[Prefatory Note: my essay of explication on the inexplicable, as published by Eure-Med Monitor at the end of February 2024]
COMMENTARY: In Gaza, the west is enabling the most transparent genocide in human history
Update of 2/25/24 EuroMed Article by Richard Falk:
It is helpful to conceive of the Israeli settler colonial undertaking in Palestine as having reached its decisive phase, and as such concerns in addition to resources, land and people. From an Israeli perspective, ‘more land, less Palestinians’; from a Palestinian perspective, ‘steadfastness and resistance in relation to land and residence rights.’
The latest news pertaining to Gaza as reported in the Western media and government circles is that a six week pause in the onslaught in Gaza is being negotiated in Paris and Doha, and possibly will take effect on March 10th, the beginning of Ramadan. The deal being negotiated centers on the release of women, children, and the elderly among the 99 Israel hostages still held by Hamas, and an exchange that is rumored to lead to the freeing of 300 Palestinians currently held in Israeli prisons, often under abusive conditions.
It is coupled with a continuing announced intention by PM Netanyahu of a planned attack on the southernmost Gaza city of Rafah, which is now sheltering as many as 1.5 million displace Palestinian or more than half of Gaza’s 2.3 million population and more than ten times the number of people normally living in Rafah.
The overall genocidal attack in its fifth month now has resulted in more than 30,000 Palestinian deaths with another 7,000 missing, and over 70, 000 injured many badly. A further estimated 576,000 are coping with imminent famine conditions, 85% of Gaza population is displaced, and 80% of residential housing has been destroyed or seriously damaged, as well as 96% of Gaza agricultural infrastructure destroyed or damaged.
To calibrate the extent of loss and suffering by reference to the current US population of 335 million would mean multiplying the above Palestinian casualty statistics by more 140 times, and many fear that starvation, disease, and the Rafah attack will greatly increase Palestinian losses.
Recall Samuel Huntington’s controversial, yet influential, 1993 Foreign Affairs article, “The Clash of Civilizations,” which ends with the provocative phrase, “The West against the rest.” Although the article seemed far-fetched 30 years ago, it now seems prophetic in its discernment of a post-Cold War pattern of inter-civilizational rivalry. It is rather pronounced in relation to the heightened Israel/Palestine conflict initiated by the October 7 Hamas attack on Israeli territory with the killing and abusing of Israeli civilians and IDF soldiers, as well as the seizure of some 200 hostages.
Clearly this attack has been accompanied by some suspicious circumstances such as Israel’s foreknowledge, slow reaction time to the penetration of its borders, and, perhaps most problematic, the quickness with which Israeli adopted a genocidal approach with a clear ethnic cleansing message. At the very least the Hamas attack, itself including serious war crimes, served quite conveniently as the needed pretext for the 100 days of disproportionate and indiscriminate violence, sadistic atrocities, and the enactment of a scenario that looked toward making Gaza unlivable and its Palestinian residents dispossessed and unwanted.
Despite the worldwide transparency of the Israeli tactics, partly attributable to ongoing TV coverage of the devastating and heartbreaking Palestinian ordeal, what was notable was the way external state actors aligned with the antagonists. The Global West (white settler colonial states and former European colonial powers) lined up with Israel, while the most active pro-Palestinian governments and movements were initially exclusively Muslim, with support coming more broadly from the Global South. This racialization of alignments seems to take precedence over efforts to regulate violence of this intensity by the norms and procedures of international law, often mediated through the United Nations. South Africa broke this pattern by its historic initiative at the ICJ that resulted in a near unanimous Interim Order on January 26, 2024, which seems to have had no impact on Israel military tactics or interference with the delivery of humanitarian aid or support by the Global West.
This pattern is quite extraordinary because the states supporting Israel, above all the United States, have claimed the high moral and legal ground for themselves and have long lectured the states of the Global South about the importance of the rule of law, human rights, and respect for international law. This disregard the manifest of intent of the Genocide Convention to urge compliance with international law and morality by both sides in the face of the most transparent genocide in all of human history. In the numerous global pre-Gaza genocides, the existential horrors that occurred were largely known after the fact and through statistics and abstractions, occasionally vivified by the tales told by survivors or given expression in novels or films. The events, although historically reconstructed, were not as immediately real as these events in Gaza with the daily reports in real time from brave journalists in the Gaza combat zones for more than four months, enduring many deaths..
Liberal democracies failed not only by their refusal to make active efforts to prevent genocide, which is a central obligation of the Genocide Convention, but more brazenly by openly facilitating the continuation of the genocidal onslaught. Israel’s frontline supporters have contributed weapons and munitions, as well as providing targeting intelligence and even assurances of active engagement by ground forces if requested, as well as providing diplomatic support at the U.N. and elsewhere throughout this crisis.
Liberal democracies failed not only by their refusal to make active efforts to prevent genocide, but more brazenly by openly facilitating continuation of the genocidal onslaught
These performative elements that describe Israel’s recourse to genocide are undeniable, while the complicity crimes enabling Israel to continue with genocide remain indistinct, being situated in the shadowland of genocide. For instance, the complicity crimes are noted but remain on the periphery of South Africa’s laudable application to the International Court of Justice (ICJ) that includes a request for Provisional Measures crafted to stop the genocide pending a decision on the substance of the charges of genocide. The evidence of genocide is overwhelmingly documented in the 84-page South African submission, but the failure to address the organic link to the crimes of complicity is a weakness that could be reflected in what the court decides.
