Back in April, during a question-and-answer session at the Islamic Center of Boston in Wayland, Massachusetts, Sen. Elizabeth Warren (D-Mass.) addressed South Africa’s legal proceedings against Israel in the International Court of Justice, brought under Article 9 of the Genocide Convention of 1948. Although Senator Warren’s academic expertise — some would say nominal academic expertise — resides in the field of commercial law, she did not hesitate to hold forth on matters of international humanitarian law and international criminal law. Asked about the provisional order issued by the International Court of Justice on Jan. 26, 2024, which determined that it was “plausible” that Israel’s actions had violated the Genocide Convention, the senior senator from Massachusetts responded that “if you want to do it as an application of law, I believe that they’ll find that it is genocide, and they have ample evidence to do so.” Sensing that this casual assertion was perhaps a misstep, Warren hastily added that she wished to go beyond a “labels argument,” maintaining that “it is far more important to say what Israel is doing is wrong. And it is wrong … It is wrong to starve children within a civilian population in order to try to bend to your will. It is wrong to drop 2000-pound bombs, in densely populated civilian areas.” It’s All About the Labels It seems curious for a lawmaker and former Leo Gottlieb Professor of Law at Harvard Law School to avoid a “labels argument,” given that the grand edifice of the law has been constructed largely out of “labels arguments.” Every case of homicide brought before a court is subject to precisely such an argument. It is not enough to say that homicide is “wrong.” Was the homicide murder in the first, second, or third degree? Or was it manslaughter, and if so, was it voluntary or involuntary? Or was it a justifiable homicide, carried out in the line of duty, or self-defense? Or should we excuse the homicide based on infancy or mental incapacity? A great deal depends on the particular label that we attach to the taking of life on an individual level, and the same applies in the case of armed conflicts. Does the bloodletting constitute genocide, or a series of war crimes, or crimes against humanity? Did it begin with the crime of aggression? Or is it a legitimate exercise of the inherent right to self-defense? The act of dropping a one-ton Mark 84 general-purpose bomb on a city is not in and of itself a crime. What makes that bombardment a crime or an entirely legitimate act of war is the label we affix to it. (READ MORE: The Democrat Split on Israel) By professing a wish to avoid “labels arguments,” and preferring generalities like “what Israel is doing is wrong,” Sen. Warren unwittingly lent support to 19th-century legal theorist John Austin’s position that “the law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of, sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected.” A “so-called law set by general opinion” is not the same as positive law, or natural law, and is of even less utility when there is no domestic or international consensus regarding a given conflict. Some feel “what Israel is doing is wrong,” others feel “what Israel is doing is right,” positions that will necessarily inform one’s opinion on the criminality or legality of Israel’s actions. We are a long way from law as it is generally understood, and while we needn’t go so far as German General Berthold von Deimling, who declared that “war is self-defense that knows no rules,” we should at least pay heed to the esteemed international jurist Sir Hersch Lauterpacht, who acknowledged that “if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law.” The Vanishing Point of Law’s Vanishing Point Here, at the vanishing point of law’s vanishing point, there is a temptation to forgo the hard work of gathering evidence and proving the elements of a crime, in favor of facile rhetorical appeals to emotion. Sen. Warren may breezily refer to “ample evidence” of genocide carried out by the Israel Defense Forces, but she is not interested in actual evidence of genocide, the likes of which can be found not in the Gaza Strip, but rather in the Birkenau ash pond, the mass graves of Rwanda, and the Cambodian killing fields. In its May 24, 2024 order, the International Court of Justice demanded that “Israel must take effective measures to ensure the unimpeded access to the Gaza Strip of any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide.” Other investigations, carried out by members of the rather clumsily-named United Nations Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and in Israel, have produced allegations of war crimes and crimes against humanity on the part of both Israel and Hamas, while the International Criminal Court’s chief prosecutor, Karim Khan, requested arrest warrants for Israeli and Hamas leaders based on similar accusations, but notably without recourse to the more dramatic charge of genocide. Despite her desire to avoid “labels,” Sen. Warren was nevertheless willing to voice the opinion that, “as an application of law,” international courts will have “ample evidence” to convict Israeli leaders of the crime of genocide, even though the Israeli military has informed Palestinian civilians of planned military operations in