{"id":23282,"date":"2024-10-29T08:00:46","date_gmt":"2024-10-29T07:00:46","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=23282"},"modified":"2024-10-31T11:51:24","modified_gmt":"2024-10-31T10:51:24","slug":"on-genocide-amidst-the-shouting-silence-is-the-message","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/on-genocide-amidst-the-shouting-silence-is-the-message\/","title":{"rendered":"On Genocide, Amidst the Shouting, Silence is the Message"},"content":{"rendered":"

Speaking in May at a celebration of Jewish Heritage Month, President Biden denounced the decision<\/a> earlier that month by the prosecutor of the International Criminal Court (ICC) to seek arrest warrants for Israel\u2019s Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Biden declared<\/a> that Israel\u2019s campaign in Gaza \u201cis not genocide.\u201d Biden could have saved his anger: The prosecutor seems to agree.<\/p>\n

Prosecutor Karim Khan has alleged<\/a> numerous crimes against Netanyahu, Gallant, and three leaders of Hamas: Yahya Sinwar, Hamas\u2019 head in Gaza, Mohammad Diab Ibrahim \u2018Deif\u2019 al-Masri, commander of the Al-Qassam Brigades, and Ismail Haniyeh, head of Hamas\u2019 Political Bureau. (All three Hamas leaders have since been killed; charges against Haniyeh have been withdrawn<\/a>.) They are accused of: starvation, attacking civilians (Israel); rape, hostage-taking (Hamas); extermination, murder, \u2018other inhumane acts\u2019 (both) \u2013 but not genocide.<\/p>\n

That might surprise anyone listening to the news over the past year: campus protests declaring Israel a genocidal state, and America too for supporting Israel; counter-protests labeling Hamas genocidal; cases at the International Court of Justice (ICJ), by South Africa against Israel<\/a> and even by Nicaragua against Germany<\/a> for abetting Israeli genocide; a report<\/a> by UN officials suggesting Israel is committing genocide. This new willingness to confront genocide, even in court, reaches beyond the Middle East: Since 2019, the ICJ has also heard cases involving Myanmar\u2019s attacks on the Rohingya<\/a> and Russia\u2019s attack on Ukraine<\/a>. Genocide is everywhere.<\/p>\n

So a genocide charge at the ICC might seem plausible. South Africa\u2019s case against Israel at the ICJ is a state-to-state case, not a criminal one, but the ICJ has issued provisional orders<\/a> three<\/a> times<\/a> in response to the complaint\u2019s catalogue of killings and disturbing rhetoric<\/a> by Israeli officials calling for the destruction of \u201chuman animals\u201d (\u201chayot-adam<\/a>\u201d in Hebrew<\/a>). Still, although the ICC prosecutor only needs<\/a> \u201creasonable grounds to believe\u201d crimes were committed to obtain a warrant, no charge of genocide. Arguably it\u2019s even easier<\/a> to call Hamas\u2019 actions on 7 October 2023 genocidal, but the prosecutor didn\u2019t charge that either.<\/p>\n

Perhaps that\u2019s the pressure of equivalence \u2013 after all, what would it mean to charge one side with the ultimate crime but not the other? But there\u2019s another reason: Saying a charge against Hamas is easier doesn\u2019t mean it\u2019s easy. Genocide is very, very hard to prove. The prosecutor\u2019s silence tells us a lot about the difficulties a prosecution would face, and why genocide law is barely usable.<\/p>\n

Genocide is often associated with the Holocaust or Shoa \u2013 Raphael Lemkin coined the word \u2018genocide\u2019 during the Second World War, in which he lost dozens of members of his extended family \u2013 but in fact he began his advocacy in the interwar period, motivated in significant part by the Armenian massacres during the First World War. Genocide is mentioned in the Nuremberg indictment, though not as a formally separate crime, rather as a descriptive term for crimes against humanity. In negotiations after the war, Lemkin\u2019s earlier, more expansive proposals were watered down, but a new, separate crime was identified<\/a> in the Genocide Convention of 1948.<\/p>\n

If genocide law were what lay people imagine, then killing many, many people would be genocide. But it\u2019s not. Genocide requires<\/a> specific acts \u2013 such as killing, causing serious bodily or mental harm, removing children \u2013 committed with intent to destroy some national, racial, ethnic, or religious group as such<\/em>. Genocide is a \u201cgoal-oriented crime<\/a>\u201d: The group\u2019s destruction must be intentional \u2013 must in fact be the core purpose for the underlying acts \u2013 not a byproduct. (That may be more complicated for low-level offenders, for whom merely acting with knowledge of a genocidal context might suffice. But on the dominant view, and especially for leadership, purpose is still the clear standard.) That\u2019s an evidentiary problem because people kill people for all sorts of reasons.<\/p>\n

Israel has killed over 40,000<\/a> people in Gaza, mostly civilians, during an intensive military campaign. That \u201cunusually intemperate<\/a>\u201d UN report<\/a> says Israel has \u201cdistorted jus in bello<\/em> principles [rules governing war] (…) in an attempt to legitimize genocidal violence against the Palestinian people.\u201d That just shows the problem with identifying genocide during hostilities: \u2018Distortion\u2019 is possible, because wars are fought for many reasons, and it\u2019s difficult to isolate genocidal intent from operational goals. Israel is bombing Gaza into oblivion, and the supposed genocide is<\/em> the bombing. It\u2019s not enough to point to deathscapes of rubble; what\u2019s needed is evidence of a plan and intention to destroy the group as such.<\/p>\n

