The Court on Trial

It’s hard to know where even to begin writing about the truly outrageous law suit brought by South Africa against Israel in the International Court of Law, the United Nations tribunal located in the Netherlands, in the Hague. The charge itself—the charge of genocide allegedly being inflicted on the Palestinian nation by Israel—should make clear to all what kind of nonsense this all is. (The term “genocide,” coined only in 1944 by Polish-Jewish lawyer Raphael Lemkin to characterize the behavior of the Nazis towards the people it intended to exterminate, derives from the Greek genos,  meaning “people,” “tribe,” or “state” and the familiar “-cide” suffix, from the Latin, denoting killing, as in suicide, homicide, fratricide, etc.) To be guilty of genocide, therefore, a nation would have to undertake wholly to annihilate another people or nation. The Nazis didn’t invent the concept, but there have not been that many serious efforts of one nation embarking on the effort, not merely to decimate, but actually to eradicate another: even the almost unbelievably barbaric massacre of civilian Cambodians undertaken by the Khmer Rouge from 1975 to 1978, in the context of which a full quarter of the national population was murdered, even that was not really an effort to rid the world of all Cambodians: for one thing, the murderers themselves were Cambodian. The Rwandan nightmare of 1994 comes closer: the Hutu militias did their best to massacre the entire Tutsi tribe and managed actually to murder as many as 800,000 before they were finally stopped by Tutsi militia groups that invaded from neighboring lands and gained control of the country. Had they succeeded, there would today be no Tutsis at all. That is what the term “genocide” denotes.

But the term has its limits—and those limits have to do with intent, not with numbers. To lament in humility and shame the fact that, by the time American independence was achieved, the population of native Americans had dropped by about 90% from what it had been before Columbus “discovered” America is the fully correct response. But to characterize that decline as the result of genocide would require arguing that the Europeans who came here undertook a conscious effort to exterminate the native population, that they brought along smallpox and other deadly diseases not by accident and not unawares, but fully intending to let disease do what they lacked the physical ability to manage on their own. Of course, there is no such proof at all that that was their intent. And that is true even if it is also true that the colonials in Central, South, and North American were cultural imperialists who had neither respect nor interest in interacting in any meaningful, mutually respectful way with the aboriginal population, and most of whom would not have minded at all if the decline had been 100% instead of just 90%.

And that brings us to Gaza. For a Jew considering the charge of genocide, the matter is straightforward. No one needs to lecture the Jewish people on genocide or on its most effective techniques. Nor does anyone need to explain the process: we are more than familiar with the slow (or not slow) progression from petty microaggression to disabling discrimination, and from there to the dissolution of civil rights (including the right to be a citizen of one’s own country, to live in one’s home, and to work in one’s own business) and finally to the withdrawal of the right to live itself, which new reality the state then helpfully accommodates by undertaking to murder the disenfranchised individuals and making them not alive at all and therefore no longer in contravention of the law. There isn’t a Jew in the world—or at least not one with even the least sense of intellectual or emotional engagement with his or her Jewishness—there isn’t a solitary Jewish soul out there who doesn’t know all of this. We’ve seen this movie We’ve swum in this stream. We’ve been there, all of us.

So that actually makes us just the kind of expert witnesses the International Court of Justice should be seeking as it gathers evidence.

Mind you, the Court has its own problems. Its justices come from any number of different countries in which human rights are not respected: Somalia, China, Uganda, Russia, etc. So that’s not too encouraging for a tribunal devoted to the cause of justice between nations. Nor is the Court’s record too impressive: although it has existed for more than three-quarters of a century, it has managed not to take note of the plight of the hundreds of thousands of Syrians murdered by the Assad regime, the fate of the million-plus Uighurs forced by the Chinese into a gulag all their own, or the fate of the millions of North Koreans who live with neither civil rights nor any hope of escape. The Court has not censured any of this, nor has it taken note of it. It certainly hasn’t put Syria on trial for genocide, let alone China. Instead, it is now training its steely gaze on Israel to determine if Israel, of all nations, is committing genocide in Gaza.

