Genocide
Debate over whether there’s a genocide in Gaza has special resonance when your family was a victim of the crime that gave the world the term.
As Jews around the world mark the holiday of Tisha B'Av today, we reckon with a legacy of destruction and its meaning for the present day. My reflections below are presented in that spirit.
How can it be that Israel – the state founded by a people who experienced genocide – could itself be committing this most heinous of crimes?
For some in the Jewish community, it is simply inconceivable. To even raise the question is an outrage.
For others, the outrage is that a people who’ve themselves experienced genocide refuse to acknowledge that it’s happening and that they are responsible.
So – is it? Is Israel – specifically this government – committing genocide in Gaza? I spent a painful hour on Pod Save America Wednesday discussing the term and why I don’t use it.
It’s painful and it’s personal – and I, like many in the Jewish community, am struggling with the question.
I’ve read scholars, writers and lawyers who have come to believe that what Israel is doing in Gaza meets the legal and moral definition of genocide.
I’ve read the rebuttals, many rooted in disbelief that the charge would even be leveled against the Jewish people – as if we’ve earned immunity from scrutiny because of our own suffering.
I suspect my struggles resonate with Jews who grew up surrounded by family and friends whose lives were shaped by the Holocaust. On my mother’s side, everyone I knew of the older generation had fled, escaped, and survived genocide.
And all of them were haunted by the millions who didn’t survive. The grandparents sent to Theresienstadt to languish and die. The cousins shipped by train to death factories for immediate execution.
Never again, I was raised to believe.
Never again. A simple phrase – but with two radically different meanings. One meaning has led some to believe that even limited threats must be met with maximum force – a belief that finds expression in the militant nationalism on the right and context for the no-holds-barred efforts by Israel’s ‘defense’ organizations to shut down criticism of Israel in the US.
The other meaning of “never again” reinforces the strong Jewish commitment to stand up for the oppressed, to pursue justice and to work to make the world a better place through activism and philanthropy.
This school believes the lesson to draw is the one Hillel described 2000 years ago as the centerpiece of the Torah: “That which is hateful to you, do not do to your fellow.” For them, Jewish people are to be a “light unto the nations” – a model for others in matters of morals and ethics.
My parents drew both lessons from their firsthand experience with genocide. My father focused on strength; my mother on compassion.
I grew up fully believing that I - and the Jewish people - could weave them together, pursuing a commitment to our security while also pursuing justice and acting with compassion.
It wasn’t till adulthood that I ran squarely into the contradictions. Only then did I learn that my people’s finding a home in Israel after 1800 years had caused such pain to another people.
I learned about occupation and the Naqba. I came to recognize that, yes, Jews like Kahane, Ben-Gvir and Smotrich could be just as racist and immoral as any other people. I absorbed the shock that a Jew would kill a Prime Minister because he sought peace.
I’ve been on a thirty year (plus) journey now, on which I’ve explored the gap between the ethics on which I was raised and the reality of Israel’s treatment of the other people rooted in the same land. Though I see that we have not succeeded in balancing calls for strength and for compassion, I remain committed to the effort.
And now we have Gaza – one of the worst moral disasters of my lifetime, and it’s being perpetrated by the state of the Jewish people.
Yes – Hamas attacked Israel on October 7.
Yes – Hamas is a horrific terrorist group guilty of the worst crimes against humanity, and it must be defeated.
Yes – the hostages they hold and whom they are starving must be released.
Yes – Hamas has acted with no regard for the impact of their actions on their own people.
Yet none of that provides any rationale for what Israel is doing now in Gaza. Denying food and basic necessities of life to civilians. Soldiers shooting at civilians trying to get food. Destruction of the entire infrastructure of Gaza. Forcing the population into intolerably small areas. Hoping to create the conditions under which an entire population will be forcibly displaced.
Until now, I have tried to deflect and defend when challenged to call this genocide.
I have, however, been persuaded rationally by legal and scholarly arguments that international courts will one day find that Israel has broken the international genocide convention.
Based on the law as I read it, the Prime Minister and others in his government will have to answer for what they have done and will be held accountable. I know Jewish organizations and leaders will charge the courts with antisemitism. But the courts will simply be applying the law.
I believe the judgment of history will be more consequential than that of the courts, and that this government and these leaders will be remembered with revulsion for the horrors they’ve overseen.
But – worst of all – the stain of this abomination will forever be on the Jewish people because we have not stopped this. Far too many have been far too silent.
The personal pain of my own family from a crime that I believe has no parallel – and my association of the word genocide exclusively with that event - means I am unlikely to use the term myself.
But I cannot and will not argue any more against those using the term. I simply won’t defend the indefensible.
Would fellow Americans be wrong in suspecting that you, who had much more knowledge than most of us, knew for a long time that things could head in this direction? That you recklessly fueled the Israeli project until, finally, it led us to this place? That you now change position when a hundred thousand people can't be brought back from famine, saving yourself some of the blame but not necessarily saving them?
I remember well the day that you rejected my Congressman, Jamaal Bowman, because he had the courage to say clearly what was coming, even though it was predictable that it would cost him his career.
