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.
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."
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.
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.
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.
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."
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.
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.
Thank you. Just read this out loud to my wife over coffee. Illuminating!
Well said