{"id":3357,"date":"2026-09-27T01:51:57","date_gmt":"2026-09-27T08:51:57","guid":{"rendered":"https:\/\/schoenblog.com\/?p=3357"},"modified":"2026-09-27T16:07:12","modified_gmt":"2026-09-27T23:07:12","slug":"yom-kippur-2026","status":"publish","type":"post","link":"https:\/\/schoenblog.com\/?p=3357","title":{"rendered":"Yom Kippur 2026"},"content":{"rendered":"
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I gave a shortened version of this speech on Monday, September 21, 2026 for the Yom Kippur Martyrology service for Family Minyan at Sinai Temple<\/em> in Los Angeles.<\/em><\/p>\n\n\n\n

As all of you who were here on Rosh Hashanah know, Saturday September 12 was also my birthday.  I didn\u2019t recall Rosh Hashanah falling on my birthday before  — in fact, it happened once before in my lifetime, in 1988 when I was in law school \u2013 so I figured a Shabbat Rosh Hashanah on September 12 might be especially rare and decided to ask my new friend ChatGPT when was the last time a Shabbat Rosh Hashanah had occurred.  The answer was Saturday, September 12, 1942.  (The next one will be in 2178, so I hope everyone enjoyed this last one.)<\/p>\n\n\n\n

1942 wasn\u2019t a great year for the Jews.  No matter how tough we all think things are today, it\u2019s not even close to 1942.  As many as 3 million Jews were murdered in 1942, mostly during the three month period between August and October 1942, when on average over 14,000 Jews were murdered every day<\/a>.  On Rosh Hashanah 1942, my great-grandfather Siegmund Zeisl was in Theresienstadt<\/a>, an old Bohemian military garrison turned into a concentration camp by the Nazis.  You might hear some refer to Theresienstadt as a \u201cmodel camp\u201d where Jews were able to paint and play music and survive relatively unmolested, at least as compared to the extermination camps further East.  That doesn\u2019t tell the full story.  In the summer of 1942, trainloads of Jews were sent to Theresienstadt so that the population, in a military garrison designed for 5,000 to 7,000 soldiers, rose to 58,491 people<\/a>.  Let that number sink in a bit.  For every soldier\u2019s bunk there were about eight Jews who had to try to find a place to sleep.  A huge portion of that population consisted of older Jews from Vienna. <\/p>\n\n\n\n

My great-grandfather Siegmund Zeisl<\/a> had been born in Vienna on September 8, 1871, so he had his 71st<\/sup> birthday in Theresienstadt just days before Rosh Hashanah.  Siegmund was the fourth of six children.  His father Emanuel had supposedly walked from his home in Moravia to Vienna as a young boy and apprenticed as a locksmith.  The profession was lucrative during that era when all the big buildings were being built in the Austrian capital city.  The story goes that he set up each of his children with a way to make a living, and since Siegmund was not the most natural businessman, Emanuel bought him one that couldn\u2019t fail — a coffee house across the street from the train station in Vienna\u2019s second district where all of the new immigrants arrived from the East.  There Siegmund and his wife Kamilla raised four boys, the third being my maternal grandfather Eric Zeisl. <\/p>\n\n\n\n

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Siegmund Zeisl with his sons Eric, Egon, Walter and Willi in front of his home at Heinestrasse 42 in Vienna.<\/figcaption><\/figure>\n\n\n\n

When the Nazis annexed Austria in the Anschluss of March 1938, the boys all prepared to escape to America.  My own grandparents managed to flee on the day after Kristallnacht<\/a> in November 1938.  But Siegmund and Kamilla stayed behind.  Kamilla was not well and could not travel.  She died of cancer in February 1940.  My mother was born in New York a few months later, and her grandfather Siegmund was thrilled to hear about his first grandchild.  Kamilla\u2019s sister Malvine, a widow, had taken care of her sister and Siegmund during Kamilla\u2019s illness.  In March 1941, Siegmund and Malvine married, in part to assure that they could remain together as Jews were being moved out of their homes into collective homes in the city.  The two of them tried valiantly to obtain visas to join the rest of the family in the USA, but were stymied by the bureaucracy as American immigration quotas went intentionally unfilled on order of the US State Department<\/a>.  In his last letter, Siegmund described how he had obtained permission to leave from Lisbon on December 5, but that Malvine could only leave in January.  The attack on Pearl Harbor on December 7, 1941 made all further travel impossible.<\/p>\n\n\n\n

