By Mark LeVine and Eric Cheyfitz
May 02 2017
The Development of International Law
For over a decade after the promulgation of the Genocide Convention in 1948 and the Four Geneva Conventions in 1949, further development of international law was frozen by the Cold War. But with the demise of European colonies and the rise of newly independent nations, a new era of international human rights law-making began. This included the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, which condemns “colonialism in all its forms and manifestations” (including illegal settlements established by colonizing populations). The 1965 International Convention on the Elimination of All Forms of Racial Discrimination explicitly tied ongoing structural racism to colonialism.
The 1973 International Convention for the Suppression and Punishment of the Crime of Apartheid condemns and makes an international crime against humanity “state-sanctioned discriminatory 'inhuman' racism committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.” The criminal nature of any apartheid regime was confirmed in the 1998 Rome Statute of the ICC. All these laws are considered “peremptory,” meaning every country is legally bound to respect them whether or not they are signatories to the conventions and regardless of their own strategic interests.
The legal application of the crime of genocide has been developed through the work of two ad hoc tribunals established by the United Nations in the 1990s to try suspected war criminals in the former Yugoslavia and Rwanda, and the creation of the ICC. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993, the International Criminal Tribunal for Rwanda (ICTR) in 1994, and the ICC came into being in 2002 when the threshold of signatories to the Rome Statute had been crossed.
The work of these legal institutions in investigating and prosecuting allegations has not been easy, and in fact there has been strong opposition from the start. Many countries have long resisted applying the category of genocide in even the most extreme cases, both because they and their clients and allies have themselves engaged in mass violence that could be so defined, and because doing so in other contexts obligates them immediately to work to stop it, regardless of the military, strategic, or economic implications and difficulties of doing so. The United States in particular opposed labeling the two generative cases of genocide in the post-Cold War era as such; in the case of Bosnia, the Clinton Administration asked government lawyers, in the words of a former State Department lawyer, to “perform legal gymnastics to avoid calling this genocide,” and acted similarly in the midst of the Rwandan genocide lest it “inflame public calls for action.” In contrast, the Bush administration was quick to call the massacres in Darfur genocide, while the Obama Administration was more reluctant to condemn the Sudanese regime.
Despite the fear and opposition of leading global actors, the United Nations at least attempted to hold those responsible for recent genocides to account through the ICTY and ICTR, and later through the ICC. The trials pursued through these venues produced important discussions regarding how best to define genocide. But sadly, none of them brought much clarification to the most ambiguous aspect of the definition in the Convention, namely how extensive does the death and destruction have to be to constitute the partial (“in part”) destruction of a protected group?
A 3 February 2015 ICJ judgement in Croatia v. Serbia is among the most extensive recent attempts by international jurists to provide a more precise definition. In its judgment, the Court asks precisely the question of the “meaning and scope of 'destruction' of a group,” the “scale of destruction of the group,” and the “meaning of destruction of the group 'in part.’” Croatia argued that “the required intent is not limited to the intent to physically destroy the group, but includes also the intent to stop it from functioning as a unit.” That is, the Convention did not only “imply the physical destruction of the group” but could also include the destruction of the group’s culture. Serbia rejected “this functional approach to the destruction of the group, taking the view that what counts is the intent to destroy the group in a physical sense, even if the acts listed in Article II may sometimes appear to fall short of causing such physical destruction.”
In deciding on this issue, the ICJ noted that while cultural genocide was included in the original draft of the Convention, it was ultimately dropped and thus “it was accordingly decided to limit the scope of the Convention to the physical or biological destruction of the group.” In the Court’s view, this meant that even where a genocidal action “does not directly concern the physical or biological destruction of members of the group, [it] must be regarded as encompassing only acts carried out with the intent of achieving the physical or biological destruction of the group, in whole or in part.”
