On January 26, the International Court of Justice in the Hague ruled that Israel’s ongoing bombardment of Gaza and blocking of humanitarian aid to the enclave could “plausibly” amount to genocide. South Africa, which brought the case, did not get the court-ordered ceasefire it was aiming for, but the judges warned Israel that it must ensure that it does not violate the U.N. Genocide Convention. They also ordered Israel to prevent and punish domestic incitement to genocide, as well as allow humanitarian aid into Gaza.
Historical debates are unusually important in this case, especially between Europe and its former colonies. South Africa’s ruling African National Congress party has long identified itself with the Palestinian cause, due in large part to South Africa’s history of apartheid. Germany said its role in the Holocaust obliged it to intervene on Israel’s behalf, describing the South African case as the “political instrumentalization” of the Genocide Convention. That move elicited a swift rebuke from South Africa’s neighbor Namibia, whose Herero and Nama communities were victims of the genocide perpetrated by Germany between 1904 and 1908, three decades before the Nazi Party grabbed power.
To understand what’s happening at the ICJ, I spoke with A. Dirk Moses, professor of international relations at the City College of New York and senior editor of the Journal of Genocide Studies. His book, “The Problems of Genocide,” explores the history of the concept and its shortcomings in preventing states from harming civilians.
Israeli officials have said that Israel’s bombardment of Gaza is morally equivalent to the Allied bombing of Dresden in 1945, which killed about 25,000 people. The confirmed death toll in Gaza is now roughly the same. What do you make of Israel’s justification?
It’s clearly Israeli policy to run that line with the Americans and the British and say, “You did this during the war in fighting the Nazis. We’re also fighting Nazis, so, ergo, we can do the same.” That language is prevalent through [Israeli Prime Minister Benjamin] Netanyahu’s speeches. The implication is clear: “The Palestinians are the Nazis and they committed genocide on October 7. We’re just defending ourselves in the same way as the Allies did in World War II. It wasn’t pretty, a lot of German civilians were killed, but these things happen in war.”
They’re trying to avoid the narrative structure where the Israelis are the perpetrators of genocide and are then somehow related to the Nazis by process of association. Associating oneself with Allied bombing does not place you on the side of angels, however, as we now recognize that much — or at least some — of the Allied bombing of German cities like Dresden would be now classed as war crimes. These officials more or less admitted, “Well, we’re committing war crimes but not genocide in what we do in Gaza.”
A senior Israeli lawyer at the hearing said, “The Genocide Convention was not designed to address the brutal impact of intensive hostilities on the civilian population. The convention was set apart to address a malevolent crime of the most exceptional severity.” What’s the reason for this distinction?
Firstly, I think the Israeli lawyer accurately depicted the intention of many state parties when the convention was negotiated, but we’d have different views on the context. Legally, there’s no hierarchy between crimes against humanity, war crimes, ethnic cleansing, genocide. But in public opinion, there is — and genocide is seen as “the crime of crimes.” The liberal view is that that’s a good thing, that we need this exceptional crime for these most exceptional cases. My view is that this is an extremely problematic situation because “that which shocks the conscience of mankind” — language traditionally used in these humanitarian documents — is something that needs to resemble the Holocaust in order to truly shock us and therefore to trigger the genocide charge. But if the Holocaust is considered unique or exceptional, then, by definition, how many cases are ever going to approximate that? In other words, you define genocide out of realistic existence.
The aim of the [U.N.] delegates — and they said this, if you read the transcripts of 1948 — in creating this very high threshold of exceptional violence is precisely so states can engage in the kind of warfare that Russia is engaging in, that Israel is engaging in and that America engaged in in Korea in the early 1950s, where they killed 2 million North Koreans and later killed millions with bombing and Agent Orange in Vietnam — and not be prosecuted for genocide.
The delegates made a very strict distinction between military intention and genocidal intention. The military intention is to defeat, whereas genocidal intention is to “destroy as such.” That “as such” in the [U.N. Genocide Convention] definition means to destroy a group solely because of that group’s identity attributes. I call this a nonpolitical reason because the group doesn’t have to do anything — it just is. They’re being attacked just for being Jews, for example, not for anything they’ve done. The archetype of genocide is a massive hate crime, whereas the military or security intention is that you attack a group or members of a group that are engaged in a rebellion or an insurgency, like Hamas.
The Israeli logic is quite consistent with traditions of international thinking: “We’re engaged in a security operation and we’re entitled to self-defense, and we’re not attacking Palestinians as such just for being Palestinian. What we’re trying to get at are these Hamas fighters, which have commingled themselves with the population or underneath it in the tunnels. If civilians get in the way, that’s regrettable, but international law allows proportionate collateral damage.” States have gotten away with this reasoning for most post-World War II conflicts.
Shortly after the hearings began, the world began to take sides. Germany’s already offered to join Israel’s defense, which Namibia — its former colony — has condemned as hypocritical. How is there such disagreement over what constitutes genocide?
Genocide is a legal concept. Although its archetype is the Holocaust, the purpose of it is to be applicable broadly. But it has an archetype, or an ideal type, known as the Holocaust. Because of this, and because the Genocide Convention was born at a particular time and place with one case in mind, the Holocaust is in the background when people use the concept of genocide. It’s entailed, even subconsciously. You can’t accuse Israel of genocide because it’s the successor victim nation of the biggest genocide in world history. By definition they can’t commit genocide.
