Fwiw - and forgive sounding legalistic (but we are on edge of law and international relations) - Ukraine v Russia in the ICJ was not about alleged genocide. It was just a clever way for Ukraine to get Russia into court. By exposing the fig leaf of Russia's claim of 'genocide' in Donbas against Russians, Ukraine was able to have Russia in Court to argue the invasion was not justified. And hence an act of unlawful aggression - a war crime. Ukraine could not get to Court directly on this point - nor make it before Security Council given Russia veto.
The broader curio then is that 'genocide' has such status, that even a rather rogue state like modern Russia remains a fuil party to the Genocide Convention. Whereas it would say limit its exposure to International Criminal Court or to litigatuon against it under general Geneva/war crimes conventions.
Similarly, South Africa is both using ICJ as a stage, but also is able procedurally to get Israel into the ICJ. Because today not committing genocide not only binds all ('ergo omnes', ie denouncing the Convention doesn't free a country of that obligation). It is also a rare example where a third party nation can - indeed should - intervene legally, if not physically. Not least as genocide s likely to occur outside state to bkstate warfare or even ti occur within one state's borders.
So you are right to query if elevating genocide deflects from the more obvious concern for war crimes, disproportionate force etc. But there are legal reasons that go beyond mere fetishisation of the concept in political rhetoric or morality.
Regarding “both sides”, it’s worth remembering that Israel at least pretends to be a democracy, whereas Gaza and the West Bank are much less plausibly democratic. This is to say that Israel’s claim to democracy implicates the Israeli electorate in its government’s crimes in a way that Hamas does not implicate Gazan civilians.
Oh, and also it’s widely known and has been all but officially acknowledged that the Likud government has been funding Hamas for decades, as a way to undermine the Palestinian Authority, a history which instead implicates Likud in Hamas’ actions.
Anyway, the fact that something is a product of circumstance is not a moral justification. The fact that Hamas is a product of fairly clearly identifiable actions does not mean that Hamas is “good, actually”. To quote dril, you do not, in fact, gotta hand it to them.
Western governments and the western media have decided that Palestinian freedom is too much to bother with. They have decided that the Palestinian people are to be sacrificed on the altar of history as atonement for past crimes against the Jewish people. I keep thinking about a Jewish Voice for Peace banner in Grand Central Station: “Palestines should be free”. Those who could put real pressure on Israel are fine with the permanent unfreedom of Palestine. The Palestinians and Rohingya are among the most damned people. The West just wants the Palestinians to die or disappear so they don’t have to deal with this problem anymore. A change in Israeli governments will not really change very much. The liberals of today would have been considered far right wack jobs fifteen years ago.
Liberals say that this conflict is complex but it's It's simple, the state of Israel cannot exist unless it's either suppressing the rights of the Arab majority or exterminating them. The leaders of the Zionist movement have always understood this fact, you can see this in everything from Theodore Herzl's diaries as he was speculating on how best to remove the Palestinian population from Israel to the planning of the Nakba done in advance by labor Zionists being given power by the UN. The reason why you hate Netanyahu is that he's ripped the mask of the zionist project and exposed its rotten face to the entire world but the thing is Netanyahu understands that Biden has his back regardless of what goes on in Gaza as the existence of Israel is vital to American geopolitical interests in the region. Even if this bloodshed were to be stopped without destruction Israel could not exist as a state without a racialist apartheid regime holding down the Arab majority, and somewhere down the line another person will come to power with the same vision as Netanyahu and give Israel the "living space" that it's people demand. Why should they not want "living space" when their closest Ally was built upon the genocide of native populations? At this point, no one can believe that American hegemony is built upon law and cooperation unless their careers are tied up in the empire. Dugin is getting the Nuremberg Trial of liberal modernity that he so desperately wanted and America is making a mockery of itself in court. If you want to have any kind of credibility among anyone left of center in the next 10 years or so I suggest you apologize for this these black notebooks and try to scrub it from your blog before you get your day in the court of public opinion.
You do know Herzl wrote a whole book about a binational Zionist Arab state right? I'm not sure anyone should care about "left of center" credibility ten years henceforth if it entails a wholesale rejection of liberal modernity, frankly a contradiction in terms.
1. It's almost like there was a meaningful difference between what Zionists said in public and what they did in private because they needed to win over the support of Western Nations who wanted to play nice with Arab nations in the region. It's almost like they had to wear some kind of mask to hide something.
