Double Standards and Hypocrisy - William Schabas on States' Responsibility to Prevent Genocide in the Context of Gaza
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Veröffentlicht: 20.10.2025
Lesezeit: 8 Minuten
Themen: Gaza, Völkermord, IGH & IStGH, Staatenverantwortung, Beihilfe, Deutschlands Rolle, Doppelmoral, Menschenrechte, Genozidabsicht, Beweismaßstab, Prävention, internationale Gerichtsbarkeit, UN-Kommission, humanitäres Völkerrecht.
Hinweis: Dieses Interview wurde auf Englisch geführt.
Professor Schabas, you are a Professor of International Law and Human Rights, one of the world’s leading experts on genocide and human rights, an advisor to international courts, and the former Chair of the UN Commission of Inquiry on the 2014 Gaza Conflict. Which question regarding Gaza and Israel are you currently most intensely engaged with?
Promoting the political debate within wealthy, powerful countries in Europe and elsewhere that support Israel is a priority. Israel has clearly lost the battle for public opinion, even in those countries that have historically been its big supporters. However, governments have yet to manifest the views of their own populations. One task for specialists in international law is exposing the double standards and hypocrisy of these governments.
We need only compare their energetic reactions to Russia's aggression against Ukraine with their indifference to the brutality inflicted upon the people of Gaza. It is also helpful to point to the interventions some of these states have made in other genocide cases at the International Court of Justice, where they stress the importance of multilateral action to prevent genocide, the significance of reports by UN fact-finding commission, and the need for the Court to be less strict in its consideration of proof of genocidal intent.
In your view, what kind of evidence most clearly determines the issue of specific intent in the context of genocide?
Proof of genocidal intent depends upon a number of factors. I don't think it is very helpful to focus on one single element as being decisive. Amongst the factors that contribute to conclusions about genocidal intent are the following: the scale of the killing; dehumanizing statements by leading personalities; deprivation of necessities of life through blockade of humanitarian relief and other measures; political objectives that involve expanding the borders of Israel; practices of apartheid in the occupied territories and in Israel itself.
Several expert bodies – including Amnesty International in 2024 and the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory in 2025 – have described Israel’s actions in Gaza as genocide. Why do you think these assessments have been marginalized in mainstream public discourse?
They haven't been marginalized as far as I am concerned. However, they have not received the importance they deserve from governments that are happy to cite Amnesty International reports and UN commissions of inquiry when this suits their own political objects.
The 1948 Genocide Convention is a vital legal tool in the international campaign against impunity. Its provisions, including its enigmatic definition of the crime and its pledge both to punish and to prevent the 'crime of crimes', have now been considered in important judgments by the International Court of Justice, the international criminal tribunals and domestic courts. Since the second edition appeared in 2009, there have been important new judgments as well as attempts to apply the concept of genocide to a range of conflicts. Attention is given to the concept of protected groups, to problems of criminal prosecution and to issues of international judicial cooperation, such as extradition. The duty to prevent genocide and its relationship with the doctrine of the 'responsibility to protect' are also explored.
Publisher: Cambridge University Press
Online publication date: March 2025
Print publication year: 2025
Online ISBN: 9781009460774
And how do you see the role of the ICJ and ICC in the context of the current events in Gaza, and what steps do you believe are necessary to ensure credible and consistent standards in international law given their existing vulnerability?
The litigation before the international courts concerning Gaza is part of a broader phenomenon. For the past five or six years, States have manifested an unprecedented confidence in judicial bodies to address issues that were previously consigned to political institutions. For example, there have been five advisory opinions at the ICJ, on a range of matters including climate change, labour rights, de-colonization and, of course, Palestine.
The four genocide cases pending before the ICJ have prompted about 50 States to intervene, a very striking figure given that until 2022 there had been only a handful of interventions in the entire history of the Court. There are high expectations and the judges of these courts know that their credibility as institutions depends upon the ability to deliver fair and convincing judgments.
Over the past few years, the International Court of Justice has delivered decisions of the highest quality. It is in the most dynamic phase of its history.
German Chancellor Friedrich Merz invited Netanyahu to come to Germany after his election, despite an open arrest warrant against Netanyahu by the ICC. How does this diminish the integrity of the international justice system?
I don't think it diminishes the integrity of the international justice system. It is Merz's integrity that is diminished by such statements. Germany is under a legal obligation to assist the International Criminal Court in the enforcement of its warrants.
Smarter politicians than Friedrich Merz have been more cautious in their statements because they understand that in a country based on the rule of law even the head of state cannot promise not to arrest people. That decision is a matter left to the justice system, which must be independent and impartial.
Orbán in Hungary was able to guarantee safe passage to Netanyahu but his government is hardly a model of modern democratic governance. As for Germany, it hasn't had a head of state who could guarantee not to arrest someone since 1945.