Even if the ICJ does impose these Provisional Measures, including ordering Israel to desist from further violence in Gaza, it may not achieve the desired result, at least not before the substantive decision is reached some three to five years from now. It seems unlikely that Israel will obey Provisional Measures. It has a record of consistently defying international law. It is likely that a favorable decision on these preliminary matters will give rise to a crisis of implementation.
The law is persuasively present, but the political will to enforce is lacking or even resistant, as here in certain parts of the Global West, and the ICJ lacks any independent enforcement authority. The UN leaves, as usual, implementation at the mercy of the veto-burdened Security Council..
The degree to which the U.S. has supplied weaponry with U.S. taxpayer money would be an important supplement to rethinking the U.S. relationship to Israel that is so important and which is underway among the American people—even in the Washington think tanks that the foreign policy elites fund and rely upon. Proposing an arms embargo would be accepted as a timely and appropriate initiative in many sectors of U.S. public opinion. I hope that such proposals may be brought before the General Assembly and perhaps the Security Council. Even if not formally endorsed, such initiatives would have considerable symbolic and possibly even substantive impacts on further delegitimizing Israel’s behavior and stimulating solidarity initiatives..
A third specific initiative worth carefully considering would be timely establishment of a People’s Tribunal on the Question of Genocide initiated by global persons of conscience. Such tribunals were established in relation to many issues that the formal governance structures failed to address in satisfactory ways. Important examples are the Russell Tribunal convened in 1965-66 to assess legal responsibilities of the U.S. in the Vietnam War and the Iraq War Tribunal of 2005 in response to the U.S. and U.K. attack and occupation of Iraq commencing in 2003.
Such a tribunal on Gaza could clarify and document what happened on and subsequently to October 7. By taking testimony of witnesses, it could provide an opportunity for the people of the world to speak and to feel represented in ways that governments and international procedures are unable to enact, given their request for Provisional Measures to stop the ongoing Gaza onslaught, it will increase Global South and civil society pressure on Israel and its supporter governments to comply. As Israel has refused to make even efforts to comply with the near unanimous Interim Order of the ICJ, it has escalated pro-Palestinian solidarity efforts throughout the world and cast Israel into the darkest regions of pariah statehood.
In such an atmosphere, nonviolent activism and pressure for the imposition of an arms embargo and trade boycotts as well as sports, culture, and touristic boycotts will become more viable policy options, and can be given symbolic and substantive reality within the private sector, even among individual consumers. This approach by way of civil society activism proved very effective in the Euro-American peace efforts during the Vietnam War and in the struggle against apartheid South Africa, and elsewhere.
Israel is becoming a pariah state due to its behavior and defiance exhibited toward legal and moral norms. It has made itself notorious by the outrageously forthright acknowledgement of genocidal intent of its highest leaders with respect to Palestinian civilians whom they are under a special obligation to protect as the occupying power.
Being a pariah country or rogue state makes Israel politically and economically vulnerable as never before. At this moment, a mobilized civil society can contribute to producing a new balance of forces in the world that has the potential to neutralize the sway of Western post-colonial imperial geopolitics that has dominated the global management of power since the end of the Cold War more than 30 years ago..
It is also relevant to take note of the startling fact that the anti-colonial wars of the last century were in the end won by the weaker side militarily. This is an important lesson, as is the realization that anti-colonial struggle does not end with the attainment of political independence. It needs to continue to achieve control of national security and economic resources as the recent wave of anti-French coups in former French colonies in sub-Saharan Central Africa illustrate. The most recent of these coups occurred in Niger about a year ago.
In the 21st century weapons alone rarely control political outcomes. The U.S. should have learned this decades ago in Vietnam, having controlled the battlefield and dominated the military dimensions of the war, and yet having failed to achieve control over its political outcome, and correctly perceived as having lost the war..
The U.S. is disabled by its internal political structure from learning the appropriate lessons from such defeats. Such learning would weaken the leverage of the military-industrial-government complex, including the private sector arms industry and the corporatized media. This would subvert the domestic balance in the U.S. and substantially discredit the global geopolitical role being played by the U.S. throughout the entire world.
So, it is. currently an anachronistic situation. Despite knowing what to do. yet well-entrenched special interests preclude rational adjustments, and the military malfunctions and accompanying geopolitical alignments persist, ignoring costly failures along the way.
In effect, experience suggests strongly what should be done, but the political clout does not exist to get the needed job done. Global public opinion is shifting, peace-minded coalitions are forming, and demonstrations globally are building opposition to continuing the war.
