s the big but, it’s really important to bear in mind what the Genocide Convention requires of states. It doesn’t only require avoiding the commission of genocide. It also [00:16:00] requires states to avoid the incitement to genocide. It requires states to prevent genocide. And I think that, the ICJ can find Israel in violation of the Genocide Convention, without finding that Israel committed genocide.

To me, it’s very unlikely that the ICJ will give Israel a total clean bill of health. I think the evidence is already pretty well established that there have been instances in which, even representatives of the Israeli government have made statements that are incitement to genocide. I think there’s also significant amount of evidence already established that the Israeli military campaign [00:17:00] creates a risk of genocide occurring.

So, the short answer, I think, to your question is that it’s a bit more hypothetical, because I think the more likely result is that the ICJ will find violations, although I also think the ICJ probably will not find that Israel committed genocide.

Laurel Fletcher: The record before the Court, before the ICJ, will continue to accumulate. So that by issuing provisional measures, the Court is essentially putting Israel on notice that it is scrutinizing its conduct through the prism of the Genocide Convention going forward. We are now, it looks like, on the [00:18:00] verge of Israel going into Rafah.

In light of the pending ICJ case, what do you think of the legal significance if Israel goes in, as it states, its intention to do so is to go in and to eradicate Hamas?

Gabor Rona: So I’m thinking of the answer to that question requiring consideration of at least two frameworks of international law, one being the Genocide Convention, because that’s the framework in which the case is brought before the ICJ.

But also, of course, the framework of international humanitarian law, the law of armed conflict. Dealing with the IHL consequences first, it’s important to recall that under the Law of Armed Conflict, parties have an obligation to distinguish between military [00:19:00] objectives, and combatants on the one hand, and civilians and civilian objects on the other hand.

They have an obligation, even if they’re just targeting military objectives, to not cause civilian harm that is disproportionate to whatever military advantage they may be gaining in a military attack, and even if their attacks do satisfy these principles of distinction and proportionality, there’s yet another obligation, that they have to take precautions to minimize civilian harm.

Given the conditions in Gaza now, the number of displaced people who have been crammed into the Rafah area, given the extent to which potential military objectives are intermingled with the civilian population in Gaza as a whole and now in [00:20:00] Rafah in particular, I don’t see a way in which Israel could conceivably conduct a military operation against military objectives that does not cause disproportionate civilian harm.

In other words, I don’t see a way that Israel could conceivably engage in a military campaign in Rafah in a way that complies with Israel’s IHL obligations. Now, the Israeli response, I think, to that would be, and has been, “Hamas is responsible for intermingling it’s military operations with the civilian population,” and I think that’s a legitimate criticism of Hamas.

Hamas is in violation of its IHL obligations by doing that. The defender has obligations under the principle of distinction just as the attacker does. But no matter the violations of [00:21:00] Hamas, they don’t excuse Israel from complying with its principle of distinction and proportionality and precaution obligations.

And so I think the bottom line is from an IHL perspective, I don’t see how Israel can conduct this operation without committing war crimes. Now, as to the second legal perspective, which is the Genocide Convention, the commission of war crimes against civilian populations, and particularly, if it involves the killing of civilians, is precisely the kind of fact, the kind of evidence, that goes toward the proof that would be required to make out a case of genocide

Now, the proof of those civilian casualties, and even if Israel were directly targeting those civilians, [00:22:00] that would not of itself be sufficient to make a finding of genocide. There also has to be a finding of a very specific kind of intent that is unique to the crime of genocide, that Israel intends to destroy, in whole or in part, this civilian population that is defined by religion or ethnicity or nationality.

I think that the massive amount of civilian casualties that would be caused by an assault on Rafah would be extremely relevant to an inquiry about whether or not Israel is guilty of genocide, but would not be determinative unless there is also evidence that Israeli officials work or military commanders were acting with a specific intent to destroy these people as opposed to say, merely committing the war crime [00:23:00] of indiscriminate or attacks that are disproportionate.

Laurel Fletcher: On the question of specific intent and the evidence necessary to show that, circumstantial evidence can be sufficient. And so my question is, what do you think the Court might be satisfied with on that front? Assuming now that we are in the world after the Court has issued provisional measures, so Israel is clearly on notice, presumably they will restrain their political and military officials from issuing some of the most inflammatory statements that was issued right in the aftermath of [00:24:00] the Hamas attacks. The public record might become fairly thin on direct statements from Israeli military or political, officials. So what might you think the Court could look to that would be evidence of specific intent?

