Atrocity, law, and truth: thoughts on genocide, Gaza, and the Holocaust

We live in a world where everything is open to challenge. The most rudimentary and incontrovertible facts are thrown into doubt. One does not have to be a trained historian to understand the crisis of credibility, the collapse of trust, that we experience today. This is not new, but every tragedy today creates even more room for contestation due to our socio-technological silos.

ABOVE: over the weekend an Israeli air strike on Gaza shelter is estimated to have killed around 100 people. The Israeli military says it targeted a “Hamas command and control centre” where militants were planning attacks. No proof was offered. 

 

11 August 2024 — To Israelis, the 7th of October 2023 is the worst day in their country’s 75-year history. Never before have so many of them been massacred and taken hostage on a single day. Thousands of heavily armed Hamas fighters managed to break through the Gaza Strip’s fortified border and into Israel, rampaging unimpeded for hours, destroying several villages, and committing gruesome acts of brutality before Israeli forces could regain control. Israelis have compared the attack to the Holocaust; Prime Minister Benjamin Netanyahu has described Hamas as “the new Nazis.”

In response, the Israel Defense Forces have pursued an open-ended military campaign in Gaza driven by rage and the desire for revenge. Netanyahu promises that the IDF will fight Hamas until it achieves “total victory,” although even his own military has been hard put to define what this means. He has offered no clear idea of what should happen when the fighting stops, other than to assert that Israel must maintain security control of all of Gaza and the West Bank.

For Palestinians, the Gaza war is the worst event they have experienced in 75 years. Never have so many of them been killed and uprooted since the nakba, the catastrophe that befell them during Israel’s war of independence in 1948, when hundreds of thousands of Palestinians were forced to give up their homes and became refugees.

Like the Israelis, they also point to terrible acts of violence: by late July, Israel’s military campaign had taken the lives of tens of thousands of Palestinians, among them thousands of children, and rendered well over a million homeless. As the Palestinians see it, the Israeli offensive is part of a larger plan to incorporate all Palestinian lands into the Jewish state and get them to abandon Gaza entirely – an idea that has in fact been raised by some members of Netanyahu’s government. The Palestinians also hold on to the illusion of return, the principle that they will one day be able to reclaim their historic homes in Israel itself – a kind of Palestinian Zionism that, like Israel’s maximalist aspirations, can never come true.

But history is a strange old thing. Any invitation to the uses of history should be accompanied by a warning about the dangers of making history too immediately useful – which is to say, too instrumental. 

As I have noted in numerous posts and video essays over the last 6 years of my genocide project (for lack of a better appellative), the 20th century left behind a painful and complicated legacy of massive trauma, monstrous crimes, radical social engineering, and collective/individual guilt syndromes that needed to be deconstructed. More often than not, the past appears as a devastated landscape full of corpses, dashed illusions, failed myths, betrayed promises, and unprocessed memories.

Now over two decades into the twenty-first century, the century repeats. Not just in Ukraine but in Afghanistan, Ethiopia, Haiti, Iraq, Palestine, Somalia, Syria, Yemen – the list seems endless.

But the historical experience of the previous century still fundamentally shapes how we envisage our contemporary world at personal, local, national, continental, and global levels.

And so you need historians, to provide perspective, who can combine profound knowledge and understanding of the longer, deeper structural processes of history.

For me, I lucked out when I met Dr. Edyta Gawron, a historian who works as a Professor in the Institute of Jewish Studies, Jagiellonian University in Krakow, Poland, and a specialist in the 20th century history of Polish Jews and Holocaust studies

Plus, Dr. Jacques Semelin, a professor at the Institute of Political Studies of Paris at SciencesPo, a selective research university of international standing. It was here that Jacques created his a pioneering course based on a multidisciplinary approach using history, political science, and social psychology. He was the first genocide expert to take this approach.

So together, Dr Semelin and Dr Gawron gave me the tools I needed to do a deep dive into the political uses of dehumanization, genocide and massacre.