Biology versus Culture: Lessons from the Native American Experience of Genocide
Of course, in reality, separating the physical or biological from the cultural is impossible. The social construction of the category of race and its inherently political—as opposed to biological—essence put the lie to claims of “permanence” and “stability” of the category. In the sixteenth century, for example, European invaders of the Americas marked the primary difference between themselves and the indigenous peoples by religion, deploying the invidious categories of Christian and “pagan” (or more familiarly “civilized” and “savage”). The biologisation of race began in the eighteenth century through the rise of “scientific racism,” used to justify Europeans’ claims to superiority in their imperial and colonial ventures. Scientific racism rules out even the possibility of cultural amelioration because the hierarchy in this system is fixed in nature; it provides an apparently stable (transcendent) rationale for racist and otherwise oppressive policies, including, potentially, genocide. Thus, a “racial” definition is inherently problematic because no clear-cut definition of “the racial” in biological terms exists. (The International Convention on the Elimination of All Forms of Racial Discrimination implicitly acknowledges the problematic nature of the term “race” when it describes racial discrimination in broad terms, as meaning “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin...”)
So, if race is not in fact primarily a biological category, and is clearly inseparable from culture, then “genocide” necessarily should apply to the cultural destruction of a group as well as to its physical destruction. The case of Native America is instructive here. The demographer Russell Thornton estimates the 1492 population of the Americas, north and south, at over seventy-two million. By the twentieth century, the genocidal effects of European colonization had reduced this population to between four and four-and-a-half million. In the United States, in what would become the lower forty-eight states, Thornton’s figures estimate the 1492 population at over five million, reduced to 250,000 by the end of the nineteenth century through war, ethnic cleansing, and biological warfare implemented by the active spread of small pox and the withholding from Native peoples of first the inoculation and then the vaccine (both developed in the eighteenth century). There is little doubt that the level of death and destruction marks the experience of Native Americans as one of genocide, but it has never been officially labelled as such, nor are the United States or other governments in the Americas going to acknowledge such a designation in the near future, given the profound ethical, political, and perhaps even legal ramifications of such an admission.
All of these hemispheric Native American communities defined themselves culturally; their languages and worldviews did not contain a nature/culture opposition. Indeed, there is no category of “nature” as distinct or separate from the cultural or social world. In the United States, it was not until the mid-nineteenth century, with the 1846 case of United States v Rogers, that the term “Indian” was racialized to place white men adopted into tribes, and thereby subject to tribal law, under federal US jurisdiction. In the same vein, at the end of the nineteenth century, the US government imposed a blood-quantum regime on the Native nations in the lower forty-eight states in order to diminish the number of Indians further. The nations themselves adopted this regime in the 1930s following the Indian Reorganization Act of 1934. The idea of blood-quantum was always a bureaucratic fiction because the requirements for tribal membership vary radically from tribe to tribe, thus revealing the cultural and political basis of what is legally considered a racial identity. Indeed, in the 1974 Morton v Mancari decision, the Supreme Court seemingly reversed the previous stance by declaring that Indian hiring preferences in the Bureau of Indian Affairs (BIA) did not constitute racial discrimination because the term Indian under certain conditions referenced a political, not a biological, group. Both cases stand as precedent in US jurisprudence.
Since the massacre at Wounded Knee in 1890, the continued genocide of Indians in the United States has been accomplished by means other than physical obliteration. This includes, for example, forced assimilation through the boarding-school system (taking Native children from their natal families) that lasted from the late nineteenth through the mid-twentieth century, the forced sterilization of Native women in the 1970s, the transfer of Native children to non-Native families (partially brought to an end in 1978 with the passage of the Indian Child Welfare Act), denial of federal recognition for tribes, and the dis-enrolling of tribal members from the rosters by members of their own tribes. In this latter case, as Frantz Fanon has taught us, the colonized do the work of the colonizers.
The relevant question here is: at what point does the destruction of a culture that constitutes a group’s identity (e.g., traditional values such as language and patterns of interaction with members of the group through the bonds of extended kinship) amount to (an actual or attempted) genocide? Simply put, can genocide be committed without the physical destruction of the group or even part of the group, even though historically physical destruction paved the way for cultural destruction? At least for the present, the exclusion of culture as a recognized category in interpretations of the Genocide Convention precludes it from being part of a legal determination of genocide. In the same manner, political groups or affiliations (such as membership in a particular party or movement) were excluded because of pressure from governments that feared their own persecution of dissident parties could then fall under the genocide rubric. This was justified by the aim of focusing the definition of the crime on more “stable” and “permanent” groups which people could not join or leave “at will.”
