“The State of Israel is singularly aware of why the Genocide Convention, which has been invoked in these proceedings, was adopted”: thus began Tal Becker’s opening address at the Hague, the top lawyer on Israel’s defense team before the International Court of Justice. Right afterwards, he went on to invoke Israel’s “collective memory,” along with a reference to Raphael Lemkin, the Polish Jewish jurist who coined the term “genocide.”
I would add that indeed, the term “extermination” used at Nuremberg, or even “crime against humanity,” coined by Hersch Lauterpach, another jurist who survived the Holocaust, was not enough. Killing people because they belong to a certain group and with the goal of eradicating it is worse than killing them without that specific intention. And this is the part of the accusation against Israel that is the most difficult to prove, despite the more than 60 quotes and nine pages of references to the words of senior Israeli officials, not speaking in the name of their government.
It is this “subjective element” that I wish to dwell upon, and its psychological and moral – as well as philosophical – implications, both from the point of view of the accusers and the accused. Let us first clear away any misunderstandings. At this point, the Court is not called to pass a verdict of innocence or guilt, but only to determine whether it is possible that a genocide may be taking place, and only then to (possibly) grant the request for precautionary measures such as a ceasefire. It would be nonsense for me to claim to know what that verdict will be in advance.
The issue at hand is a different one: What is the purpose of this accusation? Let us also recall that the court has jurisdiction over disputes between states, but only if they accept it, either on a one-time basis or according to the terms of treaties they have signed. Israel has accepted it basically only on the basis of this one treaty that is so foundational to its legitimacy: the Genocide Convention.
This is why a dispute had to first arise between South Africa and Israel, so that the South Africans could present to the Court their accusation of genocide, which was first communicated to Israel and rejected. At this point, Art. 9 of the Convention “forced” Israel to defend itself before the Court.
And now let us go back to the arguments of the defense. Becker returns again and again to the same argument: that it is outrageous for Israel itself to be accused of genocide, based on the very “collective memory” of the “unique,” “exceptional,” “absolute” evil suffered by the Jews, for which this crime was invented. This is supposedly a sort of “genetic” contradiction (as Giacomo Costa called it on Affaritaliani.it on January 16).
In other words, “the accusation is absurd because it is made against a state born, I will recall, from the Shoah,” as international law professor Giorgio Sacerdoti put it on January 9. This notion turns out to be pivotal for all the defense arguments put forward by Israel, along with the other complementary one: accusing none other than Israel of genocide renders the term void of meaning, trivializes it. But why? How can we get a deeper understanding of the meaning of an argument that in itself is self-evidently a non sequitur?
For there to be genocidal intent, the intended victims must be present – almost obsessively so – in the minds of their executioners. But who can say the Palestinians have actually been present in the minds of most Israeli Jews in a society which has literally been constructed as a system of invisibility – architectural, logistical, semiotic, linguistic and cultural – regarding the populations of the occupied territories, reduced to the generic status of “foreigners” – or rather just “terrorists” – to be defended against, rather than displaced survivors of a population that had been living in Palestine for over a thousand years?
None of the past crises have made this “elephant in the room” quite as visible as the horrifying October 7 massacre. If we may be allowed a comparison, this is a mechanism we are all familiar with. I instinctively look away from something as I don’t want to know – but if someone forces me to look, my reaction against them might know no bounds. In the end, “othering,” annihilating dehumanization, was already in the dream of the founding fathers of Israel: a land “without people” for a people without land.
That is why the main argument of South Africa’s accusation was the “contextualization” of the extermination in Gaza: obviously, in relation to the criminal massacre of October 7, but also in relation to the whole history of ethnic cleansing of historical Palestine, before and after 1967, and the occupation regime of the territories allocated by the UN to Palestine. In other words: ignoring the victims you’re exterminating, while you’re exterminating them, not only does not erase the genocidal intent; instead, if anything, it is an aggravating circumstance, as if this denial of reality served as a preview of annihilation: “They do not exist.”
Nurit Peled Elhanan, a former professor at Jerusalem University, sheds light on this darkness in his latest book, Holocaust Education and the Semiotics of Othering (2023), tracing this deletion (the ignored elephant) back to a politics of memory: Israeli identity has been constructed through identification with the victims of the Shoah, to the point of writing itself into the very concept of genocide. As a result, it is inconceivable that it should perpetrate it rather than suffer it. But this is a memory centered on oneself, a “centripetal” one: it says “never again must this happen to us,” instead of “to anyone at all.” Only the latter is a “universal” form of memory. I have called this a “memory of justice” (in il manifesto on January 17), following Kant. Nurit calls it “centrifugal memory.”
This is what I would say in response to Roberto Della Seta, who on Sunday expressed reservations about the ethical weight of the South African accusation (as well as its legal correctness and political expediency). In ethics – and if we take into account the human mind – issues are more complex than they appear. It would be good to recall this fact as we draw closer to Holocaust Remembrance Day.