What’s in a Name? Genocide, the Universal and the Common in International Law

The following text was prompted by a discontent with the way international lawyers in Germany have addressed the question of genocide in Gaza, if they have done so at all. It seeks to clarify why it matters to name a situation genocide, beyond the explanations usually given by international lawyers. It also points to ways how international law may develop a sensibility for the experiences of those affected by genocide. The text does not speak directly to the ongoing genocide of Palestinians in Gaza committed by Israel and assisted by Germany. It is no contribution to the urgently needed actions – such as boycotts, sanctions, divestments, refusals to cooperate and to be otherwise complicit – to stop this genocide. Instead, it seeks to specify the injustice that the term genocide can name, already long before a group and its members are being physically destroyed by bombing, shooting and starvation.

Just Say Genocide!

Just say genocide! Many people have insisted – in the streets, social media and journalistic texts – that the situation in Gaza be called genocide, already long before the most recent report that makes this finding by the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel. They have pointed to reports by human rights organizations, UN Special Rapporteurs and, statements by genocide scholars. Many feel connected to the plight of the inhabitants of Gaza through their own experience – because they are Palestinian or Jewish, have friends or family in Israel or the occupied territories, because they have worked on and in the region or because the fate of Palestinians otherwise resonates with their own experiences of violence, expulsion, discrimination and further traumas.

The urgent calls to action and angry accusations of complicity in genocide are also directed at international lawyers in Germany. Yet, we have been reluctant to engage in a debate on genocide. If we do, the engagement often remains confined to doctrinal analysis. The difficulty for us, as German international lawyers, to even entertain the question of genocide by Israel is obvious, given Germany’s historical responsibility for the Holocaust. Yet, it does not suffice as explanation for what is going on.

In this blog post, we explore the implications of contemporary debates on genocide and in particular the significance of qualifying a crime as genocide. We begin with the question: What is at stake in the struggle over genocide?

Three Unconvincing Explanations for What is at Stake in the Struggle over Genocide

Three explanations are frequently invoked that, in our view, downplay or misread what is at stake for those who insist that Israel’s actions in Gaza (and the other occupied territories) are called genocide.

The first explanation understands the struggle over naming the situation genocide, as a struggle over jurisdiction: Some have maintained that South Africa bases its claim against Israel on the Genocide Convention mainly for reasons of jurisdiction. Where the convention’s compromissory clause provides a basis for jurisdiction of the International Court of Justice (ICJ), none exists in this constellation for war crimes or crimes against humanity, which however, to some international lawyers, provided more appropriate qualifications of Israels actions.

The second explanation goes as follows: People loudly shout genocide in order to grab the attention of media and the public. Invoking “the crime of crimes”, it is said, is more effective than allegations of other crimes.

The third explanation portrays the struggle as one between law and politics. Those who call Israel’s actions genocide, some say, confound a broad political concept of genocide with the narrow legal concept of the genocide convention. In the heated and emotional debates, a strictly doctrinal assessment could act as a “cooling medium” – to borrow Jochen von Bernstorff’s term – and rationalize the debate.

We argue that something deeper is at stake. The motivation of those who are insisting on framing the situation in Gaza in terms of the prohibition of genocide cannot be reduced to mere attention-seeking. Instead, we suggest that the qualification as genocide expresses a profound loss and a longing for justice that is not or only insufficiently captured by individual human rights, crimes against humanity, or war crimes. We use the term “the common” as a concept to denote this loss.

Genocide as the Destruction of the Common

The notion of “the common” refers to forms of life, meaning, and belonging that arise from shared practices and experiences. It captures what binds people together in concrete social, cultural, or ecological relations. The common is difficult to define in the abstract, as it can take manifold forms. The philosopher Francois Jullien defines the common as that “what we are part of or in which we take part, which is shared out and in which we participate.” The common causes us to belong and takes root in practice and experience. (p. 17, 18)

Jullien contrasts the common with the universal. Contrary to the common, the universal does not emerge from experience, but rather predicts and decrees. The universal in law and liberalism is the equal worth of each and every individual as such – independent of their faith, their abilities or place of birth. And that is very important! The common, represents something different, yet equally important: the uniqueness of human identities as they emerge from relational ties to other human beings, to non-human beings, to particular places, to material and immaterial things.

