Sorry about the delay on this one, and absence of recent posts. I’ve been in a bit of a rush, getting ready for travel. Will hopefully return to normal service soon.
Another Monday Message Board. Post comments on any topic. Civil discussion and no coarse language please. Side discussions and idees fixes to the sandpits, please.
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John Quiggin 
Israel and genocide
Pedro Sanchez Prime Minister of Spain: “we do not trade with a genocidal state”. https://x.com/MiddleEastEye/status/1923401886146720186
This is no longer a niche issue but live high-stakes politics. So is the dreadful charge warranted or not?
The1948 UN Convention on the Prevention and Punishment of the Crime of Genocide is remarkably brief. It defines the crime in Article II:
“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
Article III specifies that the crime extends to conspiracy, attempt and incitement. Article IV specifies that Contracting Parties have to put the crime of genocide on the statute book, with no exemptions from personal liability. That’s it.
We have to thank one man for the whole scheme: Raphael Lemkin https://en.wikipedia.org/wiki/Raphael_Lemkin , the Polish Jewish professor who developed the concept by observing, documenting and studying the ongoing attempts by the Nazis to extirpate the Jews of Europe and also Slavic national identities. He then managed, more or less single-handedly, to secure recognition and condemnation of the crime in international law. The merits of the Convention are his – and so are its flaws. Scholars are free to develop and market a different concept but for practical purposes we are stuck with Lemkin’s.
Lemkin’s genocide is a mens rea crime, like murder, theft and rape. It requires an overt act and an intention. In fact it imposes a uniquely strong version of mens rea: the intention must be to “destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (my emphasis).
There are two major difficulties of design. One is that the intent has to be to destroy: intent to punish, to avenge a perceived wrong, is not enough. Many war crimes are acts of revenge but fall short of genocidal intent. The other is that genocides are rarely avowed. Even in internal secret documents, the Nazis never wrote down in black and white that they planned to exterminate all the Jews in Europe. They kept up a thin facade of euphemisms like “final solution” and “concentration camp”. The intention was undeniable, since they put a lot of effort and ingenuity into the project to get round the self-imposed ambiguities. For instance, the rail transport of victims over long distances, from home to ghetto to death camp, cost money, but there was no budget line to pay the Reichsbahn for it. The workaround was to rob the transportees of their possessions, forcing them to pay for the one-way ride to death in cattle cars. (Claude Lanzmann, Shoah). In practice genocidal intent can only be proven beyond a reasonable doubt after the event, not while the crime is proceeding.
Contrast war crimes. The Geneva conventions on the laws of war build on ancient military traditions of chivalry, but in their current form they are strongly marked by two groups of pragmatists. Swiss do-gooders since Dunant have been determined to maintain access to the battlefield and prison camps to support wounded or captured soldiers on both sides of a conflict. Military lawyers have sought rules of conduct robust enough to be incorporated in military training and operable n the heat of battle. Their shared ideal is simple, positive, non-reciprocal rules like “don’t shoot enemies offering surrender”, “don’t shoot at clearly marked field ambulances”. The positivist ideal is of course not fully achieved in this or any other field of law, and there are important grey areas like proportionality in collateral damage. Still, it is enormously easier to conclude that an army is currently committing war crimes than that the government it answers to is committing genocide.
A parallel division is at work in the Genocide Convention. The component overt acts are crimes against humanity rather than war crimes, but they have the same positive character. It is fairly easy to establish say whether Ukrainian children are being kidnapped by Russian officials and indoctrinated to suppress their group identity. This feature invites the question for prosecutors: why bother with the charge you can’t conclusively prove when there are much clearer war crimes and crimes against humanity you can prove? The unsatisfactory answer has to be that it’s a political not a legal decision. The political leaders who give criminal orders should be made to pay for them, but a failed prosecution is probably worse than nothing. Ordinary observers are even worse off than the prosecutors, as they e are dependent on the latter to get the evidence.
Which brings us to Gaza. Is the Israeli government committing the crime of genocide against the Palestinian people? This post is already too long, so I will confine myself to a short list of stylised facts.
