Shifting the goalposts of genocide

This week the Irish government announced they are to join South Africa’s case against Israel at the International Court of Justice (ICJ), in which Israel stands accused of genocide - the most heinous of all state crimes. In doing so, Ireland has declared their intention to make a curious request of the Court: to change the yardstick by which Israel is going to be judged. It’s a request that reveals much about the fervent effort to get the ‘genocide’ label to stick to Israel over its military campaign in Gaza.

“Ireland will be asking the ICJ to broaden its interpretation of what constitutes the commission of genocide by a State”, their announcement explained. “We are concerned that a very narrow interpretation of what constitutes genocide leads to a culture of impunity in which the protection of civilians is minimised.”

You might think that genocide is genocide, whoever does it, and that the same criteria should be used for a legal judgement on the matter, whoever is in the dock; but apparently this is not the case when the defendant is the State of Israel. A similar argument was made by Amnesty International in its recent report accusing Israel of genocide - a report rejected by Amnesty’s Israel branch - which complained:

“[The ICJ’s] rulings on inferring intent can be read extremely narrowly, in a manner that would potentially preclude a state from having genocidal intent alongside one or more additional motives or goals in relation to the conduct of its military operations. As outlined below, Amnesty International considers this an overly cramped interpretation of international jurisprudence and one that would effectively preclude a finding of genocide in the context of an armed conflict.”

The implication is that the Irish government and Amnesty International, and perhaps others too, fear that the ICJ will not find Israel guilty of genocide, because the evidence is not sufficient to prove the case. Their reaction to this appears not to be relief that a genocide is not taking place after all, but frustration. Arguing that the legal definition of genocide ought to be broadened by the Court to ensure that the case against Israel meets it, rather than ensuring that the case fits the existing definition as it stands, is the very definition of moving (or widening) the goalposts. It’s as if Manchester United’s misfiring strikers were to ask for wider goals to shoot into when they play Manchester City this weekend - but normally this is not how it works.

It will hardly reassure Jews around the world that anti-Israel campaigns are not motivated by bias or prejudice, when governments and human rights bodies try to change the legal definition of genocide in order to find Israel guilty of it. It looks very much like a double standard is in play.

Why, though, is there such a desire to find Israel guilty of this particular charge? It is not as if other war crimes lack gravity or sufficient penalty. The International Criminal Court (ICC) has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Israeli Defence Minister Yoav Gallant for war crimes and crimes against humanity including “starvation as a method of warfare” and “intentionally directing an attack against the civilian population”. These are serious charges that, if proven, would lead to imprisonment and permanent disgrace.

There are many supporters of Israel who reject the ICC and ICJ as biased, and see them as no more credible or neutral than Amnesty International. Even so, there is no doubt that the suffering of Palestinians in Gaza is enormous. The number of deaths and injuries, the scale of physical damage to property and essential services, the shortages of basic goods, all with no end in sight, should trouble everyone, whether their sympathies are with Israelis or with the Palestinians (or, ideally, with both). Even if you disregard every casualty statistic issued by Hamas-run institutions in Gaza and only believe the figures from Israeli sources, even if you are convinced that Israel takes as much care as is militarily possible to avoid civilian casualties and you lay the blame for everything at Hamas’s door: the scale of death and destruction, at a basic human level, is still completely awful.

Despite all of this, when weighing the potential charges against Israel, the ICC rejected the charge of extermination because they said the evidence did not support it. Again, this should be a source of relief and reassurance: as bad as things are in Gaza, it suggests that a genocide is not, after all, taking place. Instead, some of Israel’s critics behave as if they are disappointed that their worst fears have not been confirmed.

This is so unusual that it is important to ask why this urge exists to make the charge of genocide stick against Israel, even at the cost of changing the legal definition of the word. As I wrote in my book Everyday Hate: How Antisemitism Is Built Into Our World & How You Can Change It, it is hard to avoid the thought that the Holocaust has a lot to do with it. If you believe that Israel derives moral legitimacy and political power from Western guilt over the Holocaust, then it can lead to a perverse logic by which people try to bring down the Holocaust a peg or two in the hierarchy of competitive victimhood by claiming that Israel, the Jewish State, borne out of the ashes of Auschwitz, is now behaving no better than the Nazis did. One genocide cancels out another, supposedly.

Another reason may be that the intention to commit genocide is central to the legal definition of the term, and it is this intention that Israel’s opponents are so determined to prove. Whereas other war crimes can be the result of recklessness or a lack of concern, you cannot carry out a genocide by accident: you have to intend to deliberately destroy a people. Consequently, a State being found guilty of genocide usually implies the moral incrimination of an entire society, not just the politicians at the top. The intent to commit genocide can only ever be an evil intention, and it is - perhaps coincidentally, perhaps not - one that coheres with traditional antisemitic notions of Jews as inherently and unusually inhumane in their cruelty.

If Israel is found guilty of war crimes, it will join a very long list of countries, including the world’s leading democracies, that have also committed war crimes during armed conflicts - albeit few have been found guilty of such in an international court. However, if Israel is found guilty of genocide, it would join a short and ignoble list of history’s most abhorrent regimes that have become notorious for their crimes. It would be a judgement that discredits and delegitimises Israel itself. And that, for some, is the whole point of pursuing it so compulsively.