Currently, liberal international law tends to favour the universal over the common, the individual over the collective. Thus, it flattens the legal representation of our individual and collective existence. We see the struggle over genocide as part of a larger struggle to do justice not only to the universal, but also to the common and to give it a place in international law.

Why is it Important to Refocus International Law on the Common?

If international law and liberalism shall have a future, they need to pay attention to the common. The common is being neglected and destroyed. This is visible in the erosion of languages, traditions, and communal ways of life that are the target of structural violence. Individuals may remain physically and abstractly protected while their collective worlds are being dismantled. Often such violence cuts not only social, but also ecological ties and thus not only affects individual and collective identities, but results in environmental destruction as well. Genocide is only the most extreme form the destruction of the common can take.

Loss and longing for the common can be connected to the rise of authoritarianism. Authoritarian and fascist governments seek to capitalize on this longing; they invoke the protection of the common to justify repressive migration policies, militarization, and wars. It is therefore of utmost importance that international law is reoriented towards the common in a non-authoritarian fashion and no longer prioritizes universal norms and individual rights to the detriment of the relational and collective dimensions of human existence. An engagement with contemporary debates on genocide may sharpen our sensibilities as international lawyers for the common.

As already mentioned, the prohibition of genocide can be understood as prohibition of the destruction of the common. Whilst the salience of the common gets lost in the text of the Genocide Convention and legal doctrine, it resurfaces in the invocation by Palestinians, South Africa, UN Special Rapporteur Francesca Albanese but also the struggles of Indigenous peoples around the world who use the term genocide to call attention to the destruction of their common. In the following, we seek to recover the centrality of the common to the crime of genocide by engaging with the work of Raphael Lemkin and with postcolonial and Indigenous studies. All of them have been more responsive to the experiences of those who see themselves as victims of genocidal violence than contemporary international law.

The Liberal-Universalist Position on Genocide

First, we wish to juxtapose the conception of genocide that foregrounds the common, with the liberal-universalist position. In his book East West Street Philippe Sands stages an encounter between Raphael Lemkin and Hersch Lauterpacht – both Jewish refugees whose extended families were killed by the Germans. Both sought to reform international law in order to prohibit and punish the barbarism of national socialism – Lauterpacht with crimes against humanity, Lemkin with the crime of genocide.

Lauterpacht is portrayed as representing the liberal-universalist position; Lemkin as representing a liberal position that goes beyond the individual to also protect the surplus of collectivity, i.e. the bonds and continuities of group life that shape the lives and subjectivities of the group’s individual members. Sands attributes to Lauterpacht the view that protection of groups would detract from the protection of individuals; that the crime genocide might perpetuate “tribalism”, thus increase the divide between groups and make peaceful coexistence more difficult. While Sands’ sympathies clearly lie with Lauterpacht, he depicts the older Lemkin as disheveled and slightly unhinged; as highly emotional and a bit obnoxious in his relentless attempts to convince statesmen and lawyers to make genocide an international crime.

In hindsight one may say that Lauterpacht’s version of liberal international law with a focus on the universal won the day. The Genocide Convention’s definition of genocide reflects this with its emphasis on the physical destruction of national, ethnic, racial and religious groups with special intent. The genocide of the Genocide Convention is often understood as a specific kind of murder, an instance of mass killings. Even though groups are at the centre of the Genocide Convention, it is often placed in one lineage with human rights treaties that protect individuals. During the constitutionalization debates in international law the Genocide Convention served as evidence of a liberal international legal order that centers the individual. Today, genocide is often regarded as merely a subcategory of the broader crimes against humanity with the latter having gained in importance, as Wiliam Schabas has noted.

Until the current moment, when many revert back to Lemkin and his attempt through the concept of genocide to protect not only individuals but also collectives or what we refer to as the common.

Lemkin’s Conception of Genocide

How did Lemkin – who identified, both, as a Polish Patriot and as a Jew – seek to capture not only the barbarity of mass killings but also the destruction of the specificity of collective relations that we refer to here as the common? And how did scholarship on genocide and colonial violence subsequently build on his work?

