Hamas has failed Gaza. Yasser Qudih/AFP/Getty Images

January 17, 2024   9 mins

Since the early 1600s, the Bavarian town of Oberammergau has, once a decade, mounted a massive Passion Play, dramatically re-enacting Jesus’s trial and crucifixion. Spread over five hours and with a cast of thousands, it has for centuries attracted audiences from far and wide. Central to the production, and to the Play’s notoriety, was the Jews’ thoroughgoingly demonic role in Jesus’s murder, well beyond the plain sense of the Gospels. Modern antisemites loved it, Henry Ford and Josef Goebbels included.

In recent years, however, the people of Oberammergau have significantly reworked the play; Jesus and the Apostles are now clearly Jewish themselves, the Judaism of Jesus’s time is presented with nuance and understanding, and crucially, Roman imperial power is depicted as pervasively as it was. Yet though Oberammergau has changed, the Passion Play endures — most recently on stage last week at the International Court of Justice, northwest of Bavaria, in the Hague. There, South Africa initiated proceedings against the State of Israel, alleging that it is actively committing genocide in its war in Gaza.

The texts being invoked are no longer the Gospels but treatises of international law; the figure in the dock is not the traditional Jew living by centuries-old laws, but a sovereign, in many ways, secular state, with considerable military and political power. Yet again, the Jews are charged with being the criminal outliers of global society; whether they are, in a devilishly complicated situation, acting wisely or unwisely, proportionally or disproportionately, is beside the point. Their guilt is total and collective.

The magisterial historian Gershom Scholem remarked that one of Zionism’s consequences is that the Jews will no longer have to play the symbol in other people’s myths. Great a scholar as he was, he was wrong.

That Israel’s allegedly genocidal war is a response to a religious terror movement’s gleeful, forthrightly genocidal marauding was largely unmentioned by Israel’s accusers at the Hague. That the terrorists retreated, hostages in hand, to a painstakingly prepared and boobytrapped subterranean city below mosques, hospitals and schools, mentioned even less. Amid these gaping omissions, one can’t but wearily conclude that Israel was bound to be accused of genocide, no matter what it did following October 7, short of bowing its head in surrender.

Hypocrisy is at work here, of course, but that is almost trivially beside the point. Genocide is more than a justifiably hideous characterisation: as a legal category, as rhetoric and policy framing, it is a doomsday weapon of epic proportions. It is, in its heightening ignominy to the nth degree, almost uniquely totalising.

Under the terms of the Genocide Convention, passed by the United Nations in 1948, states can be called upon “to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide”. In other words, designating something as genocide brings with it a duty to act — and it is the fear of that duty that paradoxically encourages responsible states to desist from using the term and thus draw on its moral and mobilising force.  That is why the US took 40 years to ratify the Genocide Convention and has been so hesitant to invoke it long after it did. When I served in the US State Department we deployed an ensemble of verbal acrobatics — “acts tantamount to genocide”, “acts constituting genocide”, “acts of a genocidal nature” — rather than plain old “genocide”, since we knew what it entailed.

None of this is to say that Israel is immune to criticism. So much of what makes this war so very miserable is its happening on the watch of the worst government in Israel’s history. Benjamin Netanyahu and his coalition partners, each for their own reasons, spent most of 2023 trying to replace the country’s flawed but vibrant democracy with an ultra-Right, mercenary dictatorship. They, like Hamas, badly misjudged the ranks of Israel’s civil society, who mounted massive efforts to preserve judicial independence and the rule of law, and then, come October 7, pivoted to military service, and to offering as much as they could of the social services that their hollowed-out state was unable to provide.

Netanyahu deliberately kept Hamas in power, on a low flame, rather than deal with the Palestinian Authority, whose own fecklessness made his life easier. And for years, many Israelis, myself included, went along with Netanyahu here, at least as regards not militarily confronting Hamas, because we knew that doing so would necessarily entail the nightmarish urban warfare and civilian suffering unfolding now. This was a trade-off, and one that ended very badly. But my very mentioning of the term “trade-off” reminds us that we live in a complicated world, one in which moral clarity is a hard, unending challenge, with myriad decision points along the way.