We explore the possibilities and implications of expanding the legal definition of genocide and the role of non-legal (i.e., sociological and political) definitions and debates in that process at the conclusion of this essay. For now, let us return to the existing legal regime encompassing the term, where the scale of physical/biological destruction of a group or members remains of paramount importance.
The “Scale” of Genocide
On the question of the “scale of destruction” of the victimized group, in Croatia v. Serbia the ICJ considered that “in the absence of direct proof, there must be evidence of acts on a scale that establishes an intent not only to target certain individuals because of their membership in a particular group, but also to destroy the group itself in whole or in part.” As for just how great a part of the group must be affected before such actions can be considered to have met the criteria for genocide (rather than being “merely” a crime against humanity), the ICJ recalled its own 2007 opinion on the applicability of the Genocide Convention to the Serbian war on Bosnia, and noted that “it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area... [I]f a specific part of the group is emblematic [that is, representative] of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of [the law].”
The problem here is how one is to determine whether a part of the group under consideration is “emblematic.” During the more than century-long Navajo-Hopi land dispute, for example, approximately twelve to fourteen thousand Navajos were forcibly removed from their ancestral homes in what had become, by court order, Hopi Land. The effects of this removal were devastating in psychological, social, and cultural terms to these people as land in Native cultures is considered part of the kinship nexus, a living entity. Among these Navajo families, of which only a few remain on what is termed the Hopi Partitioned Lands, are some of the most traditional Navajos, who are repositories of the historical culture, including, of course, the land from which they were removed; traditionally, Navajos bury the umbilical cords of their children on their land and when a Navajo dies, he or she is meant to be buried with his or her cord.
Do we, then, consider this “part” of the population of over three hundred thousand Navajos “emblematic”? And what are the effects of this removal on Navajo culture? These questions, which are not rhetorical, were not considered by the courts which sanctioned ethnically cleansing this area; instead, they focused on the limited set of questions surrounding land rights. Moreover, as we discuss below, “ethnic cleansing” is not at present legally a part of the juridical definition of genocide.
What the Navajo-Hopi experience tells us, however, is that while there may well be good reason for the legal definition of genocide to maintain a demographic “floor” below which actions (as opposed to intention or incitement) are not considered to meet the threshold, basing the legal determination of genocide largely on such a calculus is quite problematic. Nevertheless, it remains that the ICJ's 2015 judgment, like its 2007 decision, and decisions by the ICTY, ICTR, ICC and other UN investigations such as those examining potential genocides in the Democratic Republic of the Congo and Darfur, all tend to cohere towards an understanding that for a specific action to be considered an act of genocide, it must involve “physical or biological destruction” to such an extent that the continued functioning and even survival of the larger group is “conclusively” and “convincingly” threatened. We can imagine that ongoing or recently completed cases in the Sudan, Uganda, the Central African Republic, Kenya, and the Republic of Côte d’Ivoire will further explicate the legal parameters for genocide prosecutions.
Indeed, as the ICTY and ICTR have determined, when direct “smoking gun” documentary evidence (e.g., protocols of meetings, private or public statements or plans that lay out a specific plan) of genocidal intent is absent, it is precisely the “scale of atrocities committed” and the clear intent by perpetrators to “destroy at least a substantial part of the protected group” that is the determining factor. As the ICJ concluded its 2015 judgement in Croatia v. Serbia, “Genocide presupposes the intent to destroy a group as such, and not to inflict damage upon it or to remove it from a territory, irrespective of how such actions might be characterized in law.”
Applying the Genocide Calculus to the History of Palestine and Israel
Now that we have an understanding of the ambiguous parameters surrounding the legal determination of genocide, we can look at the actions that Israel has engaged in during its half century occupation of the West Bank, Gaza, and East Jerusalem, and even further back to the war of 1948, in order try to consider whether they constitute in whole or in part the crime of genocide. Let us begin with the 1948 War, which included dozens of incidents involving the deliberate killing of significant numbers of civilians and several massacres involving dozens and even hundreds of dead.