2. The Target demographic for this blog is pop-front liberals, anyone left of Social Democrats would not be interested in this kind of reheated lib Zionism and it's losing credibility even within the Democratic Party. The Anti-Fascism of the late 2010s got co-opted by the Democrats in 2020, leaving any leftist who made it their brand open to being lumped in with Biden's viciously anti-immigrant Pro genocide administration. I read this substack because Ganz is probably one of the more nuanced pop-front writers but he's on a sinking ship.
Those shifty Jews, always concealing their true intentions huh? I'm just gonna take it as a given you never heard of it but "mask off" none the less, perhaps not in the way you intended.
Ganz himself has documented in detail how far-right movements hide their intentions and try to court mainstream political actors, when you understand Zionism as an ethno-nationalist movement their behavior makes more sense.
"We must expropriate gently the private property on the state assigned to us. We shall try to spirit the penniless population across the border by procuring employment for it in the transit countries, while denying it employment in our country. The property owners will come over to our side. Both the process of expropriation and the removal of the poor must be carried out discretely and circumspectly. Let the owners of the immoveable property believe that they are cheating us, selling us things for more than they are worth. But we are not going to sell them anything back."
I'm sure the man who wrote this had nothing but love for the arab population.
Umm, according to Ian Black (“Enemies and Neighbours”) the revealing thing about Herzl’s diaries from his one trip to Palestine in 1898 is that there is no mention at all of the Arab population (at the time, there were roughly 500,000 Arabs in the territory). The invisibility was the point.
What kind of "plausible" genocide would be responded to with an order not to stop operations but to report back in a month? It makes no sense and I'm sure the judges know it. Perhaps something good will come of it if Israel is subjected to extra scrutiny. Unfortunate there is no other more appropriate forum for this matter to be heard.
As you say "War itself should be bad enough. By making “genocide” the moral limit, the sheer cruelty and destructiveness of war fought according to “legal” limits is diminished."
Fwiw, this comes down to legal procedure. The power to make broad interim orders is very easily engaged. South Africa did not need to show likelihood of genocide unfolding. Just 'plausible' allegations. This is a rational standard for a normal civil case ('preserve the property in dispute!')
But it's awkward to apply when the allegations are either about the most heinous international and collective crime, or about a politicised attempt to limit a country's self defence.
In truth, the ICJ hearing as to even basic evidence of genixude would take more than a year further planning, hearings let alone judgement.
Law and morality are a very uneasy fit, but neither can quite live without the other. We want to use the legal term "genocide" as a catchword for ultimate immorality. It makes some moral sense. But the legal definition--hinging on intent--is poorly suited to the task. Any legal standard that relies on intent is almost impossible to apply to a state actor who wants to avoid the standard.
Of course, "genocide," like any other legal standard, is overinclusive as well as underinclusive. Putin's Russification of Ukrainian children is a mere bagatelle compared to his other war crimes. But he admitted it as policy, so the genocide case against him is fairly strong.
Despite their interdependence, I think we should be more careful about separating moral and legal discourse. But then again, I would think that. I was a business lawyer by trade.
I think this is a useful point. The history is illustrative - Lemkin, despite relentless appeals to Justice Jackson, failed to have the new concept of genocide included in the Nuremberg Tribunal charges (Lauterbach, Lemkin’s fellow law student at Lviv, succeeded with the equally novel legal concepts of war crimes and crimes against humanity). Philippe Sands book “East West Street” is a masterful telling of this history.
Really excellent analysis & clarification, BUT...I don't want to be pedantic, but small, but important correction: it was Raphael Lemkin, not Rafael Temkin.
I agree with all the points you raise in this very complex matter--except for this which you write in your point number 4, and which I disagree with a bit: "The convention on genocide was created in response to the Holocaust. As was Israel as a state, both because of the mass migration from Europe and the sense among nations that the Jews deserved, in fact, needed, a state."
