Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO TUNE]

Janet 00:53 All rise. Hi, Steph.

Steph 00:56 Hi, Janet.

Janet 00:58 Well, yay. I’m so pleased to have you back, Steph. As you know, the world went to shit when you went off the pod for a while. I mean, the US and Israel attacked Iran, and the ICC’s state backers have got themselves into a bit of bother because there’s a problem over how they’re investigating the alleged sexual harassment allegations against the prosecutor, allegations that he denies. And I can mention a ton more things that went wrong while you were away.

Steph 01:26 Yeah, my office has already told me that I’m not allowed to drop off the face of the earth for such a long time anymore, because there’s a lot going on that they would like my opinion on. But out of the variety of messes that happened in my absence, what have you decided to focus on today?

Janet 01:48 I am trying very hard not to be too cynical about our world, but I do find it very hard when we have a few particular states that we think of as the kind of states that are able to provide a kind of counterweight to the authoritarians. They’re a counterweight to what’s going on, this madness of this attack by the US and Israel and by Trump’s constant social media stuff. But those kind of states, they seem to profess international law rules really matter one day, and then they claim the moral high ground, and then the next day they go all realist. And they say, well, no, on that particular issue, considering our national interest, this isn’t our problem.

Steph 02:30 You couldn’t possibly be talking about my own home nation now, could you?

Janet 02:36 There’s a lot of those that do that, but especially the Netherlands, who likes to profess itself as the home of international law, and The Hague as the city of peace and justice, has done some remarkable mealy mouthedness around international law. And it is even written into its constitution that it respects international law. Yeah, and to discuss the Netherlands and what it’s been up to, we have Otto Spijkers, an assistant professor at Leiden. Hi, Otto.

Otto Spijkers 03:03 Hi, how do you do? Thanks for having me on this show. Looking forward to talking to you.

Janet 03:10 And we have a similar state, which often operates in the international law space together with the Netherlands. Not too big, not too small. Well, I mean, quite big compared to the Netherlands, but apparently quite honest and rational and has the anti Trump way of doing stuff. And that is Canada.

Steph 03:28 Yep, you got it right. That’s the other one. It’s kind of elbows up. We embody middle powers and the future, as Mr. Mark Carney said. And to discuss what Ottawa is up to in this field, we have Mark Kersten, Assistant Professor of Law at Fraser Valley and friend of the pod. Hi, Mark.

Mark Kersten 03:44 Hi, thanks for having me again. It’s wonderful to be back on the podcast.

Steph 03:49 So where should we start? Mark, what was Canada’s response to what I’m going to describe as the unlawful aggression against Iran? What did Canada have to say?

Mark Kersten 04:00 Well, it’s in some ways, I think, still figuring out what it has said and where it’s going with what it’s going to ultimately decide it views this conflict as in terms of international law. Very quickly, within hours, maybe even less, of the beginning of the war, the government, Prime Minister Mark Carney in particular, released a statement saying that Canada supported the aims of the war. And this was met with great consternation and great concern by those who want Canada to respect international law, who viewed his famous Davos speech as suggesting that Canada would support respect for international law when it comes to state sovereignty and territorial integrity and the United Nations Charter. And so there was a bit of an uproar. What do you mean you support the aims of the war? There was absolutely no mention whatsoever of the words international law or any reference to the relevance in the case of the use of force in this kind of context.

Mark Kersten 04:59 That was also quite juxtaposed, in some respects at least, to the response that the Canadian government had in relation to the kidnapping of Venezuelan President Nicolás Maduro, where international law did feature in our statement. And there was concern and there was a call, as I recall it, to respect the United Nations Charter. In the context of Iran, that has been absent. And he ultimately, a couple of days later, clarified that, prima facie, this looked like it could have violated international law, but that Canada basically wouldn’t revise its view that it supports the people of Iran and presumably still, as Australia and other countries have, the aims of the war, which of course Carney believes to be the denuclearization of Iran and the threat of the regime to its people.