Martin Shaw proposes a broad interpretation of genocide, with specific reference to the 1948 War and the Palestinian Nakba: “Genocidal action aims not just to contain, control, or subordinate a population, but to shatter and break up its social existence. Thus genocide is defined, not by a particular form of violence, but by general and pervasive violence...” We would suggest that Shaw’s interpretation raises some questions. What is the line, for example, between containment and shattering? When does containment amount to a shattering of a group’s social existence?
There is also the question of determining when violence becomes “general and pervasive” as opposed to “limited,” particularly when that judgment depends, first, on defining whose death is a targeted objective and whose is “collateral.” In instances of smaller scale killing, such as “partial massacres,” according to the narrow (physical and biological) criteria used by the various tribunals charged with adjudicating claims of genocide, there must be evidence of intent towards mass murder and social destruction in order to constitute genocide; the extent or scope of a particular act of violence must be clearly intended to achieve the goal—even if unrealized—of the physical destruction of the larger group.
The critical term here is “intent.” By what criteria is perpetrators’ intent to be determined, and can intent to commit genocide be expanded to include knowledge that certain deliberate actions are likely to lead to genocide even if that is not the specifically stated intention? This is another area where jurisprudence and sociology (and scholarship more broadly) can produce differing determinations about the standards and thresholds for genocide.
In Shaw's view, Zionist/Israeli actions during the 1948 War, both in terms of the broader ethnic cleansing of Palestine and in the context of the multiple massacres of civilians, reveal an “incipiently genocidal mentality” that reflected the “settler colonial” and “exclusivist nationalis[t]” character of Zionist and then Israeli identity, ideologies, and policies. The combination of underlying intentions and ideology with the acts of exceptional violence against civilian populations (especially the mass killings and/or destruction of more or less entire villages epitomized by the Deir Yassin massacre and the battle for Lydda), the deprivation of Palestinians' fundamental right of self-determination, the dispersal of the majority of the population, and the destruction of almost every national institution, taken together arguably could be described as genocidal. On the other hand, however, the deliberate exclusion of ethnic cleansing from the Genocide Convention, even as populations across the globe (most notably, in the partition of India and Pakistan) were being “cleansed” from their homes to create more homogeneous territories, was a deliberate and very significant fundamental lacuna in the coverage provided by the Genocide Convention.
However important the 1948 War and Palestinian Nakba are historically, the contemporary claims that Israel has committed genocide against Palestinians are focused primarily on its ongoing occupation of the West Bank, East Jerusalem, and the Gaza Strip.
Numerous reports and assessments by leading local and international human rights organizations (including Amnesty International, Human Rights Watch, B'Tselem, Adalah, the Palestine Centre for Human Rights, al-Haq, Peace Now's Settlement Watch, Defense of Children International), as well as by the United Nations, and the US State Department provide strong evidence and compelling arguments that Israel has committed innumerable war crimes and crimes against humanity. Israel frequently violates even the broadest interpretations of the principles of distinction (distinguishing between legitimate military targets and protected civilians and non-combatants) and proportionality (limiting the use of force to the extent necessary to achieve legitimate military objectives).
The list of well-documented crimes include indiscriminate, wilful, and lethal attacks on civilians, inhumane treatment, collective punishment, deprivation of the right to a fair trial, closing off of entire regions and confinement of civilians within them, the use of human shields, home demolitions, illegal and arbitrary detention, torture, imprisonment of children, rape, looting, destruction of infrastructure, extrajudicial killings, deportation and exile of members of the occupied population, refusing to allow protected persons to return to their homes after hostilities, as well as the establishment of non-military settlements and the movement of Israel’s own Jewish citizens into these occupied areas. Apart from Israel’s actions during active hostilities, the daily functioning of the occupation and its goals and objectives are inherently unlawful as they continuously and without respite involve illegal expropriations of land, theft and destruction of crops and natural resources, theft and deliberately polluting and poisoning of water supplies, and impeding and even prohibiting the development of the occupied economy.
What Israeli geographer Jeff Halper has described as the government's “matrix of control” over the occupied territories has involved a level of near total control over Palestinian movement, economic, and political development to the point where Israel violates almost every one of its obligations as the internationally recognized occupying power. Israel's actions in the occupied territories are characterized, as the ICJ has described it, by “impunity across the board.” These actions and the policies on which they are based clearly meet the standard for such international crimes as persecution, colonialism, racial discrimination, and even apartheid.