Little is known about what Siegmund and Malvine experienced next.  On July 14, 1942 they were loaded onto a train<\/a> from Vienna to Theresienstadt.  According to the procedures there, they must have been forced to leave all their belongings behind at the train station and had to walk two miles in the hot sun to the already overcrowded camp.  As late-comers to the camp, they were housed in the hot upper attics of the buildings that were already full before they arrived.  Their rations were reduced<\/a> to provide food for the children and younger adults who had to work.  Sickness was rampant and the death toll inside the camp during those months reached astronomical figures<\/a> (in September 3,941 people died, about 6.7% of the total population).<\/p>\n\n\n\n

Siegmund and Malvine suffered for two months in Theresienstadt.  Siegmund had his 71st<\/sup> birthday and then Shabbat Rosh Hashanah on September 12.  On Yom Kippur, Monday September 21, 1942, Siegmund and Malvine were ordered to board a train<\/a> with 2,020 other older Jews.  Transport Bp from Theresienstadt<\/a> was the second transport from there to Treblinka.  The train likely arrived on September 23 or 24.  Upon arrival every single one of the passengers who survived the journey were stripped of their clothing and then forced into gas chambers designed to look like showers and murdered<\/a>.  The gassing process took about twenty minutes.  Afterwards, their bodies were dumped in trenches nearby.<\/p>\n\n\n\n

Treblinka<\/a>, a killing center hidden in a sparsely populated forest and designed expressly for the murder of Jews, only became operational as an extermination camp in July 1942.  Between July and September, 265,000 Jews from the Warsaw ghetto were murdered there.  By April 1943, after just ten months, between 800,000 to 920,000 Jews were murdered in Treblinka, a total second only to Auschwitz where the killing lasted much longer.<\/p>\n\n\n\n

You don\u2019t hear much about Treblinka because it was not also a work camp, as Auschwitz was, and so there were almost no survivors. It doesn\u2019t live in our imagination. But I sometimes try to imagine what it was like for Siegmund and Malvine: to be left behind as their children fled, forced out of their home, stripped of their belongings, housed in unbearable conditions, and then told on Yom Kippur to board a crowded train, only to be murdered at its destination.<\/p>\n\n\n\n

Postscript. I had intended to relate my comments to the war in Gaza and the ongoing offensive misuse of the term “genocide” to describe that conflict, but was advised by Sinai clergy that we were “staying away from speaking about Gaza.” This made me sad, but I complied. If we cannot discuss these issues openly, even before an audience of Jews who are largely, if not unanimously, in agr<\/em>eement, then we are lost.<\/em><\/p>\n\n\n\n

I am not new to the study of genocide. In 2010 I opened the new building of Holocaust Museum LA<\/a> (formerly Los Angeles Museum of the Holocaust), with a new permanent exhibition which I, together with a number of our board members and our archivist, had personally designed. Part of that exhibition was a large wall panel I myself had created on the subject of genocide, describing Rafael Lemkin’s invention of the term, and adding, for the purposes of comparison and contrast, three other recognized genocides in Armenia, Rwanda and Cambodia. The panel itself stood before the museum’s model of the Sobibor extermination camp, re-created by Thomas Blatt<\/a>, one of the only survivors of a famous escape. When I toured people through the museum, I noted for them that even if you totaled the high estimates of the deaths in the other three genocides, the Holocaust was still the largest, by about 2 million victims. <\/p>\n\n\n\n

Some people like to say, well, it’s not the Holocaust Olympics. But of course the numbers do matter. And if there were a gold medal, well, we all know who would win. There have been countless horrendous tragedies in the world throughout history. To the individuals and their families affected by those smaller tragedies they are as important as any other. But the reason we speak so much about the Holocaust is that it was far and away the largest, indisputably the greatest mass-murder in human history. Rafael Lemkin coined the term “genocide” expressly to help us define the phenomenon so we could speak about it, defend against it and prosecute those who perpetrate such atrocities on a mass scale. Every death is a tragedy, but not all deaths are a genocide.<\/p>\n\n\n\n