1. The Israeli war in Gaza has involved the commission of large-scale war crimes, including the consistent refusal to accept any of the obligations of an occupying power towards civilians under its control, systematic obstruction of third parties offering humanitarian relief in its stead, intensive bombing of civilian housing and hospitals without regard to proportionality of collateral damage and in places where the less destructive alternative of infantry ground operations is readily available, forced displacement of civilian populations in unsafe conditions, etc. These clear violations of the Geneva Conventions also look like the overt acts (a), (b) and (c) that may constitute genocide under the Genocide Convention – the doubt lies only with intention. So I suggest concentrating our protest on the provable crimes- leaving genocide as a suspicion.
2. Several far-right members of Netanyahu’s coalition government have advocated the complete expulsion of Palestinians from Gaza, a genocidal aim when coupled with a similar proposed expulsion from the West Bankhttps://theconversation.com/israeli-plan-to-occupy-all-of-gaza-could-open-the-door-for-annexation-of-the-west-bank-256029 . This has not been endorsed by the government as such. However, Netanyahu has not put forward any alternative plan for the future of Gaza. Nor has he put forward an attainable war aim, the “complete destruction of Hamas” not being one such.
3. The currently available facts are consistent with two interpretations of Netanyahu’s conduct. One is that he shares the genocidal objective but considers it impolitic to say so. The other is that perpetual war is the only way he can stay in power and escape going to prison on corruption charges. On this reading he is simply indifferent to the survival or not of the Palestinians in Gaza as to that of the remaining hostages. I incline to the latter view, but we don’t have all the evidence.
BTW, Hamas´ raid in October of 2023, with an inexcusable and deliberate massacre of unarmed civilians and seizure of hostages, was clearly genocidal in intent. It was also brain-dead stupid, as was the predictable Israeli overreaction. Do we have to repeat this every time before writing about the much larger offences of a democratic state?
We should remember that 23 of the hostages are thought to be still alive and in captivity. Here are their names: Matan Angrest, Rom Braslavski, Nimrod Cohen, Tamir Nimrodi, Gali Berman, Ziv Berman, Elkana Bohbot, Yosef-Chaim Ohana, Ariel Cunio, David Cunio, Evyatar David, Guy Gilboa-Dalal, Maxim Herkin, Eitan Horn, Bipin Joshi (Nepalese), Segev Kalfon, Bar Kupershtein, Omri Miran, Eitan Mor, Alon Ohel, Avinatan Or, Matan Zangauker, Nattapong Pingsa (Thai). Many others have died in captivity.
BTW2. Outsiders like us must of course be prudent in discussing an accusation of genocide by a state founded in response to the worst genocide ever attempted, based on its response to acts of terrorism committed against it by a genocidal enemy. Israelis deserve the scrupulously fair hearing they are denying to Palestinians. But a cowardly silence repeats the slow and inadequate international response to Nazi genocides. We should follow Lemkin’s great insight that the Holocaust was not a singularity but an instance of a fairly common pattern of atrocity, in which a people can at different times play the part of victim and aggressor. Sanchez was right to speak out now. Tomorrow will be too late.
Thank you for writing all this, James. I see so little rational discussion of this horrible conflict. For myself, I have a problem with what we call “international law,” because I lack the background to know if it is being applied fairly. (Aren’t all these laws fairly new?) I do not much trust the UN, or many of these third parties. In fact, I blame the UN for so much of this. I think it is anti-Semitic all the way down, basically. And it has propped up Hamas for years, while they planned evil. I do not want to see another cent of our money sent there (food etc. is okay though).
Having said that, since it’s clear Hamas doesn’t care about the Palestinian hostages – which is all of them who aren’t H members, imo – then to keep bombing does not seem to make much sense. They don’t seem to feel “pressure.”
I have a friend who thinks the whole war was a pretext. That it was never about hostages, and only meant to get back that land. I have a hard time believing it. Yet, it’s so hard to know what to think from the bleachers. (Btw, I don’t know that I agree with your description of the war crimes evidence – but, I only know what I read in the paper.)
