Israel’s bombardment of civilians and blockade of Gaza may be war crimes, but according to international law experts do not yet fall within the UN Convention’s definition of genocide. It is more likely that Hamas’s massacres of Jews do
17 November 2023
By Martin Burcharth
United States Correspondent, Boston
(This article was published in Information. Her is a link to the original version)
Is Israel, its military and police forces committing genocide against the Palestinian people and in particular against the 2.3 million inhabitants of the Gaza Strip?
It is a complex legal and political question to which there is still no definitive answer amid the war between Israel and the militant organization Hamas, which organized the terrorist attack on civilians and soldiers in southern Israel on October 7.
Israel claims to be acting in self-defense and to fight a just war against the attacking party – the two Islamist militias Hamas and Islamic Jihad.
It is less complicated to establish that the massacres of Israeli civilians by Hamas and Islamic Jihad meet the UN Convention’s definition of genocide. More on that later.
First, the armed conflict in the Gaza Strip.
If one takes the signs and speeches during the recent mass demonstrations in American and European cities in solidarity with the Palestinians at face value, Israel is committing genocide against the Palestinian population in Gaza.
It is a point of view that is supported in increasingly numerous declarations of solidarity and statements by human rights lawyers and even by some UN experts.
In a statement from 939 researchers and academic staff in Scandinavia, published in this newspaper on Wednesday, the signatories demand that “an end be put to what they call the “ongoing genocide”.
Warning from the UN
Seven experts on genocide at the United Nations have warned in a recent statement that “a serious risk of genocide in Gaza” has arisen.
“We sound the alarm because Israel’s ongoing military operations may involve crimes against humanity in Gaza,” the UN experts’ statement states.
The seven have been appointed by the UN Department for the Prevention of Genocide. Information has not received a response to an inquiry to elaborate on their assessment.
In the statement, they state that the harsh rhetoric of Israeli politicians against Palestinians is a signal that a genocide may be underway.
“There is a risk of genocide in light of statements by political leaders and their allies coupled with the military operations in Gaza and stepped-up arrests and killings in the West Bank,” it said.
From some quarters, immediate action is being demanded from the countries that have acceded to the 1948 UN Genocide Convention.
An American civil rights group, the Center for Constitutional Rights (CCR), wants the United States to take immediate action against Israel. CCR this week asked a federal court to rule on whether the Biden administration is neglecting its duty under the UN Convention on Genocide to intervene and prevent a genocide against the Palestinians.
Criminal Court in The Hague
Others have gone to the International Criminal Court (ICC).
Three Palestinian human rights groups – Al Haq, Al Mezan and the Palestine Human Rights Campaign – are calling on the Criminal Court to investigate whether Israel is committing war crimes, crimes against humanity and genocide.
As examples of genocide, the Palestinian groups cite heavy bombardments against civilians and infrastructure, the siege and blockade of the Palestinian enclave, and the forced evacuation of civilians from northern to southern Gaza.
Conversely, relatives of the 846 civilians who, according to Israeli police, were murdered on 7 October, have requested the ICC to open an investigation into “the indiscriminate killings, including of children, and the kidnapping of 240 people” (according to Israeli police, 278 soldiers died and 46 police officers in battles with Hamas fighters).
The International Criminal Court has the authority to prosecute individuals suspected of genocide. The Rome Statute of 1998 incorporated the legal definition of genocide from the UN Convention, which was concluded after the Holocaust against European Jews in World War II.
The ICC defines genocide as a specific intent in a plan intended to exterminate an entire population group or parts of the same group. The groups are identified by their nationality, ethnicity, race or religion.
Extermination is defined in the Rome Statute as killing the members of the group or preventing births and forcibly transferring children from one group to another (the latter is what Russia is accused of doing to Ukrainian children).
A broader definition
But the narrow legal definition of genocide in the Rome Statute seems narrow to some researchers, says genocide expert Ernesto Verdeja in an interview with Information.
“Most researchers are not enthusiastic about the legal definition. They believe it is the result of a political compromise from 1948 and not nearly sufficient to give a full description of the phenomenon.’
Verdeja is an associate professor of peace studies and international politics at Notre Dame University in Indiana, specializing in genocide and mass killings. He also heads the Institute for the Study of Genocide in New York.
According to Verdeja, social scientists, NGO groups and political activists tend to use a broader definition of genocide than the legal one in the UN Convention and in the Rome Statute.
The broader interpretation includes, for example, a siege and blockade which deprives the civilian population of access to vital goods such as drinking water, food, medicine and fuel.
“A blockade falls within the definition of ‘specific intent’, as the result could be the extermination of part of the population,” Verdeja states.
Social scientists and activists also believe that rhetoric by political leaders that dehumanizes a population is an important component of a genocidal campaign.
Dehumanization
And in this regard there is no shortage of statements from Israeli ministers and officers whose intentions are allegedly to disparage Palestinians as a people and attribute to them a lower dignity than other people.
Israel’s defense minister, Yoav Galant, for example, said on October 9 that “we are fighting human animals … Gaza will not return to what the strip was before. We will destroy everything’.
The Israeli defense chief for the Palestinian territories, Major General Ghassan Alian, said on October 10: “Human animals must be treated as such. No more water and electricity, only destruction. If you want Hell, you’ll get Hell.’
And about Hamas fighters, Prime Minister Benjamin Netanyahu said on October 10: “I don’t call them human animals, because that would be offensive to animals.”