But Israel was not founded in response to the Holocaust which its founding enterprise predated, although that (and other bouts of discrimination and violence against Jews throughout history were an additional justification for the state's emergence and existence). Rather (I quote parts of what I wrote to another substack comment board): Zionism (which ultimately resulted in the state of Israel) was part of the international sea change that occurred at the end of the 19th century and first half (or more) of the 20th century as response to the then fall of empires which for many millennia had organized so much of socio-political life around the world. As the old empires crumbled, people sought new modes of polity organization and affiliation/solidarity, the two replacement contenders being nationalism (already present since the late medieval era in northwest Europe) or some form of Marxist-communism--the one with solidarity built around a (mythic) idea of common blood, the other with solidarity built around common (worker) class connectedness. Nationalism largely won out, although many of the new states that emerged in the wake of the fall of empires by the second half of the 20th century initially combined, awkwardly, some sort of nationalism with some sort of Marxism. The "logic" of so much violent activity in the first half of the 20th century was for the newly energized and aware national groups to rush to what they considered their religio-ethno-national historic homeland territories in the crumbling empires, grab that for their new states, and throw out (or massacre) others. See, for example the horrendous doings in Armenia/Greece/Turkey - or Pakistan/India - or Slav/German Europe. The Jews, who considered themselves a national group (and were more or less so considered by everyone else), operated according to that logic at that time, even where they were geographically splayed out (not all at that time from the Middle East--which is what gives rise to accusations of the whole state of Israel as a colonial project) This had nothing to do with the Holocaust, which it predated, and everything to do with the "logic" and actions of the time about nationalism and national groups.
The favorable UN vote and the mass migration turned the Zionist settlement project into Israel. They happened because of the Holocaust. It's as simple as that.
Yes--I don't deny the force of those factors making for the emergence of the state--but what gets lost in so many discussions and arguments I have had over these matters over the years, is that Zionism (Jewish Nationalism) was one manifestation of a larger worldwide thrust for national statehood at a certain point in time, and under certain conditions, that this thrust was very widespread. The particular Zionist endeavor may not have been successful had there not been a Holocaust or mass migration as you note--(just as certain other nation statehood quests of the time were not successful, as with the Kurds--or only partially successful, as with Armenians or Greeks who did not get all the land they wanted). I just wanted to insert into the story that the Zionist project fell into a kind of norm at the time of its emergence. (By the way, I say this as a pretty hardcore Leftist who has been very censorious of the Israeli government over the years).
Wow, those 9 paragraphs both illuminated the ICJ ruling and distilled the whole larger, awful morass with exceptional clarity. Thank you.
Thanks Mr Ganz for more insightful blogging.
Fwiw - and forgive sounding legalistic (but we are on edge of law and international relations) - Ukraine v Russia in the ICJ was not about alleged genocide. It was just a clever way for Ukraine to get Russia into court. By exposing the fig leaf of Russia's claim of 'genocide' in Donbas against Russians, Ukraine was able to have Russia in Court to argue the invasion was not justified. And hence an act of unlawful aggression - a war crime. Ukraine could not get to Court directly on this point - nor make it before Security Council given Russia veto.
The broader curio then is that 'genocide' has such status, that even a rather rogue state like modern Russia remains a fuil party to the Genocide Convention. Whereas it would say limit its exposure to International Criminal Court or to litigatuon against it under general Geneva/war crimes conventions.
Similarly, South Africa is both using ICJ as a stage, but also is able procedurally to get Israel into the ICJ. Because today not committing genocide not only binds all ('ergo omnes', ie denouncing the Convention doesn't free a country of that obligation). It is also a rare example where a third party nation can - indeed should - intervene legally, if not physically. Not least as genocide s likely to occur outside state to bkstate warfare or even ti occur within one state's borders.
So you are right to query if elevating genocide deflects from the more obvious concern for war crimes, disproportionate force etc. But there are legal reasons that go beyond mere fetishisation of the concept in political rhetoric or morality.
Regarding “both sides”, it’s worth remembering that Israel at least pretends to be a democracy, whereas Gaza and the West Bank are much less plausibly democratic. This is to say that Israel’s claim to democracy implicates the Israeli electorate in its government’s crimes in a way that Hamas does not implicate Gazan civilians.
Oh, and also it’s widely known and has been all but officially acknowledged that the Likud government has been funding Hamas for decades, as a way to undermine the Palestinian Authority, a history which instead implicates Likud in Hamas’ actions.
Anyway, the fact that something is a product of circumstance is not a moral justification. The fact that Hamas is a product of fairly clearly identifiable actions does not mean that Hamas is “good, actually”. To quote dril, you do not, in fact, gotta hand it to them.
Damnit John, you've done it again (written with great moral clarity about a heated topic)
Western governments and the western media have decided that Palestinian freedom is too much to bother with. They have decided that the Palestinian people are to be sacrificed on the altar of history as atonement for past crimes against the Jewish people. I keep thinking about a Jewish Voice for Peace banner in Grand Central Station: “Palestines should be free”. Those who could put real pressure on Israel are fine with the permanent unfreedom of Palestine. The Palestinians and Rohingya are among the most damned people. The West just wants the Palestinians to die or disappear so they don’t have to deal with this problem anymore. A change in Israeli governments will not really change very much. The liberals of today would have been considered far right wack jobs fifteen years ago.
