Being drawn into courtroom dramas is an occupational hazard, I suppose. Having been a judge for nearly two decades, and a trial lawyer for decades more, I was immediately pulled toward the world’s most significant courtroom drama in many years: the request for provisional relief by South Africa in the International Court of Justice. I fell headlong into it: the written briefs, the hours of oral arguments, the courtroom skirmishes between the advocates, and, of course, the judges’ combined and separate opinions.
In the end, I was troubled by what I saw. And you should be too. Regardless of whether you were rooting for South Africa or Israel in this dispute, the court’s holdings do a disservice to us all. The court badly blurred the distinctions between genocide and other types of armed conflict. And that is bad for everyone.
Genocide is not like other conflicts. It is its own, wholly different category.
This blurring is perhaps understandable because the definition of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide has features that are also present in other, non-genocidal conflicts: (a) killing; (b) serious bodily or mental harm; (c) physical destruction; (d) measures that prevent births; and (e) transfers of children from one group, to the care of others. Each of these tragedies can occur in wartime, just as they do in campaigns of genocide. But it is a real mistake to conflate war with genocide, or to maintain that genocide occurs any time that civilians die or flee their homes.
The key difference is that genocide involves systematic killing for purposes that are largely unrelated to war-fighting. For example, the Jews exterminated in Auschwitz were not battling the Nazis for control of Poland. They were killed because they were Jews. Likewise, the Muslim men and boys slaughtered by the Bosnian Serbs in Srebrenica, were fleeing conflict and violence in 1995; they weren’t engaged in it. They were targeted because of their faith. Killing for reasons that are unrelated to legitimate military objectives is what separates genocide from ordinary warfare. This distinction makes it a crime.
Other doctrines of international law reflect this very same line-drawing. The reason that South Africa had a legal right to sue Israel in the International Court of Justice was because every signatory to the Genocide Convention has a right to enforce the treaty’s obligations. And that result makes sense. If the conduct proscribed by the Genocide Convention is unrelated to war or military objectives, the terms of the Convention should be enforceable by those who are not one of the warring parties. Genocide is a crime against all of humanity.
The lower legal standard for preventing genocide also points to this same conclusion. South Africa was not required to prove that it was more likely than not that Israel was committing genocide in Gaza; only that it was “plausible” to believe that Israel was doing so. Yet, applying this lower “plausibility” standard only makes sense when the abuses proscribed by the Convention, and the lack of military justifications for those deaths, are also clear.
And here is where the court did its most harmful blurring. The fact that non-combatants have died in Gaza is not proof of genocide. In wartime, civilians sometimes die. The proof that South Africa needed to marshal, and didn’t, was that Israel set out to kill civilians apart from its campaign to destroy Hamas and Hamas’s labyrinth of underground bunkers. South Africa’s filings did not even come close to making that case.
This distinction is vital to maintain. Not only is it the lynchpin around which the other features of the Genocide Convention depend, it is also necessary on a moral level. If the civilized world means it when we say “Never Again,” we must be crystal clear about what those horrors are.