Iran
There is a huge U.S./Israel propaganda effort to tie Iran to everything that is regarded as anti-West or anti-Israeli. It has intensified during the Gaza crisis, starting with the October 7 attack by Iran’s supposed proxy Hamas. You notice even the most influential mainstream print media such as The New York Times routinely refers to what Hezbollah or the Houthis do as “Iran-backed.” Such actors are reduced misleadingly to being proxies of Iran. In contrast, references to Ukraine never make explicit the US or NATO backed and materially supported Kyiv government, which is so much more tangible than whatever involvement Iran seems to have with pro-Palestinian initiatives undertaken by non-state actors in the region.
This way of denying agency to pro-Palestinian actors and attributing behavior to Iran is a matter of Israel/US state propaganda trying to promote belligerent attitudes toward Iran to the effect that Iran is our major enemy in the region, while Israel is our loyal friend. At the same time, it suppresses the reality that If Iran is backing countries and political movements, it obscures what the U.S. is doing more overtly and multiple times over throughout the Middle East.
It is largely unknown what Iran has been doing in the region to protect its interests. Without doubt, Iran has strong sympathies with the Palestinian struggle, and is strongly in favor of minimizing US presence and influence.. Those sympathies coincide with its own political self interest, especially its national security, in not being attacked. Additionally, Iran has lots of problems arising from opposition forces within its own society.
But I think dangerous state propaganda is building up this war-mongering hostility toward Iran. It is highly misleading to regard Iran as the real enemy standing behind all anti-Israeli actions in the region. It is important to understand as accurately as possible the complexity and unknown elements present in this crisis situation that contains dangers of wider war in the region and beyond. As far as is publicly known, Iran has had an extremely limited degree of involvement in the direct shaping of the war and Israel’s all-out attack on the civilian population of Gaza.
Hamas and a Second Nakba
While I was special rapporteur for the U.N. on Israeli violations of human rights and international humanitarian law, I had the opportunity to meet and talk in detail with several of the Hamas leaders who are living in Doha and Cairo, as well as in Gaza. In the period between 2010 and 2014, Hamas was publicly and by back channels pushing for a 50-year cease-fire with Israel. It was conditioned on Israel carrying out the unanimous 1967 Security Council mandate in SC Res 242 to withdraw its forces to the pre-war boundaries of “the green line” established after the 1948 War. Hamas had also publicly sought a long-range cease-fire with Israel after its 2006 electoral victory in Gaza of up to 50 years.
Neither Israel nor the U.S. would respond to those diplomatic initiatives. Hamas leader Khalid Machal, the most intellectual of the Hamas leaders with whom I met, told me in some detail that he had personally warned Washington of the tragic consequences for civilians on both sides of the conflict, if it was allowed to go on without a long-term cease-fire sustained and accepted. Machal’s efforts were confirmed by non-Hamas independent sources, which also confirmed that this effort to prevent further violence met with no encouragement in either Tel Aviv or Washington.
entanglement with geopolitical hegemony in relation to international criminal law and structures of global governance.
The South African World Court Case, Pariah State, and Popular Mobilization
The South African initiative is important as a welcome effort to enlist international law and procedures for its assessment and authority in a context of severe alleged criminality. Since the ICJ, the highest tribunal on a supranational level, has responded favorably to South Africa’s highly reasonable and morally imperative
Where can Palestinians go as the population suffers from famine and continued bombing? What is Israel’s goal?
I see the so-called commitment to thinning the Palestinian presence in Gaza as leading deliberately to a functional second Nakba. This is a criminal policy. I don’t know that it has to have a formal name. It is not a policy designed to achieve anything but the decapitation of the Palestinian population, if not in whole, at least in part, explaining the ICJ concern about halting what leaves the strong impression of genocide. Israel is exerting incredible pressure t to move large numbers of Gazans to the Egyptian Sinai, and the Egyptian al-Sisi government has declared that it opposes an influx of Palestinian refugees, yet rumors suggest that elaborate efforts to overcome Egyptian resistance include large-scale debt relief and IMF loans..
This is not a policy. The Palestinians in the Occupied Territories are being confronted with a threat of elimination or replacement, which is a characteristic of every settler colonial project. The Israeli campaign after October 7 was not predominantly directed toward Hamas’ terrorism nearly as much as it was focused on the forced evacuation of the Palestinians from Gaza and intent on the related dispossession of most Palestinians from the West Bank, the real prize of this military campaign and the priority of the settler-oriented Netanyahu coalition government..
If Israel really wanted to deal with its security in an effective way, much more efficient and surgical methods would have been relied upon. There was no reason to treat the entire civilian population of Gaza indiscriminately as if it every Gazan was implicated in the Hamas attack, and there was certainly no justification for Israel’s genocidal response. The Israeli motivations seem more related to completing the Zionist Project than to restoring territorial security. All indications are that Israel used the October 7 attack as a pretext for a preexisting master plan to get rid of the Palestinians whose presence blocks the establishment of Greater Israel by finally obtaining sovereign control over the West Bank and at least portions of Gaza.