Mark Kersten 05:49 Again, what’s so frustrating in some ways for those of us who care about international law, but also more importantly care about the people of Iran and the safety of the world, is that we know from day one that that was clearly not the aim of the United States government. They had said just months prior that the nuclear threat from Iran no longer existed. So how is it possible that it was so imminent now? Clearly, there were other intentions. The United States government and its officials said one thing one day and the next thing the next day. The regime is still in place. It’s very clear that this was more of a kind of decapitation effort like in Venezuela than it was a kind of regime change effort that would lead to any state building effort. Of course, it’s not something that I’m necessarily suggesting should happen. I’m just saying that it was difficult to kind of swallow for those of us who respect human rights and international law and want the best for the people of Iran, that we supported the goals of the Trump administration in Israel and Iran when those goals were shifting. And what I think a lot of people wanted to see was a clear statement condemning violations of international law and supporting the United Nations Charter.

Steph 06:56 That kind of clear statement did come, if you compare it, for example, to the Russian invasion of Ukraine at the time, right? There was a fairly clear condemnation.

Mark Kersten 07:07 Absolutely. And that one, we’re going to be talking and in some ways dancing around geopolitics this entire conversation, right? We’re talking about the Trump administration. I’m sitting less than probably 100 kilometers away from the border. The Canadian Armed Forces are literally sharing with the public that they are gaming a potential invasion of the United States of Canada and that Canada’s approach to a US invasion of the country would be literally, and this is reported in the news because they want Canadians to consume this information, Canadians would have to take the approach of the mujahideen in Afghanistan. It’s a real threat to Canadians, the existence of the Trump administration. And so I think if ultimately you wanted to boil this down into something very simple, why is there a hypocritical approach or a partial approach or an inconsistent approach? Well, we don’t face that threat whatsoever from Russia. We are very close allies with Ukraine. We are not close allies with Iran for obvious reasons. And we are in many respects putting every single decision we take through the prism of how will Washington respond to it. And so that ultimately determines the fact that we have been mealy mouthed and inconsistent in our responses and in our approach to the illegal war on Iran.

Steph 08:24 Let’s bring in Otto, who from the Netherlands is a lot farther away from a potential US invasion. The new foreign minister, now talking about diplomatic dancing around the issue, has said that they had understanding for the American and Israeli attacks in Iran and also said that you have to be, quote, realistic, and spoke about, quote, sailing through the fog of the new world order. So Otto, do you want to explain to us what the Dutch stance is and how the current Dutch government kind of sees this, international law in what they’ve said so far?

Otto Spijkers 09:09 I will try, of course. But I think the government is just as confused as we are. So it’s very hard to provide clarity. But I will try. Prime Minister Rob Jetten, he gave a speech in March, so last month, explaining the Dutch position on the war. So he did insist that the Iranian regime has murdered thousands of its own citizens, recently even. It is responsible for the liquidation of two people in the Netherlands. That’s a while ago, but Iran was held responsible. The Iranian regime supports Russia in the war against Ukraine by providing drones and other assistance. It is developing a nuclear weapon, or a nuclear program, a nuclear weapons program. It has a ballistic missile program, and it supports numerous terrorist groups in the region, Hamas and Hezbollah.

Otto Spijkers 10:12 So all this together makes it that the Netherlands government has begrip, that’s a Dutch word, understanding, for the fact that the US and Israel felt compelled to proceed to action and to start the war at the end of February. So we are all puzzled as to what this exactly means, to have begrip, to have understanding. Does that mean the Netherlands regards the war as lawful? Well, if you ask the government this question directly, they will say that the military campaign falls outside the framework of international law. That’s the phrase that we constantly hear. It falls outside the framework of international law.

Janet 11:02 Just to say that you can’t see this if you’re listening to the podcast, but Otto has these wonderful inverted comma signs that he’s going on around. So “outside” comes as part of inverted commas. Keep going.

Otto Spijkers 11:13 Yes, yes. I should be aware that you can only hear me and not see me. So that’s the official Dutch position. It’s still the official Dutch position. That’s the attack against Iran, but also Iran’s response. It falls outside the framework of international law. And there was a motion tabled in parliament to basically force the Dutch government to either say yes or no to the question, do you mean it was in breach of international law? And that motion only got very few votes. So it’s pretty clear that something that falls outside the framework of international law is not the same as saying that something is in breach of international law. It’s like there is a whole world out there to which international law seems to be inapplicable. And that is a very strange conclusion to draw. So it’s probably the wrong one.