On which legal criteria should determine whether a state providing arms or political backing becomes complicit in genocide under Article III of the Convention?
The Genocide Convention lists 'complicity' as one of several 'other acts' that are distinct from full-blown perpetration. It does not define complicity. However, the scope of complicity under international law is well understood, the main codification of this being article 16 of the Articles on State Responsibility.
Providing arms and political or diplomatic support are quintessential examples of aid and assistance. The core of the requirement is that the accomplice State must have knowledge of what the perpetrator State is doing. No State can claim that it is unaware of the serious risk that genocide is being perpetrated in Gaza. Moreover, the assistance must be significant, not trivial.
In their intervention in the genocide case filed by Myanmar at the ICJ, several Western states including Germany stressed the importance of the reports of UN commissions of inquiry in the determination of genocidal intent. They said that such reports have 'particular probative value' and 'special importance'. Well, in September 2025 the UN commission of inquiry produced a detailed, comprehensive and damning report that concluded Israel was perpetrating genocide.
It is important to recall that the chairman of the Commission was Navi Pillay, formerly UN High Commissioner of Human Rights and, before that, a judge at the International Criminal Court and the International Criminal Tribunal for Rwanda. As a judge of the Rwanda Tribunal, she signed the first conviction for genocide by any international criminal tribunal. There is nobody on the planet better qualified to make such assessments.
In your opinion, how has the ICJ's case law on genocide developed in recent years, and what impact could this have on the case of South Africa v. Israel? To what extent do you think the ICJ is reinterpreting the threshold for genocidal intent, and what risks come with a more expansive reading?
It is too early to answer this question. I believe that a large number of States are disappointed with the implementation of the Genocide Convention in earlier judgments of the ICJ. They are now saying to the Court that they want the Genocide Convention to be an important and dynamic part of international law rather than an inert relic. This is especially visible in the numerous interventions, from states in both the North and the South. The Court will be alive to such concerns.
Over the nearly eight decades since the Genocide Convention was adopted, there have been calls for its amendment in various respects, such as expanding the groups that are protected, lengthening the list of punishable acts, and reinterpreting the notion of 'destruction' so as not to require that this be physical in nature. But none of these questions is really significant in the contemporary litigation.
The only big question is the standard of proof of genocidal intent. In previous cases, the Court has said that where proof of genocidal intent relied entirely on a 'pattern of conduct' or, to use the language of criminal law, 'circumstantial evidence', it was necessary to rule out other reasonable explanations for the acts. Where such a principle is applied by domestic criminal courts dealing with ordinary crimes where a special intent is required, such as murder, the evidentiary rule is not enforced in such a way as to make the conviction of murderers impossible.
In the case of Gaza, the evidentiary rule about circumstantial evidence should be inapplicable because there are many other elements of evidence that contribute to a conclusion about genocidal intent.
In your recent interview with ECPS, you’ve mentioned that Third Party States can violate Article 3 of the Genocide Convention by complicity, as stipulated by the ICJ landmark judgement Bosnia v. Serbia in 2007. States party to the Convention, therefore Germany, have a duty to use their influence on other states or entities perpetrating genocide. Could Germany's inaction and its blockade on EU level not to impose sanctions on Israel, especially not suspending the EU-Israel Association Agreement, result in criminal liability under international law?
The ICJ judgment in the Bosnia case did not really rule on complicity. Rather, it held that Serbia had violated the Genocide Convention because it failed to act to prevent genocide when it was aware that there was a 'serious risk' genocide would be committed.
This is the first level of duty upon States like Germany, whose ability to influence Israel is unquestioned. To find Germany in breach of the Genocide Convention for failing to prevent genocide, it is not necessary to establish that it actually assisted Israel or that it knew Israel was committing genocide.
The requirement is that there was a 'serious risk' of which it was aware and that it failed to act. There is no question that Germany can be liable under the Genocide Convention for its failure to prevent genocide. Of course, it can also be liable for its actual complicity in genocide. That is a separate although related question. Both of these issues are at the heart of the case Nicaragua has taken against Germany at the International Court of Justice.
Thank you very much for this interview.
William A. Schabas is a professor of international law at Middlesex University (London) and currently listed as emeritus at Leiden University and the University of Galway; he also serves as an invited visiting scholar at Sciences Po (Paris). In 2025 he has been an active public commentator on Gaza, repeatedly arguing that South Africa v. Israel is among the strongest genocide cases ever brought to the ICJ. He published recent analysis endorsing the UN Commission of Inquiry’s conclusion that Israel is committing genocide in Gaza. Schabas remains widely cited for scholarship on genocide and international criminal law, including editorial and advisory roles across leading journals. This interview was conducted by Paul Ziegler and Ferhan Osseili (DJfdV).
Contact: w.a.schabas@law.leidenuniv.nl
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