For a proper perspective we should remember that before October 7, the Netanyahu coalition government that took power at the start of 2023 was known as the most extreme government ever to govern the country since its establishment in 1948. The new Netanyahu government in Israel immediately gave a green light to settler violence in the Occupied West Bank and appointed overtly racist religious leaders to administer those parts of Palestine still occupied. What made it extreme, was its rejection of the pretense of a negotiated end to a struggle between the two peoples that purported to be based on co-existence rather than victory by the stronger side. The UN consensus, with almost universal support, presupposed Palestinian sovereign statehood while many Palestinian intellectuals and activists favored a single possibly confederated secular state guaranteeing ethnic and secular equality.
With the Gaza onslaught ambiguity was removed from Israel’s settler colonial end game , consisting of Israel claiming territorial sovereignty over the whole of the so-called promised land, enabling Greater Israel to come into existence as a Jewish supremacy state in accord with the forthright earlier Basis Law enacted in 2018 long before the Netanyahu coalition and the Hamas attack took place. What the Gaza operation since October is added is a resolve by Israel to defuse the so-called ‘demographic bomb’ by inducing Palestinian death and departure by mounting a sustained campaign of unrelenting state terror, with its heavy reputational costs exacted among the peoples of the world, including even in the long supportive Global West, where in the US and elsewhere pro-Palestinian sentiments become relevant to electoral outcomes scheduled to occur in 2024 and beyond.
The Need for a Different Context
We need to establish a different context than the one that exists now. That means a different outlook on the part of the Western governmental and NGO Jewish networks in the former colonial Europe and settler colonial white governments elsewhere steadfast supporters of Israel even now. This implies a different internal Israeli sense of their own values and security interests, and their own future development. The South African suggestive antecedent shows that it is only when sustained substantive pressure is brought to bear on national governing elites that have gone to these extreme lengths of relying on apartheid or genocide that startling transformative moves away from hegemony in the direction of constitutionally-based coexistence occur.
The lengths that the Israeli government has gone are characteristic of settler colonial states. All of them, including the U.S. and Canada, have acted violently to neutralize or exterminate the resident Indigenous people. That is what this genocidal interlude is all about. It is an effort to realize the goals of maximal versions of Zionism, which can only succeed by eliminating the Palestinians as rightful claimants to live in the coveted land, much less share in its governance. It should not be forgotten that in the weeks before the Hamas attack, including at the U.N., Prime Minister Benjamin Netanyahu was waving a map of “the new Middle East” that had erased the existence of Palestine.
Undoubtedly, one of Hamas’ motivations was to negate the view that Palestine had given up its right to self-determination, and that Palestine could be erased from political consciousness. Recall the old delusional pre-Balfour Zionist slogan: “A people without land for a land without people.” Such utterances of this early Zionist utopian phase literally erased the Palestinians who for generations lived in Palestine as an entitled Indigenous population, and anticipated what became a top priority political project. With the Balfour Declaration of 1917, this settler colonial vision was embodies in the governance of the Palestinians, enjoying the blessings of the leading European colonial powers and the liberal democracies that emerged after the indigenous people of the land no long presented a political obstacle to their replacement.
Given post-colonial realities, the Israeli project is historically discordant than earlier settler colonial undertakings, and hence more extreme. It exposes the reality of Israel’s policies and the inevitable resistance response to Israel as a self-proclaimed racially supremacist state. Israeli state propaganda and management of the public discourse long obscured this maximalist agenda of Zionism and we are yet to know whether this was a deliberate tactic or just reflected the phases of Israel’s development and self-confidence.
This may turn out to be a moment of clarity with respect not only to Gaza, but to the overall prospects for sustainable peace and justice between these two embattled peoples that must reflect the exercise of rights of self-determination and achieve some version of constitutially equal coexistence..
Euro-Med Human Rights Monitor is a Geneva-based independent organization with regional offices across the MENA region and Europe
FOCUS AREAS
CONNECT WITH US
Global Justice in the 21st Century 
Is Genocide a Controversial International Crime?
30 JulWhy ‘Genocide’ is still a Controversial Crime?
In this strikingly original, strange, and brilliant book, Philippe Sands raises a haunting question among a tangle of other intriguing issues discussed throughout East-West Street: On the Origins of Genocide and Crimes against Humanity (New York: Knopf, 2016). It is at once a plural biography (with a bit of autobiography thrown in), a jurisprudential fairy tale, and a searing account of the horrifying impact that vicious Nazi policies had on the lives of the author’s family members as well on those of his human rights heroes. The haunting question is this: was it a wise and practical decision to keep the crime of genocide from being part of the international criminal law framework used to assess the individual accountability of surviving Nazi political and military leaders, and then subsequently in dealing with past and present mass atrocities?
Reflecting my own interest over the years in the use and misuse of the language of genocide, I found this to be the most provocative and enduring dimension of this multiply fascinating book in which Sands exhibits his versatility as jurist, legal practitioner, investigative journalist, and amateur historian of the Holocaust as it victimized one small region in contemporary Poland that happened to be the birthplace of his grandfather as well as two of the most renowned contributors to the development of international criminal law of the past century. The book’s title is obscure until we readers discover that East-West Street runs the length of the small town in contemporary Poland where these three families originated, and resided, until the momentous events of the 1930s forced them to seek refuge by moving Westwards.