The fact that the Holocaust was by far the largest, and therefore the most important example of genocide to examine and discuss makes lots of people very uncomfortable. For many non-Jews, it engenders feelings of jealousy (although there is certainly nothing to be envious about), because Jews are getting attention while their own personal tragedies, which are naturally more significant to them, do not get any attention. Even a large number of Jews have these feelings. I often get the sense that many American Jews whose families came over before the Holocaust are dismayed by the attention focused on events that their families feel unconnected to (although if they looked deeper into their extended family tree, they could certainly get that sense of connection). I used to joke that for most American Jews, the defining Jewish experience of the 20th century was growing up in Brooklyn and rooting for Sandy Koufax, rather than the two most obviously significant events — the Holocaust and the establishment of the State of Israel.<\/p>\n\n\n\n

But you don’t have to know too much about Jews to know that memory of our history of persecution, what historian Salo Baron<\/a> in 1928 derogatorily termed the “lachrymose conception of Jewish history,” has long been a dominant feature of Jewish religion and thought. Baron’s anti-lachrymose sentiments, like Albert Einstein’s pacifism, necessarily shriveled and died in the face of what the Nazis did to the Jews. There’s a reason Jews like to joke that a short description of every Jewish holiday is “They tried to kill us. We survived. Let’s eat.”<\/p>\n\n\n\n

In 2026, not a minute goes by that a stream of public figures and social media warriors don’t use to accuse Israel of committing “genocide.” Many of these folks are just ignorant; but some are intentionally ignorant. By that I mean, they uncritically accept every accusation against Israel as true, and are skeptical of any facts or evidence against their pre-ordained opinions. The more educated among them can recite a slew of data points, but they cannot, or will not, see the context. <\/p>\n\n\n\n

Here’s an example: people well-schooled in debating the issue know that the crime of genocide requires the intent to destroy a people, in whole or in part. In the wake of the October 7 attacks, there are oodles of quotes of Israeli officials expressing admittedly genocidal thoughts. So it is not difficult to come up with a laundry list of them to argue that Israel intended to commit genocide. The problem is that the context matters. Here’s what I mean. Let’s say two men are having an argument in a bar when one of them punches the other in the face. The one who received the punch might say something like “I’m going to kill you” as he strikes back. Has he just committed attempted murder? The answer, as I think most people would presume, is probably not. Why? Because an excited utterance accompanying a justifiable act of self-defense is not a crime. If you want, you can ask your favorite AI about this scenario and see what it says.<\/p>\n\n\n\n

Very few of the people screaming “genocide” at Israel have ever really studied the legal issues. I have. Genocide is not easy to prove. There is a reason that the initial 2005 UN Report of the International Commission of Inquiry on Darfur<\/a> concluded that the Sudanese government had not pursued a policy of genocide (although it did find evidence of war crimes and crimes against humanity). In that conflict approximately 200,000 people were killed and about 2.5 million people were displaced or became refugees. Ultimately, the International Criminal Court indicted the Sudanese president Omar al-Bashir for crimes against humanity and genocide, but he was never tried or convicted, so we don’t know for sure whether the legal standard had been met. But the fact that a UN Commission was initially not convinced that the threshold was met should tell you that it is not as simple as pointing to a horrific number of people killed in a conflict.<\/p>\n\n\n\n

The principal modern international genocide jurisprudence comes from Rwanda and Bosnia. In Rwanda 800,000 people were killed in about 100 days (a rate about half as much as the ferocious July to October 1942 period of the Holocaust that I discussed at the top). The Bosnian genocide was much smaller. But there, General Ratko Mladic (who died in April 2026) and Radislav Krstic were convicted of genocide after soldiers under their command detained and executed 8,000 Bosnian men and boys in Srebrenica over a brief period of several days in 1995. Notably, no conviction resulted from the prosecution of Mladic for genocide in the 1992 attacks<\/a> on six other Bosnian municipalities, where thousands were killed, tortured and raped.<\/p>\n\n\n\n

If you read the Krstic<\/a> and Mladic<\/a> judgments you can find a number of significant issues that must be addressed before concluding that any Israeli has committed genocide. For me, the most significant is that the numbers killed have to be really significant and the manner of killing also has to be extraordinary, in the form of a mass execution. In other words, th intent to destroy the group has to be proven, not only by rhetoric, but also by some large and undeniably unlawful act against the group. Remember, in the Holocaust it was 14,000 murdered per day over a period of 3 months, and of course almost 6 million in 4 years. (I used to speak to large groups in the years after the 9\/11 attacks and I noted that the Holocaust was like a 9\/11 attack twice a day, every day, for three years.) In Rwanda 8,000 per day were killed over a similar 100-day period. In Bosnia, the smallest genocide, there were an average of 1,000 executions per day over seven days (most occurring on just three of the days), constituting 25% of the local Muslim population in what had previously been designated by the U.N. as a safe zone. Another 25,000 were forcibly deported from the area. As the ICTY held “By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide. They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity.”<\/p>\n\n\n\n