Otto Spijkers 12:09 And I think one explanation for all this fuzziness might be that there is a disagreement within the current Dutch government. And maybe to finish, Tom Berendsen, our current Minister of Foreign Affairs, has said from the beginning something very similar to what Rob Jetten has said in Parliament, that international law is not the only framework that we can apply to the war in Iran, that we have to be realistic. We’re dealing with a murderous regime, so we need to be realistic and find a way to navigate the fog of this new world order. But of course, if we no longer see international law as our compass, I don’t really see how we are supposed to navigate in this foggy world order. I hope we don’t have to look for an alternative, but I hope we can sort of return to being champion of international law and to promoters of it.

Janet 12:56 Well, before we move on to another question, you briefly hinted at something that I think our listeners would probably pick up. So I’m going to Stephapedia them about it, because you talked about these assassinations in the Netherlands. And what Otto was talking about is there have been two kind of high profile assassinations of Iranian dissidents in the Netherlands, in 2015 and in 2017. One that I covered quite extensively for Reuters, a dissident called Mola Nissi in The Hague. And then there was, in 2015, an assassination of a man from Almere, somewhere in the middle of the Netherlands, who I think apparently was also linked to the Mujahideen e Khalq or some Iranian opposition figure, allegedly, and he was killed in Iran. And the Dutch intelligence services have established that they probably were killed by Iranian intelligence operatives or agents in the Netherlands. And that’s part of a kind of a string of European assassinations of Iranian dissidents.

Janet 14:08 Otto, can I pick up the point that you made about kind of the Dutch role as the, I don’t know, defender, let’s say, of international law? I mean, I’ve always been taught that it’s in the constitution. The Netherlands government is obliged to, quote, promote the development of the international legal order, unquote. So I’ve always interpreted that as this is why we’ve got the courts and tribunals here. This is why the Netherlands kind of stands up for various things. I mean, that is right, isn’t it? It’s actually fundamental to the Dutch state.

Otto Spijkers 14:48 Yeah, I think it’s very important to put emphasis on this fact. Article 90 of the Netherlands Constitution, indeed, it says what you have just quoted and nothing more. So the Netherlands government has this obligation to promote the development of the international legal order. It is very interesting. So in the 1980s, there was a proposal to get rid of this provision, to remove it from the Netherlands Constitution. But then the VVD, the more right wing, liberal conservative party, was very vocal about keeping it because the VVD at the time felt that the Netherlands would benefit a lot from a more open global community and not so much insisting on sovereign independence and so on, but rather focusing on jointly realizing certain globally shared values and so on. So that we should definitely keep this provision because it aligns very well with the Dutch tradition, which was then traced back all the way to Hugo Grotius, a colleague of mine. He studied at the same university where I’m currently working.

Otto Spijkers 15:55 But now it seems that we have forgotten all this history and that we are now turning to a more realpolitik approach to world politics and with much less attention paid to this Article 90 and this constitutional duty. And nowadays you see a lot of people, high profile people in the Netherlands, that are relativizing or even belittling the importance of international law. So, for example, we had Jaap de Hoop Scheffer. He’s the former Secretary General of NATO, but also a former Minister of Foreign Affairs of the Netherlands. And he was saying that currently, in relation to what’s happening in Iran, there are compelling reasons of international policy that might lead governments to conclude, yes, the war is illegal, but we cannot sit on our hands and do nothing. So we are going to participate in this military campaign against Iran. So there are these compelling reasons of international policy that may sort of go above international law and that are more imperative at the moment.

Otto Spijkers 17:14 And I find this really concerning. It’s like saying international lawyers, they are out of touch with reality. They have all these interesting ideas that they have worked out in their ivory towers at the universities, but they have no idea what’s going on in the real world. I find that really offensive, that this is how international law is now looked upon. Because international law is not just based on utopian ideas, but it’s also learning from past experiences and past mistakes. And that’s why I find it particularly interesting that Jaap de Hoop Scheffer, who’s actually a colleague of mine, he’s also a professor here at Leiden University now, that he has made these remarks because it was during his time as Minister of Foreign Affairs that we, the Netherlands, lent political support to the Iraq War in 2003, which I think now we all agree was a big mistake. So maybe past failures, we should learn from them and accept that all these experiences, they have now become part of international law. That’s why we have agreed on certain rules and not others.

