The Limits of Accusing Israel of Genocide

Israeli officials immediately protested that they had not meant what they said. Netanyahu’s office called the description of his use of Amalek as an incitement to genocide historically ignorant. The “reference to Amalek was not an incitement to genocide of Palestinians, but a description of the utterly evil actions perpetrated by the genocidal terrorists of

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Israeli officials immediately protested that they had not meant what they said. Netanyahu’s office called the description of his use of Amalek as an incitement to genocide historically ignorant. The “reference to Amalek was not an incitement to genocide of Palestinians, but a description of the utterly evil actions perpetrated by the genocidal terrorists of Hamas on October 7th and the need to confront them,” the statement read. Here was the crux of the problem, the point of non-intersection. Israelis—not only right-wing Israelis, and certainly not only Israeli officials, but the overwhelming majority of Israelis—feel that, in the wake of October 7th, the country is responding to an existential threat. It is fighting an inevitable, necessary, and just war. The sense of righteousness and the underlying fear are so great that Israeli officials probably speak for their country when they say, in effect, How can you call it genocide if it’s waged by us?

In court, Israeli representatives argued essentially that they shouldn’t have to make an argument. Malcolm Shaw, a British international lawyer who spoke for almost an hour as the first attorney representing Israel, asserted that “the real genocide” occurred on October 7th, when Hamas massacred some twelve hundred Israelis, including about eight hundred civilians. “Armed conflict, even when fully justified and conducted lawfully, is brutal and costs lives,” Shaw said. “Not every conflict is genocidal. The crime of genocide . . . is a uniquely malicious manifestation. . . . It has been described, correctly, as the crime of crimes. It is the ultimate in wickedness. . . . If claims of genocide were to become the common currency of armed conflict, wherever and whenever that occurred, the essence of this crime would be diluted and lost.” Shaw, who is in his seventies, thin, and impeccably adorned in a judge’s robe and powdered wig, compared South Africa’s claim of a dispute with Israel to “one hand clapping.”

Later that day, another senior British barrister, Christopher Staker, took the lectern to call South Africa’s demand for an order of ceasefire absurd. “Suppose that the Genocide Convention and the court had already been in existence during the Second World War,” he said, “and that the Allied Powers were all parties to the convention without reservation while the Axis Powers were not. Suppose that a neutral state had brought proceedings against the Allied Powers alleging breaches of the Genocide Convention in their conduct of hostilities and requesting provisional measures requiring the Allies to cease hostilities immediately. . . . Such provisional measures would have required the Allies to surrender to the Axis Powers even though the case against them might later have been held to be wholly unfounded, without any consideration by the court about whether genocide was being committed by the Axis Powers.”

The court appeared to recognize part of Staker’s argument and stopped short of ordering a ceasefire, which, because Hamas is a terrorist organization and not a state—and so not subject to the I.C.J.’s jurisdiction—would have been unilateral. But the court recognized that the situation in Gaza was dire enough, the evidence compelling enough, that, even before the court could review all the facts, it ordered Israel to minimize casualties and report back to the I.C.J. on its progress. The only permanent member of the court who voted against all the measures was a representative of Uganda, and the country has since disavowed the dissent. Netanyahu celebrated the failure of what he called the “vile attempt” to deny Israel its right to self-defense. The bombing of Gaza continued. Since the I.C.J. ruling, the death toll has passed twenty-seven thousand.

That same day, a federal court in Oakland heard from four Palestinian Americans, among other witnesses, who claimed that bombs supplied by the U.S. had brought about the death and suffering of their family members. “My family is being killed, on my dime,” Laila El-Haddad, a writer living in Clarksville, Maryland, told the court. Five people on her father’s side of the family and eighty-four on her mother’s side have died since the beginning of the war, she said, and several dozen more are unaccounted for. She described a routine, now more than three months old, of checking her phone in the middle of the night, or first thing upon waking up in the morning, to see if family members were still alive. El-Haddad said that a cousin had been able to collect parts of his sister’s body and one half of his mother’s body.

Similar to the case brought by South Africa, the plaintiffs in the San Francisco court situated the current carnage in Gaza within a seventy-five-year history. “The majority of people in Gaza are refugees that were forcibly removed in 1948,” Waeil Elbhassi, of San Ramon, California, said. “Two of whom are my parents, who actually lived it firsthand and told us stories about it. . . . People feel that if they stay they might die or starve, and if they leave it’s not likely that they’ll be allowed to come back. . . . When I saw thousands of people in Gaza just fleeing, walking on foot, carrying all they can from their belongings, carrying children, and my brain immediately recalled images in black-and-white that I know of from 1948, when Palestinians made the same exodus, made the same journey.”

One of the eight witnesses called by the plaintiffs was the Wake Forest University professor Barry Trachtenberg, a historian of the Holocaust who wrote “The United States and the Nazi Holocaust,” which analyzes the role of racial prejudices in America’s failure to prevent the genocide of the Jews. Trachtenberg testified to a consensus opinion among historians of genocide that what is happening in Gaza can indeed be called a genocide, largely because the intent to cause death on a massive scale has been so clear in the statements of Israeli officials. “We are watching the genocide unfold as we speak,” he said. “We are in this incredibly unique position where we can intervene to stop it, using the mechanisms of international law that are available to us.”

Trachtenberg was the only witness the government, which called no witnesses of its own, chose to cross-examine. The effort to impeach his credibility went almost comically off the rails.

“Dr. Trachtenberg, you do not have a law degree, correct?” Jonathan Kossak, a lawyer for the Department of Justice, asked.

“Correct.”

“You do not have a degree in international relations, correct?”

“Correct.”

“You are not an expert on the constitutional principle of the separation of powers, correct?”

“Correct.”

“You are not an expert on U.S. national-security interests, correct?”

“Correct.”

“You are not an expert on U.S. foreign diplomacy, correct?”

“I’ve studied quite a bit of U.S. diplomacy, especially as it relates to genocide during World War Two.”

“You don’t have a degree in foreign policy, correct?”

“No, I wasn’t aware that’s a degree.”

“You’ve not written, um, um, on, eh, strike that.” After a long pause, Kossak asked for a moment and walked over to confer with his co-counsel. “No further questions, your honor.”

The U.S. government’s defense, much like Israel’s defense in the I.C.J., rested on the fundamental argument that the case itself is unthinkable. The Justice Department’s attorneys argued that the court was being asked to intervene in foreign policy and indeed undermine it, violating the principle of separation of powers. The plaintiff argued that the question was one not of policy but of law: the Genocide Convention, of which the United States was a lead author, is law, and sending bombs to the Israeli military so it can carry out genocide violates this law.

At the end of the day, the judge, Jeffrey S. White, looked stricken. “The testimony that the court heard was truly horrific, gut-wrenching,” he said. “And the government doesn’t really dispute, seriously dispute, factually, what’s going on Gaza.” (Jean Lin, one of the two lawyers for the government, nodded.) White continued, “There is now on the record uncontradicted evidence that, at least in the opinion of scholars, one very highly regarded scholar—not from a legal standpoint but from a sociological, historical construct—they believe there is a genocide in progress. And I have to say that, in twenty-some-odd years on the bench, this is probably the most difficult case, factually, that this court has ever had, and one of the most difficult cases legally that this court has ever had, because the court needs to decide: . . . What are the limits of the court’s power within our constitutional framework?”

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