You can watch my video interview with Dr Gawron by clicking here, and an early draft of my upcoming film on the life and work of Jacques Semelin by clicking here.

I want to gingerly walk you through some history and make some brief points about where I think we are today. I will start with Kishinev.

ABOVE: survivors of the 1903 pogram in Kishinev

The Hamas attack on the 7th of October 2023 evoked the memory of Kishinev, supporting the historians’ claim about the pogrom’s lasting significance. The two events differ in their context and their scale: the carefully orchestrated terrorist operation carried out by the Gazan invaders equipped with advanced weaponry stands in stark contrast to the violence perpetrated by a mob of men and teenagers who brutally killed their neighbors and acquaintances using stones, clubs, metal pipes, and axes. Still, it is not unusual for a shocking event to trigger memories of past shocks and traumas despite all the differences.

On Easter Day, the 6th of April 1903, a violent mob attacked the Jewish population of Kishinev, killing 49 people and wounding hundreds. During two days of bloody massacre, about a third of the city was destroyed, leaving hundreds of Jewish families destitute, their meager belongings smashed, broken, torn, or stolen. Hospitals were overwhelmed with injured men, women, and children. Fluff and feathers from torn pillows covered the streets of Kishinev as if snow had fallen in the middle of a sunny spring. It clung to puddles of blood and dirt, settling on the trees and the rubble scattered across the streets.

The Kishinev pogrom would be followed by several others, some even surpassing it in brutality, but it would remain etched in the memory of generations as a turning point in Jewish history and the history of the Russian Empire and Eastern Europe.

The Kishinev pogram was a turning point for many reasons, but just to make a few points:

– Michael Davitt, an Irish journalist writing for American newspapers, spent several days in Kishinev interviewing government officials, visiting the sites of violence, and trying to obtain from “the living witnesses of the outrages an account of what they saw and experienced”.

– His dispatches were collected in a volume called “Within the Pale” — an eye-opening account of the life of Jews in the tsarist Empire – explaining the sources and the outcomes of the Kishinev catastrophe. It brought thousands of dollars in U.S. aid, and brought U.S. President Theodore Roosevelt into the mix who applied diplomatic pressure on the tsar to do something.

– What we know today about the Easter pogrom in Kishinev has been primarily shaped by literary texts and journalists’ accounts: Davitt’s book and articles, a stream of writings by other journalists and authors, plus contemporary historians who tried to dig deeper and for the first time explained the inner mechanisms of violence, reconstructing the events preceding the pogrom and documenting the public reaction to it.

– Most interesting was that Sholem Aleichem, the Yiddish author and playwright, went to Kishinev to write about the pogrom and he focused on several particular villagers and their histories and their culture. Leo Tolstoy worked with Aleichem to produce an anthology dedicated to the victims. Sholem Aleichem used the material to write his famous “Fiddler on the Roof“.

– A series of 22 trials were held of the pogrom’s participants, and it marked the first time that hundreds of defendants were indicted for participating in collective violence driven by racial and national hatred, thus setting a precedent for the legal proceedings against war crimes and crimes against humanity in our own day. Benjamin Ferencz, the American lawyer who led the investigation team of Nazi war crimes after World War II and who was the chief prosecutor for the United States Army at the Einsatzgruppen trials, used it as a template.

– It was also the first trial of this magnitude to be entirely based on survivors’ testimonies, which were meticulously scrutinized – though often neglected, and overwhelmingly disbelieved (more on that in a moment).

– The Kishinev pogrom trial of 1903 could set a world record for the number of defendants, witnesses, and plaintiffs involved. A total of 391 individuals were indicted for murder, plunder, rape, and participation in collective violence rooted in “national discord”.

