Israel is facing charges of genocide at the International Court of Justice (ICJ). This was not inevitable, and reasonable people can disagree over whether the contemporary legal threshold of genocide has been met. But the suggestion that a state created by victims of genocide could never be implicated or responsible for genocide, as made by some observers, does not face up to scrutiny or history. It is simply wrong. No one has a monopoly on being a victim of international crimes like genocide or war crimes. Recent history is full of examples of victims of mass atrocities subsequently becoming perpetrators. One antidote to that awful trajectory is justice for international crimes. As the late Nuremberg prosecutor Benjamin Ferencz’s would say, “law, not war” can help end cycles of violence and atrocity.
I have seen the victim-perpetrator dynamic first-hand. In northern Uganda, where I conducted research on war crimes prosecutions and their impact on peace processes, the issue was ever-present. Between the mid-1990s and the early 2000s, thousands of children were kidnapped from their villages to fight for a notoriously brutal rebel group, the Lord’s Resistance Army (LRA), led by Joseph Kony, he of “Kony 2012” fame. These children were often forced into committing awful acts of violence, sometimes against their own families and communities.
Some of those victim-perpetrators were later prosecuted for committing the same international crimes that they were victims of. The International Criminal Court (ICC), for example, prosecuted Dominic Ongwen, a former child soldier-turned-LRA commander. Among the charges he faced was the conscription of child soldiers, the same war crime that was committed against him as a child. In coverage of Ongwen’s story, some authors asked: what happens when a victim becomes a perpetrator? In 2021, Ongwen was convicted and sentenced to twenty-five years in prison.
There have also been reports of those victimized by genocide becoming perpetrators of genocide. A notable example is the 1994 Rwandan Genocide in which some 800,000 ethnic Tutsis were massacred in just three months by Hutu militias. In 2010, the United Nations released a report detailing what some concluded was a counter-genocide against Hutus by Tutsi forces in what is now the Democratic Republic of Congo.
Looking further into history as well as into more recent events, while the civilian toll of World War II was extremely high in the Soviet Union – with an estimated 19 million civilians killed – today Russia stands accused of genocide in Ukraine at the ICJ. Russia’s President, Vladimir Putin, is the target of an ICC arrest warrant, and Russian forces have allegedly committed tens of thousands of war crimes since February 2022.
Those familiar with Palestine will also know the unfortunate victim-becomes-perpetrator pattern all too well. It would be hard to find anyone in Gaza or the West Bank who was not a victim of a human rights abuse or atrocity. There are now over 100 unlawful Israeli settlements in the West Bank. The illegal blockade on Gaza has been in place since 2009. Thousands of Palestinian young men are in what Israel calls “administration detention”, imprisoned without charge for months, even years. Since October 7 over 10,000 children have been killed in Gaza. On average ten children a day lose either one leg or both. Over 80% of Gaza’s population is facing famine and even if enough aid entered the country tomorrow, it still won’t fully stave off starvation.
What will happen with those victims?
The violence being committed by Israel against Palestinians today risks sowing the seeds of violence in the future. If victims are denied any recourse to justice for the atrocities they face today, they may very well seek revenge against those they see as having wronged and shamed them later.
This point was presciently made by renowned psychiatrist James Gilligan in his study of causes of violence: “People resort to violence when they feel that they can wipe out shame only by shaming those who they feel shamed them. The most powerful way to shame anyone is by means of violence, just as the most powerful way to provoke anyone into committing violence is by shaming him.”
Moreover, and as thoughtfully articulated by Melanie O’Brien, “part of the reason that there is a victim-perpetrator cycle in some situations is the fear of the victims of becoming victims again, and so they ‘pre-empt’ possible fresh violence against themselves by attacking the perceived potential perpetrators.”
One solution to resolving the epidemic of shame and injustice in Palestine is justice and accountability for victims of atrocities. That may be romantic for some, but what other option is there? Where else can victims park their feelings and feel it recognized and remedied? Justice in this sense is an answer, not because it is a panacea that can end wars, but because it can act as an off-ramp for future violence, diminishing cycles of atrocity by giving victims a place to focus their pain and feel vindicated.
It is not war-torn states for whom this logic works. It is true of democracies and peaceful states. It is what so often justifies the very existence law: to provide victims peaceful recourse to remedies rather than choosing violent retribution. Even in rule of law-abiding states with fully independent justice system, denying pathways to justice and caring for victims is a fuse for violence down the road. According to Canada’s Office of the Federal Ombudsman for Victims of Crime, for example, “most people who commit violence are also survivors of violence”.
What does that mean for the war in Gaza?
Given the nature of the conflict, only an independent, impartial and international court can deliver justice in Gaza. That is what the ICC is for. This leads to an important clarification. The ICJ can only address disputes between states. The Court cannot hold non-state actors like Hamas to account. But the ICC can, and it is investigating Hamas’ atrocities. Yet Israel and the same commentators that insist the ICJ is wrong not to investigate Hamas have simultaneously attacked the ICC, insisting that the Court cannot investigate any atrocities committed in Palestine. The next time someone says the ICJ should address Hamas atrocities, ask them if they support the ICC investigation in Palestine.
A former Supreme Court of Justice of Canada, Rosalie Abella has written that the ICJ case is “an insult to what genocide means, an insult to the perception of the ability of international courts to retain their legitimacy and transcend global politics, and an insult to the memory of all of those on whose behalf the Genocide Convention was created.” The truth is to the contrary.
Competent independent, impartial courts capable of hearing cases over mass atrocities exist because atrocities mar our world. They exist because of the memory of all those who never had a chance to have their perpetrators held to account. They are an imperfect but critically important antidote and all too often the best recourse for victims who seek a peaceful, rather than violent, way to translate their suffering at the hands of their aggressors. Regardless of whether the ICJ decides that what is happening in Gaza is genocide, the case brought by South Africa is a vindication, a clear message that international law remains a relevant, peaceful avenue that does not rely on furthering hatreds, bloodshed or atrocity.
Denying any and every legal avenue for victims of mass atrocities risks pushing victims into becoming perpetrators. That is what history has shown us, repeatedly. The lesson of wars and genocides is that victims should be given every opportunity to seek law, not war, and that advocates must do everything they can to support their right in doing just that.
