Cain was the first perpetrator of a violent crime, the crime of murder, of fratricide. According to the Biblical story, God asks Cain where Abel is after Cain had killed him, to which Cain responds “Am I my brother’s keeper?” My father loved to repeat that phrase so I grew up with a sense that we siblings were supposed to take of each other, a sense which developed into a broader feeling of social responsibility, of care for others. For his crime Cain was cursed with failure of all his farming endeavours and to be “a fugitive and a vagabond.” When Cain protested that he would be slain in his wanderings, God put a mark on him, a warning sign that others should not punish him further, at the risk of sevenfold vengeance. Although the mark is not given to Cain as the punishment, as the mark of shame for taking a life made in the image of God, it is nonetheless a life-long sign of guilt.

The accusation brought by South Africa that Israel is committing genocide of Palestinians feels like an unbearable mark of shame and guilt. How can it be the the Jewish state is accused of genocide, less than a century since genocide was committed against the Jewish people? Surely, we are the victims of genocide, not the perpetrators? How can this be any more than a scandalous libel, a blood libel as Israeli government spokesman Eylon Levy said? It’s especially galling so soon after the horrendous attack by Hamas on October 7th that reminded us so starkly of our vulnerability, that looks itself like an act of genocide. Are we to be denied the right to defend ourselves just because our enemy uses its population as human shields and fights from within the civilian infrastructure? “There can hardly be a charge more false and more malevolent than the allegation against Israel of genocide, ” said Israeli Foreign Ministry legal adviser Tal Becker in response to the South African case on January 12th. This is the line of defence against the genocide accusation taken by Israel at the International Court of Justice. We are the victims, not the perpetrators. And some us still bear those other marks, those numbers inscribed on our flesh by the other murderers, before we had a state with which to defend ourselves, when at the whim of persecuting states we could be turned into fugitive vagabonds at a moment’s notice.

I leave to the judges of the court and international law experts to determine the validity of this defence. In part, Jewish and Israeli outrage at and revulsion from the accusation of genocide is prompted by the definition of genocide in the UN’s Convention on the Prevention and Punishment of the Crime of Genocide. There it is stated that

genocide means 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.

Genocide does not then mean another Holocaust, extermination camps and gas chambers. It does not mean the destruction of Palestinians in whole, only in part. Killing 1% of the population Gaza, most of them women and children, the displacement of 85% of the population, the destruction of a third of the buildings and the creation of circumstances meaning one in four households is at risk of starvation means Israel does have a case to answer. It also means that Hamas is also open to accusations of genocide, but as it is not a state that has ratified the Genocide Convention, it cannot be brought before the International Court of Justice. Instead, those horrendous crimes are under the jurisdiction of the International Criminal Court as well as Israeli courts.

One of Israel’s key legal difficulties at the Hague is of its own making, the multitude of statements by politicians, official spokespersons, military officers, news anchors, commentators and journalists that appear to advocate or condone genocide. Legal experts say that the hardest part of a genocide case to make is usually the demonstration of intent to commit genocide, but in this instance there has been a lot of unguarded talk. I will come back to Biblical stories to focus on one statement picked out by the South African team, by Prime Minister Netanyahu on October 28th: “you must remember what Amalek has done to you, says our Holy Bible. And we do remember”. The Amalekites were one of the tribes whom the Israelites fought after their Exodus from Egypt, during their sojourn in the desert, before conquering Canaan. In the first telling, in the Book of Exodus 17:8-16, no reason is given for why their remembrance must be blotted out, but Deuteronomy 25:17-19 tells us that “they smote the hindmost of thee, all that were feeble in thy rear, when thou wast faint and weary; and … [Amalek] feared not God.” The Amalekites reappear in the First Book of Samuel 15, when Samuel tells King Saul that God reminds him of what the Amalekites did to Israel and orders him to “go and smite Amaleq, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.” This last passage is quoted in the South African case, seemingly as proof that Netanyahu intended the Israeli troops about to enter Gaza to act similarly.

In his rebuttal of the accusation that the accumulation of similar utterances to Netanyahu’s amount to incitement to genocide, Malcolm Shaw argued that the South African team had misunderstood the place of Amalek in Judaism but that there was no time for a theological debate. He is certainly right that within Judaism the literal meaning should not be taken as a commandment, and even if it were, neither the Palestinians or Hamas are literally ancient Amalekites. Shaw goes on to claim that the quotations brought by South Africa “are clearly rhetorical, made in the immediate aftermath of a [traumatic] event.” Again he is right, but not in the way he intended the word “rhetorical,” in the everyday sense of an empty statement, but in the sense of rhetoric as persuasive statements uttered to move their audiences. In their spoken presentation, the South African team referred to the normalization of genocide discourse in Israel, indicating an accumulative pattern of speech and writing across politics and media. They showed a clip of dancing Israeli soldiers, singing that they understood their commandment to “wipe out the seed of Amalek” and their operational slogan that there are “no uninvolved” in Gaza, meaning no innocent civilians. Netanyahu’s rhetoric was clearly understood by the soldiers, as well as the synecdoche whereby today’s Palestinians stand in for the Biblical Amalekites. Whether the soldiers in the clip acted on that understanding, we do not know. But in the context of the rise of the Jewish-supremacist, messianic far-right in Israel and its inclusion in the current government, the meaning of Netanyahu’s statement, along others calling explicitly for a second Nakba, is chillingly dangerous and irresponsible, at least murderous if not genocidal in intent, as my colleague Joshua Shanes noted at the time.

The governing discourse in Israel today is, if not genocidal than at least politicidal, a discourse in which there is no truth to Palestinian collective existence, Palestinian peoplehood and connection to the land. In their eulogy for their brother Hayim who was murdered by Hamas (which of course has its own murderous discourse) on October 7th, his sibling Noy said:

My brother was always active for peace … He spoke truth in the face of – as Foucault said – the power that forces discourse up on us, the power that forces us to say certain things, and not say other things. Hayim spoke truth to power – even at the price of being the one who is different, the one who is strange

The power of Israeli discourse was evident last week when 85 members of Israel’s parliament, the Knesset, from most of the opposition as well as coalition parties, signed up to an impeachment process for one of their number, Ofer Cassif, a representative of Hadash, the Democratic Front for Peace and Equality. He had signed a petition in favour of South Africa’s submission to the ICJ, although from some of the reactions he might as well have joined the petition to the court itself. He is very strange to them, very different, abnormal, and what he says does not make sense to them. He speaks a truth that does not have a place in their consensus. He wrote on X (formerly Twitter) that

My constitutional duty is to Israeli society and all its residents, not to a government whose members and its coalition are calling for ethnic cleansing and even actual genocide. They are the ones who harm the country and the people, they are the ones who led to South Africa’s petition to The Hague.

It will pain me deeply if, after its long deliberations, the International Court of Justice finds that Israel, the Jewish state, committed genocide. It would be a mark of Cain that the state would bear forever. The atrocities of October 7th pained and shocked me deeply, as does the fate of the hostages, now in their 100th day of captivity. But it also pains me that the State of Israel is inflicting so much harm on Palestinians in what it claims is self-defence but seems like a prolonged act of vengeance without achievable and defined goals. At this time of intense polarization, the social media mobs and the gatekeepers of discourse insist that Palestinians can be only either victims or perpetrators, that Israelis can be only victims or perpetrators. But what if we are both victims and perpetrators? If we can speak in a discourse that allows for that possibility, can we then not also be our brothers’ keepers?