Importantly, Lemkin understood genocide as structure and process and not as an event or series of events – structure that destroys biological life, but also structure that destroys collective identity. In his book Axis Rule in Occupied Europe published in 1944 when Lemkin was in exile in America, Lemkin defines his new crime of genocide. Genocide, he writes “has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor.” (p. 79) This entails “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups with the aim of annihilating the groups themselves.” (Ibid.) Lemkin understands national groups as made up of multiple dimensions: political, social, cultural, economic, and biological — all of which can become targets of destruction. What makes such destruction possible is an ideology of racialization, which transforms difference into a ground for elimination. In this context, Lemkin also draws attention to practices such as population transfers and settlements as techniques of genocide, insofar as they are designed to eradicate the social and cultural foundations of group existence and to replace them with those of the oppressor. This expansive understanding underscores that genocide, for Lemkin, was not reducible to mass killing alone but encompassed a wide repertoire of strategies aimed at the annihilation of a collective way of life. Lemkin used the term “nation” also for groups without territory – like the Jews. Today, we would call them peoples under international law.

To understand how the Germans destroyed these dimensions of group life, Lemkin systematically collected legal instruments and administrative decrees of the German occupiers. On this basis, he identified techniques, practices and institutional infrastructures of planful destruction and the replacement of existing group patterns with new ones. In Axis Rule, he described them in chapters on administration, police, law, courts, property, finance and labour, showing how each of these domains could be mobilized to dismantle the social fabric of a national group. For Lemkin, measures such as the restructuring of local administration, the imposition of alien legal systems, the confiscation of property, and the exploitation of labour were not ancillary to genocide but constituted its very techniques. These practices aimed simultaneously at destroying existing communal structures and at implanting the institutions, values, and social patterns of the oppressor.

Lemkin not only saw the European Jews as victims of genocide. He also spoke of genocide of Christian Poles (of which 3 million died under German occupation), of Sinti and Roma and other groups. When he worked on Axis Rule, Lemkin was not yet fully aware of the catastrophe of 6 million Jews killed which included his extended family. But he did note the different quality of the destruction of Jewish life.

We want to emphasize two things: first, Lemkin’s focus on group specific structure and patterns and on administrative and regulatory techniques. Second, for Lemkin destruction of a group did not require the killing of human beings because he attributed an intrinsic value to groups. A group is more than the sum of its parts. This surplus value of groups, reflected in their structures and patterns of relations is what we call the common.

The Destruction of Groups

Today, when we hear genocide, we think of the Holocaust, of mass killings and concentration camps. Raphael Lemkin, however, the father of the legal concept, was willing to contemplate genocide even without the physical destruction of human beings. According to him genocide could take the form of the systematic destruction of the economic and cultural foundations of a group. Postcolonial and genocide studies build on Lemkin and relate genocide to colonization. Lemkin had done so himself in his unpublished World History of Genocide. Historian and anthropologist Patrick Wolfe understands colonialism as a structure that can culminate in genocide.

Colonial genocide can occur slowly and incrementally – not only through weapons and brute force, but with the help of legal and administrative instruments, the interplay of illegal violence and the legal consolidation of power and replacement of one social order or – in the words of Lemkin – one set of patterns with another one. Thus, forced integration of colonized populations into value chains, assisted by the expropriation of land, the introduction of wage labor, taxation, and a money economy can form steps towards genocide. In many cases these measures were part of a calculated plan inflicting conditions of life that destroyed whole cosmologies.

Today, the German government recognizes the colonial extermination of Nama and Herero populations in what today is Namibia as genocide. More than half of the Nama and more than 80 % of the Herero population were killed by German troops, driven into the Omaheke desert, interned in camps and forced to work for the German colonizers. Many other colonial genocides remain contested and unacknowledged. Not only for the conceptual reason of a lack of attention to the common that we address here. A Eurocentric narrative of ‘civilizing’ progress, the exceptionalization of the Holocaust, and racialized hierarchies of grievability have rendered the mass deaths of Black, Indigenous, and other colonized peoples invisible and unworthy of collective mourning.