Even Hamas\u2019 \u2018Al-Aqsa Flood\u2019 operation attacking civilians had complex purposes that would make proving genocide difficult. A Hamas\u2019 operative\u2019s notorious statement<\/a> that the operation would be repeated \u201cuntil Israel is annihilated\u201d would make ambiguous evidence in a courtroom: He spoke of annihilating Israel<\/em>, not Jews or even Israelis. (Compare Israel\u2019s insistence that it is targeting Hamas<\/em>, not Palestinians.) Such distinctions make little difference to those fleeing bombs, held in dungeons, or shot delivering aid, but those distinctions are<\/em> genocide law \u2013 they are what separate genocide from other crimes or the harms of war. Proving those other crimes (which have their own subtle distinctions and tests) seems much more plausible, and regretting or condemning the death and suffering inflicted by each side is something any moral actor could do as a political matter; but the distinctions that constitute genocide law make it different, and difficult to prove that genocide is what\u2019s happening between the river and the sea.<\/p>\n

Convictions are<\/em> possible, for example in Rwanda, where 800,000 people were slaughtered by their own neighbors in a few months, or for the brutal persecution and enslavement of Yazidis<\/a> by ISIS. But a better indicator of the blurred space genocide law occupies is Yugoslavia, whose brutal civil war confounded the doctrinal purity of genocide, even when discriminatory crimes were flagrant<\/a>. Despite shocking acts and statements that could compete with the worst quotes in South Africa\u2019s case against Israel or Hamas\u2019 most explicit statements, the International Criminal Tribunal for the Former Yugoslavia found genocide only<\/a> in one Bosnian town, Srebrenica, but nowhere else<\/a>. That is not an accident, or even bad judging; it is a predictable reaction to the doctrinal limitations girding this crime. Genocide\u2019s bar is high, and when it happens during conflict, the fog of war covers the blood-soaked earth below.<\/p>\n

To advocates of international justice, the ICC prosecutor\u2019s charges for the Israeli-Hamas conflict \u201ccut through<\/a> the polarizing language of the moment\u201d to affirm a lawfully governed world. Maybe so \u2013 though there\u2019s little evidence polarization has lessened \u2013 but those charges don\u2019t include genocide. And they almost never do \u2013 not for Palestine, not for Ukraine, not for most conflicts; in fact the ICC has only charged genocide once<\/a>, for President al-Bashir in Sudan, and the prosecution actually failed<\/a> to meet the low threshold for indictment the first time it tried. Whether that thin record is the result of risk-aversion or political pressure, the message is the same: genocide is not the legal tool people think it is.<\/p>\n

Genocide sounds<\/em> like the supreme crime, and claiming it\u2019s happening has become a potent rhetorical weapon, but charging<\/em> genocide is risky, because proving it requires more than chanting and moral certainty. Protestors\u2019 passion inversely correlates with this crime\u2019s legal value: Genocide\u2019s inchoate, Protean plasticity combines with crimped, legalistic constraints to make it useful in politics, nearly worthless in law.<\/p>\n

But even with its evidentiary and conceptual defects, surely genocide law is necessary for cases when there is no doubt? To some, it seems unacceptable to reduce the Holocaust to \u2018just\u2019 six million murders. I\u2019m not sure that\u2019s right, because it actually is possible to prosecute genocide using ordinary categories: Germany convicted<\/a> Oskar Gr\u00f6ning for accessory to murder of 300,000 people at Auschwitz. But practicalities aside, rather than insisting on genocide as the interpretative frame, we might do better to focus on individuals and their suffering \u2013 to see, in each of those six million, those 40,000, those 1,200, a single human being\u2019s harm.<\/p>\n

Nothing prevents us from telling the reasons<\/em> for that harm in other ways \u2013 as history, theater, literature, social critique. Genocide is a socially meaningful term; it\u2019s just not clear it\u2019s necessary in law. And focusing myopically on this redundant crime trivializes<\/a> our response to other crimes, reducing the victims of \u2018mere\u2019 crimes against humanity or war crimes to second-class status.<\/p>\n

There\u2019s little evidence that genocide law ends genocides anyway. Although Israel has submitted a confidential report<\/a> to the ICJ outlining its compliance with the court\u2019s provisional measures, there is no evidence that those measures have had any<\/a> discernible<\/a> effect<\/a> on the course of Israel\u2019s war. (Neither have the ICC prosecutor\u2019s applications for arrest warrants for other crimes \u2013 it\u2019s not only genocide law that has limited effects.) If we want robust action to hold genocidal actors \u201caccountable\u201d as then-President Trump demanded<\/a>, or \u201cprevent future genocides\u201d as President Biden promised<\/a>, we need other, better tools than courts. But we may be less likely to use those tools if we rely on formal legal standards, because focusing on slow, backwards-looking, technical processes can actually suppress political pressure to act in real time.<\/p>\n

Genocide law isn\u2019t going anywhere, and genocide will be charged from time to time. But not anywhere near as often as many people think it should, and that disconnection between doctrine and desire \u2013 between the law we have and what we think the law should do \u2013 is a signal.<\/p>\n

If you doubt what\u2019s happening in Israel or Palestine is genocide, you should be concerned by all the shouting and court cases and op-eds saying there\u2019s a genocide happening. And if you\u2019re convinced genocide is<\/em> happening \u2013 even many<\/a> genocides (in Afghanistan, Syria, Myanmar, Sudan, Nigeria, Ethiopia, Congo, Ukraine, Nagorno-Karabakh, Xinjiang, Canada, the United States…) \u2013 ask yourself: What good is law doing? Because apparently genocides are happening all the time.<\/p>\n

Either way, the prosecutor\u2019s silence is a message: Time to rethink a defective, counterproductive concept that isn\u2019t doing what anyone thinks it should. Because there is a lot of shouting. And a lot of law. And somewhere in between, a lot of dead people who aren\u2019t saying anything at all.<\/p>\n

 <\/p>\n

The author would like to thank an anonymous reviewer for helpful comments.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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