East-West Street can be read from many different angles, divided into no less than 158 short chapters besides a prologue that explains how such an unusual literary/intellectual journey got its accidental start with a lecture invitation to the author and an epilogue that attempts to summarize the juridical interplay between the two prime architects of core international crimes (Sir Hersch Lauterpacht and Rafael Lemkin) and the crimes themselves (crimes against humanity and genocide). What creates the dramatic tension in Sands’ treatment of this interplay is the contrast between a jurisprudential logic that focuses on crimes committed against individuals as contrasted with a competing logic that emphasizes crimes against groups. Also at play for Sands are the contrasting personalities and legal approaches of Lauterpacht, the cool, pragmatic, revered professorial insider, and Lemkin, the emotionally driven, obsessive outsider who dedicated his adult life to lobbying governments to support genocide as a crime, and somehow managed to get results.
In the background of this titanic struggle of ideas, were the personal stories of the individuals involved, which, in effect, provided the private motivations for such influential public acts. An extraordinary coincidence that Sands puts to excellent literary use arises from the simple fact that both Lauterpacht and Lemkin were connected in their early lives and studies with a small town, variously named, that changed hands eight times between 1914 and 1945, being governed at different times by Germany, Poland, and the Soviet Union. Its most durable name during the period covered in the book is Lemberg, although it is today known by its Polish name, Lviv. What strains credibility almost to the breaking point is that Sands’ own grandfather, Leon Bucholz, also was born in Lemberg, and it is around the lives of these three men of the law that Sands weaves a complex narrative structure that is surprisingly readable. Much of the book is devoted, with passionate attention to the minutest detail, to how their personal lives and sensibilities were shaped by their departure from the Lemberg before it fell under Nazi occupation, and by the pain associated with the wrenching reality of losing contact with their families left behind. Only belatedly, years later did they each discover the ghastly experiences of lethal victimization experienced by family members after the Nazis took over what had then been Polish sovereign territory. It was striking that only silence could accord dignity to occurrences that were evidently experienced as unspeakable, paralyzing a sensitive moral imagination.
Against such a background it is to be expected that the book examines closely the person and behavior of Hans Frank, one of the 21 Nazis prosecuted at Nuremberg, who served as the cruel and devoted Governor General of Poland during the war years when the country fell under German occupation, and became the most notorious killing field of the Nazi era. It is also highly relevant that the three men whose lives and careers are the focal point of the narrative, given further reality by interspersed family pictures and documents, were Jewish, although none with any pronounced religious commitment. Yet their lives and careers were multiply determined by this Jewish identity, and what this meant during a period of unprecedented mass persecution and extermination. This interest in Frank is reinforced by Sands’ extraordinary collaboration with Franks’ son, Niklas, with whom he visits the Nuremberg courtroom where 68 years earlier a death sentence had been imposed on his father. Not to be content with the involvement of Niklas, Sands’ also persuades Horst, son of Otto von Wächter, who administered for Nazi rulers an area that included Lemberg, and had earlier been a classmate of Lauterpacht in the law school of the local university, to assist in the reconstruction of the events. These intergenerational connections led Sands to write the screenplay and perform in a documentary film, My Nazi Legacy: What Our Fathers Did, which had its 2015 premiere at the Tribeca Film Festival, and won recognition and awards.
Such an attempt at reliving of these historical events illustrates the contrasting adjustments to the present, with Niklas feeling that his father fully deserved the punishment he received at Nuremberg, while Horst exhibits a morbid pride, remembering his father’s prominence without any sign of shame or even regrets about his father’s role in carrying out the evil policies of the Nazi occupiers. Philippe Sands positions himself both within and without this apocalyptic past, trying to pull the pieces together in a coherent multi-dimensional account without losing contact with his own personal engagement in this overwhelming family tragedy.
Putting to one side the intriguing biographical and autobiographical levels of Sands’ construction of these various lives, I wish to concentrate my observations on the legal legacies associated with Lauterpacht and Lemkin,
depicted with such vividness throughout the book, reaching their climax at Nuremberg. As Sands observes, crimes against humanity (CAH) and genocide were both radical and innovative juridical ideas seeking to criminalize Nazi atrocities. CAH focused on protecting the individual against the criminality of any state including one’s own, while genocide was conceived to criminalize the mass killing of identifiably distinct ethnic or religious groups. Lauterpacht more or less invented CAH with the intention of repudiating the impunity that traditionally attached to wrongdoing by a sovereign government against individuals subject to its territorial jurisdiction and thus insulating those who acted on behalf of the state from any kind of personal accountability. CAH mounted a legal challenge directed at unconditional territorial sovereignty and the prevalence of absolute monarchy, which had long dominated the state-centric world order established in Europe by the Peace of Westphalia in 1648. Such impunity continued to be a feature of nationalist ideology despite the French Revolution and the emergence of democratic constitutionalism. The numerous subsequent efforts to make governments internally accountable for their acts through law and a variety of constitutional procedures, including elections, did not extend to external behavior. What made CAH such a radical step forward was this insistence on some measure of external or international accountability by means of law.
