Life has not been the same since October 7. Nor can we be at all confident that we have yet seen the worst results of the Hamas slaughters, the mass abduction of Israeli hostages and the heavy fighting and destruction in Gaza. The consequences are and will be varied, direct and indirect, and deep.
On Wednesday the House of Lords held the Second Reading debate on the Holocaust Memorial Bill. The official briefing paper for the debate highlighted opposing arguments outlined in recent JCs by Baroness Deech and Lord Pickles about the projected location of the memorial building. But I would like to urge consideration of another issue – the concept and content of the learning centre, and the impact of current debates and international court cases alleging Israeli war crimes and “genocide”.
When the Holocaust Commission issued its report in 2015, the core aim and principal feature of the memorial was to be the Holocaust. This has remained a matter of solid cross-party agreement. The Holocaust, stressed the report “was unprecedented and should never be seen as equivalent to other genocides”. Yet it also pointed out that “we see many of the same steps from prejudice to persecution in other atrocities, like those in Rwanda and Bosnia or the crimes of Isis today”. Accordingly, the annual official ceremonies commemorating the Holocaust every January give some coverage to such “other genocides”.
The underlying stance that the Holocaust was “unprecedented” in aim and scope but was not unique is legitimate. By restricting other atrocities to be memorialised to those subsequent to the Shoah, the proposal avoided comparison with the slave trade. In view of intense public feeling in the past year about the sufferings of the Palestinians, we may fairly confidently predict intense campaigning to cover them, too. It is only realistic to take account of it.
However, the traps of the 80-year-old term “genocide” merit much closer consideration. They are of direct relevance both to ongoing cases in international courts and to the Holocaust Memorial.
In view of the Ten Commandments and the Torah, it is no coincidence that so many of the most influential advocates of international law in modern times have been Jews: Kelsen, Lauterpacht, Lemkin, Cassin.
More recently, their work has been implemented by Lord Lester and Sir Keir Starmer’s co-author Francesca Klug. The former young Jewish prosecutor at Nuremberg of the Einsatzgruppen, Ben Ferencz, originated the idea of a permanent international criminal court.
If human rights and justice have been so fundamental to Judaism and Jewish intellectuals, why did Chief Rabbi Lord Sacks feel compelled to portray the term “human rights” as the main contemporary expression of antisemitism? The question is far from theoretical. Sooner than we suppose, the language of “genocide” will be used by Karim Khan KC, prosecutor of the International Criminal Court at The Hague, to accuse top Israelis of war crimes.
Regardless of outcome, the charges will intensify burgeoning antisemitism. At the International Court of Justice, also at The Hague, South Africa is spearheading the “genocide” accusation against Israel.
These cases reflect a core difficulty concerning fundamental rights/international humanitarian law. Put crudely, principles and laws concerning rights are one thing; the way they are interpreted by judges and enforced (or not) by political leaders frequently are something very different. The language typically used both in national and international codes inevitably is general. It gives great latitude to lawyers and judges.
Now firmly part of the international vocabulary of propaganda as well as of law, the word “genocide” was the creation in 1944 of a Polish Jewish refugee to the USA, Raphael Lemkin. He saw emerging evidence of atrocities against Europe’s Jews as part of a wider pattern of mass murders such as those of Armenians during the First World War.
Resulting from his work, the United Nations unanimously approved a Genocide Convention in 1948.
Whereas the Oxford English Dictionary definition of “genocide” is short and highly restrictive (“the annihilation of a race”), the definition in the Genocide Convention was much too broad and too complex. There is thus a gulf between the legally defined and popular meanings of the term.
There is growing evidence that the ICC and ICJ are preparing very detailed cases stretching to the use of AI-generated aerial evidence of the state of affairs in post-October 7 Gaza.
International courts often make judgments that use everyday words but employ those words according to special definitions in legal conventions. This tends to make proceedings before these courts subject to political manipulation and deliberate misinterpretation. For a similar reason, the London Memorial should deal solely with the Holocaust and abandon comparisons with other “genocides”.
Michael Pinto-Duschinsky was a member of the Commission on a Bill of Rights
