guest post by Eliana Fishman

On November 26, 1944, the New York Times published The Auschwitz Protocols, a collection of 3 reports from Auschwitz escapees. The Times included a detailed description of crematoria and gas chambers, and the escapees’ estimates of the number of people killed. Notably, the estimates were, in fact, inaccurate. The escapees estimated that 1,765,000 Jews were killed at Auschwitz-Birkenau between April 1942 – April 1944; according to the Auschwitz museum only 1 million Jews were murdered at Auschwitz over the course of the entire war.

 I couldn’t help thinking about this report as I read Yehuda Kurtzer’s recent essay on Genocide and the Burden of History. Kurtzer writes that before defining what is happening in Gaza as a genocide, the following information would need to be gathered:  “Death counts, precisely; the differentiation among the dead between civilians and combatants; the military calculations that are actually going into the choices to attack targets that also result in the killing of civilians, so that you could determine whether those choices were being done responsibly or not. You would need to understand the obstacles to the distribution of aid on both the Israeli side, on the Gaza side, and on the Egyptian side.”

According to Kurtzer those are the criteria needed to determine whether or not a genocide is taking place: accurate data, the ability to distinguish definitively between civilians and combatants, the opportunity for the military to justify their decisions, an opportunity for governments to explain why starvation took place. Estimates based on eyewitness accounts cannot be trusted.

These requirements lead me to believe that had Kurtzer been alive on November 26, 1944, and reading the Auschwitz Protocols, he would have been reticent to claim that there was a genocide taking place. In fact, given Kurtzer’s standards, it seems like scholars will never be able to determine whether or not a genocide is taking place until years after the genocide has been completed. The United Nations office of Genocide Prevention would have no purpose because *no one* would *ever* be able to claim that a genocide was taking place. According to Kurtzer, genocide can only be accounted for with the benefit of hindsight.

For the record, this is not the criteria for determining genocide according to the genocide convention. Article II of the Convention for the Prevention and Punishment of the Crime of Genocide defines the crime as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

Ironically, the term “genocide” was coined by Raphael Lemkin in 1944. This was while the genocide against the Jews was still ongoing. He did not have hard data on the number of people who had already been killed. He did not know the ratio of civilians to combatants, he did not ask Nazi Germany why so many people were dying of starvation and disease, and he did not ask the Nazis to justify the military rationale for any of their actions. And yet Lemkin had no hesitation in naming the Holocaust a genocide.

 While Kurtzer is reticent to use the term “genocide” to describe Israel’s actions in Gaza, he has no hesitation in describing Hamas’s action on October 7th as a “genocidal rampage”. He does not discuss the criteria that he uses to determine the genocidal nature of Hamas’s attack, and he doesn’t seem to consider whether or not there was a military rationale for Hamas’s actions on October 7th, or if initial targets were military in nature, before passing his judgement. There is no discussion of whether or not Hamas, a ragtag guerilla group attacking the world’s strongest military, even had the *capacity* to commit some of the acts associated with genocide.

Of course, within the Zionist community, it has become taboo to even entertain the idea of Hamas as a rational actor. Hamas must always be motivated by antisemitism and a lust for violence, not by political strategy, desperation, or a lack of alternative. If anyone attempts to analyze the attacks of October 7th from Hamas’s perspective, they are “justifying” Hamas’s attack. Careful scholarship is worthwhile when it comes to justifying the Israeli military’s actions; it is emboldening terrorists when it comes to doing the same to Hamas.

I want to consider the world that Kurtzer is building. It is a world where it is easier for governments to commit genocide because genocide is now unpreventable. If you cannot name a genocide until after it is over, that makes it much easier for the perpetrators of genocide to succeed in their crimes. At first I couldn’t understand how a Jew, let along someone who fashions themselves a Jewish “thought leader” could be so callous as to dismiss the post World War II rules-based order, which understands genocide prevention as a foreign policy goal. But then I realized that illuminated a key difference between Kurtzer and me. I believe that Jewish safety post-Holocaust, is a result of a liberal international order which takes international human rights seriously. Kurtzer does not. He believes that for the last several decades, Jews have been safe solely due to the existence of the state of Israel. So he has far fewer qualms about destroying the rules-based order. Now that Jews have power, he’s not concerned with abuses of political power; he is happy to align himself with the powerful.

Kurtzer spends the first half of his essay credentialing himself, giving a lengthy and flattering description of his academic training, and contrasting the diligence involved in academia with the “memefication [of] moral complexities” that he claims is popular within activist circles. “Activism,” Kurtzer claims “is not responsible scholarship”.

Now, Kurtzer isn’t *always* opposed to activism. In fact, he encouraged people to attend the “March for Israel” in November of 2023. He did not waste time worrying whether or not offering Benjamin Netanyahu the full support of the American pocketbook was a wise decision. He did not question the ramifications that manufacturing the American Jewish community’s consent for the Gaza war might have long-term. He just took action. He didn’t try to be careful, he didn’t worry that some dishonest actors (like John Hagee) were participating in this rally. He didn’t do a power analysis to determine the likely outcomes of his activism.

I write this essay in between coordinating my neighborhood’s response to the federal government’s military occupation of Washington, DC.  I am one of those people who Kurtzer truly seems not to trust: an activist, more preoccupied with saving my neighbors from deportation than in analyzing the morality of illegal immigration, who uses “rhetorical tools” to try and save people’s lives. I genuinely do not care that the Auschwitz Protocols overestimated the number of Jews killed at Auschwitz by 750,000 people. Maybe the escapees made poor estimates. Maybe they embellished the number in the hopes of sparking international outcry. I don’t care. I’m glad they shared their report. I embrace Kurtzer’s criticism – I would rather raise the alarm and be wrong than rest on my laurels while another genocide goes ignored.

Eliana Fishman lives, works, and prays in Washington DC.