This is not really a big deal, but it is still annoying when President Obama (or any president) flagrantly breaks his campaign promises with respect to foreign policy matters that are completely within their executive discretion.  Today, in his commemoration of the Armenians who died in the 1916 expulsion from Turkey, President Obama carefully avoided the use of the word “genocide” to describe those killings. This is probably the right thing to do since, as a legal matter and as a diplomatic matter, especially given the legal standard that the ICJ has erected to determine intent. On the other hand, the President made a crystal clear promise to recognize the Armenian killings as a “genocide” that he has flagrantly broken. From his campaign website.

As a U.S. Senator, I have stood with the Armenian American community in calling for Turkey’s acknowledgement of the Armenian Genocide. Two years ago, I criticized the Secretary of State for the firing of U.S. Ambassador to Armenia, John Evans, after he properly used the term “genocide” to describe Turkey’s slaughter of thousands of Armenians starting in 1915. I shared with Secretary Rice my firmly held conviction that the Armenian Genocide is not an allegation, a personal opinion, or a point of view, but rather a widely documented fact supported by an overwhelming body of historical evidence. The facts are undeniable. An official policy that calls on diplomats to distort the historical facts is an untenable policy. As a senator, I strongly support passage of the Armenian Genocide Resolution (H.Res.106 and S.Res.106), and as President I will recognize the Armenian Genocide.

In fact, he has been lobbying hard to prevent the House from using the “G-word” and is clearly never intending to use it himself. Look, I get that this is a really hard diplomatic issue and that the prudent thing to do is to avoid the “G-word”.  But could candidates please refrain from making promises of this sort that they have no intention of keeping?

I thank Kevin for his extensive and thoughtful response to my post. You touched on many issues which I hope to address systematically in subsequent posts, such as the illegality of the settlers presence. I’m going to try to avoid getting into those issues right now, since this post (like yours before it) is already quite long. I apologize in advance for typos.

Two points of clarification. What prompted my post is a comment by Sen. Mitchell that the administration wants to see a freeze in settlement growth as measured by births. If, as you suggest, the settlers accepted increasingly crowded conditions and their population continued to grow apace, I do not think this would be considered as satisfying a settlement freeze. If the Administration made clear that Jewish population growth through births was not a problem — they don’t mind if the Jewish population doubles so long as the live on top of each other — I would agree with my critics that this is not about genocide/ethnic cleansing. The problem is Jews not Jewish houses. The Palestinians want a state free of Jews, not of Jewish-built houses. Note that all peace plans contemplate the removal of the Jews, not of the roads, houses and other facilities they have built. This is the significance of Mitchell’s comment about births. If there are still births, that means the screws have not been twisted tightly enough.

Second, I don’t want to sell the Genocide point too strongly because I agree that it might “just” be ethnic cleansing. I’m quite open to the possibility that this is not the actus reus of genocide, but rather just flirting with it. Why that makes any liberal-minded person feel better is beyond me, as we well explore below as I engage some of Kevin’s points, grouped into two headings: 1) does it prima facie violate the Genocide Convention; 2) is there some warrant or excuse for sometimes violating it?

1. Human Rights Originalism.

We are not discussing whether Israel can forcibly remove them for military necessity – though by the way, I think invocations of such Art, 49 provisions applied to only one ethnicity would be highly suspect these days. We are talking about whether the U.S. can seek their removal for diplomatic reasons.

You argue that the Genocide Convention’s ban on “measures designed to prevent births” is limited to the kind of methods used in World War II by the Germans. That’s a fair point and not one that I would rule out. It depends on whether we are human rights treaty Originalists or Textualists. I know many of my conservative friends would be delighted to find Originalism alive and well in international law. But keep in mind that the same kind of questions arises with the Geneva Convention itself. An originalist approach to both treaties would say neither the settlements nor the ban on their natural growth violates international law….

The U.S. and Europe have been vigorously insisting that Israel stop all “settlement growth,” including “natural growth.” There has been some question as to what those terms mean. In a June 16 press briefing, Sen. George Mitchell said that Israel must stop “natural growth” in settlements, and specified that he means “births” as well. Here is the State Department’s transcript (my emphasis):

QUESTION: Well, what does natural growth mean? I mean, can you just use it in –

MR. MITCHELL: I’m constantly asked by editors, you know, please give a plain explanation of what natural growth is….Well, of course, one of the issues is that there is no universally used and accepted definition. The most common definition is by the number of births, but there are many variations of that. I’ve had numerous discussions with many Israeli and other officials, and there are almost as many definitions as there are people speaking. But I think the most commonly used measure is the number of births.

QUESTION: (Inaudible) that number, please?

MR. MITCHELL: Yes. Yeah.

QUESTION: There seems to be a lot of focus on the talk about settlements, settlements.

MR. MITCHELL: Yeah.

This language is to my ear quite shocking. The Genocide Convention defines genocide as, among other things, “imposing measures intended to prevent births within the group.” To be sure, Mitchell is not saying the Jewish women in the West Bank should be required to have abortions. Yet the “measures” contemplated by the Genocide Convention are not limited to abortion. Demographic growth requires physical accommodation — bigger homes, new schools, and so forth. If one creates conditions in which there is nowhere to put one’s children — indeed where one is forbidden from making accommodations – one will not have “births” by Jews in the area. Indeed the point of the natural growth freeze is so that people who want to have “natural growth” move elsewhere.

Banning natural growth is designed to prevent, indirectly, births among the group, that group of being settlers, or more precisely Jews living in the West Bank.

I’m certainly not suggesting that anyone in the administration is guilty of genocide, or more precisely, genocidal conspiracy, complicity and incitement. I’m not a fan of accusing senior government leaders of high crimes regardless of how objectionable I find the conduct; it makes things personal and confuses debate. In any case, the requisite specific intent is quite difficult to demonstrate. Some supporters and some critics of a freeze speculate its goal is to slowly choke off or dry out these communities. If so, a freeze is to “destroy” the Jews of the West Bank as a group. But this would be difficult to demonstrate. The demographic effects could just be a side effect of the settlement freeze whose principal purposes are diplomatic. And much of it depends on whether “destroy” means the physical destruction of a people, or the destruction of the group as a group. In other words but the administration most likely is trying to promote — the removal of Jews as an ethnic group from the West Bank — is more like ethnic cleansing and genocide, and I believe there’s some dispute as to whether the Convention covers the latter, though I’m not an expert on how this has been applied by the ICTY or ICTR.

Now one might say that the settlements are illegal, an obstacle to peace, amoral, etc. I do not think that bears on whether international law permits suppressing “natural growth” among the civilian population. It should be clear to international lawyers that this would not affect the human rights of the people living there one bit. That is the point of human rights — the only qualification is humanity. This is a theme I hope to explore in subsequent posts. Suffice it to say now that even if creating settlements violates IV Geneva Art. 49, the violation is committed by the State of Israel, not the settlers themselves. They are not in any way punishable for any illegality.

In other words, even if the creation of the settlements was illegal, once they have a permanent resident civilian population, that population may have a right under the Genocide Convention not to have measures taken to prevent its natural growth.