But what has often escaped our attention is the fact that although the massacre happened in front of everyone’s eyes, both its overarching story and its details were vehemently contested. The struggle to establish the master narrative of the massacre unfolded not only in books or newspapers that sold their readers sensational news, but also, most importantly, in lawyers’ offices and courtrooms, where hundreds of victims and witnesses testified about what they had seen, heard, and endured. But the judges just did not believe their stories.

Note to readers: the full trial transcripts and notes were made available in 1991. All of the material was scanned into electronic format and we converted that material into a searchable format. Some of it has been translated into English. Most of it remains in Russian. I am indebted to my staffer, Elena Katovitch, who did the concept searching across the entire database, plus translations as required. I am also indebted to the Theodore Roosevelt Center at Dickinson University which has digitized most of Theodore Roosevelt’s presidential records.

Reading the witnesses’ accounts, one may wonder how those heart-wrenching words could leave anyone unmoved or doubting. Why did the judges not believe the survivors? Only a handful were convicted, most going free.

It might be tempting to attribute the imperial court’s attitude to the testimonies of the pogrom’s victims solely to the prevalent antisemitism within the Russian establishment. 

Yet antisemitism is not just its own endemic disease: it is also a symptom of other structural problems and malfunctions. The roots of doubt and disbelief could be far more intricate than mere nationalism, indicating a broader epistemic and moral crisis within society.

Similarly, our own crisis today of misunderstanding and distrust extends beyond mere national or political biases, sympathies, or aversions, reflecting deeper, more complex undercurrents. Our society has been stricken by a fear of gullibility, and of the embarrassment that it may cause, and in this way it becomes more and more gullible. The fear of this embarrassment has become a norm of everyday life.

And when this psychological weakness overlaps with extraordinary events, the anxiety of uncertainty goes through the roof. Politicians are so successful at weaponizing the discourse of “fake news” (especially in the United States), peddling doubts and exalting them. What happens? Facts mingle cozily with fiction, and conspiracy theories proliferate.

One remedy to the pervasive doubt – to the culture of doubt and its political manipulation – is the memory of past crises and the history of the attempts to deal with them. And even though the historical analogy between the spring of 1903 and the fall of 2023 is imprecise, the story of the pogrom trial in Kishinev can be very instructive. It suggests that even when the criteria of right and wrong are clearly seen and uncontested, the markers of truth may still remain unclear and undefined, even among those who oppose evil. 

And how familiar does this sound? Everyone in Kishinev was aware that the pogrom had been incited by a series of articles by the journalist Pavolakii Krushevan published in the blatantly antisemitic daily newspapers Znamia and Bessarabets. In the weeks leading up to the bloody Easter of 1903, Bessarabets propagated falsehoods about an alleged ritual murder of a Christian boy in the small town of Dubossary. When the investigation swiftly identified the boy’s murderers among his own relatives, Bessarabets was compelled to issue a retraction.

But … it was too late. His original musings incited retributory violence against Jews. At the same time antisemitic leaflets circulated urging Christians to “liberate” Russia from Jews. Within weeks or even days, Kishinev, a city where Jews, Russians, Moldavians, and Romani had coexisted peacefully, was polarized, with rumors of an imminent Easter pogrom becoming more and more believable.

Thus, the massacre that erupted on the afternoon of April 6th did not appear as a sudden, unforeseen calamity. Another fact that made it look less like an unpredictable disaster was the authorities’ passivity — both the military command and the police observed the assault and the looting of Jewish neighborhoods with indifference and apathy until an order from above to dispatch the troops halted the violence.

Space (and time) does not permit me to go into full details of the trials but the following summary will surely sound familiar.

The police summoned the survivors and interrogated them, often in the presence of an armed gendarme. In many cases, their words were not fully recorded, especially when the witnesses spoke about the criminal passivity of the authorities.