There’s a standoff between Global South and Global North in this respect. The Global South has always linked genocide and colonialism, whereas in the Global North, they haven’t. Why would they resist the link? Genocide is tethered to the image of the Nazis there. France, Belgium, Britain and Germany were colonial empires, so the last thing they want to do is to say they have genocidal histories. They say: “It was only the Germans who had genocidal history, and now the Russians because of Ukraine, but the rest of us have clean hands historically. Yes, there were some dark sides to our colonial empires, but they were motivated by high-minded humanitarian ideals, bringing progress to people.” Whereas people in the Global South, like Namibians, think that’s just window dressing on the vicious, extractive, violent project of colonialism. They’ll say there were colonial empires in Africa and the Nazis were a colonial empire in Europe — a very radical one, but nonetheless in the same flow of history. So you’ve got big framing contestations going on here, which you alluded to in your first question.
What’s happening in Israel in a sense is the unfinished business of decolonization. In this case, the Indigenous people are still there — a lot of them — and resisting, some of them violently, notwithstanding the Israeli self-understanding that they are the real Indigenous ones. But that’s not unique in world history. Name me a nation state in which there wasn’t tremendous founding violence. Australia? The United States?
The dilemma for Israel with Gaza was that the refugees from [the Nakba in] 1948 were just pushed across the border. It means they want to come back. Gaza is not home. Neither is the Sinai, obviously. Right-wing Israelis realize that, which is why they want to deport Palestinians from Gaza.
By bombing orchards, trees and agricultural territory, which have no military value, they are making northern Gaza uninhabitable — by design. I’ve seen the reports. It is also leading to famine because people can’t feed themselves. Israeli forces are corralling people in the south to create a humanitarian catastrophe so that pressure builds up on the international community to do something. At the moment, the political pressure hasn’t built up to that extent. Egypt won’t let in Palestinians and neither will other states. But what about in six months’ time, when we’ll have mass starvation if Israel doesn’t abide by the ICJ measures? Given the campaign against [the U.N. agency for Palestinian refugees known as the] UNRWA and reports about the rate of aid entry, experts are predicting famine before too long. And right-wing Israeli politicians are openly calling for starvation as an incentive for Palesitnians to “voluntarily emigrate.” There’ll be global outcry and pressure applied on Egypt. Because they’re a debt-ridden country, their debts will be forgiven. “We’ll pay for the city in the Sinai,” say the Americans. Then you get the solution that Israel wants, which is to empty Gaza, or at least “thin it out.”
Do you think the archetypal status of the Holocaust drives states to speak in certain ways in order to have serious attention paid to formative national tragedies?
Exactly. In the public consciousness of international law, you have a hierarchy with genocide at the top, so obviously victim groups want to go for the gold standard. This is appalling because crimes against humanity are themselves extremely serious. That’s why they were a major indictment in the Nuremberg trials — they covered what is now called the Holocaust. Genocide wasn’t one of the indictments at Nuremberg, it was crimes against peace, aggressive warfare, crimes against humanity and war crimes.
I’m curious about your idea of “permanent security.” In the current war in Gaza, does this concept apply? How?
Security is legitimate. Permanent security is illegitimate. It’s a utopian idea of absolute safety. What makes permanent security aspirations so problematic is that that can only be achieved by violating international law, by indiscriminate attacks on the civilian population. To make sure that groups like Hamas or Islamic Jihad can never again pose a threat to Israel, the only solution is to remove the population, the entire population, which, of course, is what Israeli government ministers are saying.
The well-known book by Tareq Baconi, “Hamas Contained,” shows how there was a modus vivendi between the Israelis and Hamas. We know that Netanyahu was allowing in money to strengthen Hamas in order to weaken the Palestinian Authority. The last thing Netanyahu and the majority of the Israeli political class since the second Intifada [between 2000 and 2005] wanted was a functioning Palestinian state-like entity in the West Bank, lest it merge with Gaza into a single state. If Hamas is a monster, its “success” in Gaza is partly a creation of Israeli policy.
As a scholar of genocide, what do you make of the ICJ case?
Now that we have the court’s judgment on provisional measures, I think it’s overall a win for South Africa, as it finds their claim plausible that genocide is taking place.
The U.S. and Germany had claimed that the case was meritless, but the decision referred to clear examples of incitement to genocide from the Israeli Defense Minister Yoav Gallant, President Isaac Herzog, and then-Minister of Energy and Infrastructure Israel Katz which had been pointed out by independent experts and members of working groups affiliated with the U.N. Human Rights Council. The court is suggesting these officials should be punished. It will be interesting to see the reaction in Israel.
The court avoids the issue of armed conflict by focusing on genocide. Instead of mentioning South Africa’s request for a ceasefire, it says “The State of Israel shall ensure with immediate effect that its military does not commit any acts” listed in the Genocide Convention, which implies that its armed forces are committing them, namely: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and imposing measures intended to prevent births within the group.
I see international lawyers interpreting this omission in different ways — either that Israel should cease its campaign other than in directly repelling attacks, or continuing its campaign while allowing in humanitarian aid and reducing civilian casualties. Ultimately, the court is suggesting that Israel’s campaign could be genocidal and thus that it needs to cease those modes. This is an extraordinary judgment whose consequences we are yet to fully understand.