Janet 18:27 I see that Mark wants to jump in. Let’s see if you can jump in on this. If you look at what Otto said, the kind of counter suggestion to international law is, should we really expect this big analysis from politicians immediately after these world events? International law is super complicated, so maybe they should take their time. How would you both respond to that? We heard a little bit from Otto what he thinks about that. But Mark, you probably want to give your view on that as well.

Mark Kersten 18:55 I always think that when somebody in particular, a politician or someone invested in a particular viewpoint already or a particular approach to an international conflict says it’s complicated, they’re trying to reduce the space of alternative viewpoints and opinions. They don’t actually mean it’s complicated. And for what it’s worth, international law can be complicated, but the United Nations Charter and the prohibitions on the use of force are not that complicated. I can’t emphasize enough how uncomplicated the determination that the war in Iran is illegal is. When journalists and others ask, you know, I say the bombing of a school or a hospital, that can get complicated because you have to have the factual evidence. You have to put it through various tests that develop in international humanitarian law. If you think it’s a crime against humanity, you have to really assess whether a particular attack is part of a widespread or systematic attack. You have to go through these tests.

Mark Kersten 19:58 These illegal invasions aren’t that complicated. They don’t satisfy any of the criteria. And to Otto’s point, I never want to shut out opinion, but I do think if, and we have these people here in Canada too, for those people who supported the war in Iraq publicly and openly and who haven’t reversed their position on international law, they should kind of be disqualified from saying that the war in Iran is okay or the war in Iran is justified or legal, right? Because they haven’t learned not only from international law and the massive consensus that the war in Iraq was illegal, but they also haven’t learned from the horrific consequences that flowed from that. And so I think, I’m not a huge fan of canceling people, but on this topic they should be disregarded because they’re not good faith commentators anymore.

Janet 20:42 But Mark, he’s the only commentator we have who was Dutch head of NATO until Mark Rutte. So it’s the only person that we can trot out on Dutch television when these things happen. You know, we need to have a person to ask these things.

Mark Kersten 20:56 Right, and fair enough. But I think then perhaps the media should say, we have now presenting someone who continues to believe that the war in Iraq was legal, when by consensus of the international community and international law scholars it was not. What is your view now on this latest invasion? Give people context, because their intellectual trajectory matters. I have one more thing to say, but I want to hear what Otto has to say on this because it’s a slightly different perspective.

Otto Spijkers 21:32 No, I just wanted to make a small point here. I do think that the majority of the Dutch population actually does not share our view, but the other view, that international law, it’s all very interesting, but we’re dealing with a murderous, terrible regime, which is developing nuclear weapons, which is supporting terrorism all over the world. So how can they benefit from international law? That is, I would say, the majority view. Our view is not the majority view, at least not in the Netherlands.

Mark Kersten 21:58 Well, I think that’s such an important point because I see similar arguments being made here. I think the good faith ones, the ones that don’t want to inherently dismiss international law immediately, are somewhat similar to the late 1990s Kosovo arguments around, you know, the invasion is illegal, but it’s legitimate, right? So it may not satisfy international law, but this is the end of international law’s ability to protect people and therefore violating international law in order to protect the Iranian people is a legitimate goal, and we can figure out the law stuff later. Again, I think what’s wrong about that is that there’s no evidence that this war is about protecting the people of Iran or helping the people of Iran. And that’s not based on thoughts that we’re dreaming outside of what people are saying. That’s based on what the White House has repeatedly told us. That’s not what it’s about. It’s very clearly not what it’s about to the United States.

Mark Kersten 23:20 So I think that’s a very important part of the conversation where I think that a state like Canada in particular, and I can’t speak for others, but where a state like Canada is failing to, in a sense, articulate or perhaps even educate its citizenry, is that we as a state have a direct interest in upholding the prohibitions on the use of force. And we have a direct interest in upholding international laws regarding territorial integrity and preventing aggression. Because for the last year plus, we have received direct threats regarding our own sovereign territorial integrity. And when you’re a middle power and you don’t have as much military might and you don’t have as much diplomatic might, perhaps, as other states or other kinds of powers, international law becomes a critical tool to defend yourself and defend your country, your friends around the world, your allies around the world from these types of attacks. And I don’t think people are connecting those dots. And it’s in part because the Canadian government presumably doesn’t want Canadians to connect those dots, to make it clear that defending international law everywhere means actually defending international law for us ourselves here in Canada.