I’d like to offer my perspective to the court. (It’s unlikely they’ll be interested in rationality or reasonableness—this is an organ of the United Nations, after all—but nonetheless I’d like to say my piece.) Yes, there have been many civilian deaths in the course of these last 100 days, while Israel has combed Gaza for its own citizens being held hostage by Hamas and, at the same time, for the perpetrators of the October pogrom in the course of which more than a thousand civilians were murdered, the dead were mutilated, and women were savagely and repeatedly raped. That is regrettable. Civilian deaths are always regrettable! No one could hate Nazism more than I myself do. But even I, whose loathing for the German government that murdered more than a million and a half Jewish children could not be more unambiguously felt, even I regret—and regret profoundly—the deaths of innocents, including children, during the carpet bombing of Germany, including Hamburg and Dresden especially, that paved the way for the successful invasion of Germany from the West by the Allies under General Eisenhower and from the east by the Red Army.

This is not an especially  courageous position I’m staking out for myself here. What kind of monster can take delight in the death of a child? There were babies in Dresden too, just as there were in Hiroshima and Nagasaki. How can there not have been? But the International Court didn’t get off to a good start in 1945 by putting the United Kingdom or the U.S. on trial for genocide. And it didn’t do that because those deaths took place as part of a wartime initiative to defeat an enemy that was evil itself. And when fighting a war against evil, the only truly immoral act is to lose.

But back to Gaza. Where exactly are the gas chambers? Where are the boxcars shuttling hundreds of thousands of Palestinian civilians to the killing sites? For that matter, where are the killing sites? If the goal was to eradicate the Palestinian nation, then why drop leaflets encouraging civilians to flee areas in the northern part of Gaza that were targeted for bombing? Why let any humanitarian aide in at all if the goal is to turn Gaza into a beach-front version of Treblinka? Most trenchant of all questions to ask: why would Israel risk the lives of any IDF soldiers at all if the “real” goal of the operation was to empty Gaza of Palestinians? Before the IDF incursion, there were, after all, no Israelis at all in Gaza, so the field could have been relatively clear. If the only goal was killing civilians with the specific intention of emptying Gaza of Gazans, the entire operation could have been safely—and totally effectively—conducted from the air with the chances of Israeli casualties minimized, if not totally eradicated.

Much has been made in some quarters of a throw-away remark of Bibi Netanyahu’s equating Hamas with the ancient nation of Amalek and I’d like to address myself to that as well.

Amalek occupies a strange place in our history. They attacked the Israelites on their way out of Egypt from the rear, picking off the elderly, the infirm, the part of the people the least likely successfully to be able to defend themselves. Israel went to war and was victorious. The Torah makes a big deal of this, but then ends up on a note of ambivalence. On the one hand, the name of Amalek has to be wiped out entirely. On the other, the Israelites are commanded to labor to remember all the despicable, dastardly deeds that Amalek committed when they were attacking. So how does that work: if they’re completely forgotten, their very name erased from the world’s memory banks, then how can the Israelites guarantee that they will always be remembered? They have either to be remembered or forgotten, don’t they? You can’t have it both ways!

And yet that’s the Torah’s command. And when the Torah appears to self-contradict, it’s always pointing to a deeper lesson just beneath the surface. Amalek is not one of the Canaanite nations. It’s fate is not sealed. They represent pure hatred for Israel, what we would call fanatic anti-Semitism. The Nazis were Amalek. Stalin was Amalek. And Hamas is Amalek too. The Torah is saying that these people must be fought back against vigorously, just as the IDF is doing. But it’s also saying they will always be there: there will always be people out there who hate Jews. Labeling Hamas as Amalek simply means that they are not “merely” hostile folks, but part of a cosmic battle between good and evil. Bibi probably should have kept Amalek out of this, but, in the end, Amalek is a theological concept, not a battle plan. By bringing Amalek into the discussion, Bibi was speaking in the natural idiom of Jewishness, not recommending genocide.

In the end, it’s not Israel on trial at the International Court of Justice. It’s the Court itself that is on trial. Its future reputation rests on getting this right. Its actual future itself may rest on that as well. In the end, the verdict will tell us clearly if the International Court is a force for good in the world to be respected and supported…or just another failed, biased, and bigoted wing of the United Nations.