The Charge of Genocide

The Charge of Genocide

South Africa’s willingness to file a case with the International Court of Justice is a sign that the old tactics used to police discourse about genocide have lost much of their power.

South African Minister of Justice Ronald Lamola and South African Ambassador to the Netherlands Vusimuzi Madonsela at the ICJ on January 11, 2024 (Remko de Waal/ANP/AFP via Getty Images)

Over the past three months, the charge that Israel is committing genocide in the Gaza Strip has gone from a protest chant to a formal hearing before the International Court of Justice (ICJ) in the Hague. We are experiencing a major upheaval in debates over the language of mass atrocity in the West. The mounting horrors in Gaza have reconfigured the international legal terrain, opening up political space even among experts and jurists accustomed to operating within the relatively narrow confines set by powerful states.

On October 15, over 800 scholars signed an open letter expressing concerns about possible genocide. This provided cover for nine independent UN human rights experts several days later to issue their own warning of a “risk of genocide,” kicking off a cascade of similar statements across the UN human rights system. While higher-level UN officials shied away from using the term due to fear of alienating the United States and other powerful allies of Israel, governments across the Global South began invoking genocide with increasing regularity and alarm.

Finally, it was South Africa that took the fateful step of initiating a case in the ICJ against Israel for violating its obligations under the 1948 UN Genocide Convention, to which Israel is a signatory. The ICJ has jurisdiction over disputes between states concerning the interpretation or application of the Genocide Convention. South Africa alleges that the convention creates obligations between all its signatories, allowing them to hold each other accountable for breaches; this argument is based on the precedent set in a similar ICJ case, whose final outcome is still pending, filed by Gambia alleging that Myanmar has committed genocide against its ethnic Rohingya minority.

Legally, the most compelling aspect of South Africa’s case is not its devastating recitation of the facts attesting to the scale of killing and destruction in Gaza but rather its meticulous reconstruction of genocidal intent. It begins with pages of brazen statements from the highest echelons of government and the military vowing to wipe out Gaza and then proceeds to demonstrate that those sentiments have trickled all the way down to rank-and-file conscripts. It also details how mass displacement, the systematic deprivation of food and water, and the widespread destruction of healthcare infrastructure have set the stage for an entirely foreseeable public health emergency that may claim even more lives than the bombing.

Beyond the legal arguments, the case has also resonated because of the country that brought it to the ICJ. For some Western liberals, South Africa’s moral credibility as a symbol of multiracial reconciliation adds even more gravity to the charge of genocide—or at least makes it more difficult to dismiss. For Palestinians, the case harkens back to a long tradition of joint struggle between anti-colonial movements. And for international lawyers, it recalls earlier waves of Third Worldist litigation, especially the cases brought by Ethiopia and Liberia to challenge apartheid South Africa’s hold over what is now Namibia.

The hearings on January 11 and 12 focused on what interim measures the court may decide on—including a possible ceasefire, as was ordered in another pending genocide case between Russia and Ukraine. In the case of Israel, ordering such measures only requires a finding that South Africa’s arguments are plausible, with a final judgment likely years away. If that question is answered in the affirmative, it could also have serious implications for the United States, which is accused of complicity with genocide in a separate lawsuit filed by the Center for Constitutional Rights in a federal court in California.

Israel and its supporters have responded to the ICJ case with accusations of antisemitism (describing the case as “blood libel”), attempts at distraction (arguing over quantities of humanitarian aid it allows into the Gaza Strip), and technical legal objections. But South Africa’s willingness to file the case is a sign that the old tactics used to police discourse about genocide have lost much of their power.

 
The 1948 Genocide Convention has been ratified by a significant majority of the countries on Earth, giving it the heft of a universalist aspiration. At the same time, genocide’s legal form is crafted in a way that tends to muddle debates rather than clarify them—especially when paralysis is politically convenient.

The legal definition covers a set of acts—including killing, causing serious bodily or mental harm, and transferring children—“committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” It isn’t difficult for governments to commit mass murder in ways that skirt this technical formulation, which is notoriously narrow and riddled with ambiguities. Many hairs have been split debating what constitutes intent to destroy a group “in part,” how destruction of a group “as such” is different from merely killing members of the group because they belong to it, and other points that perhaps only an international lawyer would appreciate. Notions of intent from criminal law are a poor tool for evaluating the intent of collective political projects. As Dirk Moses argues in his authoritative The Problems of Genocide, as long as they can point to any other discernible goal—to subjugate, dispossess, or enslave, or even to lash out and take revenge—states have a potential alibi against the charge of genocide. Apologists for mass violence have long seized upon these infirmities in the legal definition to derail allegations.

Legal interpretation, of course, does not occur in a vacuum. Just as important as the formal rules of international law are a set of unspoken, non-legal assumptions governing use of the “g-word.” Each of these rules has some plausibility, especially when considered in isolation. But powerful actors use the rules to weaponize genocide accusations with great effect, while subjecting others who use the term to censure, ridicule, and marginalization.

The first of these rules is that genocide, despite its narrow legal definition, is an evil greater than any other category of atrocity under international law, such as war crimes and crimes against humanity—and therefore nearly any violence is justified in preventing or stopping it. The second is that the Holocaust—which loomed large over the drafting of the convention—is the paradigmatic instance of genocide.