Mark Kersten 24:36 But this goes to the point that I wanted to make that Otto put so epitheti- well, so well, which is: the government is just as confused as we are. I think there’s something so important. I don’t think states know what world we’re in, what currently exists, let alone the one that’s going to exist tomorrow or in a year. And you can see them struggling to navigate that. And I think there’s a way to read the famous Davos speech of Mark Carney as being like, I’m going to try and promise everything to everyone a little bit here. I’m going to talk about values based realism, but also defending human rights and international relations and territorial integrity. And so right now, when people talk about the Davos speech in Canada and Canada’s approach, you can read it any way you want. It’s like that rabbit duck. If you see a rabbit in the image, you’re right. If you see a duck in the image, you’re right. If you see both, oh my God, you’re brilliant, but you’re also right. But I think it’s indicative of a place or a time where states actually don’t necessarily know what they’re doing.

Mark Kersten 25:40 And I don’t think that lets them off the hook, but it helps us understand that the broader context of this is seismic shifts in international relations and geopolitics. And states basically don’t have tools, I don’t think, to really properly understand from one day to the next how they’re supposed to come out the end of that, because they don’t know what the end of that is going to look like. I join those who think that, as Otto so well put it, that in that state of unknowing, uncertainty, and confusion, international law is an incredibly useful tool. But I don’t think states are necessarily sure. And that helps explain that they can say one thing one day and the next thing the next day. And it frustrates us. But I think it actually comes down to the fact that they don’t really entirely know what they’re doing. They’re flying by the seat of their pants in some respect.

Janet 26:29 The reason for doing this podcast is obviously what’s going on with Iran. But it is also this sense of the middle powers-ness that I wanted to explore with you. And while I appreciate your kind of broad sweep, Mark, to explain where everybody’s making it up as they go along, at the end of the day, what these middle powers are doing and saying seems to involve having double standards on specific issues and actual hypocrisy in the end. And it just means that we don’t have a leg to stand on ourselves as to know who is actually going to bear what, I don’t know, human rights values, let’s say, for the future. So I’m finding that very difficult, that because the world is shifting, they don’t seem to be able to stand by what they actually mean. Otto, maybe you can respond to that, or whatever you want to respond to in what Mark had to say as well.

Otto Spijkers 27:46 No, no, the question is well timed because that’s exactly what I wanted to pursue. So Mark was saying we do one thing one way and then we do the other thing the next day. And I agree, if you want to promote international law, you have to do it consistently and not call upon Russia to comply with international law, but not do the same with Israel and now the US. So this issue of double standards. In the Netherlands, we are already sort of advised on this from 2024 onwards. We had an advice letter written by the Advisory Council on International Affairs, the Adviesraad Internationale Vraagstukken. It’s a council that advises the government. They wrote an advisory letter to then Minister of Foreign Affairs Kaspar Veldkamp, urging the Netherlands to be more active in promoting international law in the Israeli Palestinian conflict.

Otto Spijkers 28:45 And in that letter, the Council explicitly advised against using double standards in our efforts to promote international law. Being even more explicit, more concrete, the Council compared our efforts with regard to Russia, compared them with our efforts, or lack thereof rather, with respect to Israel. And then they drew the conclusion that rules are applied only when they align with our geopolitical interest. And that is damaging. And I fully agree. If you look at Ukraine, following the Russian aggression of Ukraine in February 2022, Zelensky immediately asked the Netherlands to play a leading role in efforts to restore justice for Ukraine.

Otto Spijkers 30:00 To help create a compensation commission to award compensation for damages resulting from Russia’s aggression against Ukraine. And the government explained its enthusiasm to cooperate by referring to Article 90 of the Dutch Constitution and the profile of the city of The Hague, where I’m currently residing, as the international city of peace and justice and as the seat of a wide range of international courts, the International Court of Justice, International Criminal Court, various other courts and tribunals, basically suggesting of course this compensation commission for Ukraine should be based in The Hague. But why is there no compensation commission for Gaza? Why be so selective? I think that is extremely problematic.