No serious person can claim that anything like the Holocaust, Rwanda or even Srebrenica has occurred in Gaza. First, there have been no mass executions. The rate of killing, both the total numbers and percentages, is not even close to what one would expect from a concerted effort to destroy a group as large as the Palestinians in Gaza. In the first three months of the war, a recent study published in The Lancet estimated 75,200 people were killed<\/a>, or about 750 per day, constituting under 4% of the total population of Gaza. Although the number of combatants in this figure is unknown, the same study suggested that 56% were women, children and the elderly. The numbers are of course horrific, but again they do not even approach the only previously adjudicated genocides where mass executions took place over a period of months (or at least several days). The percentage of Gazans killed during this stage of the war is far below the measures considered sufficient in previous genocides. (In the Holocaust, 66% of the Jews of Europe were murdered. In Rwanda, 70-80% of the Tutsi were killed. In Srebrenica, 25% of the people in the targeted area.) Just as importantly, the manner of killing is far different from previous genocides. Whereas in the Holocaust, as in Rwanda and Srebenica, masses of detained people were systematically executed, no such deliberate killing of detainees ever occurred in Gaza.<\/p>\n\n\n\n

Those who argue that Israel has perpetrated a genocide need to grapple with these factual differences, because they are critical. The crime of genocide was never meant to apply to deaths incident to military conflict. The countries that enacted the Genocide Convention had recently engaged in military actions killing a great number of civilians. At Hiroshima in 1945, about 70,000 people were killed instantly and a similar number died of bomb-related causes over the course of the next several months. The bomb on Nagasaki killed 40,000. The firebombing of Dresden killed 25,000. The cities of Hamburg and Berlin were similarly destroyed. If you look up photos, they will remind you of the images we see of Gaza.<\/p>\n\n\n\n

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Hamburg after Allied bombing in WWII<\/figcaption><\/figure>\n\n\n\n

The crime of genocide is based on an intent to destroy the target group “in whole or in part.” To a layman, that sounds like it doesn’t matter how much of the group is destroyed. But that is not how the courts have interpreted it. The “part” has to be a “quantitatively substantial part of the protected group,” as discussed at length on the Krstic<\/a> trial court opinion (https:\/\/ucr.irmct.org\/LegalRef\/CMSDocStore\/Public\/English\/Judgement\/NotIndexable\/IT-9833\/JUD20R0000020261.TIF<\/a> at \u00b6\u00b6 581 et seq.). Killing off all of the men and boys in Srebrenica “effectively destroyed the community of the Bosnian Muslims in Srebrenica as such and eliminated all likelihood that it could ever re-establish itself on that territory.” (\u00b6 597). That level of death and destruction, evident in the smallest genocide ever adjudicated, has not occurred in Gaza.

Some may argue that the group under attack were all the Palestinians in the region, and the substantial part of that group was Gaza. In other words, they allege that Israel was seeking to destroy the entire 2 million person population of Gaza, which itself constitutes an undeniably substantial part of the overall Palestinian population (including those living in the Israel, the West Bank, Lebanon, Syria, Egypt and abroad. The problem with that argument, once again, is that it is not borne out by the facts. As we know from prior examples of genocide, it is possible to murder enormous numbers of people in a very short period of time. In one hundred days, one would expect a genocide to result in the deaths of almost one million people. Instead, there were 75,000. So the question that needs to be answered is why weren’t more people killed during the heat of the war in Gaza? Was there something else going on, perhaps a motive other than genocide that might explain the resulting casualties? So, even if one were to conclude that the Palestinians of Gaza constitute a substantial part of the Palestinian national group, that answers only the question of what portion of the protected group is allegedly targeted. It does not establish the indispensable second proposition of whether Israel intended the physical or biological destruction of that population.<\/p>\n\n\n\n

The answer to all these arguments is ordinarily to try to say that it’s just “semantics.” But of course that is no answer when discussing criminal law, and certainly not when invoking the crime of crimes, as genocide has been called. A person who kills someone doesn’t want to be called a murderer if he is innocent because he was acting in self-defense, or guilty only of manslaughter because he didn’t have the specific intent to kill or didn’t premeditate the crime. The words matter. And if the word “genocide” doesn’t matter, then why won’t people just stop using it when they talk about Gaza? The truth is that the word does matter, and it matters a lot. If you really think that Israel is committing a genocide, then you should think that we should take military action to stop the genocide. And if you are calling for military action against another country, you had better be right.<\/p>\n\n\n\n

