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Is what Israel is doing in Gaza genocide?

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I have no expertise in international criminal law in general or the law of genocide in particular, so the purpose of this thread is to pose some questions and have a discussion.

I do want to frame this with two observations and a couple of quotes. The first observation is that I think a lot of people believe that the meaning of the word “genocide,” which was coined by a Polish Jewish lawyer in 1944, is or ought to be limited to cases which very closely resemble the Holocaust. The Holocaust at its core was the conscious, systematic program of the German state to murder every single Jewish person within Germany’s legal jurisdiction, including those areas acquired by military conquest. (I should note that exactly when and how the Holocaust became the conscious systematic aim of the Nazi regime remains a very controversial question).

As a matter of current international law, the concept of genocide is broader than that: A genocide does not necessarily require a state to adopt a conscious program of the attempted total physical annihilation of a people or group. How much broader the concept should be is controversial. This article quotes various proposed definitions, and their relation to the current official legal definition of the concept in international law.

The second observation, which is related to the first, is that I believe many people in both Israel and the United States consider it almost literally inconceivable that the Israeli government could be carrying out a genocide against the Palestinians of Gaza at present. To them, this accusation is so outrageous on its face that it isn’t worthy of serious consideration. What makes it outrageous in their view, I think, is a kind of exceptionalist thinking that goes something like “Israel is the Jewish state, which exists because of the Holocaust, which is the archetypal genocide. The accusation that the Jewish state could be consciously carrying out a genocide can only be a product of anti-Semitism, given the historical context of its very existence.” (Note that this begs the question of the extent to which a genocide has to be a product of conscious state policy).

. . . Note also that the question of whether Israel is committing war crimes in Gaza is legally speaking a different question from whether it is committing genocide.

A couple of quotes from recent New Yorker article by Masha Gessen. The first is about the hearing in January at the International Court of Justice, in which South Africa was asking the ICJ to declare that a serious risk of genocide in Gaza already existed:

For the purposes of the hearing, South Africa didn’t need to prove that Israel is committing genocide—only that the risk of genocide is plausible enough to warrant emergency measures. Top Israeli officials have made a series of statements that seem to communicate an intent to annihilate Gaza and its inhabitants. On October 9th, two days after the Hamas attack on Israel, Defense Minister Yoav Gallant announced “a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed.” He added, “We are fighting human animals, and we are acting accordingly.” The following day, Major General Ghassan Alian, who heads the office of Coordinator of Government Activities in the Territories, said, “Human animals must be treated as such. There will be no electricity and no water, there will only be destruction. You wanted hell, you will get hell.” The energy minister, Israel Katz, pledged to deprive Gaza of power and water. “Humanitarian aid to Gaza? No electrical switch will be turned on, no water hydrant will be opened, and no fuel truck will enter until the Israeli abductees are returned home.” Quoting this passage to the I.C.J., the South African representative Tembeka Ngcukaitobi said, “This admits of no ambiguity. It means to create the conditions of death of the Palestinian people in Gaza.”

South Africa argued that murderous rhetoric in Israel was explicit, consistent, and came not from the margins but from the very people who make state and military policy. Central to this argument is Prime Minister Benjamin Netanyahu’s use of the Biblical legend of Amalek, a mythical nation that wanted to annihilate the Hebrew people. Netanyahu invoked Amalek in a televised address on October 28th, as Israeli troops were beginning the ground invasion of the Gaza Strip. In the Biblical legend, God commands the Israelites to avenge themselves by killing every single Amalekite—to commit genocide. In December, a group of Israeli soldiers was filmed dancing in a circle, singing verses cobbled together from the statements of their state officials: “I’m coming to occupy Gaza / and beat Hezbollah. / I stick by one mitzvah / to wipe off the seed of Amalek / to wipe off the seed of Amalek. / I left home behind me, / won’t come back until victory. / We know our slogan: / there are no ‘uninvolved civilians.’ / there are no ‘uninvolved civilians.’ ”

Ngcukaitobi played the video for the court. “Soldiers obviously believe that this language and their actions are acceptable, because the destruction of Palestinian life in Gaza is articulated state policy.”