Liberals say that this conflict is complex but it's It's simple, the state of Israel cannot exist unless it's either suppressing the rights of the Arab majority or exterminating them. The leaders of the Zionist movement have always understood this fact, you can see this in everything from Theodore Herzl's diaries as he was speculating on how best to remove the Palestinian population from Israel to the planning of the Nakba done in advance by labor Zionists being given power by the UN. The reason why you hate Netanyahu is that he's ripped the mask of the zionist project and exposed its rotten face to the entire world but the thing is Netanyahu understands that Biden has his back regardless of what goes on in Gaza as the existence of Israel is vital to American geopolitical interests in the region. Even if this bloodshed were to be stopped without destruction Israel could not exist as a state without a racialist apartheid regime holding down the Arab majority, and somewhere down the line another person will come to power with the same vision as Netanyahu and give Israel the "living space" that it's people demand. Why should they not want "living space" when their closest Ally was built upon the genocide of native populations? At this point, no one can believe that American hegemony is built upon law and cooperation unless their careers are tied up in the empire. Dugin is getting the Nuremberg Trial of liberal modernity that he so desperately wanted and America is making a mockery of itself in court. If you want to have any kind of credibility among anyone left of center in the next 10 years or so I suggest you apologize for this these black notebooks and try to scrub it from your blog before you get your day in the court of public opinion.
You do know Herzl wrote a whole book about a binational Zionist Arab state right? I'm not sure anyone should care about "left of center" credibility ten years henceforth if it entails a wholesale rejection of liberal modernity, frankly a contradiction in terms.
1. It's almost like there was a meaningful difference between what Zionists said in public and what they did in private because they needed to win over the support of Western Nations who wanted to play nice with Arab nations in the region. It's almost like they had to wear some kind of mask to hide something.
2. The Target demographic for this blog is pop-front liberals, anyone left of Social Democrats would not be interested in this kind of reheated lib Zionism and it's losing credibility even within the Democratic Party. The Anti-Fascism of the late 2010s got co-opted by the Democrats in 2020, leaving any leftist who made it their brand open to being lumped in with Biden's viciously anti-immigrant Pro genocide administration. I read this substack because Ganz is probably one of the more nuanced pop-front writers but he's on a sinking ship.
Those shifty Jews, always concealing their true intentions huh? I'm just gonna take it as a given you never heard of it but "mask off" none the less, perhaps not in the way you intended.
Ganz himself has documented in detail how far-right movements hide their intentions and try to court mainstream political actors, when you understand Zionism as an ethno-nationalist movement their behavior makes more sense.
"We must expropriate gently the private property on the state assigned to us. We shall try to spirit the penniless population across the border by procuring employment for it in the transit countries, while denying it employment in our country. The property owners will come over to our side. Both the process of expropriation and the removal of the poor must be carried out discretely and circumspectly. Let the owners of the immoveable property believe that they are cheating us, selling us things for more than they are worth. But we are not going to sell them anything back."
I'm sure the man who wrote this had nothing but love for the arab population.
Umm, according to Ian Black (“Enemies and Neighbours”) the revealing thing about Herzl’s diaries from his one trip to Palestine in 1898 is that there is no mention at all of the Arab population (at the time, there were roughly 500,000 Arabs in the territory). The invisibility was the point.
Comprehensive, coherent, and flawlessly argued. Thank you for writing this.
What kind of "plausible" genocide would be responded to with an order not to stop operations but to report back in a month? It makes no sense and I'm sure the judges know it. Perhaps something good will come of it if Israel is subjected to extra scrutiny. Unfortunate there is no other more appropriate forum for this matter to be heard.
As you say "War itself should be bad enough. By making “genocide” the moral limit, the sheer cruelty and destructiveness of war fought according to “legal” limits is diminished."
Fwiw, this comes down to legal procedure. The power to make broad interim orders is very easily engaged. South Africa did not need to show likelihood of genocide unfolding. Just 'plausible' allegations. This is a rational standard for a normal civil case ('preserve the property in dispute!')
But it's awkward to apply when the allegations are either about the most heinous international and collective crime, or about a politicised attempt to limit a country's self defence.