I feel like Israel fell in a trap. I do not know that the Hamas atrocity was “stupid” – I think they wanted all of this to happen. (I’d love to be wrong!!!!) I just don’t quite understand why. Is it possible to be that much of a nihilist? History I guess tells me “yes.”
Further. Not only do I see little point in arguing the g-word, but, have you noticed, it’s not possible to have a rational conversation about it with any of the proponents? It doesn’t matter how intelligent they are, they seem to refuse to want to get into the details. So I agree, that whole thing is political. My guess is, they are perfectly aware that their case is weak. They want to use the word like a club. What a waste of time.
Overall I feel a big sense of disappointment in the entire Western hemisphere, that this insane situation has been allowed to go on this long, with this many casualties, for no actual benefit that I can see to anyone … and still, for the most part, we can’t even discuss it. I wonder if maybe the only ones with leverage on the H side of it is the Qataris and the Iranians. And, I don’t really know what their deal is. I think maybe Israel will stop soon, of their own accord – though I have no reason to think it. (Unless it really was about the land, but, I don’t think so.) I would like to see them switch to a legal offense instead. People underestimate lawsuits. They can be quite painful. And unlike war, litigation really can last forever.
How come we can’t do better than this? I get the anger part. I guess, it’s the bystanders I don’t understand.
Crazily enough, I had a bit more to say. I saw this quote in a TNR article (that I don’t think I even agree with, but the writer summed up the psychological dynamic quite well). (It won’t be news to you, but it might help clarify for someone else. Or maybe just me even.)
“”To see the difference, imagine you’re asked at work why you gave a customer a refund. You might say, “Because I thought it was the right thing to do,” or you might say, “Because my supervisor told me to.” The former centers the agency on you (it happened because of you). The second describes the same act but puts the agency on another person. Agency is important because it’s directly tied to our moral response (who we blame) and our emotional response (who we get angry at). Changing the bearer of agency in a story transfers blame and emotion with it. When we say, “Because my boss told me to,” we’re also saying, “Take it up with them, don’t get mad at me.” Likewise, in political narratives, agency informs not only our strategy but who we blame and how we feel.” “
https://newrepublic.com/article/195300/democratic-tea-party-bernie-aoc-failed-succeed
So we all look at this horrible situation, and we blame different people for it. And at the same time, we can see how, in the big picture, this logic will keep us all continuing on the same trend line – which is going nowhere good at all! So how do we get off of this train?
I ask because the other thing I never hear out of “progressives” here is, what they think Israel should have done to get back their hostages. I’d really like to know what their theory is. They never say. It’s almost like it doesn’t matter to them. Is that true? I do not know.
Blame the WW1 racists Wilson and warpig Churchill. Wilson’s bad, an ideology of nations being best based on race and ethnicity brought to bear on the WW1 aftermath, diminished post the WW 2 horrors it lent support to, is now getting a big rerun. Churchill’s bad has only grown ever worse since WWs 1&2, to wit South Asia, the wider Middle East, Palestine.
What the Zionists of all stripes and others should have done, and not have done, began long before now. It has been a long slow moving genocidal train wreck that jumped the rails way back, and with the crash stop, final debris field and mushrooming blowback yet to come.
World BEYOND War – World BEYOND War
N: “.. the other thing I never hear out of “progressives” here is, what they think Israel should have done to get back their hostages. I’d really like to know what their theory is. ”
This has a answer. The families of the hostages have consistently pressed Netanyahu to give higher priority to rescuing their kin than to destroying Hamas. A good part of Israeli public opinion seems to agree with them, including voices within the security establishment. Netanyahu has just as consistently refused. Hamas has shown readiness to trade Israeli hostages for larger numbers of Palestinians detained without trial in the West Bank. Its current ask for the last 23 seems to be a long ceasefire, apparently negotiable. We cannot of course be sure that a different approach would have worked better, but it hasn’t been tried. I would add that since the IDF has a overwhelming superiority of force on the ground in Gaza, it can search any building it chooses. Destroying hospitals with bunker-busting bombs is not likely to be the best tactic for rescuing hostages.
Anonymous, I hope you’re right. (From what I had read, it seemed like Hamas was refusing to do any more trades absent a ceasefire, but I’d love to be wrong.)