Unraveling genocide and the complexity beyond the accusation

U.C. Berkeley Law Dean Erwin Chemerinsky's Dec. 12 Daily Journal article entitled "A New McCarthy Era" is a ringing endorsement of the breadth of the First Amendment's guarantee of the right to free speech, even (maybe especially) on college campuses. But as he so clearly points out, that is not what partisan politicians, college fundraisers and donors, or even the public want to hear.

His article addresses the reaction of members of Congress and the Country to the three college Presidents who appeared before the House Education Committee on Dec. 5, and that one lost her job and another was seriously called on the carpet by her school's leadership and apologized, as the result of their nuanced responses to questions from members of Congress about advocacy of genocide of Jews.

Not coincidently, in its Dec. 9-10 edition, the Wall Street Journal ran an article by Adam Kirsch at page C1, entitled "Is It Time to Retire The Term 'Genocide'?: From Capitol Hill to the Middle East, a word invented to describe the ultimate crime has become a political flashpoint." In that article Kirsch posits that these college presidents "must have expected criticism and confrontation. Even in the worst-case scenario, however, they surely did not anticipate that they would emerge as symbols of indifference to genocide."

Such is the "flashpoint" power of "genocide," that was "invented" in 1944 by Raphael Lemkin, a Polish Jewish lawyer who fled the German invasion of Poland and, to quote Kirsch, "ended up working as a War Department analyst in Washington D.C.", to describe the horror of the Holocaust, "in which Germany and its collaborators killed some 6 million European Jews. ..."

As Kirsch points out, it has been used in other contexts to desired political effect. California Gov. Gavin Newsom has publicly referred to the state's treatment of its native population as genocide, and President Joe Biden has made accusations of genocide occurring in Ukraine, although that description of the conflict in Ukraine was denied by his National Security Advisor.

And it was an October 2021 New York Times article quoting Gov. Newsom's characterization of the State's early treatment of Native Californians as genocide that precipitated the leadership of the former Hastings College of the Law's and Legislature's characterization of the school's founder as being guilty of genocide in the legislation that changed the law school's name effective Jan. 1, 2023, AB 1936.

Even a finding of a committee of the school's Board of Directors "that the Board does not have adequate information to say that Judge Hastings engaged in genocide" was not able to change AB 1936's ultimate, erroneous language finding that Serranus Hastings "perpetrated genocidal acts against Native California Indigenous People . ..." See, Kristian Whitten, "Serranus Clinton Hastings: A Counterpoint on Culpability," California Supreme Court Historical Society Review, (Fall/Winter 2023 ed) pp. 11-13.