What I object to, and find truly offensive, is the coopting of the term invented to describe the Holocaust, and the murder of dozens of my relatives, as a way of avoiding serious questions about culpability, about the legitimacy of wartime actions, and about a whole host of other things. I object to using a term that describes something quite different from what has transpired in Gaza. When I hear genocide, I think Treblinka. But Gaza is no Treblinka. (It also is no Theresienstadt<\/a>, as I wrote back in 2012.)<\/p>\n\n\n\n

In my view, there is at least one more serious question that will have to be addressed if there is ever a trial on genocide in Gaza, and that is the legitimacy of the military action. It is hard to justify the mass execution of prisoners, as occurred in the Holocaust or, on a much smaller scale, in Srebrenica, or the types of wanton mass slaughter seen in Rwanda. But civilian deaths incident to military strikes in a war zone are another thing altogether. When people speak of the number of people killed in Gaza, it is often as if they assume that zero people died as a result of legitimate military action. But that position is untenable. The Gaza war began with an invasion of Israel, the mass murder of about 1,200 people and the taking of hundreds of hostages. There is no court that is going to hold that Israel’s military retaliation and invasion of Gaza was completely unjustified as a matter of international law. So, whether the death toll was 70,000 or more, at least some percentage is going to have to be attributed to legitimate military operations. What is that number? It is not zero. It is going to be substantial. The next question then becomes, how many civilian deaths were the result of legitimate military action. Remember, Hamas in Gaza never surrendered. (Even the German and Japanese surrendered. What is wrong with these people?) By all accounts there was a large amount of fighting in civilian areas. If a Gazan sniper is firing on Israeli soldiers as they walk down the street, those soldiers are allowed to shoot back in self-defense. If it happens that children are in the apartment, or nearby, they could easily become victims. Who is to blame in that scenario? Not the soldiers. Those deaths are not a genocide. Mistakes are also not a genocide, and in war there are plenty of mistakes. There were 9-11,000 civilian deaths during the Battle of Mosul in 2016-17. No prosecution for genocide. Remember, the drafters of the genocide convention were largely unconcerned with mass killings during what they deemed legitimate military operations. I think it is highly unlikely that civilian deaths in Gaza will be considered any different from those seen in many other military campaigns. There never has been a genocide adjudicated as a result of a number of small incidents. It’s not enough even to point to a few hundred wrongful military actions, spaced out over time, where a small number of people are killed in each. If you want to look at a war that may be comparable to what has transpired over the past two decades in Gaza, see the Sri Lankan Civil War<\/a> where deaths were estimated at 80-100,000, including about 40-70,000 civilians. Like with Gaza, some have called it a genocide<\/a> (in one incident it is alleged that some 5,000 Tamil civilians were rounded up and executed), but no prosecution has occurred.<\/p>\n\n\n\n

This is not to say there could not be individual war crimes prosecuted, but although everyone admits that possibility, it remains to be seen whether any valid claims will materialize. My issue is with the use of the extraordinary accusation of genocide. War crimes are much more common.<\/p>\n\n\n\n

I believe that anti-Semitism is at the root of much of the noise we hear about genocide in Gaza. It’s just so easy to fall back into the old tropes. Jews have always played this role for the gentiles, representing whatever it is they most despise (as Dara Horn argues in her newest book<\/a>). It manifests in an obsession with Israel and a willingness to believe every accusation against it, along with leaving all critical thinking aside when considering the role that Gazans are playing in the conflict. People like Mehdi Hasan, Zoran Mamdani and Abdul El-Sayed are without a doubt these types of anti-Semites. But there is a more subtle form of anti-Semitism that is indifferent to the fate of the Jews in Israel. It isn’t as if we cannot imagine Jews being slaughtered in large numbers. It has happened before. And it has happened again. So if you just don’t care what might happen to Jews, well, in my view that makes you an anti-Semite.<\/p>\n\n\n\n

