The 'Genocide Convention' incites more genocide (mainly against Jews).

In addition to failing to prevent genocide, now the "Genocide Convention" is actually a source of incitement. Jews are most likely to pay the price.

The Israeli team at the International Court of Justice, after South Africa erroneously accused it of “genocide” (photo: International Court of Justice/X)

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This is a guest essay written by Shlomo Levin, a retired rabbi with a Master’s degree in human rights law.

You can also listen to the podcast version of this essay on Apple Podcasts, YouTube Music, YouTube, and Spotify.

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The “Genocide Convention” — a reaction to the Holocaust — is an international treaty that has been ratified by 153 countries to create a legal framework which would prevent genocide from happening again.

While the “Genocide Convention” entered into force in 1951, two of its clauses have recently emerged as especially important.

First is how it defines genocide. Intuitively, we think of genocide as an attempt to destroy a racial, ethnic, or religious group. But defining genocide as an attempt to destroy an entire group would be problematic, as in that case allowing just a segment to survive could get you off the hook.

So the convention defined genocide as attempting to destroy a group “in whole or in part.” While “in part” has at least been interpreted to mean “a significant part,” this still opens the door for tremendous expansion of the convention’s scope.

Second, the convention said that the International Court of Justice has jurisdiction to settle any disputes. Again, this ought to make sense. The International Court of Justice exists specifically as a legal mechanism for countries to resolve their disagreements.

But it is important to understand a bit more about how the International Court of Justice works. Most important, the International Court of Justice has no jurisdiction over war crimes, any other atrocity crimes, or anything to do with the laws of armed combat (commonly referred to as humanitarian law). This gets confusing, because there is another judicial institution nearby in the Hague which does — the International Criminal Court.

But there are two major differences between the International Criminal Court and the International Court of Justice. The International Criminal Court can only hear cases against individuals, not against countries. And just like in a regular criminal court where cases are not brought by citizens but rather by a district attorney or other official representing the government, International Criminal Court cases cannot be brought at the initiative of any country. Only the International Criminal Court prosecutor decides when or whether to press charges, and against whom.

What this means is that, if one country believes that another is committing war crimes under the current international law system, there is pretty much nothing it can do. The only option is to submit a referral to the International Criminal Court prosecutor, who may then decide to begin an investigation. And International Criminal Court investigations can take decades; the referring country has no special input or control, and therefore no public opportunity to take credit or score political points.

However, if the accusing country changes its war crimes accusation to genocide, they suddenly have the opportunity to bring a lawsuit at the International Court of Justice. That way they get a full audience in front of 15 respected judges to make their case however they please.

And there are other reasons why changing the accusation to genocide is attractive. The International Court of Justice has the authority to issue what it calls “provisional measures.” Similar to restraining orders, these are legally binding orders designed to prevent a situation from irreversibly deteriorating while the judicial process goes on.

What’s more, to receive provisional measures, the burden of proof is actually lower than what is required to finally win the case. All you have to show is that the International Court of Justice has jurisdiction, that the rights in question are “plausible,” and that absent provisional measures there may be irreparable harm. 

And the process becomes more favorable from there. According to International Court of Justice rules, cases in which the accusing country requests provisional measures go straight to the top of the calendar. This means that, while International Court of Justice cases usually take many years to resolve, an initial hearing on provisional measures can happen quickly, currently in just about a month.

On one level, all this makes sense. Since provisional measures are decided at what is only a preliminary hearing, there is no way to thoroughly examine evidence or submit evidence to cross examination. It is therefore not yet possible to impose a full burden of proof. And it seems reasonable that a case in which the court is being asked to prevent harm from occurring in the future should take precedence over cases that are only demanding reparations for harm that happened in the past.

But notice the overall effect of what has happened: If a country alleges war crimes, the only action it can take is sending a referral letter to the International Criminal Court prosecutor — and then sit and wait.

But if you change war crimes to genocide, it can go right away to the International Court of Justice, world media in tow, to lay out its case before the judges. And then there is a fairly low legal bar to having its genocide allegations validated by the issuance of binding provisional measures.

Is there any doubt why a country would stretch the facts as far as it can to be able to pursue this option?

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It might seem like the “Genocide Convention” enabling the International Court of Justice to hear any possible genocide allegation quickly would be a good thing. But actually, it is causing serious harm.

The problem is that we are not seeing the “Genocide Convention” enable cases of potential genocide that would otherwise have had no airing to be heard. Instead, we are having disputes over what would properly be called “war crimes” get trumped up to “genocide” in order to be eligible to get into the International Court of Justice.

That is bad because accusations of genocide bring so much additional moral outrage and therefore stir up high levels of self-righteous fury and hate. Since there has never yet been a war without war crimes, allegations of war crimes are not quite such a shock.

Consider, for example, the current International Court of Justice case filed by South Africa against Israel. What if South Africa had simply claimed that Israel is committing a war crime by putting too many restrictions on the flow of humanitarian aid, and is also using weapons that cause too much civilian harm? That is pretty much what they said, absent the word “genocide.”

Israel would of course disagree. It would explain that Hamas are the ones obstructing the aid and talk about the difficulty of fighting an enemy who deliberately hides among civilians and in underground tunnels. The court would debate, and demonstrators would argue.

But even though much of the world seems preconditioned to always believe the worst about Israel, it would probably not have been such a straight path from what could be termed fairly common war crimes charges to the level of hatred and demonization of Israel that we see today.

After all, the International Criminal Court is currently investigating 17 other situations that involve alleged war crimes and crimes against humanity, and these 17 are only a small sample of what is truly out there.

No allegations of war crimes have led to anything close to the global campaign against Israel that we currently witness. The genocide charge is what helps isolate Israel and enable its enemies to portray it as uniquely deserving of scorn.

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The fact that, even before the current war, Israel was constantly vilified and its legitimacy questioned makes the situation all the more dangerous. Accusing Israel of genocide, along with other vulgar terms, invites and justifies more violence against it, its citizens, and Jews worldwide. History shows that when Jews are accused of atrocities, regardless of the truth, atrocities committed against Jews inevitably follow.

A main purpose of any legal system is to keep disputes from spiraling into violence. One way a legal system does this is by forcing parties to tamp down their rhetoric as they come to court, dropping whatever exaggeration and hysterics they have become accustomed to using and forcing them to stick to facts.

But by incentivizing countries to stretch and inflate their accusations to the highest, most horrific crime known to man, international law does the opposite. It encourages countries to ramp up anger and hatred which conflict causes.

We need a revised international legal framework that recognizes the explosive nature of genocide allegations and requires that any claim of genocide be carefully scrutinized from the outset. Rather than be incentivized to allege genocide, a country should instead be made to think twice before doing so.

The international legal system should be designed such that any genocide allegation immediately triggers a skeptical examination to make sure it is really necessary and accurate, and that less incendiary terminology would not suffice.

In a few years, the International Court of Justice may decide that South Africa’s genocide accusation against Israel was unfounded and the real question was whether some decisions of Israel’s military were in keeping with the strict, uncompromising demands of humanitarian law within the context of a horrific urban war.

But by then, the damage will already have been done. Instead of helping lower the temperature of the conflict by shepherding parties from the angry and inflamed streets into the more measured and responsible environs of the courtroom, the international legal system will instead have fed the dangerous hate and hostility we see around us.

Did the authors of the “Genocide Convention” ever imagine such a tragedy?

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