But alongside the official police investigation, however, a separate inquiry was underway. In May 1903, a group of liberal lawyers from St. Petersburg known as the “Young Advocates” arrived in Kishinev and settled into the city’s hotels. The “Young Advocates,” famous for supporting the oppressed, traveled around the country as a flying squad, aiding workers, peasants, and prisoners charged with participating in strikes, uprisings, and other forms of civil disobedience. The Kishinev trial marked a departure from their usual role. Here they represented the pogrom victims in civil suits, assisting them in seeking compensation for financial losses. The “Young Advocates” established a temporary office and began interviewing victims and documenting damages — broken chiffoniers, stolen jewelry, the lost income of relatives who perished in the pogrom — and filing on their behalf thousands of suits against the civil administration.

And so you had a competition between two investigative groups — the official police and the unofficial team led by the “Young Advocates” — tapping into the same sources but seeking evidence for different facts fostered an impression that the truth was buried under layers of falsehoods and misinterpretations.

Journalists, philanthropists, and lawyers interviewed witnesses and survivors about what they had seen and heard from their neighbors. Accounts and rumors swirled together. When a few Russian newspapers published stories about the Kishinev atrocities, featuring shocking although sometimes inaccurate details, the government curtailed this uncontrolled publicity, allowing only a select few conservative outlets to report on the atrocity and its consequences. Another measure that the government took to maintain control was to hold the trials in secrecy, barring the public and journalists from attending. But this attempt to suppress information only heightened interest in the court case. A member of the advocate team meticulously recorded the proceedings and covertly passed these notes to the Western press. Inside the courtroom, with its doors firmly shut, all participants behaved as though the entire world was watching.

The court testimony continued to leak out. And it not only provided the details of the killings but it also exposed efforts by the police and the authorities to hide the truth about their criminal negligence.

And then … survivors’ petitions vanished from the prosecutor’s office, and the presiding judge frequently censored and interrupted witness testimonies during their court appearances, dismissing their accounts as “irrelevant” to the case. The plaintiffs’ legal representatives protested and called for a re-investigation, citing new evidence of a conspiracy and the authorities’ complicity that had emerged during the trial. These demands were summarily dismissed by the court.

In the end, the victims’ lawyers lacked sufficient evidence to prove conclusively that the pogrom had been systematically organized or that there was a strategic plan directing the movements of the pogromist groups. There were rumors that a list of Jewish residences was compiled, and one witness claimed to have overheard that groups of pogromists were numbered like military units. The lawyers also tried to prove that it was implausible that an unorganized, leaderless mob could cause such extensive destruction. Yet despite their efforts, no definitive evidence was uncovered — neither the documents proving a conspiracy nor any indication of a pre-existing plot involving government authorities. The lawyers’ frustration with the court’s refusal to investigate the crimes committed by what they termed “educated people” — referring to officials, antisemitic politicians, and journalists — was justifiable. They viewed the pogromists as mere pawns, people without a will of their own, manipulated evildoers executing someone else’s order.

Let us pause for a second and consider whether the rebuke for failing to listen and appreciate the survivors’ testimonies is fair. Can we blame judges and advocates for not knowing how to listen? Even in the modern historiography of pogroms, as the historian Gur Alroey admits, “the victim has been marginalized,” and the attention usually centers on perpetrators and instigators. Indeed, the scholarly methodology for analyzing the testimonies of witnesses to mass atrocities emerged only in the aftermath of the Second World War, alongside the emergence of what is known as the jurisprudence of atrocities, but even in legal practice, the voices of witnesses and victims did not always play a key role.

The Nuremberg trial in 1945–1946 was based entirely on Nazi documents, and the Eichmann trial in 1961 was the first instance of adjudication that overwhelmingly relied on the testimonies of survivors. Historians also had to learn how to suspend doubt when dealing with testimonies — sources that may be imperfect in relating facts yet nevertheless be truthful. Jan Gross, writing in the early 2000s about wartime anti-Semitic atrocities in the Polish town of Jedwabne, argued for the change in the attitude to testimonies from “a priori critical to in principle affirmative,” and proposed “to accept as true Jewish testimonies about atrocities committed by the local population until they are proven false.” Gross’s message did not find unanimous approval in Poland, and the story of the killing of fifteen hundred Jews in 1941 by their Polish neighbors remains a subject of bitter contention.