Fortunately, we have a branch of international law to help guide us in wartime: International Humanitarian Law, including the Laws of Armed Conflict. Here, Israel has laid out its understandings of that body of law as it pertains to this conflict, and its interpretations. Those interpretations are of course open to criticism, particularly around the issue of “proportionality”, as any warfighting might be. But that requires attending to the actual facts on the ground; and that is precisely what South Africa’s presentation last week at the Hague deliberately did not do.

As Itamar Mann, a well-respected Israeli scholar, himself strongly critical of the present war, has carefully pointed out, precisely because South Africa itself is not a party to the conflict, it was perfectly positioned to lay out a more complex picture of the facts than it did. By acknowledging, for instance, Hamas’s deliberate shelling of Israeli civilians since October 7, and subsequent warfighting from its tunnels, it could have presented a much stronger case.

South Africa, of course, had reasons of its own for presenting the case as it did. It is, after all, attempting to position itself as a leader of the blocs of countries increasingly challenging the already-tottering US-led world order. But even so, pressing a case of genocide still requires proving two elements of the crime: genocidal intent and genocidal actions.

South Africa was able to present evidence of genocidal-sounding intent from any number of political actors in the Netanyahu government. None of them, though, have direct decision-making authority over the conduct of the war, leading to open hostility between some of them (Itamar Ben-Gvir above all) with the IDF high command. That direct authority is reserved not just to the military professionals, but to the war cabinet, convened by Netanyahu to insulate him from his own coalition partners, and in which the political opposition to Netanyahu is well-represented; given Israeli public fury at Netanyahu, he would no longer be in power if they weren’t in the room. Moreover, if genocide were Israel’s aim, issuing warnings before bombings, creating humanitarian corridors (however limited), and allowing in food and other necessities would be a pretty poor way of going about it.

And if this is genocide, its meaning has been far removed from its usage following the Second World War, when the term, along with “human rights”, entered the global lexicon. The two designations are far from identical, and in some respects push in different directions. But both resulted from well-meaning efforts to wrest from the teeth of unimaginable horror some new, bedrock principles on which there could hopefully rise a better world.

People from a range of countries, religions and cultures worked to establish these new ideas, Jews and Zionists among them. For Jews, human rights’ grant of individual rights separate from citizenship was a welcome solution to the trauma of statelessness that doomed so many in the years before the war; “genocide”, meanwhile, reflected the understandings that groups, national and ethnic groups, have a personality all their own.

The crucial figure here was the Polish-Jewish jurist Raphael Lemkin, who coined the term “genocide” and is widely regarded as the Godfather of the Genocide Convention. Well before the Second World War, he had been thinking and working, along with a number of other jurists, on a central question vexing modern nation-states: the rights of national minorities.

He recognised that national groups, like individuals, exist prior to the state — and sought to reconcile their group-belonging with the individualised nature of citizenship. In 1919, this idea found hopeful expression in the national minority treaty system of the nascent League of Nations, under which member states pledged to honour the collective rights of national minorities within their borders.

We know how well that all worked out. The point, though, is that while the League was a disastrous political and moral failure, it was a legal failure too — and it was those treaties for minority protection that failed, for Jews above all.

After this collapse, Jewish jurists sought alternatives — the framework of human rights, the nation-state of Israel — and sometimes both at once, as James Loeffler’s magnificent scholarship has shown. Lemkin (though himself a Zionist in his early years, as Loeffler has shown), took a different tack. To him, the idea of human rights was amorphous and unenforceable. As for Zionism, while it had indeed contributed to his own thinking on minorities’ group rights, he chose to downplay its role — largely to avoid genocide’s politicisation in a solely Jewish context.

For Lemkin, if Human Rights was a way of granting individuals rights prior to the state and even if they had no citizenship at all, the Genocide Convention was a way of preserving collective groups from the modern state’s uniquely centralised, industrialised and murderous power. Implicit in the Genocide Convention is the notion that the extermination of the Jews was paradigmatic but sui generis. The Holocaust, in other words, was not to be seen as utterly and unreservedly unique, not least because then we would be left with nothing to learn from it. Vicious regimes have savaged innocent groups of people throughout history. Rather, what is so striking about the Holocaust is the way nearly every form of degradation and slaughter known to history, compounded by such modern creatures as industrialised mass murder and racial ideology, made for an apotheosis of physical cruelty and cultural extermination.