Gabor Rona: You put this in the framework of circumstantial evidence, which I think is quite useful and accurate.

All right. So I don’t mean to denigrate circumstantial evidence as a category. If you go to bed and there’s no snow on the ground and you wake up the next morning and there’s snow on the ground, it’s only circumstantial evidence that it snowed overnight, but it’s pretty strong circumstantial evidence.

Laurel Fletcher: Some might say dispositive–

Gabor Rona: Probably dispositive, right. But, I don’t think circumstantial evidence can work in that [00:25:00] way, in connection with questions of determining a human being’s intent. If there’s a critical mass of pronouncements from government officials that are of the ilk, some of which we’ve already heard: “All Gazans are guilty;” “They’re human animals.” These kinds of statements, I think, are certainly, more than circumstantial evidence of genocidal intent, but I don’t think they are dispositive. I mean, there are always going to be rogue actors, even within governments, that will make statements that are not necessarily indicative of government policy.

I feel fairly strongly that, while Israel could be found guilty of Genocide Convention violations because of these statements [00:26:00] that incite genocide and because, perhaps even Israel’s failure to prevent or punish these statements of incitement to genocide, that still doesn’t necessarily mean that Israel is committing genocide, and that’s in spite of the fact that massive civilian casualties of a particular group protected by the Genocide Convention occur as a consequence of Israeli conduct.

And the reason I say that is because it is entirely conceivable, given how permissive the law of armed conflict is about killing, that all of these killings could be, consistent with IHL, and I’m talking as a theoretical matter, and if they are consistent with IHL, then that, I think, goes at least some way toward protecting Israel from the argument that it is committing [00:27:00] genocide.

Now, I also happen to believe that it’s theoretically possible to comply with all your IHL obligations, but you could still have the specific intent to destroy, in whole or in part, the civilian population. And given how permissive IHL is of civilian harm, it’s also entirely possible that you could have acts of genocide coupled with genocidal intent, which therefore equals genocide.

But I think we’re still a long way from being able to prove that Israel has committed genocide. And I think there is even jurisprudence from the, the Yugoslavia Tribunal in the Serbia and Bosnia case, in which the Court said that because genocide is such an extreme crime, the evidence to support the [00:28:00] allegation has to exclude any possible justification other than genocide in order for a genocide finding to be made.

In other words, creating an extremely high bar for proof of genocide. So, while I think it’s possible that you could have genocidal intent, even if you’re complying with IHL, I think it would be extremely difficult for a tribunal to find genocide when the acts are permissible under IHL. And that could be even though they find evidence that a number of, say, government officials have made statements that constitute incitement of genocide.

Laurel Fletcher: I want to turn now to your former organization, the ICRC, which is not [00:29:00] presently involved in Gaza. Why not? If you can imagine with us for a moment, what are the folks in Geneva thinking and saying, and trying to do right now? What are their interests in this conflict?

Gabor Rona: As you will see from my answer, I am very protective of my former organization and my former colleagues in the ICRC.

The ICRC is a neutral and independent humanitarian organization. They do not take sides in armed conflict. And it’s not because they are morally bereft people. It’s because they recognize that the ability to perform the humanitarian functions, that are useful and necessary to protect vulnerable people in armed [00:30:00] conflict, those functions can only be performed if a neutral and independent humanitarian intermediary has the confidence of the parties to the armed conflict that this intermediary isn’t going to be weighing in on one side or the other of the conflict.

And because things are constructed that way, in international law and under the Geneva Conventions, the ICRC has to have the consent of the parties to the conflict in order to intervene for neutral and independent humanitarian purposes.

Israel has not been a friend of the ICRC. Hamas has not been a friend of the ICRC.

The ICRC wants desperately to be able to visit the hostages that Hamas has under its control. Hamas is not consenting to the ICRC’s role. [00:31:00] And so the ICRC is actually powerless to do anything. It has no independent authority, and it has no independent means of injecting itself into an armed conflict situation where the parties don’t consent to the ICRC’s presence.