And to be frank, what happened during the war in Poland has never been fully examined.

Still, even if the ethics of reading survivors’ testimonies is fairly recent, evaluating evidence, including eyewitness accounts, has been an essential element of judicial and everyday reasoning practiced by courts for centuries.

My lawyer readers will know this well. In the early 19th century, Jeremy Bentham, in his attempt to define the principles of the critique of evidence, called on judges to suspend doubt and “hear everyone.” Bentham believed in people’s natural propensity to tell the truth and advocated for the presumption of truthfulness as a default setting. (He thought that lying is a laborious task that most humans tend to avoid.)

One may dispute his optimistic view of human nature, but … and this is bizarre … in the 1860s Russia introduced new courts with an improved organization and procedure that followed Bentham’s principles and allowed for an almost unrestricted freedom of evidence, including the use and interpretation of witnesses’ testimonies. Vladimir Spasovich (considered to be the most brilliant defense attorney of Imperial Russia) picking up Bentham’s thesis, added that each society, in each stage of its historical development, has its own principles for assessing proofs. The level of trust in testimonies fluctuates, Spasovich maintained; it is influenced by various factors, including the political climate, scientific advances, religious beliefs, and cultural trends. In the 1860s and 1870s, the era of liberal thaw, courts and the people whom they represented were open to listening and believing. In the 1890s and early 1900s, by contrast, Russian society was at its most skeptical and even cynical, at its lowest capacity for believing.

But this “scientization” of truth in legal proceedings eventually died in Russia, but went full blown in the West: truth will emerge based on facts, calculatable and verifiable, with just a touch of moral judgment.

In the pogrom trials in Kishinev, the judges and the administrators shrouded their antisemitism under the mask of objectivity and a healthy, rational skepticism. A lack of empathy and overt distrust of the testimonies from Jewish survivors mirrored the prevailing attitude of even progressive administrators and the liberal public, who harbored doubts about the credibility of testimonies.

But the list of crimes that the court refused to recognize because it did not consider the testimonies authentic is staggering: rape, amputation, disembowelment, etc. Judges acted as automatons, formally evaluating and calculating evidence, dismissing testimonies that came from victims or relatives or doubting that witnesses had been able to see things that they later reported seeing.

The main cause of the judges’ attitude to the survivors’ testimonies requires no explanation. Antisemitism — deep, sometimes even unconscious, prejudice turned them against the survivors’ stories. According to many accounts, the presiding judge from Odesa, Vladimir Davydov, was a decent person, a loyal and conservative man, and very representative of the legal estate that was permeated by latent antisemitism. Other factors, however, also played a role. As I have pointed out, the court followed the formal rules of evidence, dismissing testimonies as legally unacceptable. It is quite possible that the judges understood that the survivors were telling the truth, but they prioritized the formal rules, dismissing contradictory testimonies altogether and rejecting the testimonies of close relatives. Doubt and skepticism, often with a scientific gloss, concealed and justified their biases and the lack of empathy.

 

And so, like today in Gaza and Israel, the result is the absurd coexistence of the two truths. In Kishinev, the city was abuzz with tales of atrocities, with burned houses and streets littered with fragments of shattered furniture serving as silent testaments to the catastrophe; everyone was aware of the truth regarding the rapes and the killings.

Yet the judges constructed an alternate version of the truth that deviated from common knowledge. The judges’ prior doubt mirrored the prior willingness of the pogromists to accept lies and conspiracy theories, such as the story of ritual murder or of the Tsar’s alleged order to massacre the Jewish residents of Kishinev. The pogromists’ readiness to believe these rumors was not driven by the allure of falsehoods but rather by a desire to believe in their veracity, a credulity based on the platitudes of the world they inhabited, while the court’s doubt in the authenticity of testimonies also reflected a tacit convention.