the Gaza Strip, opened up land crossings at sites like Erez West, facilitated the establishment of the floating pier, supported the rehabilitation of hospitals in Rafah and elsewhere in Gaza, and has left the other Palestinian territory in the West Bank untouched as it wages war specifically against the perpetrators of the Oct. 7 mass slaughter. It is, I suppose, possible to debate whether Israel has disregarded “the principles of distinction, proportionality and adequate precautions,” or has engaged in “gender persecution targeting Palestinian men and boys,” as the UN Commission of Inquiry has claimed. It is even possible to debate whether both Israeli forces and Hamas have committed acts of sexual violence, again as claimed by the Commission of Inquiry, although I would hope any sane observer would admit that a comparison between the systematic rape of Israeli hostages and the public stripping of Hamas terrorists taken prisoner is a profoundly false equivalence. It is not possible, however, to argue that Israel is committing genocide without abandoning one’s credibility unless the very meaning of the word “genocide” has been fundamentally altered. Have We Redefined Genocide? It was Rafał Lemkin, the Polish lawyer of Jewish descent, who coined the word “genocide” in 1944 to describe Nazi Germany’s campaign of extermination conducted against European Jewry and other groups categorized as Untermenschen. Writing in the immediate aftermath of the Shoah, Lemkin considered the “Nazi butchery in the present war” to have been the paradigmatic example of genocide, but he noted that the “phenomenon of the destruction of whole populations — of national, racial and religious groups — both biologically and culturally” was not unprecedented. History, he wrote, “has provided us with other examples of the destruction of entire nations, and ethnic and religious groups. There are, for example, the destruction of Carthage; that of religious groups in the wars of Islam and the Crusades; the massacres of the Albigenses and the Waldenses; and more recently, the massacre of the Armenians.” (READ MORE: Armenian Christians Undergo Ethnic Cleansing. DC Politicians Pocket the Change.) The 1948 Convention on the Prevention and Punishment of the Crime of Genocide, followed Lemkin’s lead, likewise recognizing that “at all periods of history genocide has inflicted great losses on humanity,” and defining the crime as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group;(e) Forcibly transferring children of the group to another group. Already the concept of genocide was becoming rife with ambiguity, largely due to the phrase “in whole or in part.” Any armed conflict will result in the destruction of “part” of a national, ethnic, racial, or religious group. Firebombing cities, dropping atomic bombs on civilian populations, and engaging in vicious house-to-house street fighting, will all inevitably result in hundreds of thousands of civilian deaths, but those acts do not necessarily constitute genocide, which is essentially a crime of intent. It is for this reason that the International Criminal Tribunal for Rwanda ruled in Prosecutor v. Akayesu (1998) that genocide “is distinct from other crimes insomuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.’” Just as there are mass killings that lack genocidal special intent, there are killings on a smaller scale that are undoubtedly motivated by genocidal animus. Ethnic cleansing, a term with no precise international legal definition, may not threaten the existence of an entire nation or ethnic group, but the crime lies somewhere on what we might call the genocidal spectrum. The South African sociologist Leo Kuper referred to “genocidal massacres,” while the political scientist Robert Melson introduced the category of “partial genocide,” and another concept, cultural genocide, refers to the spiritual, national, and cultural destruction, as opposed to the physical, destruction of a people. Biological taxonomists can be divided into splitters and lumpers — those more or less likely to divide a taxon into multiple taxa. Genocide scholars and international criminal legal jurists are much the same, prone as they are to spar over the exact label to affix to various large-scale human rights crimes. (READ MORE: The Bible Calls Us to Courage and Freedom) And so once again we find ourselves in the midst of a “labels argument.” Noam Chomsky, in a 2011 conversation with George Monbiot, notoriously disputed the categorization of the 1995 Srebrenica Massacre as a genocide, allowing that the systematic murder of 8,000 Bosnian men and boys was “certainly a horror story and major crime, but to call it ‘genocide’ so cheapens the word.” This was nothing new, as Chomsky similarly claimed that the Khmer Rouge’s Cambodian genocide, which took some two million lives, was “not the result of systematic slaughter and starvation organized by the state but rather attributable in large measure to peasant revenge, undisciplined military units out of government control, starvation and disease that are direct consequences of the U.S. war, or other such factors.” Yet Chomsky is not alone in his Bosnian genocide denial. In the run-up to the vote on the United Nations resolution designating July 11 as the “International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica,” the