The Intellectual Property of “Never Again”
Who owns the right to determine genocide? And does a history of victimization absolve a victimizer?
“Never Again” is a concept born out of the Holocaust, the most horrific mass crime of the modern era, perhaps of all time. Despite the slogan’s simplicity, there remains disagreement about who and what it applies to, which we see in debates over the Gaza war.
“Never Again” is a moral philosophy. It is a commitment to prevent genocide. Even as it has become integral to Jewish identity, there is a divide. Representing one side is Elie Wiesel, who in 2012 wrote, "'Never again' becomes more than a slogan: It's a prayer, a promise, a vow ... never again the glorification of base, ugly, dark violence." His is a universalist view, saying that if “Never Again” had been applied, “there would be no Cambodia, and no Rwanda and no Darfur and no Bosnia.” The particularist side is represented by Meir Kahane, the hyper-nationalist terrorist who wrote a book entitled “Never Again!” and asserted it could refer only to the Jewish people.
A prompt for this piece was a tweet which I neglected to bookmark. It came in response to South Africa’s case filed at the International Court of Justice (ICJ) which claims that Israel was committing genocide in its conduct in Gaza. The tweet asserted that it was impossible for Israel to commit genocide because Israel has been a victim of genocide.
Aside from being factually wrong (the Holocaust happened to Jews in Europe before Israel existed) and speciously conflating Israel with Judaism, the tweet was notable because of the contention that a people who suffered an atrocity are incapable or immunized from committing an atrocity. This seems to me ahistorical if not inconsistent with international law.
The legal basis of the South Africa case is the 1948 Genocide Convention, a direct response to the Holocaust. It was based on the work of Rafael Lemkin, a Polish lawyer of Jewish descent, who coined the phrase “genocide,” advised the Nuremberg Trials, and was committed to putting “Never Again” into law.
My purpose of this piece is not to argue the merits of the South Africa case. My interest here is the way people perceive of who is and who is not qualified to make or be subject to a claim of genocide.
On the particularist side, we have the Los Angeles-based Simon Wiesenthal Center, a Holocaust education institution, asserting itself as an arbiter of what a “real genocide” is:
And there’s this take, trafficking in the well-worn and treacherous trope of conflating criticism of the Israeli government with antisemitism:
For its part, the Israeli government is claiming a special ownership to define genocide. Masha Gessen writes in their piece, “The limits of accusing Israel of genocide,”
The following day, representatives for the state of Israel responded that Israel knows genocide when it sees it. “The state of Israel is singularly aware of why the Genocide Convention, which has been invoked in these proceedings, was adopted,” Tal Becker, an Australian-Israeli international lawyer, said, in introducing Israel’s response to South Africa.
On the other hand, there are those who view “Never Again” as a universal commitment. This includes some Israelis who don’t think their government should be exempt from the scrutiny of international law, such as Hagai El-Ad, former director general of Israeli human rights organization B’Tselem:
Israeli analyst Dahlia Scheindlin, in a piece entitled “Israelis Can't Understand How They Could Be Accused of Genocide,” wrote that:
But the insistence that our side is unique, and uniquely victimized, makes that hard to see. The Holocaust has led many people – Israelis, Jews or any observer – to presume that the events were completely unique. And while the Holocaust certainly stands out for its methods and scale, the Holocaust is still just one manifestation of genocide.
Amos Goldberg, a professor of Holocaust History at the Hebrew University of Jerusalem, in an essay entitled, "Yes, it is genocide,” observed that “Israelis mistakenly think that to be viewed as such a genocide needs to look like the Holocaust.”
It's one thing to argue the case that Israel isn’t engaged in genocidal conduct. It’s quite another to find that Israel ipso facto cannot engage in genocidal conduct due to its essence. Such a notion is completely corrosive to the notion of a “rules-based international order.” Because preserving an exemption for Israel serves to legitimize exemptionalism, and gives aid and comfort to countries like China who are seeking to redefine this rules-based order to exempt themselves from accountability.
It's worth noting the parallels between the arguments that the suffering of Jews in the 20th century indemnifies Israel from accusations of atrocious conduct and the Chinese Communist Party’s (CCP) argument that China’s “century of humiliation” indemnifies them from accusations of atrocious conduct.
Secretary of State Antony Blinken accepted his predecessor’s determination that China was committing genocide against the Uyghur people. But he summarily dismissed the South African case against Israel as “meritless.” He added “it is particularly galling given that those who are attacking Israel -- Hamas, Hezbollah, the Houthis, as well as their supporter Iran -- continue to call for the annihilation of the state of Israel and the mass murder of Jews.”
The latter is true. But does this fact invalidate the case against Israel at the ICJ? Does it inoculate Israel from charges of committing atrocities? Not according to international law. And yet America’s top diplomat is handwaving away international law, and copying the CCP’s trick of declaring a victim cannot be a victimizer.
It is going to be nearly impossible for the United States to play a leadership role in seeking justice for Uyghurs, Sudanese, or any other victims of war crimes, crimes against humanity and genocide, if its policies toward these mass crimes continue to appear to be shaped by politics.
So who can claim to the right to own “Never Again?” Is it only who claim heritage from victims of the Holocaust? Is it only those who fit your own politics? Or is it all of humanity, as envisioned by Lemkin and the drafters of the Genocide Convention, who intentionally devised this landmark covenant as a hallowed bequest from those who suffered the horrors of the Holocaust to all peoples?
We can debate this. But there is one source that provides an answer, a source that was purposed to provide an answer beyond disputability, and that is international law and the universality of the Genocide Convention.