Over the weekend in Gaza the Israeli military bombed a shelter because it says “Hamas was running a command and control centre where militants were planning attacks”. They offered no proof. 

I am disgusted. My retorts of late to these horrors has been:

– The British did not level apartment buildings in Belfast because it thought IRA terrorists were operating from there

– Nor did they bomb every university, school, archives, hospital, medical center, etc. and kill hundreds of academics, journalists, poets, etc. to erase a culture via scholasticide

I am told that yes, it is horrible, and none of this exonerates the Israelis from the high number of non-combatant deaths in Gaza.

No, “non-combatant” is too cold. These are innocent men, women, and children. The retaliation for the Hamas attack has been ruthless; and whereas I have no idea how to compute the “proportionality” that is demanded by the rules of war, monstrously disproportionate actions have been taken place. We have been witnessing the hell of violations justifying violations, justifying violations, etc., etc. The Israeli notion that all Gazans are terrorists is as ludicrous as the Hamas notion that all Israelis are war criminals.

But the de-civilianization of others is a significant moment in their de-humanization.

I will end it here although I have much, much more to say and need to say. Just a few points:

– The study of the origins of the Kishinev violence required deep research into the social, cultural, and economic history of Kishinev, and some of this work was been done recently by several prominent historians who showed that the pogrom was neither an organized and pre-planned assault, as the liberal lawyers tried to prove, nor the eruption of a national and economic conflict that had been building up for ages, as the prosecution suggested. What happened in Kishinev was a spontaneous ethnic riot provoked by antisemitic propaganda. In its causes, but not in its context or its scale, it was similar to the massacre in Jedwabne in 1941, when, as Jan Gross asserts, “ordinary Poles slaughtered the Jews” without the Gestapo’s command and instruction, “of their own free will.”

– Kishinev’s story was neither unknown nor forgotten. But what remains to be explained is the seductiveness of the lies and the conspiracy theories, and the questions resonate with our own modern debates about “alternative truths”, elusive facts, prior ideological disqualifications, and trust that has become predicated on a testifier’s group or nationality or citizenship – or the group he/she identifies with.

– Striking a balance between credulity and skepticism regarding the narratives of victims is difficult. What matters is not their identity or their position — on the defendant’s bench, among the plaintiffs, or among the witnesses; even the categories of “victim” and “survivor” can be contested. A judge, a journalist, or a historian should approach testimonies with an assumption of truthfulness — but trust is not the same as blind belief, which turns quickly into distrust and injustice towards others. Truth has a history, and a society’s progress toward a better way of understanding and critically evaluating evidence is not straightforward. It is from the failures and the retreats in the history of truth that we can learn the most.

– When I was in Israel in May, I heard Amos Goldberg (professor of Holocaust History at the Hebrew University of Jerusalem) talk about the situation in Gaza. And let me qualify that “heard” means it was in Hebrew and I did not get his points until an English version was made available for an Israeli online magazine. His main points were as follows: 

* He explained that just because what is happening in Gaza doesn’t look like the Holocaust – with its trains, gas chambers, incinerators, killing pits, concentration and extermination camps and more – it doesn’t mean it is not a genocide. 

* He said:

Don’t just look at genocide though legal eyes where it will take the International Court of Justice some years declare its verdict. Look at what we can see happening: the level and pace of the discriminate killing, the destruction, the mass deportations, the displacement, the starvation, the executions, the elimination of cultural and religious institutions, the crushing of the elites (including the killing of journalists), and the sweeping dehumanization. Yes, it is genocide. Although it is so difficult and painful to admit this and despite all efforts to think otherwise, at the end of 8 months of a brutal war it is no longer possible to escape this conclusion. Jewish history will henceforth be stained with the mark of Cain of the “crime of crimes,” which cannot be erased from its forehead.

As such, he said, Israel will stand trial for generations.

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