So I think the bottom line here is not that the ICRC is somehow shirking its responsibilities or what its role should be. It’s that the parties to the armed conflict are shirking their responsibilities to create access for the ICRC.

Laurel Fletcher: Have you seen instances in which external pressure from international organizations, institutions, political leaders, to grant access to the ICRC has been successful and do you foresee circumstances changing in the present [00:32:00] conflict?

Gabor Rona: Well, as to the second part of your question, beats me.

I really have no insight into whether things might change. But as to the first part of your question, absolutely. And I think one of the best examples of international pressure being brought to bear on parties to armed conflict to enable the ICRC to have access is Guantanamo.

In the early days of Guantanamo, the Bush administration took the position that, these detainees, they’re not armed forces of any state, therefore they’re not covered by the Geneva Convention provisions on international armed conflict; they are fighters for non state armed groups. Therefore, they’re unlawful combatants, and they’re not protected by the Geneva Conventions for that reason. They’re not protected by the Geneva Convention provisions on protecting [00:33:00] civilians because, according to the Bush administration, these people lost whatever civilian protections they may have been entitled to by engaging hostilities.

Bottom line, according to the U.S., was “These people have no protections under the Geneva Conventions. They’re in a black hole. Screw them.” The U.S.’s allies — U.K., France, Germany, a number of other states — through their diplomatic efforts with the United States, I think eventually prevailed on the U.S. to see the error of their ways, to a limited extent, and some judicial decisions in the United States were also helpful in determining that the Bush administration was wrong in denying Geneva Convention protections to these Guantanamo detainees. And eventually the administration came around and said, “Okay, yes, we will allow the ICRC to visit Guantanamo detainees.”

So this was through a combination [00:34:00] of diplomatic pressure from allies as well as legal pressure brought to bear by advocates for human rights organizations and for individual detainees as well. I want to emphasize the role of civil society in these kinds of situations.

Human Rights Watch, Amnesty International, the ACLU, which took a significant interest in aspects of international law after the U.S. response to 9/11. These organizations all had significant advocacy roles. And I think part and parcel of the work that they did and that other governments did in their diplomacy with the U.S. is what led to the Bush administration changing its tune about opening Guantanamo to the ICRC.

Laurel Fletcher: You’ve been speaking at law schools all over the United States about these questions of international law that are pertinent to [00:35:00] the Israel/Gaza conflict, and this is at a time when there’s intense debate going on in the United States, in particular at colleges and universities, on the war. And I wonder if you could tell us, how are law students responding to your talk?

What have been some of the questions that you’ve been asked that have been surprising or most challenging? Because I do think that this is a moment when once again, people, young people are being, exposed to both at the same time, absolutely horrific narratives and visuals of violence that’s taken place, and looking for what are the peaceful tools that can be used to intervene productively, law being one of those, and [00:36:00] as you’ve described, in some cases, the international law is — can be very disappointing in what it can do to effectuate change and build peace.

So I’m wondering from your perspective of talking to law students, what is it that you’re seeing, among law students today on these issues?

Gabor Rona: I’m seeing some good and some bad.

The bad that I’m seeing is, I think, largely the consequence of the confluence of circumstances that create fertile ground for misinformation. There is, first of all, the truism that in war, truth is the first casualty. Everybody knows that. And even under the best of circumstances, it’s really difficult to [00:37:00] pick and choose among the various sources of information coming out of this conflict that are so much in conflict with each other about what’s going on, on the ground.

There are plenty of threads of evidence to build the argument that Israel is acting in violation of international legal obligations. There are plenty of threads to build the argument that Israel is in compliance with its international legal obligations. And the difficulty of separating all these threads into what is true and what is false is exacerbated by the fact that social media is such a divisive force here.

So the bad that [00:38:00] I’m finding in my talks and my interactions with students, is that there is a good bit of misinformation and a good bit of absence of information. I do not mean by this, this criticism to lay this at the feet of students that I talk to. They are very often yearning for accuracy, but are having difficulty finding it.

Laurel Fletcher: So what’s the kind of misinformation that you see surfacing in these interactions that you have?

Gabor Rona: I have had students telling me that inboth the October 7 attacks, and in the subsequent military response by Israel in Gaza, that there have [00:39:00] been wholesale killings and burnings and mutilations of babies, for example. I can’t say that that’s not true, but I can say that there are are a number of kind of suspicious sources of those kinds of allegations and that, what has actually happened is horrible enough, without trying to gild the lily.