It is a bit harder to attach that label to the many Jews who so enjoy hurling the accusation of genocide against Israel. I don’t know if there is a causal nexus, but I have noticed that a good many of them have communism in their background. (See, for example, Norman Finkelstein<\/a> or Ilan Papp\u00e9<\/a>.) Jews, by insisting on their differences, have always been a thorn in the side of anyone dreaming of a utopia, whether left or right wing, because utopia requires that everyone thinks the same way and works towards the same goal. Jews are stubbornly individual and that makes them a problem. They don’t go with the flow. Any hint of exceptionalism rubs these particular anti-Israel Jews the wrong way, and that leads them to instinctively oppose Israel whenever possible.<\/p>\n\n\n\n

Then there are the so-called “genocide scholars,” like the expat Israelis Omer Bartov and Raz Segal. Listen, I have read Bartov’s books. He knows a lot about what happened to Jews in Ukraine under the Nazis, that’s for sure. But I don’t get the sense that he understands as well the other side of the equation. In other words, he knows a lot about victims, but not as much about perpetrators. For Bartov, I like to invert a bit the old saying: “to the nail, everything looks like a hammer.” And there’s just no doubt that he has issues with Israel. What these scholars lack though, is a law degree. They speak of genocide in aesthetic terms, as if it’s only the photos of dead babies and angry statements of politicians that matter. The arguments they make on what is, in fact, a matter of law are mostly incoherent, when not misleading. Segal penned an accusation that Israel was committing genocide on October 13, 2023<\/a>, at the outset of the war instigated just six days earlier by Gaza when it invaded Israel and began murdering and taking hostages. How can anyone take such a person seriously? Bartov was a bit slower to make the case for calling Israel’s actions a genocide<\/a>, not until July 15, 2025. But he did so by avoiding and changing the legal definition. He doesn’t grapple with the issues I addressed above. Because they are hard to grapple with if you want to make a case against Israel. I don’t think that Bartov is an anti-Semite. I don’t think he doesn’t care about the fate of half the world’s Jews in Israel. But I do think he is not being honest in his assessment of the situation. It may be a case of him just wanting to sit with the cool kids in the faculty lounge at Brown University or be invited to speak at other venues rather than be ostracized. (He certainly has made the rounds since his conversion to the Israel genocide cause.) Or it may be that he sees this as a chance to needle Israel, a result of trauma from his service in the Yom Kippur war and resulting disillusionment. I don’t know. All I know, as someone who also knows his way around the subject of genocide and can read and understand legal materials better than most, is that he is almost certainly wrong in his conclusion and that his arguments are to me very unpersuasive.<\/p>\n\n\n\n

The most thorough attempt to prove genocide that I have seen is the May 2024 Analysis prepared by the University Network for Human Rights<\/a>. Most of it is simply saying that a lot of people were killed, which, as I already explained above, is not persuasive since the numbers are neither as substantial as any prior genocide, nor conducted in the manner that those genocides occurred. To me, the weakness of the argument is underscored by the attempts to bring in a whole host of smaller accusations that have little or no bearing on the genocide case (\u00b6 146 (desecrating cemeteries) or \u00b6 84 (degrading treatment) for example). And when you drill down and check the legal work, it doesn’t hold up. One example picked at random: paragraph 176 argues that “Under customary international law, ‘all feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life.’\u201d In support of this proposition, footnote 607 refers to Rule 15, Principle of Precautions in Attack, ICRC<\/a> (which is persuasive, but not necessarily binding authority for international law). The discussed source for the ICRC rule refers to military attacks on “undefended” towns and ports, and refers to its application in the Kupre\u0161kic<\/em> case<\/a>, concerning a Croatian army massacre of Muslims. If you read paragraphs 762-764 of the case, you can see what they are referring to was not a regular military operation, but a pogrom. (“Nor does the concept of a military combat engagement accord with the fact that the houses of Muslim civilians were broken into and the male members of military age pulled out and executed. Above all the intentional killing of children, at least one of which was only three months old, cannot be reconciled with the view that this was an action demanded and guided by strategic or tactical necessities . In sum, the damage and harm inflicted by the Croats on the Muslim civilian population was not collateral; it was the primary purpose of the attack.”)<\/p>\n\n\n\n

