Israel, Palestine, and the Language of Genocide

Abstract

The israeli occupation of the West Bank, East Jerusalem, and the Gaza Strip has now reached the half-century mark. There is little, if any, chance in the foreseeable future that Palestinians will achieve even a small measure of independence, sovereignty, or statehood; never mind a measure of political rights in a Greater Israel.As Israel intensifies its control over the Occupied Territories, the violations of international law that have long been at the heart of the Occupation continue to grow in number, kind, and scope. At the same time, Israeli religious, political, and military leaders make increasingly racist statements that call into question the possibility of the Zionist state ever coming to terms with Palestinians.The list of war crimes and crimes against humanity committed by Israel includes torture, kidnapping, human shields, theft (of land, money, and resources), denial of education, collective punishment, detention without trial, home demolitions, extrajudicial executions, imprisonment of minors, a massive settlement complex, and even worse from the perspective of international law, persecution on political, racial, ethnic and religious grounds, and racism. Even Apartheid is increasingly accepted as a legitimate legal description of Israeli rule in the Occupied Territories.But there is one label that still elicits intense opposition even among progressive critics of Israel—genocide. We know the reason why. For Jews, genocide was, is, and will always be primarily associated with the Holocaust. Only crimes involving the highest level of death and destruction justify such a judgment. Cambodia, Bosnia, Rwanda, Darfur, perhaps the Yazidis. But Israel? The Occupation might be brutal, but who besides an anti-Semite would suggest Israel has committed genocide against Palestinians?This understanding of genocide as encompassing only extreme levels of mass murder is why last year’s invocation of the term by the Movement for Black Lives (M4BL), in criticizing the Occupation in the explanatory text of its manifesto, caused a firestorm of criticism. And yet not all Jews oppose the use of the term. Jewish Voice for Peace, the Jews of Color Caucus, historian Ilan Pappé, and the Center for Constitutional Rights (headed until his death about a year ago by attorney Michael Ratner), among others, have all supported, to a greater or lesser degree, the use of the term in the Israel/Palestine case, as have some of the world’s leading scholars of international humanitarian law.With the 50th anniversary of the Occupation now upon us we believe it is crucial to assess the accusation of genocide in a dispassionate and objective manner. The problem with engaging in such an assessment is that for all its power—indeed, because of it—the term genocide does not have one agreed upon meaning. Rather, its legal, sociological, political, and polemical meanings overlap at points while also diverging significantly today and over time.As enshrined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, “genocide can be carried out through acts against individuals, when the ultimate intent is to annihilate the entire group composed of these individuals.” Enshrined in Articles II and III of the Convention, genocide comprised both a “mental” and a “physical” element and was defined as the “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.” While the level of death and destruction does not have to encompass most or even a majority of members of a protected group, the violence does have to be of sufficient extent to threaten to change its “pattern of life.” This basic definition has held true in the ensuing seven decades, including most recently in the Rome Statute of 1998 to establish an International Criminal Court (ICC).It is worth noting here that since the coining of the term by the Polish Jewish scholar Raphael Lemkin in the 1930s there have been serious debates over what kinds of crimes should be included in the legal definition of genocide, with “cultural” and “political” genocide as well as “ethnic cleansing” being deliberately omitted from the definition in the Convention. Even as international law developed, countries remained averse to apply the term: the United States in particular opposed labeling the two generative cases of genocide in the post-Cold War era—Yugoslavia and Rwanda—as such because doing so would impose legal obligations to intervene to stop it.Nevertheless, the legal understanding of genocide has gradually developed and become more nuanced, recognizing in the words of the International Court of Justice’s ’s(ICJ) 2007 decision in Croatia v. Serbia, that “the required intent [for genocide] is not limited to the intent to physically destroy the group, but includes also the intent to stop it from functioning as a unit.” Similarly, as Martin Shaw argued in a well known exchange with Omer Bartov with specific reference to the 1948 War: “Genocidal action aims not just to contain, control, or subordinate a population, but to shatter and break up its social existence. Thus genocide is defined, not by a particular form of violence, but by general and pervasive violence.”In Shaw’s view, Zionist/Israeli actions during the war, both in terms of the broader ethnic cleansing of Palestine and in the context of the multiple massacres of civilians, reveal an “incipiently genocidal mentality” that reflected the “settler colonial” and “exclusivist nationalis[t]” character of Zionist and then Israeli identity, ideologies, and policies. The combination of underlying intentions and ideology with the acts of exceptional violence against civilian populations (especially the mass killings and/or destruction of more or less entire villages epitomized by the Deir Yassin massacre and the battle for Lydda), the deprivation of Palestinians’ fundamental right of self-determination, the dispersal of the majority of the population, and the destruction of almost every national institution, taken together could arguably be described as genocidal.Even if a claim could be made about 1948, that would not impact the question of Israel’s present treatment of Palestinians without a significant amount of