Mark Kersten 30:48 Can I just jump in for one quick point on this, which is that I think what Otto is pointing to, and I think we cannot forget, is that there is no golden era of consistency of middle powers on international law that we can look back to. One of the things that I think the Davos speech said that was helpful was nostalgia is not appropriate. We shouldn’t be looking back and harkening back to some great past. It doesn’t exist. Canada, the Netherlands, and other middle powers have always been inconsistent on international law. And I think the most obvious is that for the last number of decades, at least Canada has been very inconsistent in relation to situations like Ukraine or Syria versus the situation in Palestine. That has always been our primary double standard. And so I don’t think you can look back and say, oh, well, we were once not hypocritical, but now we are hypocritical. Or we didn’t have double standards, now we do. We always have. The reasons for them may have changed, but we continue to have them.

Otto Spijkers 31:49 Can I ask Mark a question?

Janet 31:52 Okay, but then I want to talk about the ICJ and the Gaza case.

Otto Spijkers 31:58 Just a very brief question to Mark, because I get this question a lot. So if you have a constitutional obligation to promote the development of the international legal order, do you think you need to do this consistently? Or can you be selective in this effort to promote international law?

Mark Kersten 32:13 It’s a great question. I would ask the Dutch constitutional law scholars. And it’s such a good point. And I mean, we’re in this muck of the politics of international law and the politics of law. And this kind of goes back, at least, I’m not going to properly answer the question, unfortunately, but it goes back to something that you said, which I think is so important, which is there is a lot of people, perhaps even the majority of people, who are okay with international law being violated if it means that the Iranian regime is displaced. And so politicians are going to listen to that. Politicians are going to be attentive to that. Politicians are going to be attentive to their diaspora communities. In Canada, the Iranian diaspora community is phenomenal. It’s very large. It’s very powerful in terms of its advocacy. It’s very impressive. And now it’s also got to listen to the Lebanese diaspora, which is similar, which is a different kettle of fish. And I’m sure we won’t get to that. But I think that’s very interesting for Canada going forward, what’s happening in Lebanon.

Mark Kersten 33:20 But so I think they take this information and they think, well, my goal is to promote and defend international law. But my goal is also to be elected next election. And to do that, I have to navigate diaspora politics and what’s going to get me elected. And also to a certain degree, what can I get away with? And to me, we can have these talks about international law forever, for sure, and I think they’re critically important. And at the same time, at least in Canada and the Dutch and Europeans as well, I don’t envy the position of the governments, which have to say, well, do I take a strong stance on international law if it means that I get another 10 percent tariff and my people have less of an affordable life? How do you make that decision? Be strong on international law or weak on international law? To me, I think, again, the missing ingredient is that international law protects us as middle powers and smaller states. And that part of the conversation is missing and should be part of the political conversation as much as the legal one.

Mark Kersten 34:22 But at the same time, I think this again goes back to your point, which is I don’t know if states know the answers to these questions, because if they don’t defend international law, tomorrow might bring 20 percent tariffs. If they do defend international law, tomorrow the tariffs may be withdrawn or vice versa, right? We’re dancing around these questions. And I think states, they no longer seem to behave in a way where they believe that an input will predictably lead to an output because the United States in particular is so incoherent and chaotic.

Janet 34:48 If we pivot for a moment to the International Court of Justice, the allegations of genocide in Gaza posed by South Africa in the case of South Africa against Israel, and what we recently saw from the Dutch government is that they announced that they would intervene in the case and essentially say, at their point of view, which is going to be, as I understand it, largely similar to the intervention they did in the Gambia Myanmar case, which is that attacks on, I think, women and children and starvation and things can be underlying crimes for genocide. Is this, Otto, a kind of change of the Dutch new government? Because the previous government was very, very, very kind of pro Israel and supporting a lot of what Israel was doing in Gaza, or at least not condemning it, or just saying that they should keep to international law, but seemingly not wanting to say that they potentially broke international law in what they were doing in Gaza.

Otto Spijkers 35:57 So just before the deadline, that’s already interesting, the Netherlands filed this declaration, a request to intervene in the case initiated by South Africa against Israel about alleged genocide in the Gaza Strip. And the Netherlands had earlier done so, requested to intervene in the case between Gambia and Myanmar about alleged genocide against the Rohingya minority in Myanmar. And of course, they requested to intervene in a genocide case between Ukraine and Russia. So one of the reasons would be, I think, to avoid being accused of double standards, because why intervene in those two cases and not in the other one? And also a reason to intervene was exactly to comply with Article 90 of the Constitution, this duty to promote international law. That’s not my opinion, but that’s one of the official reasons why the government chose to intervene.