On Saturday last week, Agriculture Minister Avi Dichter said that the military operations in Gaza are aimed at expelling the Palestinians. “We have launched the Nakba in Gaza,” it read. Nakba refers to the displacement of 700,000 Palestinians during Israel’s 1948 War of Independence.
Israel’s president, Isaac Herzog, has blamed the massacres of Israeli civilians on “the entire Palestinian nation.” “This rhetoric that the civilians weren’t aware, that they weren’t involved – that’s absolutely not true,” Herzog said shortly after the October 7 attack.
The majority of these derogatory statements about Palestinians occurred in the first days after 7 October. They must therefore not necessarily be taken as incitement to genocide and can instead be interpreted as an emotional reaction to the barbaric brutality displayed by the Hamas fighters, says Israeli human rights lawyer Michael Sfard to The New York Times.
“But unfortunately, these types of statements from ministers open the door to an abundance of harsh rhetoric on social media and further discrimination and mistreatment of Palestinians. It helps to desensitize ordinary Israelis to the suffering of the Palestinians.’
Risk of genocide
Ernesto Verdeja believes that it is probably too early to determine whether a genocide is really taking place against the Palestinians.
“There is a real risk, especially in the Gaza Strip. A lot of red lights are flashing if you apply the broad definition of genocide,’ says Verdeja.
International law expert Gabor Rona, a law professor at Columbia and Yeshiva University in New York, agrees that there is a risk that Israel’s military operations in Gaza could at some point turn into genocide.
But Rona clarifies that it is easier to conclude that war crimes and crimes against humanity have taken place in the Gaza Strip than genocide.
“The definition of genocide is and should be narrow, because we already have definitions of war crimes and crimes against humanity in the conventions and in the Rome Statute, which are much broader than the definition of genocide,” he emphasizes.
Gabor Rona elaborates: “We have the concept of genocide at our disposal in order to focus on extremely precise circumstances in which the state or the perpetrator can be attributed to a specific intention.”
Rona therefore strongly disagrees with applying a broad definition of genocide to the situation in Gaza, as some researchers do.
“A siege and physical blockade that leads to starvation and life-threatening diseases among civilians is a war crime and probably a crime against humanity. But it cannot be genocide unless it can be proven that there is a specific intent to exterminate a group.”
Destruction and expropriation of property and land do not meet the definition of genocide. Ethnic cleansing doesn’t either, says Rona.
“These are war crimes and possibly crimes against humanity,” he says.
The American international law expert finds this distinction enormously important.
“If we mix the terms together, we end up hollowing out the concept of genocide.”
Genocide experts also face another challenge in their assessment of the situation in Gaza. The transition from war crimes and crimes against humanity to genocide is a process that is difficult to see while it is underway.
“It is one of the rarities in the history of genocide that they are carefully planned in advance. As a rule, it happens in the middle of a process. One can think of the Nazis’ Wannsee conference in January 1942, where the Endlösung was adopted,’ explains Ernesto Verdeja.
Mass murder in the kibbutzim
The opposite is the case with Hamas and Islamic Jihad’s murderous campaign against civilians in southern Israel. British-born Qanta Ahmad has, as a doctor, witnessed the terrorist attacks of the Islamic State and the Taliban against civilians and IS’s genocide of the Yazidis in Iraq in 2014-15.
Recently, she was allowed by Israeli authorities to visit morgues and meet with medical examiners.
“As a devout Muslim, I thought it was my duty to come and bear witness. What I saw was far worse than anything I’ve seen before,” wrote Ahmad in an article in The Wall Street Journal.
“On videos, you could hear them uttering the shahadah, the Islamic declaration of faith, while torturing, murdering, executing and burning the victims alive: children, teenagers, young people, the elderly. Everything was methodically planned. They knew exactly what to do. Only one word came to mind: a genocide of the Jews.’
Verdeja is among the researchers who believe that Hamas’ terrorist attacks meet the UN and ICC legal definition of genocide.
“What unfolded on October 7 was hunting down Jews to be murdered because they were Jews. It was not a military operation that unexpectedly ended up spinning out of control,’ he says.
“The attack was in accordance with the ideology of Hamas, which advocates expelling the Jews from Palestine. So there is a rational connection between the Hamas leaders’ rhetoric and the action itself.’
Verdeja knows that other researchers will disagree with him.
“They claim that Hamas’s attacks must be understood as a resistance struggle aimed at liberating the Palestinians. It may well be, but that is not incompatible with genocide. Just think of the Khmer Rouge in Cambodia. Theirs was also a struggle of resistance.’
Gabor Rona agrees that the massacres of civilians in Israel at first glance seem closer to meeting the narrow definition of genocide. But he points to some caveats:
“If it can be proven that Hamas and Islamic Jihad murdered Jews because they are Jews, and only because they are Jews, that meets the definition of genocide in the Rome Statute. But just as Israel has the right to use military force to defend itself, the Palestinians have a recognized right to use military force to achieve self-determination.’
Rona refers to the UN General Assembly’s recognition of indigenous peoples’ right to violently resist the apartheid regime in South Africa. One could thus argue that Hamas and Islamic Jihad viewed their attack against Israel in this light.
“However, this does not change the fact that the two Palestinian groups have committed war crimes and crimes against humanity. Whether they are also guilty of genocide depends on the evidence.”
American Notebook 