legal precedent being established. The present claims that Israel has committed genocide against Palestinians, particularly those made with reference to the siege, invasions, and bombings in Gaza (which seem to be what most of the accusations of genocide refer to), are focused primarily on its ongoing occupation of the West Bank, East Jerusalem, and the Gaza Strip, and have to be assessed legally as such, not merely with reference to past crimes.Israel’s contemporary record is routinely laid out in all its ingloriousness by local and international human rights organizations (including Amnesty International, Human Rights Watch, B’Tselem, Adalah, the Palestine Center for Human Rights, al-Haq, Peace Now’s Settlement Watch, Defense of Children International), as well as by the United Nations and the U.S. State Department. All provide strong evidence that Israel has committed innumerable war crimes and crimes against humanity, routinely violating even the broadest interpretations of the principles of distinction and proportionality.Israel’s actions in the Occupied Territories are defined, as the ICJ has described it, by “impunity across the board.” These actions and the policies on which they are based clearly have reached the level to meet the standard for such international crimes as persecution, colonialism, racial discrimination, and even apartheid. At the same time, there is little doubt that Palestinians constitute a protected (“national”) group under the Genocide and other Conventions, and so no expansion of the kinds of communities who could be protected by international humanitarian law in this regard is necessary.However, the manner in which the Genocide Convention was written and the subsequent case law strongly suggests that despite the heinous and ongoing nature of Israel’s actions in the Occupied Territories, it would be practically impossible to prosecute any Israeli leaders or state-sponsored individuals for the crime of genocide. Quite simply, the number of people killed and their percentage in the larger Palestinian population, or even in the regions in which they live, are nowhere close to the levels that have occurred in conflicts where genocide prosecutions have taken place.Even if we focus on the most recent and bloody conflicts in decades, in Gaza in 2008–09 and 2014, for which accusations of genocide against Israel repeatedly have been made, the numbers of civilian deaths (approximately nine hundred in 2008–09 and fifteen hundred in 2014) reflect a miniscule portion of the total Palestinian population of the Strip, never mind all of historic Palestine and/or the Diaspora. All told, the number of Palestinians killed by Israel during the last fifty years constitutes less than one percent of the worldwide Palestinian population today. Over 300,000 Gazans would have to have died in the recent wars, and over ninety percent of the Occupied Territories’ population and two thirds of the region’s Palestinian population, to reach levels of death comparable to the percentages seen in World War II, Yugoslavia, or Rwanda, to cite just three examples of internationally agreed-upon cases of genocide.If we move beyond the number of Palestinians killed by Israel to other aspects of life under occupation, including the decade-long siege of Gaza (which is an illegal form of collective punishment and a crime against humanity), the Occupation clearly has taken a high toll on Palestinian economic, social, and political development and has brought with it many problems related to lack of (in fact de-) development (including malnutrition and numerous illnesses). But even after more than a half-century of occupation, Palestinian society remains surprisingly vibrant and resilient, a “lower middle income” country whose levels of human development have increased significantly in the last four decades.We do not argue that these figures somehow indicate a beneficent Israeli rule—far from it. Moreover, the conditions of life in Palestinian refugee camps, particularly outside historical Palestine, remain far more severe than those within the Occupied Territories. But we do not think, in combination with Israel’s actions in 1948, that these policies constitute even “incremental genocide,” as Israeli historian Ilan Pappé has argued, or “cold genocide” as defined by Dutch genocide scholar Kjell Anderson because of the combination of a lack of expressed intention combined with the comparatively small number of deaths. The relevant case law and judicial decisions, particularly the copious discussions of the International Criminal Tribunals in the former Yugoslavia and Rwanda and other tribunals and investigations, strongly suggest that such discussions would not support an accusation against Israel for genocide in the present legal environment and interpretive framework.Indeed, given that increasing numbers of Americans and Europeans are now willing to consider Israeli culpability for other war crimes and crimes against humanity, including Apartheid, we urge that strong and concerted efforts be made to build both the legal and public case for such prosecutions. We also believe that in this context, a focus on accusing Israel of genocide remains strategically counter-productive because it would drain energy away from the intensive work necessary to gain a decision on these other serious international crimes, unite adversaries and those still skeptical of Palestinian claims against Israel while alienating precisely the public and political audiences that would need to support such accusations in order to build enough groundswell to force the politically cautious tribunals to consider Israeli crimes.As important, we fear that doing so in the current circumstances could, like the boy who cried wolf, prove disastrous if Israel’s increasingly fanatical leadership sees the allegations as opportunities to extend the violence even further, and turns the increasingly genocidal language pervading the country’s political culture to actual policies and actions towards Palestinians.A second option is to engage in the much longer-term work of changing the accepted legal definition of genocide to include actions that do not meet the standard today. Genocide