Israeli Ambassador to Serbia, Jahel Vilan, assured Serbians that “Israel has never accepted calling the crime in Srebrenica a genocide,” and that “when you call Srebrenica genocide, in my opinion, it diminishes the importance of that term, which I believe should only be used for genocides.” One wonders what Ambassador Vilan would call the Medz Yeghern, or “Great Evil Crime,” the Armenian term for the undeniably genocidal Armenian Genocide, which remains officially unrecognized by the Israeli government despite repeated efforts by the Knesset to do so, as part of a diplomatic effort to placate Turkey and Azerbaijan. The Evidence Mounts of a Genocide in Ukraine The Ukrainian historian Yaroslav Hrytsak, in his 2022 Overcoming the Past: Ukraine’s Global History, translated into English as Ukraine: The Forging of a Nation, urged his readers to “look at Bucha. After the Russian retreat, the bodies of 461 residents were found here. In the broader area, there were 1,137 victims. Most had been shot and many showed signs of torture. Bucha now stands beside Srebrenica and Darfur as prime examples of modern genocide.” Russia’s campaign of terror in Bucha, Izyum, and elsewhere does indeed resemble the Serbian massacres in Bosnia, viz. the extrajudicial executions of military-aged males and community leaders, the systematic rape of women, and the abduction of children. There is clearly a genocidal special intent on the part of Russians — hardly a day passes without a Russian public figure urging a “final solution to this problem, the eradication of Ukraine, as a project, hostile to Russianity, forever,” or declaring that Ukraine “has several million people” who “need to be partially eliminated and partially squeezed out.” Given its nature and scale, it is fair to say that the Bucha massacre is comparable in kind, if not quite in degree, to the paradigmatic genocides of the 20th century. This is a legitimate topic for debate as part of our ongoing “labels argument,” yet unfortunately in the current climate it seems that “mere” allegations of war crimes and crimes against humanity no longer seem to move the needle. Veronika Plotnikova, the head of the Coordinating Center for Support of Victims and Witnesses of the Ukrainian Prosecutor General’s Office, announced earlier this year that her office has collected pretrial information regarding some 128,000 Russian war crimes, ranging from deliberate attacks on civilians and torture to the destruction of cultural property and the mass deportation of Ukrainian children. All these allegations combined are not as shocking to the collective conscience of the world as the single, almost talismanic word “genocide.” The power of that particular word has made its colloquial use omnipresent at this point. Activists on the identitarian right warn that “the opioid epidemic, made possible through mass immigration and open borders, is intentionally designed White genocide.” Herman Cain, Mark Crutcher, and others have argued that abortion represents “planned genocide” and “black genocide,” while the Center for Bio-Ethical Reform regularly holds demonstrations in which photographs of aborted fetuses are presented alongside images of the Holocaust and other 20th-century genocides. Transgender and other queer activists campaign against “trans genocide.” Marxists fulminate about “capitalism as structural genocide.” Little of this has anything to do with the writings of Rafał Lemkin or the provisions of the Genocide Convention, but the concept of an ultimate crime that exists far beyond the pale of civilization will inevitably prove rhetorically useful. All the more reason, then, to employ the term carefully and thoughtfully. When confronted with the inevitable horrors of armed conflict, we must retain our capacity to collect and assess evidence, maintain a sense of proportion, and recognize what crimes are, and what legitimate actions are not, beyond the pale of civilized conduct. Genocide sits at the apex of all human-inflicted horrors. Its ink has stained the blackest pages of modern history. It is not an allegation to be tossed around unthinkingly, and to claim to find ample evidence of it where none exists must surely be the most monstrous calumny that can be uttered by a policymaker or jurist. Shany Mor, in his January 2024 Mosaic article “A Special Dictionary for Israel,” elucidated how the world invests international legal terms like “proportionality,” “collective punishment,” “occupation,” and “genocide” with new meanings meant only for Israel. The claims of Israeli genocide in Gaza, however improbable, are once again couched in scholarly language and legal principles that are invented for Israel and Israel alone. Were any of them applied to any other theater of conflict, there is scarcely a military action in the world that couldn’t be classified as genocide. In this, they are following a well-worn tradition, one that thinks itself invisible, but is actually transparent. That “well-worn tradition” — and the reader is no doubt aware of the odious tradition to which Dr. Mor alludes — is one American politicians would do very well to avoid. The post The Vanishing Point of International Law: Genocide and the ‘Labels Argument’ appeared first on The American Spectator | USA News and Politics.