In truth, the ICJ hearing as to even basic evidence of genixude would take more than a year further planning, hearings let alone judgement.
Law and morality are a very uneasy fit, but neither can quite live without the other. We want to use the legal term "genocide" as a catchword for ultimate immorality. It makes some moral sense. But the legal definition--hinging on intent--is poorly suited to the task. Any legal standard that relies on intent is almost impossible to apply to a state actor who wants to avoid the standard.
Of course, "genocide," like any other legal standard, is overinclusive as well as underinclusive. Putin's Russification of Ukrainian children is a mere bagatelle compared to his other war crimes. But he admitted it as policy, so the genocide case against him is fairly strong.
Despite their interdependence, I think we should be more careful about separating moral and legal discourse. But then again, I would think that. I was a business lawyer by trade.
I think this is a useful point. The history is illustrative - Lemkin, despite relentless appeals to Justice Jackson, failed to have the new concept of genocide included in the Nuremberg Tribunal charges (Lauterbach, Lemkin’s fellow law student at Lviv, succeeded with the equally novel legal concepts of war crimes and crimes against humanity). Philippe Sands book “East West Street” is a masterful telling of this history.
Really excellent analysis & clarification, BUT...I don't want to be pedantic, but small, but important correction: it was Raphael Lemkin, not Rafael Temkin.
I agree with all the points you raise in this very complex matter--except for this which you write in your point number 4, and which I disagree with a bit: "The convention on genocide was created in response to the Holocaust. As was Israel as a state, both because of the mass migration from Europe and the sense among nations that the Jews deserved, in fact, needed, a state."
But Israel was not founded in response to the Holocaust which its founding enterprise predated, although that (and other bouts of discrimination and violence against Jews throughout history were an additional justification for the state's emergence and existence). Rather (I quote parts of what I wrote to another substack comment board): Zionism (which ultimately resulted in the state of Israel) was part of the international sea change that occurred at the end of the 19th century and first half (or more) of the 20th century as response to the then fall of empires which for many millennia had organized so much of socio-political life around the world. As the old empires crumbled, people sought new modes of polity organization and affiliation/solidarity, the two replacement contenders being nationalism (already present since the late medieval era in northwest Europe) or some form of Marxist-communism--the one with solidarity built around a (mythic) idea of common blood, the other with solidarity built around common (worker) class connectedness. Nationalism largely won out, although many of the new states that emerged in the wake of the fall of empires by the second half of the 20th century initially combined, awkwardly, some sort of nationalism with some sort of Marxism. The "logic" of so much violent activity in the first half of the 20th century was for the newly energized and aware national groups to rush to what they considered their religio-ethno-national historic homeland territories in the crumbling empires, grab that for their new states, and throw out (or massacre) others. See, for example the horrendous doings in Armenia/Greece/Turkey - or Pakistan/India - or Slav/German Europe. The Jews, who considered themselves a national group (and were more or less so considered by everyone else), operated according to that logic at that time, even where they were geographically splayed out (not all at that time from the Middle East--which is what gives rise to accusations of the whole state of Israel as a colonial project) This had nothing to do with the Holocaust, which it predated, and everything to do with the "logic" and actions of the time about nationalism and national groups.
The favorable UN vote and the mass migration turned the Zionist settlement project into Israel. They happened because of the Holocaust. It's as simple as that.
Yes--I don't deny the force of those factors making for the emergence of the state--but what gets lost in so many discussions and arguments I have had over these matters over the years, is that Zionism (Jewish Nationalism) was one manifestation of a larger worldwide thrust for national statehood at a certain point in time, and under certain conditions, that this thrust was very widespread. The particular Zionist endeavor may not have been successful had there not been a Holocaust or mass migration as you note--(just as certain other nation statehood quests of the time were not successful, as with the Kurds--or only partially successful, as with Armenians or Greeks who did not get all the land they wanted). I just wanted to insert into the story that the Zionist project fell into a kind of norm at the time of its emergence. (By the way, I say this as a pretty hardcore Leftist who has been very censorious of the Israeli government over the years).
Interesting, what you’re saying here is in direct contradiction to Tony Judt’s idea of Israel actually being an anachronism, not in sync with the times: https://archive.globalpolicy.org/security/issues/israel-palestine/2003/1025alternative.htm . Also Ezra Klein’s latest interview of international UN lawyer about Israel’s creation was also interesting.
Thank you. Just read this out loud to my wife over coffee. Illuminating!
Well said