surely has both sociological and legal definitions and meanings. But we are not talking about sociological arguments here; the Israeli Occupation is first and foremost a legal regime. If it is going to be defeated, it will be on the basis of law, not sociology. But at the same time, we need to consider how the legal term can evolve—first through its development within sociological, political, and legal theory (where it is easier to expand on its meaning), and then through the gradual application of newer interpretations and concepts by the ICC and other judicial bodies in actual cases.In this regard, a look at the historic and ongoing experiences of Native Americans, a community that has suffered from some of the most pervasive experiences of genocide in history, in fact calls into question morally and politically the dominant understandings of the concept, particularly surrounding the complex and highly problematic and changing nature of the relationships between “race,” “biology,” and culture in the definitions of genocide that are considered legally meaningful. We note that the biologization of race occurred beginning in the eighteenth century through the rise of “scientific racism,” used to justify Europe’s claim to superiority in its imperial and colonial ventures, particularly vis-à-vis native peoples in the Americas.But if we accept that race is not primarily a biological category, and is clearly inseparable from culture, then “genocide” must necessarily apply to the cultural destruction of a group as well as to its physical destruction. The case of Native Americans in the lower forty-eight states of the U.S. is instructive here. There is little doubt that the level of death and destruction marks the experience of Native Americans as one of genocide; but it is worth noting that it has never been officially labeled as such, nor are the U.S. or other governments going to acknowledge such a designation in the near future, given the profound ethical, political, and perhaps even legal ramifications of such an admission.But since the end of the nineteenth century, the continued genocide of Indians in the United States has been accomplished by means other than the physical obliteration that continued until the massacre at Wounded Knee in 1890. This includes, for example, forced assimilation through the boarding-school system that lasted from the late nineteenth through the mid-twentieth century, the forced sterilization of Native women in the 1970s, the transfer of Native children to non-Native families (partially brought to an end in 1978 with the passage of the Indian Child Welfare Act), denial of federal recognition for tribes, and the dis-enrolling of tribal members by the tribe itself.The question raised here is: at what point does the destruction of a culture that constitutes a group’s identity (e.g., traditional values such as language and patterns of interaction with members of the group through the bonds of extended kinship) amount to genocide? Simply put, can genocide be committed without the physical destruction of the group or even part of the group, even though historically physical destruction has paved the way for cultural destruction? In fact, the Islamic State’s policy of large scale cultural destruction as a prelude for physical extermination, and the guilty plea of a Malian jihadi at the ICC to the destruction of cultural heritage (the first prosecution of its kind), point to the growing importance of focusing on culture as an element of genocide.Even if we stick to the aspect of physical destruction, on the question of the “scale of destruction” of the victimized group, there are problems attempting to delineate, in the absence of large scale murders or similar atrocities, what constitutes what the ICJ terms enough people to be “emblematic [that is, representative] of the overall group, or . . . essential to its survival, [which] may support a finding that the part qualifies as substantial within the meaning of Article IV.” Specifically, how can we determine whether or not a part of the group under consideration is “emblematic”?During the more than century-long Navajo-Hopi Land Dispute, for example, approximately twelve to fourteen thousand Navajos were forcibly removed from their ancestral homes. The effects of this removal were devastating in psychological, social, and cultural terms to these people as land in Native cultures is considered part of the kinship nexus, a living entity. Among these Navajo families are some of the most traditional Navajos, who are repositories of the historical culture. Do we, then, consider this “part” of the population of over 300,000 Navajos “emblematic”? Certainly it is not in terms of numbers. But what are the effects of this removal on Navajo culture?What the Navajo-Hopi experience tells us is that while there may seem to be good reason for the legal definition of genocide to be tied to demography and mass murder, in fact the purpose of the term genocide—to prevent the forced “disappearance” and disaggregation of self-defined human communities—calls for a reconsideration of the relationship between both identity markers such as race, biology, and culture, and between physical and cultural causal factors in the forced disappearance of communities as functioning groups. The Native American experience, then, is important for any discussion of the Occupation because it forces us to consider the implications of genocide accusations that don’t rely on a focus on just large scale killings of long periods. While physical violence, even of merely an “emblematic” rather than proportionally large share of a group, is a primary means of genocide, it’s not the only one.However, even if we agree that there has been no genocide of the Palestinian people during the Occupation, the question today can be raised as to whether the State or government of Israel has advocated or called for genocide according to the legal understanding of these terms. While it would today remain nearly impossible to successfully obtain a judgment of genocide, incitement is quite another matter. In recent years, several Israeli officials and leading media outlets have suggested the state’s “right” to eradicate