Thanks to the first rule, the stakes of knowing when genocide is happening are high. But the term’s legal ambiguities can make such determinations fraught. The second rule furnishes a convenient way of resolving these dilemmas, with the result that the power to act in the name of stopping genocide is most often mobilized by the states that can claim moral authority in connection with the Holocaust: Israel, which has at times presented its foundation as an act of reparation for the horrors of the Shoah, and the United States, pointing to its role as one of the liberators of the Nazi death camps.

It is unsurprising that these gatekeeping rules are expressed in how the Holocaust is memorialized. Yad Vashem, the national Holocaust memorial of the state of Israel and an obligatory stop for schoolchildren and foreign dignitaries alike, commemorates mass atrocities committed by the Nazis. Yet it is located on a hilltop adjacent to the remnants of the Palestinian village of Deir Yassin, site of the most infamous massacre carried out by Zionist militias during the 1948 Nakba, when more than 700,000 Palestinians were uprooted during the establishment of the state of Israel. There is nothing there to commemorate the massacre; instead, some of the houses of Deir Yassin have been converted into use as a mental health facility. It’s a stark metaphor for how claims that the Holocaust is the ultimate crime can be used to trivialize Palestinian dispossession.

For its part, the United States—which did not ratify the Genocide Convention until 1988—opened its official Holocaust museum near the Smithsonian Mall in 1993, at a time when the country’s foreign policy establishment was struggling to define its post–Cold War mission. (It would be many years before the United States would open national museums dedicated to Black and Native American experiences, and those only addressed genocide obliquely if at all.) An answer to that question came in the museum’s inaugural ceremony, when Nobel laureate and Holocaust survivor Elie Wiesel publicly implored President Bill Clinton to “do something to stop the bloodshed” in Bosnia-Herzegovina. Media images in those years of emaciated men behind barbed wire in Balkan concentration camps were often interpreted in the West through the lens of Holocaust memory. The cry of “Never Again!” was revived as an integral part of U.S. foreign policy. Since then, the United States has perennially cited genocide as a rationale for war (Yugoslavia, Iraq, Libya), economic sanctions (Sudan, Myanmar, China), or supporting client regimes (Rwanda) around the world.

The flipside of investing genocide with so much political weight is the need to ensure control over the term’s use. This gives rise to another rule: genocide accusations must be rare and extraordinary due to the crime’s supremely evil character. There are enough blind alleys built into the legal definition of genocide to stymie accusations that go against the preferences of the United States and Israel. But merely disputing the merits is not enough; preserving a monopoly on how the term is used requires wayward accusers to be delegitimized entirely.

Those deemed profligate in making accusations are not only seen as wrongheaded but as diluting the galvanizing power of these accusations, thus ruining it for the most deserving of victims. The most extreme form of this idea is the argument that accusing Israel of genocide is itself antisemitic—as if accusers are somehow usurping the birthright of others.

Thanks to sustained popular protest over the past three months, these longstanding rules of genocide gatekeeping are eroding. An early sign was Congresswoman Rashida Tlaib emerging not only unscathed but emboldened after the uproar over a video she released that accused President Biden of “support[ing] the genocide of the Palestinian people.” What would ordinarily have been a career-ending move instead exposed the hypocritical nature of a political class more outraged by Palestinian accusations of genocide than by actual mass killing of Palestinians.

 
As the notion that Israel may be committing genocide has gained wider traction, a slew of articles have pondered whether the genocide concept still has any utility at all. Slate ran a think-piece on “the limits of the word” (a few years ago, the same publication chastised human rights groups as “too quick to use the G-word. . . . But in the case of the Rohingya, it applies”). “Is it time to retire the term ‘genocide’?” wondered the Wall Street Journal. The New Republic called genocide “the wrong word” since it “excuses and exonerates more perpetrators of mass murder than it condemns.” Even Moses, writing in the Boston Review, could not help but faintly dismiss protesters as merely channeling “the ‘truth’ of the victim’s perspective” in their quixotic attempts to get the law on their side. While these critiques—especially Moses’s—are hardly framed as defenses of Israel’s actions, their prominence at this particular moment is, to put it mildly, not inconvenient for Israel.

These pieces gesture to a future in which the powerful decide that if they can’t control the use of the word genocide, it shouldn’t be used at all. In such a future, perhaps we would find new ways of understanding and responding to oppression that avoid reliance on spurious hierarchies of suffering. But the road to this goal likely runs not through improved legal definitions for mass atrocity, but through actually existing struggles for justice. Palestinians and their allies who have taken up the demand to stop the genocide are not cheapening the term. On the contrary, they are democratizing its power, extricating genocide from a desiccated legalism that serves the status quo and injecting it with an explicitly anticolonial politics instead.

Palestinians, like other colonized peoples, have long narrated their own experiences of mass violence with reference to genocide. And this isn’t the first time such charges have gained widespread international recognition: the UN General Assembly recognized the 1982 Israeli-sponsored massacre of Palestinian refugees in Sabra and Shatila in Lebanon as an act of genocide. This history is part of the backdrop for South Africa’s legal intervention. These anticolonial forces are not uttering genocide as a code word to radio in air strikes. They are naming Western—especially U.S.—complicity with genocide. Instead of using the term to short-circuit political thinking, here the demand to end genocide is merely one component of a broader struggle for Palestinian freedom and self-determination. Nothing can be more urgent than stopping genocide, and nothing could be more inadequate.


Darryl Li is an anthropologist and lawyer teaching at the University of Chicago.