Otto Spijkers 36:41 What I find really interesting is that Tom Berendsen, the current Minister of Foreign Affairs, announced this as a highly sensitive step, fully realizing how difficult this is among certain political groups and also amongst the population. And he also constantly insisted that the intervention is to further international law and not to support either party. So not to support South Africa, not to support Israel. He’s constantly stressing this. And you are very right. The earlier government was asked all the time to intervene. Why are you not intervening? Why do you intervene in the other two? Why not this one? Constantly. And Kaspar Veldkamp, then Minister of Foreign Affairs, he always said, no, no, we’re not going to intervene in this case, and was a bit fuzzy about the reasons why not. So this is really a change of policy when you compare the old with the new government.

Otto Spijkers 38:02 What exactly is it that the Netherlands wants to get out of this intervention? So for me, they just have some questions about how to properly interpret and apply the Genocide Convention. So they’re not addressing any factual issues at all. And one is indeed that forced displacement may constitute genocide or may lead up to acts of genocide that are prohibited under the Genocide Convention. I find that interesting. And also that the treatment of children may be particularly relevant when you want to establish a genocidal intent. That is, of course, interesting because a lot of children have died in Gaza. So how relevant is that? And also what I think is very relevant to the genocide in Gaza is the Netherlands is asking the Court to determine whether famine or withholding humanitarian assistance, whether that may amount to an act of genocide, murder, for example.

Otto Spijkers 39:14 And then finally, what maybe is the most interesting from the Netherlands perspective, is that the Netherlands wants the Court to say something about responsibilities of third states to prevent a genocide when there is a risk of genocide occurring. And of course one such third state is the Netherlands. And I find this super interesting because up to now, the Netherlands’ position has always been that only third state responsibility is triggered when an international court or tribunal or some high authority has determined that genocide is taking place. So the ICJ may reach this decision two years from now. So I always felt that was a very ridiculous position to take. And now they’re asking of the ICJ, were we right? And probably the answer will be, no, you were not right. There is already an obligation to prevent much earlier on when there is a risk of genocide and when no international court or tribunal has pronounced on it.

Janet 40:08 Mark, do you want to join in on that? Any Canadian contribution on the genocide cases at the ICJ and what this tells us about Canada’s position more generally? Yeah, why didn’t you intervene?

Mark Kersten 40:18 I don’t think Canada will intervene. Again, I think because they’re trying to navigate, the Canadian government is trying to navigate the Trump administration and its relationship, to a certain extent, with Canadians who feel strongly about this conflict, but also with the Israeli government. So one thing to keep in mind in terms of what I find very interesting in terms of third party states’ contributions to this is that Canada stopped directly selling military weapons and ammunitions to Israel, which was excellent. But Canada sells weapons and ammunitions to the United States, which then are redirected to Israel. And there was an effort just over the last couple of weeks in Parliament to pass a bill to close this loophole because Canada’s own export data was showing that Canadian weapons were still ending up in Israel for use potentially in Gaza or the West Bank. And the Canadian government voted that down and they said we would not close that loophole. And so that’ll be very interesting to see if there’s any kind of conversation about the indirect, but kind of almost negligent support, or indirect support in the sense that you know that your weapons are going to end up in Israel, but you sell them to a third party first.

Mark Kersten 41:44 And I just wanted to note too that I’m fascinated by this question on the relationship between forceful displacement and genocide. I’m writing a longer paper trying to understand this in history, including here in Canada, and the ways in which displacement and genocide interact. And I totally get what Otto’s saying. The Dutch government’s saying, we’re not doing this on behalf of one side or the other. But of course, it’s the Palestinian population that’s displaced. It’s the Palestinian children that are being killed. So perhaps as a rhetorical effort to say, there’s nothing to see here in terms of political sides. But of course, this will contribute to our understanding of particular forms of violence directed at the Palestinians and not generally. And I think, I really hope that we have a greater understanding of some of these dynamics, third parties, and also displacement and genocide and how those things interact. That’s also going to be a big deal that we’re looking at now with the, and I’m going to quote unquote, buffer zone, in Lebanon and destroying villages. That’s another forced displacement issue. But let’s not get into that. I got a lot of questions from editors about that this week.

