By Mark LeVine and Eric Cheyfitz
May 02 2017
The Poetics of Genocide: From Legal to Sociological and Political Understandings
In our view, a “poetics of genocide” would invite the study and comprehension crucial to expanding its legal and other understandings. A poetics tries to establish the definitional limits of a given term (as Aristotle did with the term tragedy in his Poetics). Thus, a poetics is called for when the limits of a term are by no means clear. We contend that the need for such a poetics is pressing because, in recent years, the term genocide is being used to describe situations where its use has provoked confusion and opposition.
If Palestinians have not in the last fifty years experienced genocide as defined in international case law and interpreted by adjudicating tribunals, this does not suggest that they have not suffered egregiously under Israeli occupation. In fact, as we detailed above, Israel has routinely and systematically committed war crimes and crimes against humanity. The extents of Israel’s crimes are such that individual state agents, in principle, could be prosecuted for the international crimes of persecution, colonialism, and apartheid. Any pursuit of these allegations would profoundly alter the international position of Israel, which could be subject to sanctions and other harsh measures until it stopped perpetrating these crimes. As signatories to the conventions that define these crimes, Israel's foreign-government supporters, including the United States and the states of Europe, would be extremely hard-pressed to avoid punishing Israel in some meaningful form in the wake of such a judgement.
Given that increasing numbers of Americans and Europeans are now willing to consider Israeli culpability for crimes against humanity and apartheid, we would urge that strong and concerted efforts be made to build both the legal and the public case for such prosecutions. We also believe that in this context, a focus on accusing Israel of genocide as a legal matter remains strategically counter-productive, since it would drain energy away from the intensive work necessary to gain a decision on these other serious international crimes, might unify sceptics and adversaries around a position that Palestinians exaggerate their suffering, and alienate sectors of the public and political audiences whose support would be needed to force the politically cautious tribunals to consider them.
We thus suggest a focus on pursuing complaints that are more likely to be adjudicated. But we also support a second and simultaneous process to engage in the more long-term work of changing the accepted legal definition of genocide to include actions that do not meet the current standard. It may be the case that genocide has both sociological and legal definitions and meanings. But we are not talking about sociological arguments here; the Israeli occupation is, first and foremost, a legal regime. If it is going to be challenged and ultimately defeated, it will be on the basis of law far more than sociology. But at the same time, we need to consider how the legal term can evolve—first through its development within sociological, political, and legal theory, and then through the gradual application of newer interpretations and concepts by the ICC and other judicial bodies in actual cases.
Whenever one is discussing the force of law, the question of interpretation and the authority to determine the meaning of language (the language of the law in this case) is critical. The hierarchies of legal authority are inherently colonial—and this is true even in contemporary “post-colonial” contexts. When we discuss the problem of interpretation, we must address the problem of translation. The primal crime of US federal Indian law, for example, was/is to translate Native relations to land, in which land is conceived as non-fungible because it is literally part of extended kinship systems, into property relations, which the legal scholar Robert Williams has called the legal rationalization for genocide.
Taking an example from another context, in current Bolivian and Ecuadorian law over which Indigenous peoples in both countries have had a significant influence, the land (pachahmama, or mother earth) is accorded human rights. To kill the land (and from an Indigenous perspective one way of killing it is to turn it into property), then, is to commit genocide. One of the charges articulated by the Native resisters to the Dakota Access Pipeline (based in the US state of North Dakota) is “environmental genocide.” The question is, then, who makes the law and who gets to interpret it? What do its terms include and exclude? Who is inside the law and who is outside and by what definitions are the inside and the outside constructed and how do understandings and definitions in one context impact those in another?
As we argued above, cultural genocide and ethnic cleansing are two categories of destruction that could have been included in the parameters of the Genocide Convention, but were not because of political considerations. Indeed, in a recent debate between Benny Morris and Daniel Blatman about ethnic cleansing in 1948, published in Ha’aretz, Morris argues that people who do not leave directly under fire should not be considered ethnically cleansed even if they are not allowed to return to their homes after the conflict. This argument provides a negative illustration of the importance of providing a firmer legal foundation for considering ethnic cleansing an international crime and determining its relationship to genocide.
The definitional and interpretative limitation of genocide to physical/biological destruction to the exclusion of cultural or political dissolution was done in part to prevent colonized peoples from bringing successful claims of genocide against their colonizers. Lemkin himself was guilty of such sentiment, as he opposed adding colonialism to the list of crimes precisely because it could lead to such charges being made against the very European powers without whose strong support the Genocide Convention would have had no chance of adoption or ratification by the United Nations and its member states. As William Schabas explains in the introduction to his generative Genocide in International Law, “For decades, the Genocide Convention has been asked to bear a burden for which it was never intended, essentially because of the relatively underdeveloped state of international law dealing with accountability for human rights violations...This has changed in recent years.”
In other words, as the international legal and political environment changes, there is room for the legal understanding and meaning of genocide to evolve further. But for this to occur, legal scholars need to spend a lot more effort creating the legal—and as important, the political and moral—foundations for such an evolution.