I come at this issue from my background as a retired international lawyer with a sprinkling of familiarity in international humanitarian law (IHL). Because “genocide” has just one agreed definition, under the Genocide Convention, I think the question of whether Israel is committing genocide in Gaza needs to be approached as a legal matter. Personally, I have not, and still do not, believe that publicly known evidence under the current legal standard shows that Israel has committed genocide in Gaza. The Convention requires that accused parties must have the “intent to destroy in whole or in part a national, ethnic, racial or religious group as such” – i.e. to destroy all or part of the Palestinian population of Gaza because their members are Palestinian. And at least under its latest rulings I'm aware of, the ICJ requires that it would need to find “a pattern of conduct from which the only reasonable conclusion to be drawn is an intent on the part of . . . [its] authorities to destroy ‘in part’ the protected group” before it can make a finding of genocide.
I think it is at least reasonable to draw the conclusion that, as Israel has said all along, its war is only with Hamas (and its allies like Islamic Jihad), a group that perpetrated the most deadly attack on Israel in its history and vowed to continue such attacks until Israel is annihilated, and that Israel's intent is to stop its attacks in Gaza once Hamas relinquishes power and demilitarizes. This intended result is not compatible with an intent to destroy all or part of the Palestinian people of Gaza because they are Palestinian.
Other evidence supports that this is Israel’s intent. For example, as a December 2024 New York Times investigation found, and I’ve seen no evidence to contradict, Israel does legal reviews before each of its attack plans is executed, in order to assure that the attacks are necessary, lawful, and proportional to the target’s military value in the fight against Hamas, and that it will take all feasible precautions to protect civilian life. And while the current threat caused by Hamas to Israel has diminished very substantially, it continues as a deadly organized force to kill Israeli soldiers, still exerts control over much of the territory of Gaza that Israeli forces do not occupy at a particular time, and has neither surrendered nor moved at all from its aspirations to apply what it states is its legitimate right and duty to use armed resistance until (even according to its more moderate 2017 revised Charter) an Islamic state of Palestine is established from the river to the sea. I have yet to see any of the distinguished scholars who assert that Israel is committing genocide deal with the continuing threat of Hamas and the Israeli government's willingness to end its war against Hamas if it relinquishes power in Gaza, aside from dismissing Hamas as a still-potent force.
In contrast, Jeremy has argued in this Substack and last Wednesday’s podcast that based on legal and scholarly arguments, he has come to believe that international courts will find some day that Israel has the necessary intent to destroy the Palestinian people. While Jeremy doesn't lay out the details of the arguments that have persuaded him, the body of scholars he alludes to include Omer Bartov, Melanie O'Brien (president of the International Association of Genocide Scholars), and a strong majority even though not a unanimous body of global scholars on genocide and IHL. The most persuasive elements of their arguments to me revolve around the increasing likelihood that Gaza may already have been destroyed as a livable territory, and that the Israeli government has express and in-process plans to destroy Gaza's remaining civil infrastructure.
Jeremy's Substack caused me to do a deep but quick dive into the scholarly writings and the relevant facts, law, and jurisprudence, including consulting with some more knowledgeable colleagues on applicable IHL principles. The bottom line I come to is that both the “pro” and the “con” arguments have a good faith basis, and that neither side should have much confidence that its argument will prevail over the other at the ICJ. Instead, what screams out to me, as well as to our J Street leadership and numerous others, is that the far more important action item for those of us in this country who care about Israel and Palestine is to stop arguing about the “g word” and get to work in ending the war and feeding the people.
Given the plausible basis for either the affirmative or negative argument for the existence of genocide, the vilification of believers of one argument by the more extremist adherents of the other side is especially unwarranted. In my view, we have seen much too much of that, especially in my experience from those on the left who maintain that a genocide is ongoing.
Moreover, without even needing to get to the genocide question and thorny issues of intent, we see that international law provides for a wide assortment of serious war crimes and crimes against humanity very likely committed by both Israel as well as Hamas. The collective punishment of the civilian population through the deprivation of food, water, and other necessities of life and starvation as a method of warfare are examples of such serious crimes. Some people have argued that these acts do not amount to genocide because Israel is only using its blockades of aid as a tactic to get Hamas to surrender and occasionally allows aid in before mass starvation events have occurred. But there is no question that these tactics are prohibited under, e.g., the ICC's Rome Statute and the 1977 Protocol II to the Geneva Convention, regardless of whether there is an intent to destroy an entire group through them. The extreme loosening up of standards of civilian protection highlighted in the above-referenced New York Times investigation resulted in numerous other actions that would need to be individually investigated, but many of which are likely to involve the war crime or (if widespread) crime against humanity of unnecessary uses of force that cause death or destruction to civilian populations.
While some have argued that characterization of Israel's worst acts as genocide is needed to compel the world to act, many of the acts themselves are so horrific that they do not need that label to spur responsive action. Why not stop at pointing out the horrendous and almost certainly criminal infliction of massive suffering on people for no good purpose at this point that needs to be brought to an end, without expressing certainty about the most fraught but debatable accusation?