But in a number of my interactions with students in these campus talks, I have heard students who were so moved by these kinds of allegations that I think it has made it difficult for them to remain open minded about the very important legal frameworks and legal rules that actually apply here, and that both parties to the [00:40:00] conflict are very likely in violation of.

Very few people determine that both sides have been burning babies in ovens. But once you determine that one side has done that, it becomes very difficult to listen to anything else. I’m finding that that kind of misinformation has clouded the ability of people to have their ears open.

Laurel Fletcher: One thing I’m reminded of when in your recounting of these exchanges is the way in which extreme violence, horrific violence, illegal violence, against civilians, horrible brutality — it gets used to justify further acts of illegal brutality. [00:41:00] And when that is coming from law students, where what we are trying to do in law schools is to instill rule of law values that restrain — that can hold complexity, and that, just because one side has committed acts of horrible violence does not then justify acts of horrible violence being perpetrated against them. That central rule of law worldview is undermined in these cases. We saw the same thing in the aftermath of 9/11 in this country. And so I recognize this moment and perhaps because I recognize it, I may also not be seeing it accurately because I’m filtering it through my [00:42:00] own experience and memory of what happened to this country.

But I do think there is something about the aftermath of extreme and disturbing, brutal violence that itself engenders a willingness on humans who are supposed to be acting and enforcing rules of law, a willingness to soften what those rules mean because we feel justified in pursuing a different set of policy aims and methods to achieve our, ultimately, our political goals.

Gabor Rona: My parents are Holocaust survivors. They survived the Holocaust in Budapest. I was born in Hungary. We came to the United States, in ’56. I was five years old. In speaking to my parents about Israel — we’re Jewish, [00:43:00] and I have a fair amount of family in Israel — my mother in particular who was kind of more outspoken about these things than my father, but my mother took a very punitive view of Palestinians. And I once had a conversation with her about, what forms her worldview about the conflict and, the rights of Israel and Zionism and the rights of the Palestinians. And she admitted very freely that “It’s not just because I’m Jewish. It’s because of what the Nazis did to us.”

I think that was a very kind of plain statement and example of what you were talking about. How brutality breeds brutality. From the lawyer’s perspective, from the law student’s perspective, I always come back to what I [00:44:00] think is worthy of the U.S. judicial system. There’s a lot to criticize about it, of course, about the criminal system, but we don’t have victims sitting on juries. And there’s a good reason to make that choice. Not every country does that. In some countries it is victims who decide the fate of the accused.

But the recognition that victims are often the least well-placed people to pass judgment on what should happen to perpetrators, and not even the perpetrators of the crimes against them, but perpetrators of the crime that takes place 10 years down the road or 20 years down the road.

Lawyers, law students, lawyers, if they are going to become, useful advocates for justice, I think, have to understand that [00:45:00] the legal system prohibits eye for an eye for a very specific reason, and that is because it not only seeks that justice be done in an individual case, but that the entire system of justice can only function if it maintains some degree of neutrality and credibility in how it deals with crimes and victims of crimes.

For a law student, I think it is particularly important to absorb the lesson that you can’t be a lawyer if you believe in an eye for an eye. You can only be a lawyer if you believe [00:46:00] in justice for an eye. And it is up to the justice system, whether it’s domestic courts or international courts, to make those determinations that must comply with existing standards of international law.

If it were otherwise, then, instead of having a justice system which metes out justice and presumably, compensates victims, what we would have is a system that simply perpetuates atrocities. And that’s why I think law students, and lawyers, are signing up when they say, “I want to be a lawyer,” are signing up to essentially an agreement that they are not in the business of seeking revenge, retribution, and mere [00:47:00] punishment to match the crimes that the perpetrator committed. That the search for justice is something different than that.

And the reason it has to be something different than that is because if it were otherwise it would just be perpetuating and exacerbating conflict.

Laurel Fletcher: Thank you so much for this conversation. I really appreciate your time. And you’re welcome back at Berkeley anytime.

Gabor Rona: I love it here. Thank you so much, Fletcher.

Katerina Linos: Thank you so much for listening to this episode of Borderlines. If you want to read more, please turn to the Show Notes. To hear more episodes of Borderlines, please subscribe.