While Lemkin’s conception of genocide allows us to recognize colonial structures and processes beyond physical violence as genocidal, the Genocide Convention does not explicitly address the destruction of group patterns. Moreover, it narrowed Lemkin’s broad category of groups by excluding cultural and political groups. In the following, we seek to show how the determination of group membership in the contemporary international law of genocide by focusing on the individual also has the effect of sidelining the common.

International legal practice distinguishes between an objective and a subjective approach to group membership. The objective approach understands individuals as members of a group, when they objectively share certain characteristics – such as a religious faith. According to the subjective approach, it is – in the words of William Schabas “the perpetrator of genocide who defines the individual victim’s status as a member of a group” (p. 160). The victims of genocide have long experienced such social construction of group membership from the outside. Many Jews thought of themselves as Germans not as Jews. It was the Nazis who qualified them as Jews. Or as Sartre pointedly remarked: “Le Juif est un homme que les autres hommes tiennent pour juif.” (engl. “A Jew is a man whom other men consider to be a Jew.”). Research on racial capitalism explains more elaborately the construction of race. Race, Patrick Wolfe writes, emerges through persecution and dehumanisation. Black people were not enslaved because they were black. Instead, they were racialized through slavery. Slavery made them black.

Both, the subjective and the objective approach in the legal practice of genocide trials ultimately remain focused on the individual. When adopting the objective approach, the judge asks: Do the individual victims share certain characteristics? When adopting the subjective approach: Did the perpetrators attribute certain shared characteristics to the individual members of the group? What gets lost in this focus on the individual is what turns a mere collection of individuals into a collective that is more than the sum of its parts. Lemkin sought to protect groups for their intrinsic value (that he mainly attributed to their cultural achievements). Neither the subjective nor the objective approach to group membership, with their focus on the individual, can capture this surplus value of collectivity.

Yet, Lemkin’s own approach is not without problems. As genocide scholar Dirk Moses observes, Lemkin’s primordial understanding of nations risks reifying and essentializing groups. It can lead to the critique that Sands attributes to Lauterpacht, namely that genocide’s focus on groups reinforces divisions and makes reconciliation more difficult. To address this problem, Lauterpacht focused on the individual and sought to protect it through human rights and crimes against humanity. Yet, this comes with a price, namely the price of eclipsing the common as an essential part of human identity.

Relationality Forming the Common

We want to propose a different perspective on groups. Here is where we go beyond Lemkin. We suggest to focus on the relations that constitute collectivities. Relations bind individuals together in collectives and relations explain why the collective is more than a collection of individuals. Individuals form their identity in relation to other members of the collective. The individual would not be the same, she would not be at all, without her relations to the other parts and to the whole. It is relations that form the common, relations that are never fixed but fluid. These relations can be political, economic, social, spiritual, ecological. Not only do they relate human beings to each other, but also to non-humans, to immaterial and material things, to places, landscapes and land.

Relations to land can be of particular significance. Here, we return once again to Patrick Wolfe. With regard to the Indigenous population of North America, he explains: “Indigenous North Americans were not killed, expelled, assimilated, fenced in and otherwise destroyed as landowners, but as Indians” (p.388). From the perspective of the colonizers, racialization constructed a group identity (“Indians”) that justified land theft. From the perspective of the inhabitants of this land, however, more was going on. The theft of land destroyed their relationship to the land and thus an important aspect of their individual and collective identity. The rupture of the relation to land frequently entails dispersion, forced migration, and the fragmentation of nations. It undermines the collective life that is grounded in specific territories, ecologies, and spiritual geographies. To reiterate, from this perspective, genocide through colonization is not only about the physical destruction of bodies, but also about severing a people from the land that sustains their collective existence and identity. It is precisely this loss—dispersion, fragmentation, rupture of relation—that challenges the categories of international law, which remain oriented around individuals, and thus have difficulties to capture the destruction of the common as a relational world.