Janet 42:57 But Mark, from one ICJ case that Canada is not intervening in, I want to move to an ICJ case where Canada was very much at the forefront together with the Netherlands. And that is the case against the former Assad regime in Syria via the Torture Convention. There, Canada really took the forefront together with the Netherlands to have this kind of intervention type of case. How do you square that with Canada’s position? And now we also have the new government in Syria, which is trying to also look at the crimes of the Assad regime. But the case is going forward at the ICJ.

Steph 43:30 Lots of angles to pick from. I’m going to let Mark pick from them first, and then we’re going to move to Otto to see the Dutch side of this.

Mark Kersten 43:40 It’s interesting. I think as a middle power, and I think the Dutch are somewhat similar, and many middle powers are similar, they don’t want to abandon international institutions. They don’t want to abandon international law. They want to pick and choose when it’s most relevant to them, right? And they also have resource limitations, right? And what’s interesting to me about Canada’s approach with the Dutch to the ICJ case is it happened at a time when Canada, and it’s no longer quite as opposed, but it was very much opposed to any ICJ cases around the question of Palestine. And so while that was happening, I think there was some risk that Canada would have been seen as a state that was in some ways undermining the ICJ and international law through the ICJ. And then they come up with this critically important case in relation to Syria. And I think, one, aside from the merits and the substance of the case, one of the important things that signaled is that Canada actually would still go to the ICJ and use the ICJ where it thought it was appropriate to do so in order to achieve a degree of justice and accountability or whatever ends up flowing from this case.

Mark Kersten 44:50 I do think it’s very interesting that the government in Syria has changed. And I understand that there is at least some reason to think of the possibility of Syria simply accepting, you know, not kind of trying to go through the proceedings and fight back, but to accept the proceedings. And logically that makes sense, right? The new government, it’s in the new government’s interest in some ways to say, yeah, the former government violated international conventions and the Convention against Torture in particular. It’s a critical moment for them to invoke international law at the ICJ in a way to even further delegitimize the previous regime. Now, I’m not an expert on the ICJ by any stretch, but I don’t know if that’s ever happened. But I do hope that if it does happen, it is this kind of line drawn that demarcates this new government and potentially its commitment to not only the case, which is obviously about state responsibility, but perhaps to something even more meaningful for the people of Syria, which is reparations and transitional justice mechanisms, whatever they may look like, because they have to be appropriate to the people, and a degree of compensation or some form of concrete remedy for the people who experienced torture in Syria on such a massive scale for the better part of 15 years.

Otto Spijkers 46:09 It is my understanding that Canada and the Netherlands have no intention to remove the case from the docket. But of course, it would be very strange if the current regime would deny that the Assad regime was engaged in torture. That would be very strange. So then the case may be about indeed reparations or guarantees of non repetition. Or maybe the Netherlands and Canada just want to make this point that after a regime change, responsibility is not swiped away. What was once Syria is still Syria. It’s a bit like Iraq. Iraq is still paying reparations for what was done under the regime of Saddam Hussein.

Otto Spijkers 47:01 But then I want to say something about Canada and the Netherlands initiating this case. It’s very interesting. So you might think, yes, of course, the Netherlands does so, because we have this obligation under Article 90 to constantly promote the development of the international order, et cetera, et cetera. But then you would have expected the Netherlands to do this all the time. But this is actually the first time in the Netherlands’ history that it has initiated a case in the general interest or as a party to a particular convention, the Torture Convention. This is not a sort of tradition or habit that the Netherlands regularly engages in. But they do refer to Article 90 as one of the reasons why they took this initiative. And there is also a rumor that the Netherlands is preparing another case against Afghanistan for breaches of the Convention on the Elimination of Discrimination Against Women. But they first have to negotiate. It’s one of the procedural hurdles you have to jump through.

Steph 48:07 Yeah, they took the procedural step to warn Afghanistan that they might bring the case, I think, so that then they have this note verbale exchange, you know, the thing that always happens, and then you negotiate under the treaty.

Otto Spijkers 48:20 Yeah, you have to do this under the convention. So it is very rare. It is unique here.

[OUTRO MUSIC]

This was Asymmetrical Haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating, and spread the word.