For me, perhaps the hardest to respond to is the interview that Philippe Sands gave with Ezra Klein<\/a>. I know and greatly respect Sands. He is an accomplished lawyer and author and knows more than I do about the subject. He has argued genocide cases before international courts, which I have not done. He gave an interview with Ezra Klein in August 2025 where he discussed the legal issues in prosecuting genocide, pointing out that the bar has been set very high in the cases of Rwanda and Srebrenica. He doesn’t enjoy the legal wrangling over the term, believing that war crimes of all types are just as significant as genocide. He does not like the legal standard that has been applied to genocide (he lost the case he was arguing on behalf of Croatia, and is arguing another case now against Myanmar on behalf of the Rohingya) because it makes it difficult or impossible to convict for genocide if there is more than one intention, for example, not only genocidal but also self-defense. He’s right that there’s great difficulty in proving a singular intent, but I am not sure he is correct that the requirement is wrong. Let’s say The Last of the Mohicans is rushing at you with an axe intending to murder you. If you shoot to kill him, you are clearly intending to destroy his entire tribe (he is the last of them, after all) but you are also acting in self-defense. Are you guilty of genocide? I don’t think so. Self-defense has to be permitted, as it is a part of human nature. The question is whether the belief that you need to act in self-defense is reasonable and therefore recognized as legitimate. Even an unreasonable, but honest, belief in the need to act in self-defense (called an “imperfect self-defense<\/a>“) can mitigate a crime. Every genocidal maniac believes he is acting in self-defense. The Nazis believed they needed to kill all the Jews to save Germany. So the question is not whether there is an alternative intent. The question is whether that intent is considered legitimate under the law. That determination is going to depend a lot, I believe, on military analysis, something that neither I, nor any of the “genocide scholars” have much experience with. For my part, I haven’t seen evidence that Israel’s actions in Gaza were not based on a reasonable belief that the actions were necessary for self-defense or rescue of hostages. <\/p>\n\n\n\n

When Klein was interviewing Sands, the current talking point against Israel was that it was engineering a massive famine in Gaza. That clearly influenced both of them. It also turned out to be wrong<\/a>, as the number of deaths from hunger finally claimed by the Palestinian Health Ministry was less than 500. And it also cannot be said that Israel was in fact responsible for the lack of food, with reports of Hamas looting and hoarding of food supplies<\/a> as a means of controlling the population. Still, the allegations were enough for Sands to be certain that war crimes were being committed. On the question of genocide, Sands admitted that the judges of the genocide case will have to weigh Israel’s claims of self-defense as a justification. He wasn’t certain if the judges would follow the precedent of the previous genocide cases or “reduce the bar and conclude that this is a genocide.” A further complication is that the case against Israel, as with the one Sands himself is prosecuting against Myanmar, the defendant is the country, not an individual, and no no international court has yet held a state responsible for committing genocide through attributable acts, as opposed to breaching other Genocide Convention obligations.<\/p>\n\n\n\n

Where I depart from Sands is his apparent assumption that Rafael Lemkin would have concluded that Israel was committing genocide. Sands doesn’t actually say that, he says that Lemkin “would certainly characterize what is happening now in Gaza as genocidal.” Bartov also uses this type of semantic dodge. The adjective genocidal, of course, is not the same as the noun genocide, just as murderous is not murder. Sands believes that Lemkin’s definition of genocide was in some sense broader than the legal definition ultimately adopted and currently applied. In Sands’ view, Lemkin would not have required large numbers to be killed, nor did he require specific intent. I’m not sure that is correct, but let’s assume that Sands is right. It still doesn’t answer the self-defense question. I doubt that Lemkin would have felt any different from Ben Ferencz, who prosecuted the Nuremberg trials. In response to the defense argument that the Allied bombing of Dresden and Hiroshima establish that humanitarian rules did not apply, Ferencz responded “He did not seem to notice that it was the one who struck the first blow who should expect legal retaliation<\/a>.”<\/p>\n\n\n\n

<\/p>\n\n\n\n

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<\/p>\n","protected":false},"excerpt":{"rendered":"

I gave a shortened version of this speech on Monday, September 21, 2026 for the Yom Kippur Martyrology service for Family Minyan at Sinai Temple in Los Angeles. As all of you who were here on Rosh Hashanah know, Saturday … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-3357","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/posts\/3357","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/schoenblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=3357"}],"version-history":[{"count":42,"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/posts\/3357\/revisions"}],"predecessor-version":[{"id":3393,"href":"https:\/\/schoenblog.com\/index.php?rest_route=\/wp\/v2\/posts\/3357\/revisions\/3393"}],"wp:attachment":[{"href":"https:\/\/schoenblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=3357"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/schoenblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=3357"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/schoenblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=3357"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}