Israeli officials immediately protested that they had not meant what they said. Netanyahu’s office called the description of his use of Amalek as an incitement to genocide historically ignorant. The “reference to Amalek was not an incitement to genocide of Palestinians, but a description of the utterly evil actions perpetrated by the genocidal terrorists of Hamas on October 7th and the need to confront them,” the statement read. Here was the crux of the problem, the point of non-intersection. Israelis—not only right-wing Israelis, and certainly not only Israeli officials, but the overwhelming majority of Israelis—feel that, in the wake of October 7th, the country is responding to an existential threat. It is fighting an inevitable, necessary, and just war. The sense of righteousness and the underlying fear are so great that Israeli officials probably speak for their country when they say, in effect, How can you call it genocide if it’s waged by us?

The second quote is from the same article, regarding a hearing in United States federal court, in a case in which the plaintiffs argued that the Biden administration is violating international law by supplying weapons to the Israeli military, because the IDF’s actions in Gaza constitute an ongoing genocide:

One of the eight witnesses called by the plaintiffs was the Wake Forest University professor Barry Trachtenberg, a historian of the Holocaust who wrote “The United States and the Nazi Holocaust,” which analyzes the role of racial prejudices in America’s failure to prevent the genocide of the Jews. Trachtenberg testified to a consensus opinion among historians of genocide that what is happening in Gaza can indeed be called a genocide, largely because the intent to cause death on a massive scale has been so clear in the statements of Israeli officials. “We are watching the genocide unfold as we speak,” he said. “We are in this incredibly unique position where we can intervene to stop it, using the mechanisms of international law that are available to us.”

Trachtenberg was the only witness the government, which called no witnesses of its own, chose to cross-examine. The effort to impeach his credibility went almost comically off the rails.

“Dr. Trachtenberg, you do not have a law degree, correct?” Jonathan Kossak, a lawyer for the Department of Justice, asked.

“Correct.”

“You do not have a degree in international relations, correct?”

“Correct.”

“You are not an expert on the constitutional principle of the separation of powers, correct?”

“Correct.”

“You are not an expert on U.S. national-security interests, correct?”

“Correct.”

“You are not an expert on U.S. foreign diplomacy, correct?”

“I’ve studied quite a bit of U.S. diplomacy, especially as it relates to genocide during World War Two.”

“You don’t have a degree in foreign policy, correct?”

“No, I wasn’t aware that’s a degree.”

“You’ve not written, um, um, on, eh, strike that.” After a long pause, Kossak asked for a moment and walked over to confer with his co-counsel. “No further questions, your honor.”

The U.S. government’s defense, much like Israel’s defense in the I.C.J., rested on the fundamental argument that the case itself is unthinkable. The Justice Department’s attorneys argued that the court was being asked to intervene in foreign policy and indeed undermine it, violating the principle of separation of powers. The plaintiff argued that the question was one not of policy but of law: the Genocide Convention, of which the United States was a lead author, is law, and sending bombs to the Israeli military so it can carry out genocide violates this law.

At the end of the day, the judge, Jeffrey S. White, looked stricken. “The testimony that the court heard was truly horrific, gut-wrenching,” he said. “And the government doesn’t really dispute, seriously dispute, factually, what’s going on in Gaza.” (Jean Lin, one of the two lawyers for the government, nodded.) White continued, “There is now on the record uncontradicted evidence that, at least in the opinion of scholars, one very highly regarded scholar—not from a legal standpoint but from a sociological, historical construct—they believe there is a genocide in progress. And I have to say that, in twenty-some-odd years on the bench, this is probably the most difficult case, factually, that this court has ever had, and one of the most difficult cases legally that this court has ever had, because the court needs to decide: . . . What are the limits of the court’s power within our constitutional framework?”

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