Palestinians, and have called for large-scale murder and even genocide of Palestinians. Indeed, the recently appointed Chief Army Rabbi, Eyal Qarim, has explicitly advocated the rape of “gentile women”—in this case Palestinians—while the current Justice Minister, Ayelet Shaked, declared that “the entire Palestinian people is the enemy” and called for its destruction “including its elderly and its women, its cities and its villages, its property and its infrastructure.” Shaked’s statement is an unambiguous call for genocide, and similar calls are being made by senior Israeli officials who directly shape the policies of the government and influence attitudes of soldiers towards Palestinians.Article III of the 1948 Convention lists “[d]irect and public incitement to commit genocide” as a punishable crime, if not genocide itself. As the United States Holocaust Museum declares, “public incitement to genocide can be prosecuted even if genocide is never perpetrated.” The power of this language and incitement is clear when we consider how ubiquitous calls for “death to Arabs” have become, or the desire to turn Gaza into “a parking lot” among ordinary Israelis. With each passing year, accusations of incitement to commit genocide are becoming increasingly plausible, especially when linked to large-scale crimes actually committed in the assaults on Gaza.Incitement to commit genocide is not the same thing as genocide proper, however. As William Schabas explains in the introduction to his generative work Genocide in International Law, “For decades, the Genocide Convention has been asked to bear a burden for which it was never intended, essentially because of the relatively underdeveloped state of international law dealing with accountability for human rights violations . . . This has changed in recent years.” What Schabas is suggesting is that as the international legal and political environment changes, there is room for the legal understanding and meaning of genocide to evolve further.But in order for this to occur, legal scholars need to spend a lot more effort both expanding their empirical and epistemological understandings of types of genocide that presently fall outside the international legal discourse. In this context, it is worth noting that if there has been little expansion of the legal definition of genocide since 1948, sociologically speaking the concept has been greatly expanded. Concepts such as “politicide” or “ethnocide,” which were explicitly left out of the Convention, have gained increasing acceptance among scholars, policymakers, and the public. Israeli sociologist Baruch Kimmerling used the concept politicide, rather than genocide, to describe Israel’s clear aim and successful execution of long-term policies geared to “the dissolution of the Palestinian people’s existence as a legitimate social, political, and economic entity” by preventing any possibility of Palestinians achieving sovereignty and independence in their own nation-state.As we discussed above, the mechanisms through which the decimation of Native Americans proceeded and their oppression continues to raise the question: Can genocide be committed without the (likely or deliberately intended) physical destruction of the group or even part of the group? In current Bolivian and Ecuadorian law over which indigenous peoples in both countries have had a significant influence, the land is accorded human rights. To kill the land (and from an indigenous perspective one way of killing it is to turn it into property), then, is to commit genocide. Similarly reasoned, one of the charges articulated by the Native resisters to the Dakota Access Pipeline is “environmental genocide.” Given the threats to large swaths of humanity by our treatment of the environment (never mind burning of fossil fuels), there is little doubt that environmental genocide can lead to physical extermination for millions. The question, as always, remains in the end, who makes the law and who gets to interpret it?In light of increasingly open and public comments by Israeli officials in policy-making positions calling for rape, mass murder, dehumanization, and other international crimes against Palestinians, accusations of incitement to commit genocide are becoming increasingly plausible, especially when linked to large scale crimes involved in the assaults on Gaza (which Israel perpetually threatens to make far more deadly with each new attack). While not genocide proper, these are “inchoate” crimes that demand immediate action from the international community to prevent from being actualized. We would strongly advise the legal, institutional, and geopolitical foundation of and groundwork for such a case be pursued through the ICJ and ICC. At the very least, as the ongoing impact of the 2004 ICJ Advisory Opinion on the West Bank “wall” demonstrates, if a mandated UN body such as the General Assembly (which requested the 2004 opinion) could be convinced to request an ICJ opinion, the resulting investigation into all the issues raised in this essay would go a long way towards clarifying the international judicial understanding of Israel’s conduct as the Occupation passes the half-century mark. At the same time, Security Council Resolution 2334 of December 23, 2016, which expressly declared the entire settlement enterprise “devoid of legality” and “demanded” Israel stop all “settlement activities” could also go a long way to bringing the conflict directly to the ICC and/or ICJ.Ultimately, broadening the sociological understandings and through them legal definitions of genocide will play an important role in the struggles to compel Israel, the United States, and far too many other governments—the Russians, Iranians, the Assad government in Syria, the Saudi “coalition” (in which the U.S. and UK play leading roles) in Yemen—to end their long-term, systematic oppression of brutalized populations and behave in compliance with international law. But before that can occur, a lot more groundwork needs to be laid, and activists should consider the political and strategic costs of accusing governments of genocide before the legal and political environment exists for such an accusation to bear fruit.