Lemkin, on his side, invented the crime of genocide, including even the word, almost all by himself. He was guided by the unwavering belief that criminalizing the kind of racialist policies put into practice by Nazi Germany was urgently necessary to save civilization from the recurrence of barbarism. It seems that Lemkin was initially disposed to criminalize such behavior by his shocked reaction to the mass killing in Turkey of Armenians in 1915, and the absence of any punitive international response embedded in international law. He believed fervently that the deadly political virus giving rise to such collective behavior was a distinct form of criminality that should never be conflated with a series of separate criminal acts, however severe, that were directed at individuals.
I would have thought that there was every reason to support both forms of criminality in reaction to the Nazi experience, and to a certain extent, so does Sands. The main technical obstacle, only superficially discussed by Sands, to the prosecution of these crimes at Nuremberg was the prohibition against retroactive applications of criminal laws. In fact, the Nuremberg Judgment devoted considerable energy to demonstrate its respect for the prohibition, endorsing CAH only if the acts in question could be connected with the onset of the war in 1939; in other words, from 1933 to 1939, the early years of the Nazi regime, the wrongdoing of those acting on behalf of the German government continued to be internationally shielded by impunity. Subsequently, the adoption by the UN General Assembly of the Nuremberg Principles, ratified now by more than a half century of state practice gives CAH the status of obligatory norms under customary international law, no longer necessarily linked to aggressive war. More than this, these Principles have come to be regarded as ‘peremptory norms’ or simply jus cogens, that cannot be altered by governmental action, and can be changed only through their replacement by another peremptory norm.
Genocide has had a somewhat similar intellectual voyage after being sidelined at Nuremberg to Lemkin’s great disappointment. His personal crusade to achieve the inclusion of genocide among the crimes charged against the Nazis failed. Undeterred by this setback, Lemkin’s unwavering perseverance after Nuremberg was soon rewarded. The Genocide Convention came into force in 1950, and as Sands observes, almost instantly genocide became the ‘crime of crimes,’ the most stigmatizing form of criminality whose commission results in a permanent tainting of the national character of a sovereign state found to have been guilty of genocide. There have been various allegations of genocide over the decades, with Cambodia, Bosnia, and Rwanda being among the most notorious instances.
Sands situates himself not quite equidistant in relation to these two jurisprudential giants. His own academic life and personal associations disposed him to side with Lauterpacht, celebrating his success in introducing CAH into the fabric of the Nuremberg experience and from there, to become a critical norm in the emergence of international criminal law, and a featured crime embedded in the Rome Statute that creates the legal framework for the International Criminal Court. Sands is unabashedly appreciative, even awed, believinging that Lauterpacht was recognized as “the outstanding legal mind of the twentieth century, and a father of the modern human rights movement.” [loc. 254] Lauterpacht, as an influential Cambridge professor later elected to the International Court of Justice became a member of the British establishment, and was professionally admired for his prodigious output as a scholar that showcased his committed, yet cautious approach to the development of international law. For Lauterpacht this development to be authentic had to arise from the practice of sovereign states. He had a keen appreciation of the limits of what was politically feasible and legally appropriate, and was respectful toward patterns of statecraft, possibly reflecting his exposure while a student to the great Austrian formalist and positivist, Hans Kelsen. In a book built around the organic links between the personal and public, it is hardly surprising that Sands turns out to have been a student at Cambridge and that Eli Lauterpacht, the jurist son of Hersch, was his teacher and a collaborating source of information about his famous father. This contributes one more instance of Sands’ interest in fathers and sons. Unfortunately, for his scheme of things, Lemkin never married and had no sons.
The older Lauterpacht was openly skeptical of genocide, viewing it as ‘impractical,’ even an impediment to the realistic development of international law. Sands is never fully clear as to why a crime that seemed to depict the very essence of the Nazi victimization of Jews and others, should have been put aside on grounds of practicality in the lead up to the Nuremberg proceedings. He does mention in passing American and British reluctance to put such a crime into the indictment at Nuremberg was related to the rattle of skeletons in their respective historical closets: the systematic decimation of native Americans and a variety of British colonial practices. According to Sands, “Lauterpacht never embraced the idea of genocide. To the end of his life, he was dismissive, both of the subject, and more politely, of the man who concocted it, even if he recognized the aspirational quality.” [loc.6700] Sands does refer to the problematic aspects of genocide in various places—especially a lawyer’s difficulty of finding strong enough evidence of the appropriate criminal intent to convince a court of law, considering that those engaged in genocide rarely leave a paper trail that satisfies those sitting in judgment and aware that to obtain a guilty verdict in responses to genocide is an indirect punishment of a nation and its people as well as of the individuals charged.
In this regard, despite the crime of genocide not being part of the formal proceedings at Nuremberg, Germany has been convicted of ‘genocide’ in the court of public opinion, and Germans whatever their relationship to the Nazi experience seem destined to live perpetually under this dark cloud. As many have observed, and I have experienced, this deep German consciousness of historic guilt explains an excessive deference to the policies of the state of Israel and the related fear that any criticism of Israeli behavior, however justified, will be perceived as anti-Semitism. In this respect, there is a real objection to the formal and informal allegations of genocide because it imposes guilt not only on individuals who acted for the state but on the nation as a whole. There is a related issue, not raised by Sands, of the degree of complicity with Nazism that it is fair to attribute to the German people as a whole, and whether this complicity should cast its shadow over future generations.
