How do you view the reports about the war?

'Some politicians and fellow scholars interpret the law in the media in ways that surprise me. Then I wonder if that is based on what they think or if it is based on an analysis of case law. That annoys me. But then also it's up to me to explain the law in a different way.’

Where do you think things go wrong?

‘Two things are going wrong. First, you see the perspective of the armed forces coming up a lot. There is nothing wrong with that in itself. There is expertise and knowledge at the Defense Academy, for example. We also see experts on TV, such as former generals. However, their main concern is not protecting the civilian population. The jurisprudence of international criminal tribunals emphasizes the perspective of the vulnerable much more than some (military) experts. I don’t hear that perspective enough.'

What else concerns you in this debate?

'For many people, Israel is a special country that needs extra protection in light of its history and context. This is not all in bad faith. Many Jews live in Israel, and many Jews moved there after World War II because it was supposed to be a safe country. We don't want a repeat of the Holocaust. As a result, we see a complicated relationship between the Netherlands and Israel. That leads us to compromise on standards and emphasize other things, such as the right to self-defence. Israel is indeed vulnerable and surrounded by enemies. That is a valid point. But the same goes for the Palestinian population; they also experience a lot of threats. It is precisely in such a complex context that jurists must be concerned with universal standards and never compromise. A State may defend itself but in accordance with the law.'

Does this happen more often when the stakes are high?

'We have seen this before. For example, the Allies carried out huge bombing raids on Germany in the final stages of World War II. No attention was paid to that, and the Allies were never prosecuted. But also consider the United States' War on Terror after the attack on the Twin Towers. Terrorism suspects were tortured and waterboarded. When a country feels threatened, we see international law put on hold for a while. The belief is that we should now be able to do just a little bit more to defend ourselves. This is to some extent met by approval from the international community. In the early days, one saw the same with regard to the war in Gaza. Self-defense was the argument after Hamas attacked Israel on Oct. 7, when one could already see that it would get out of hand.'

You argue at the same time that Israel is indeed a vulnerable country. Is it not allowed to defend itself?

'Only in accordance with the law. It is argued now that it is allowed to attack civilians because Hamas fighters are hiding among the population. At the International Criminal Tribunal for the Former Yugoslavia, we saw a similar situation. The conclusion then was: if a few soldiers are hiding among the civilian population, that does not mean it is suddenly not a civilian population. You still shouldn't attack civilians. It is a persistent misunderstanding that the presence of Hamas fighters could justify many civilian casualties. The qualification civilian population may well be dropped though, if the number of Hamas fighters among the civilian population increases. But that is not the case with most bombings of Gaza. Many war crimes have been and are committed in Gaza, and the prosecutor of the International Criminal Court agrees.'

Is Hamas not guilty if they use the Palestinian population as human shields?

'Israel's allies and experts often proclaim that argument. Using the civilian population as a human shield against enemy attacks can be a war crime, but only under conditions that do not seem to occur within the Gaza conflict. Therefore, the prosecutor of the International Criminal Court is not prosecuting Hamas for this fact; it is prosecuting it for other war crimes and crimes against humanity. More importantly, the commission of war crimes by Hamas cannot justify Israel committing war crimes - and vice versa. Hamas is a terrible organization that commits horrible crimes, but the Palestinian civilian population should not be the victims of that.

The qualification of genocide is much debated. How do you look at that debate?

'With genocide, people often think of the scale of the Holocaust. Then it must involve 6 million victims, which is not the case in Gaza. But numbers don't say everything. By international criminal tribunals, conflicts with fewer victims than now in Gaza have been labelled genocide - for example, the 8.000 Muslim men killed in Srebrenica in 1995. Genocide is about exterminating a group on the basis of ethnicity, race or religion or creating the conditions in which that happens. Ultimately, it is about the long-term survival of the group. Even a partial annihilation of the group can jeopardize the chances of survival.'

Is that the case now in Gaza?

'It is telling that the International Criminal Court prosecutor sees Israel's actions in Gaza as a policy of collective punishment of the Palestinian population. Then, as far as I am concerned, the qualification of genocide comes very close. The Genocide Convention that Israel signed can, in fact, be violated in two ways: by committing genocide itself as a country or by not doing enough to prevent genocide. I can imagine that Israel certainly violated the treaty on the second point by not allowing enough aid supplies into Gaza.'

For lawyers, this is obvious, but why is terminology so important?

'Because it can affect policy choices, and that can result in serious crimes. We have long had the narrative that one can go far if one defends him or herself. That's a dangerous development because there are clear limits placed on self-defence in law. It is then the job of legal scholarship to bring that forward and to prevent us from going down a slippery slope.’