In this context, it is worth reiterating that there has been little expansion of the legal definition of genocide since 1948, but sociologically speaking, the concept has been greatly expanded. Concepts such as “politicide” or “ethnocide,” which were explicitly left out of the Convention by its drafters, have gained increasing acceptance among scholars, policymakers, and some sectors of the public. We consider politicide to be an especially useful term because it was included in the original draft of the Genocide Convention, but left out of the final version, both because of fears that repressed political groups and parties might use it to bring charges against their governments, and because membership in such groups was not thought to have the requisite “stability” to require protection by the Convention.
Israeli sociologist Baruch Kimmerling used the concept politicide, rather than genocide, to describe Israel's clear aim and successful execution of long-term policies geared to “the dissolution of the Palestinian people’s existence as a legitimate social, political and economic entity” by preventing any possibility of Palestinians achieving sovereignty and independence in their own nation-state.
To engage in a poetics, we might ask then, what are the limits of genocide? When does it begin and end? Lest we imagine that the past does not pre-determine the future, the present-day suffering under a continuing US colonialism and resistance to it of so many Native American communities reminds us that the crimes of previous centuries can directly impact the injustices of the present if they are not squarely faced and addressed. Palestinians can be expected to obtain no more justice than Native Americans if Israel retains the same level of power and impunity for the foreseeable future and no reckoning with its past is forced upon it.
Conclusion: Expanding Terminology
The mechanisms through which the decimation of Native Americans proceeded and their oppression continues to raise the question: Can genocide be committed without the physical destruction of the group or even part of the group, even though historically physical destruction has implemented cultural destruction? The answer seems to be “yes,” but this is a sociological answer as of now, without any legal implications unless and until one of the relevant judicial bodies uses these facts to help reshape the legal definition of genocide.
In order to make it possible for the crime of genocide to be discussed and alleged in the context of either historical or present-day situations—whether in occupied Palestine or urban America where present conditions do not meet the current legal definition, jurists and scholars must expand the conceptualization of genocide regarding which groups are protected and what actions are covered in the Genocide Convention. It is worth noting that Palestinians already constitute a protected (“national”) group, which is covered under the Convention. Similarly, it is important to expand the scope of criminal culpability beyond the requirement for evidence that perpetrators specifically intend to commit genocide to a “knowledge-based approach” that would extend criminal culpability to include awareness of the likely implications of specific actions. However, such a change would not affect the evaluation in this case without a change in the type and scope of actions covered by the Convention.
On the other hand, especially in light of increasingly open and public comments by Israeli officials who have called for rape, mass murder, destruction, and other international crimes against Palestinians, we reiterate that accusations of incitement to commit genocide are becoming increasingly plausible, especially when linked to large-scale crimes involved in the assaults on Gaza over the past decade. At the very least, as the ongoing impact of the 2004 ICJ Advisory Opinion on the West Bank “wall” demonstrates, if a mandated UN body such as the General Assembly (which requested the 2004 opinion) could be convinced to request an ICJ opinion, the resulting investigation into all the issues raised in this essay would go a long way towards clarifying the international judicial understanding of Israel's conduct as the occupation passes the half century mark.
This action is separate, however, from the broader question we have attempted to address in this essay: whether it is possible and advisable to expand the definition of genocide to cover actions that are today not considered sufficient to warrant the application of the term in a court of law. The above discussion of the situation facing Native Americans, as well as the ongoing state victimization of Black Americans as highlighted by the Movement for Black Lives (which in fact caused an uproar last year when it's manifesto included language accusing Israel of genocide), suggests reasons for so doing. And indeed, in recent years, countries such as France and Romania have seen an expansion of genocide in case law.
Simply put, change can happen, albeit often quite slowly. We stress here that we are not advocating “lowering the bar” or standard for genocide so that acts which clearly do not involve the intent, policy, or actual physical destruction or disaggregation of communities are covered. Rather, we are calling for a broader consideration of what kinds of actions meet the existing standard.
In the case of Israeli actions against Palestinians, a two-fold strategy would seem to be called for: First, educate the public about the extent and severity of Israeli crimes and the applicability of existing international conventions and laws, such as those against apartheid, racial discrimination, persecution, and crimes against humanity. Israel's routine and long-term violation of these laws already carries profound legal consequences should they be applied. Second, call for an expansion of the legal definition of genocide to allow crimes involving ethnic cleansing and the mass killing of presently unprotected groups (i.e., those based on culture or political affiliation), as well as politicide, to become part of the legal epistemology and jurisprudence surrounding genocide.
Ultimately, broadening the sociological understandings and through them legal definitions of genocide will play an important role in the struggles to compel Israel, the United States, and far too many other governments to end their long-term, systematic oppression of brutalized populations and behave in compliance with international law. But before that can occur, a lot more groundwork needs to be done, and activists and academics should consider the political and strategic costs of accusing governments of genocide before the legal and political environment exists for such an accusation to bear fruit.