I have had an interest in the embittered standoff between the Armenian diaspora and Turkey over the redress of historic grievances relating to the tragic events of 2015. To resolve this standoff depends exclusively on the willingness of Turkey to issue a formal acknowledgement that the wrongs endured more than a century ago by the Armenian people constituted genocide. No lesser form of apology by Turkey even if accompanied by initiatives that keep historical memories alive via a museum, educational materials, and commemorative events will overcome this Armenian insistence, supported by many Western governments, that Turkey admit genocide. Sands appears sympathetic with the difficulty posed by this apparent fetishization of genocide, writing, “[i]t was no surprise that an editorial in a leading newspaper, on the occasion of the centenary against Armenians, suggested that the word ‘genocide’ may be unhelpful, because it ‘stirs up national outrage rather than the sort of ruthless examination of the record the country needs.’” [loc. 6618]
Questioning the Armenian insistence on genocide has become political incorrect even though the crime was unknown in 1915 when the offending behavior took place and the modern state of Turkey did not then exist as it only came into existence in 1923. Of course, such legalistic considerations will never resolve the controversy as what is deeply at stake is the way historical memories should be inscribed on political consciousness of both victim and perpetrator societies, as well as in authoritative public accounts. It is plausible to admit that what happened a hundred years would have qualified as the crime of genocide if it took place after 1950. The case is further complicated because many Turks continue to subscribe to a historical narrative that claims that the massacres resulted from excessive uses of force in a wartime situation in which Armenians were seen to be a subversive presence siding with the Russian adversaries of the Ottoman Empire in World War I and included occasions on which Turks were also slaughtered. This counter-narrative complicates any acknowledgement by the Turkish government of genocide as it would agitate the volatile ultra-nationalist sentiments that dominate the extreme right in the country.
It is understandable from Armenian perspectives that only an admission of ‘genocide’ is capable of encompassing the magnitude of the wrongs suffered by the Armenian people. There is no other word with comparable stigmatizing power. It was this stigmatizing power that led to Bill Clinton in 1994, while president of the United States, to issue his notorious order that the word ‘genocide’ should not be used by government employees with reference to the massive killing taking place in Rwanda. Clinton evidently feared that the mobilizing effect of labeling these events as genocide would exert unwanted pressure on the United States to intervene to stop the killing.
This is the meeting point of the genius of Lemkin, and the worldliness of Lautherpacht, with Sands sensitive to the virtues and limitations of both viewpoints although leaning toward the Lauterpacht approach. Of course, the German guilt is quite different in its essentials from the Turkish reality. A Turkish admission of genocide, should it ever be made, would not be internalized in the manner forced upon Germany by the denazification program implemented by the victors after World War II. It is relevant to realize that Armenian genocide did not emanate from an extremist racialism that was so closely connected with Hitler’s rise to power based on virulent anti-Semitism.
In one sense Lemkin has been too successful. In his insistence that what the Nazis were doing to Jews, and other peoples, was a crime against the group, he unwittingly succeeded in elevating genocide above crimes against humanity, and thereby weakened Lauterpacht’s interest in promoting international accountability for crimes without undermining peace among states. There are other concerns. If genocide if read backward into history, as in the Armenian case, it opens a Pandora’s Box that intensifies numerous bitter memories of the past, reopens wounds, and seems to unduly burden present generations with a legacy of criminality that was the work of those no longer alive. What is worse, the Holocaust as the context in which the crime was formalized operates as a standard of comparison, the crime of crimes that lies behind the legal conceptualization, which discourages its acknowledgement by political entities that might be ready to issue an apology but not to suggest that in their national past is an experience that deserves to be treated as comparably reprehensible to what Jews, and not only Jews, suffered at the hands of the Nazis.
Given a world of states, maybe Lauterpacht after all adopted the more tenable position. Perhaps the most that can be hoped for is an international criminal law framework that prosecutes, as appropriate, individuals, and leaves the chronicling of group crime to historians, novelists, and filmmakers. Even here there are problems not faced by Lauterpacht or Sands that relate to the hierarchical character of world order that makes any serious application of international criminal law more a creature of geopolitics than an expression of the rule of law or a tenet of global justice.