The Holocaust was thus the model, the catalogue, of all that hatred of groups could bring and all that international law was meant to prevent. Despite his deeply held differences with Jewish architects of human rights such as Hersh Lauterpacht (who was responsible for the idea of “crimes against humanity” at the Nuremberg Trials) and Jacob Robinson (a key drafter of the UN’s Refugee Convention), he shared their fundamental conviction that Jewish suffering yielded powerful new lessons for the world.

Which brings us back to last week’s activities in the Hague. Israel, too, emerged in 1948 in the aftermath of monumental genocide, and the circumstances of its birth are joined to the concept of genocide at the root. If it practises genocide, one might conclude that it therefore forfeits its “right to exist”. Indeed, Israel appears to be the only country regularly talked of in terms of having, or not having, “a right to exist”.

This is a marked shift from Lemkin’s vision, which hoped that extending the idea of personhood from individuals to groups would help those groups survive. The “right to exist” euphemism, by contrast, inverts and weaponises the language of individual rights to facilitate the kind of mass murder we saw on October 7. It contorts the immense, pained complexity of the Jewish State, the cruelties and injustices attending its birth, as well as those it has itself committed, into a vicious contest, in which one side is always on the defensive, just an argumentative slip away from offering itself up for destruction.

What’s worse, the always conditional nature of Israel’s existence in so many precincts is exactly what Netanyahu and his ultranationalist partners count on to keep them from coming to terms with Palestinian national identity. Pile-ons like those we have seen these last months in the end disserve the Palestinians and their genuine needs, and serve the ends of the most malignant actors involved, Hamas not least among them.

Jihadism, the stated ideology of Hamas, doesn’t accept the legitimate personhood of national groups and is in both theory and practice genocidal to the core. Its accusing Israel of genocide, in a fact-free way that undercuts the legitimacy of the idea of genocide as a whole, works to erode the rules-based international legal order that Hamas rejects to begin with. That international legal order and its aspirations to universalism is far from perfect, to say the least. Yet what might take its place? If another universalism, then of what? Not all universalisms are benign — and as universalisms go, Jihadism is singularly unforgiving.

Several nephews of mine serve in the Israeli Army and have been in the thick of fighting in Gaza. I asked one of them, a reservist in a commando unit and a bohemian neuroscientist in civilian life, what he thought of last week’s proceedings at the Hague. He didn’t get defensive, but told me that he and some comrades had been talking about it. He calmly asked: “What is the value of doing this now? I’m not doing genocide. Are others? I didn’t see it. Is the state? I don’t think so. But what’s going on there? What exactly do they want to get out of this?”

The answer, I’d venture, is much — and also nothing at all.

Much — in that some of what motivated the proceedings has to be the result of genuine concern for Palestinian suffering. But so much of it seems to be foisting onto Israel blame for all that colonialism wrought, and all that post-colonialism failed to do; beating up on America via its Israeli client; keeping alive Soviet-style Third Worldism for the sake of Western progressives; blaming the failures of the Gods — of ideologies, of utopian legalism — on the all-too-human Jews; retreating from a confrontation with Jihadism by hoping that one day Israel will simply go away.

And nothing at all — in that there is no attempt in these proceedings to ease the very real suffering of Palestinians on the ground from all that Hamas has brought upon them on its own, and by bringing down upon them the full force of Israel; and no attempt to convey to moderate Israelis that there actually is an international community trying to use international law to end conflicts rather than carry them on by other means.

Few doubt that our world needs International Humanitarian Law now more than ever. But that law needs to be credible — or it will be worse than nothing at all.

Yehudah Mirsky served in the US State Department’s human rights bureau, is a Professor at Brandeis University and lives in Jerusalem. Among his books is Rav Kook: Mystic In A Time Of Revolution (Yale University Press).