This happened on 11 August 1942: A young boy, who was just brought on a transport into the Nazi German death camp at Belzec in Poland, cheerfully asked if anyone had succeeded in escaping. “He was stripped naked and hung upside down from the gallows—he hung there for three hours,” survivor Rudolf Reder told the great historian Martin Gilbert. “He was strong and still very much alive. They took him down and lay him on the ground and pushed sand down his throat with sticks until he died.”
Genocides are made not just of will and organised action but also little acts of individual savagery.
Last week’s hearings on South Africa’s densely-argued 84-page application to the International Court of Justice (ICJ), charging Israel with genocide in Gaza, will likely prove one of the most consequential documents of our times.
The unprecedented rate of killing of civilians in the Gaza campaign—the highest in major conflicts of almost a century, according to the Israeli political scientist Yagil Levy—isn’t itself evidence of genocidal intent. But South Africa’s dossier shows that—in the plain words of Israel’s leadership—Tel Aviv intends to destroy the Palestinians in Gaza. From our mobile phone screens, we know this is a project with widespread support in Israel.
Leaving aside how the ICJ decides the merits of South Africa’s complaint—and whether or not the court announces interim measures to reduce the suffering of Palestinians—the case will be of critical importance. Genocide is a unique kind of crime, spawned by industrial civilisation. Future wars, in a world rife with escalating ethnic and national tensions, need credible legal sanctions against its use.
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The genocide taboo
Genocide was well known to the ancient world and not apparently subject to moral or legal sanction. The Athenians, historian Gerald Mulligan reminds us, after the surrender of the vastly less powerful Melanians put to death all men of military age and sold the women and children as slaves. Similarly, the city of Carthage was burned to the ground, and survivors of the house-to-house killing by Roman legions were sold as slaves.
The last century saw the efflorescence of genocide: The Holocaust is the best-known example. Historian Caroline Elkins powerfully recounts, though, British imperial administrators practised it in Kenya decades after. The historian Norman Naimark’s chronicle of the Soviet dictator Josef Stalin’s many genocides, Ben Kiernan’s definitive work of the slaughter in Cambodia, and Gary Bass’ searing account of Bangladesh also show that the Second World War did not bring about a genocide taboo.
For the idea that the industrial means enabled a new kind of slaughter, though, we are indebted to the Polish law scholar Raphael Lemkin. He studied the massacres of ethnic Armenians, which began in 1915, and was disturbed by the absence of international law instruments to prosecute Ottoman officials for their crimes. Law cast war as an act involving two States; here, a State was waging war upon a people.
Through the Second World War and after, Lemkin campaigned for the recognition of genocide—a kind of collective form of homicide. Lemkin, philosopher Michael Freeman explains, “argued that genocide was a crime against the world, not just its victims, in that the world was composed of separate national cultures, and genocide, by destroying cultures, thereby impoverished the world.”
The Holocaust and genocide
With its armies of gas chamber operators, industrialists, bureaucrats, clerks, railway personnel, lawyers, bankers and managers—even, arguably, philosophers like Martin Heidegger and theologians like Emmanuel Hirsch—the Holocaust stands apart from all other genocides. Yet, as Israeli philosopher Emil Fackenheim notes, what became real at Auschwitz was always possible but is now known to be so.
Like the nuclear bomb, industrial civilisation possessed a new capacity for destruction with no moral taboo surrounding it. The Genocide Convention of 1948—in places badly phrased, loosely defined, and lacking teeth—was a small step in that direction.
However, the trial of the Nazi war criminal Adolf Eichmann—kidnapped by Israel from Argentina—took place under a national law. The Nazis and Nazi Collaborators Law, passed by the First Knesset in 1950, promised justice to the Jewish people and others persecuted in Nazi Germany and occupied Europe. Israel had no place at the table in the Nuremberg war crimes trials that took place after 1945; the Eichmann trial was an assertion of its emergence as a nation-state.
For the great philosopher and historian Hannah Arendt, though, the Eichmann trial reduced Auschwitz to just the greatest of a long series of savageries against the Jews, rather than a crime against the international system. True justice, she suggested, would have required some form of international tribunal.
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A living threat
“The frightening coincidence,” Arendt concluded, “of the modern population explosion with the discovery of technical devices that, through automation, will make large sections of the population “superfluous” even in terms of labor, and that, through nuclear energy, make it possible to deal with this twofold threat by the use of instruments beside which Hitler’s gassing installations look like an evil child’s fumbling toys, should be enough to make us tremble.”
This might sound like hyperbole but several wars that have taken place since Arendt’s essay have shown her concerns were prescient. Technology—and ethnic hatred—have made genocide the norm in large-scale modern warfare.
Since 2007, the ICJ has shown a tentative willingness to address the Genocide Convention. That year, it held that Serbia had failed to prevent genocide at Srebrenica in Bosnia and Herzegovina. The State itself, however, was not held responsible for the massacre. The Hague has also set up war crimes tribunals for Rwanda and the former Yugoslavia, and the international criminal court has jurisdiction against some individuals involved in war crimes.
Gambia, joined by several other States, took Myanmar to the ICJ for its mass expulsion of Rohingya in 2021, and succeeded in obtaining interim measures. Although they have had no real impact on the ground. The historic case is the basis of South Africa’s action.
Even though there is deep discomfort in the West with the effort to prosecute Israel, it is important to recognise that clear moral norms are critical to the evolution of the global order at a time of crisis.
American liberals, normally loud to voice support for human rights around the world, international relations scholar John Mearsheimer writes, “have said little about Israel’s savage actions in Gaza or the genocidal rhetoric of its leaders.” “History will not be kind to them, as they said hardly a word while their country was complicit in a horrible crime, perpetrated right out in the open for all to see.”
Through the Cold War, the US often condoned such crimes by its allies—undermining its own claims of moral leadership, and opening the path for countries like China to offer a cynical and ruthless alternative that sustains tyranny around the world. The US, as Mearsheimer advocates, might be well advised to avoid spreading liberalism across the world. The bloc it seeks to build must represent values superior to those of its adversaries.
“Given the right mix of indoctrination and nationalism, we can all become génocidaires—not because humans are inherently evil, but because we can be programmed to believe that our survival depends on the annihilation of another group of people,” scholar Herman Salton notes.
Even though the deterrence that the ICJ can provide might be weak, the effort to end legitimacy for wars of annihilation is perhaps the most important task of our times.
Praveen Swami is contributing editor at ThePrint. Views are personal.