Sands while right to be proud of his own role as revered litigator of international crimes adopts a more questionable position by downplaying the relevance of geopolitics. In a notable passage about the objection to Nuremberg as ‘victors’ justice’ he writes, “[y]es, there was a strong whiff of ‘victor’s [sic] justice,’ [at Nuremberg] but there was no doubting that the case was catalytic, opening the possibility that the leaders of a country could be put on trial before an international court, something that had never happened before. [loc. 288] A whiff! [for those unfamiliar with ‘whiff’ its dictionary definition is this: “a brief passing odor in the air as in ‘a whiff of perfume’ or “a very small trace as in ‘a whiff of self-pity in her remarks’] Looking at the impunity conferred by the Nuremberg framework on the indiscriminate, terror bombing of German cities [recall Kurt Vonnegut’s Slaughterhouse Five], not to mention the fire bombing of Tokyo and the atomic bombs dropped on Hiroshima and Nagasaki, the victors’ dimension
couldnot be convincingly marginalized from the overall legal proceedings. It was certainly more consequential than even ‘a strong whiff’! Even the American prosecutor, Robert Jackson, who is portrayed by Sands quite reasonably as the most influential presence at Nuremberg, understood that the moral validity of the decision rendered was precarious, and needed future vindication by being integrated into an international law framework that bound all states, winners and losers, strong and weak. That this never happened deserves commentary that Sands fails to provide.Instead, Sands reminds us that there has been much follow up to Nuremberg that supports his assessment of its catalytic impact. He cites his own extensive experience with both categories of criminality in cases involving Serbia, Croatia, Libya, United States, Rwanda, Argentina, Chile, Israel and Palestine, United Kingdom, Yemen, Iran, Iran, Iran, Iraq, and Syria as if the mere listing proves his point. [loc. 6607] I believe Sands’ impressive legal activism only shifts the focus. True, there has been a robust development of human rights and international criminal law, especially after the end of the Cold War, but this has obscured rather than overcome this fundamental flaw. The integrity of the rule of law as an operative global system, depends crucially on treating equals equally, and this has never happened, nor will it happen without a sea change in world politics. As African countries have been pointing out with plausibility, criminal accountability for both CAH and genocide is limited to weak states and losing sides in wars, and impunity remains for the strong and winners. We will long be waiting for the likes of George W. Bush or Tony Blair being called to account for their role in embarking on a disastrous aggressive war against Iraq in 2003.
True, introducing these categories of criminality into the legal vocabulary gave a valuable normative tool to civil society, first effectively utilized by the much maligned Russell Tribunal in the midst of the Vietnam War and more recently by the Iraq War Tribunal of 2005 that addressed crimes associated with the Iraq War. Yet civil society has only public opinion at its disposal, and even here, is hampered by the statist orientation of most media outlets that demean such civil society initiatives as illegitimate intrusions on the public sphere reserved exclusively for governments representing sovereign states. At best, these civil society tribunals that pass judgment on the behavior of geopolitical actors are expressions of a moral consciousness that acts as if these norms of international criminal law should be universally regulative rather than selectively applied.
Sands, along with Lauterpacht and Lemkin, share the liberal conviction that law is an autonomous force for the good in human affairs (unless deformed in its application as by the Nazis). Their sense of practicalities appears to be a willingness to overlook geopolitical constraints, and to take what incremental steps are made available by circumstances with the hope and expectation that over time the growth of law and legal institutions will overcome the present arbitrariness of practice. In the meantime, the liberal test of validity is a matter of procedural assurances that trials are fair and that those who are convicted are guilty of heinous acts that deserve to be punished. The related fact that some are too powerful to be accountable is a fact of life that it is best not to think too much about. Along with far more notable public intellectuals (e.g. Russell, Sartre, Chomsky, Edward Said) I dissent from this liberal optimism/opportunism, believing that the conscience of engaged citizens is an indispensable challenge to all political systems, (talking truth to power) rather than limiting constructive contributions by acting within it. At the same time, I would not judge liberal icons, such as Sands and Lauterpacht, who have made a political choice opposite to mine.
In the course of this essay I have ignored other significant publications by Sands, most particularly his prior relevant and important book, Lawless World: America and the Making and Breaking of Global Rules (2005), a well-reasoned and documented critique of the approach to international law taken by the neoconservative presidency of George W. Bush, especially with respect to the Iraq War, but also in reaction to the 9/11 attacks. Although valuing this contribution to the policy debate that occurred during that period, it is fully consistent with the liberal orientation, which is often to oppose American and British foreign policy undertakings, especially if they happen to be unsuccessful and are peripheral to national or strategic interests, and depend upon unilateral aggressive uses of force not authorized by the UN Security Council. In this vein the recently released massive Chilcot Report evaluating British involvement in the Iraq War follows a parallel liberal line, condemning any decision to go to war except on the basis of adequate advance planning and the buildup of public support, but sidestepping the question of whether it was also mandatory on Britain to comply with international law and the UN Charter. Despite the 2.3 million words of the report there is no where a hint about Blair’s potential personal responsibility if international criminal law were to be properly applied.
As expressed at the beginning, despite these differences, I greatly admire the author, and applaud Sands’ dazzling performance. Among other qualities, Sands displays an incredible willingness to go to great lengths to get the details correct. He tracks down addresses, relatives, obscure documents and pictures to piece together a riveting narrative of these three lives, and their families, coping with one of the most extreme collective traumas of all time. As said, this book can and should be widely read from many perspectives, and the psycho-politics of the jurisprudence it imparts is the one that happens to interest me most, but it is only one of several strands in this exceptionally rich tapestry, and each one deserves similar detailed commentary.
Tags: collective guilt, Crimes against Humanity, genocide, Hans Frank, Hersch Lauterbach, Lemberg, Lviv, Nazi Era, Nuremberg Judgment, Philippe Sands, Rafael Lemkin, Robert Jackson, rule of law, Victors' Justice