Irene Watson, professor of law at the University of South Australia and belonging to the Tanganekald, Meintangk, Bunganditj and Potaruwutj First Nations Peoples, describes the relation to land of Indigenous peoples in Australia prior to colonization as follows:

“We called the land ‘ruwe’ – mother or grandfather … . We know ruwe as a relationship in the same way that we are birthed of the mother and are in kinship relationships to our peoples”. (p.31)

Watson further insists that the relations with land are lawful relations. They are also ecological relations, entailing obligations of guardianship and care. This explains the skepticism of some Indigenous groups towards the concept ecocide. They understand the destruction of nature not as a separate crime, but as part of their own genocide.

A Few (Preliminary) Conclusions

The tenacity with which people defend discussing the situation in Gaza in terms of genocide can be understood as insisting on the recognition of an injustice; an injustice that cannot be reduced to physical harm to individuals but that is experienced as the destruction of their common. If we understand genocide as a destruction of structures and patterns and a –sometimes slow and incremental – process that destroys the common, this also complicates the question of the perpetrator and of attribution. For Lemkin not just the government and Nazi officials, but German society as a whole was responsible for the Holocaust and the other genocides committed during national socialism.

Gaza can be understood as the culmination of a long process of the destruction of the common, of the rupture of relations, of dispersion and enforced seclusion. The majority of its inhabitants are not originally from Gaza itself but are Palestinians displaced from towns and villages across historic Palestine, who fled there in successive waves since 1947. Gaza thus embodies the experience of fragmentation and forced concentration of a people cut off from the rest of their nation. The blockade and recurrent military assaults reinforce this seclusion, rendering Gaza at once a site of survival and of permanent rupture from land and kin. The destruction of relational ties to land and community forms a central dimension of the collective loss experienced by Palestinians. The logic of dispersion and fragmentation extends far beyond Gaza. In the West Bank, a dense network of settlements, bypass roads, checkpoints, and the separation wall have carved up the territory into a series of discontinuous enclaves, making everyday mobility dependent on military permits and constantly eroding the coherence of Palestinian social life. In East Jerusalem, home demolitions, residency revocations, and settlement expansion operate as techniques of forced demographic engineering designed to sever Palestinians from their urban, cultural, and religious heart. Beyond the borders of historic Palestine, millions of refugees live in camps across Lebanon, Jordan, and Syria, where their status as stateless exiles perpetuates the rupture of community and land across generations. Seen through the lens of Lemkin’s conception of genocide, these are not merely isolated instances of dispossession but elements of what he described as the “imposition of the national pattern of the oppressor”: a deliberate restructuring of social and territorial life aimed at erasing existing communal forms and replacing them with those of the dominant power. Lemkin and Wolfe allow us to understand the present genocide in Gaza as the deadly culmination of a long history of dispersion of Palestinians into Gaza, the West Bank enclaves, Jerusalem’s fragmented neighborhoods, and refugee camps abroad. The genocide of Palestinians is not reducible to their mass killing, but encompasses the systematic destruction of relational worlds, including those grounded in land, kinship, culture, and political self-determination.

The understanding of genocide, we have outlined in this post, can even become an indictment of international law. The drafters of the Genocide Convention were aware that genocide could turn not only against their own states’ legal orders which condoned racial segregation and colonization, but also against international law. As Schabas notes, when in December 1948 delegations to the UN General Assembly debated an amendment to the convention in order to include cultural genocide, the delegate from New Zealand drew attention to a report of the Trusteeship Council. That report noted that “existing tribal structures” were an obstacle to the political and social advancement of Indigenous inhabitants. The delegate who cited the report, concluded that it would be detrimental to the United Nations to include in the convention provisions that might be invoked against its own organs. Plenty of examples could be listed – from the creation of postcolonial states to large scale development projects – for international law’s complicity in the destruction of social and ecological relations fundamental to collective life. The current struggle about genocide could draw attention to this complicity.

Given these complications and complicities, it is not our priority to suggest a reinterpretation of the crime of genocide or the introduction of new crimes. Rather, our aim is to attune our sensibilities to the common and its place in international law and to the experiences of those who invoke genocide to give a name to the loss of the common. This sensibility for the common has to be worked out. It needs to be translated into legal arrangements to protect the common and ensure peaceful coexistence.