Monday, 13 November 2023 11:06

How to think through allegations of genocide in Gaza

A Palestinian woman consoles a child following Israeli airstrikes on the al-Fakhoora district of Jabaliya, northern Gaza, on November 4, 2023.

As the civilian death toll continues to rise from Israel’s war in Gaza in response to Hamas’s October 7 attack, more and more voices have warned of genocide.

On November 2, United Nations experts said in a joint statement that Palestinians in Gaza were at “grave risk of genocide.” And on October 28, the director of the New York office of the UN High Commissioner for Human Rights stepped down because, as he wrote in his resignation letter, “we are seeing a genocide unfolding before our eyes [in Gaza] and the Organization that we serve appears powerless to stop it.”

More than 800 scholars have also recently signed on to a letter aiming to “sound the alarm about the possibility of the crime of genocide.” And US Rep. Rashida Tlaib (D-MI), the only Palestinian American in Congress, accused President Joe Biden of supporting “the genocide of the Palestinian people,” in a video on November 3.

These warnings have pointed to the sheer number of civilian casualties from Israel’s bombardment, the effects of the siege, and rhetoric from Israeli officials that demonizes and calls for the mass killing of Palestinians in Gaza, among other things, as indicators that Israel’s offensive against Hamas could cross the line into genocide. That is an explosive charge, and one that Israel, a nation whose existence is inextricably linked to the genocide of Jews in the Holocaust, has rejected by arguing that the killing of innocents is unavoidable in pursuit of its war aims.

As bloody as the war in Gaza has been so far, it may not fit the popular conception many have of genocide from the 20th century, when the death tolls were far larger and, in retrospect, the intent by perpetrators to wipe out an entire people was undeniable. But there are different ways to define genocide — from the colloquial to the scholarly and political to the strict legal sense. And it is the legal definition, which includes a narrow set of criteria, that ultimately determines formal accountability.

On that score, most experts, with a couple of prominent exceptions, say that it is not possible to prove Israel’s actions meet that legal threshold right now. “I don’t think it’s genocidal yet. I think it can easily be,” said Ernesto Verdeja, an associate professor of political science and peace studies at the University of Notre Dame. “At this point, it’s a little hard to put all the pieces together.”

With more than 10,000 Palestinians dead, according to the latest estimates from the Gaza Health Ministry, the humanitarian situation is unquestionably urgent. Many experts Vox spoke to agreed that war crimes had likely been committed both by Hamas and Israel throughout this conflict. In some ways, the semantic fixation on whether what’s happening in Gaza is or isn’t genocide under the legal framework risks losing sight of that larger picture. Experts pointed out that charges of “genocide” carry no more legal or moral weight than “crimes against humanity” or “war crimes” under international law.

But it’s also true that the words we use to describe the conflict carry real weight. And that is why, at a moment when all the world is weighing the atrocities and victimizations of one side and the other, it is so vital to understand what is meant, and what isn’t, by the term “genocide.”

Four different ways of understanding genocide

There are four main ways to conceptualize genocide, according to Verdeja, and each depends on how and where the term is being used — whether in the legal world, the realm of social science, the arena of international politics, or among the general public. That means what might constitute genocide to many members of the public might not to someone with a background in international law.

First, there’s the legal definition. According to the Genocide Convention, which entered into force in 1951 and has been ratified by 153 states, genocide means “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”:

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

Notice that there are two components here. One is a physical element — the five acts just listed — which can be empirically determined. But the other is a mental element — the “intent to destroy” a group “as such” — and that’s much harder to prove.

By “as such,” the Convention means that the victims must be deliberately targeted not as individuals but because of their membership in a national, ethnic, racial, or religious group and as part of a broader plan to destroy that group. That second part is key: Not every violent attack against civilians — even if it is motivated by national, ethnic, racial, or religious bias — qualifies as genocide. It has to be intended to eliminate the group as a collective. (Note that genocide can be perpetrated against only part of a group, so long as it’s an identifiable and substantial part.)

To prove that intent exists, court precedent has also required the “existence of a state or organizational plan or policy.” The statements of public officials and other decision-makers can help support that case, though they may not be enough alone. It’s even more difficult to prove that the threshold has been met while the atrocities are still ongoing.

Only three genocides in history have been officially recognized under the definition of the term in the 1948 Genocide Convention and led to trials in international criminal tribunals: one against Cham Muslim and ethnic Vietnamese perpetrated by Khmer Rouge leaders in Cambodia in the 1970s, the 1994 Rwandan genocide, and the 1995 Srebrenica Massacre in Bosnia. (The Holocaust occurred before the adoption of the 1948 Convention.) The mass killings of the Yazidis by ISIS in Iraq and of the Rohingya in Myanmar have been recognized as genocide by the United Nations as a whole. Though the US called the killing of Black Africans in the Sudanese region of Darfur between 2003 and 2005 “genocide,” a UN investigation ruled it was not genocide.

Crowds of people gather on a muddy riverbank, most holding belongings or balancing them on their heads.
Refugees crowd along the banks of a river on May 3, 1994, at the border of Rwanda and Tanzania.

The prosecution of genocide is rare in part because its definition under the Convention is the product of post-World War II compromise among UN member states and narrow by design so that certain atrocities they had perpetrated would not be recognized as genocide: for example, mass killing and famine in the Soviet Union and lynchings and racial terror in the US. But that definition proved perhaps too narrow to effectively prevent and respond to genocides when they happen. That has left some searching for a more expansive definition.

And so, secondly, there’s the way the term “genocide” is used in social science. “The social-scientific approach, I think, tends to be a bit more capacious,” Verdeja said, noting most academics don’t require proving “intent” beyond a reasonable doubt and don’t require victims to be in the Convention’s four protected groups. Social scientists might count a political group as a victim of genocide, for example including the Khmer Rouge’s political victims in addition to the legally recognized victims. “But that’s also partly because the purpose is different, right? We’re not using that for purposes of holding an individual accountable, or holding the state accountable at the International Court of Justice.”

Third, there’s the way “genocide” is used in the international politics and policy world. “They’re thinking specifically around questions of prevention policy and intervention,” Verdeja explained. “Many international organizations and governments will use the term genocide when what they really mean is large-scale violence against civilians.”

That’s because those entities are more concerned with trying to identify instances where there might be outbreaks of grave human rights violations that merit an international policy response, ideally to prevent those violations from worsening, rather than being concerned with the strict legal definition. “So if you spend a lot of time talking to the State Department ... that’s kind of loosely how they use ‘genocide,’ even though they know the legal definition,” Verdeja said.

Fourth, there’s the way “genocide” is colloquially used by the public. “There, genocide tends to be used as a stand-in term for the greatest evils, the greatest harms that human beings experience,” Verdeja said. Typically, this is about using the moral and emotional weight of the term to make a political claim: The current situation is unacceptable and something must be done.

For purposes of holding Israel accountable for its actions in Gaza, however, it’s the legal framework that matters most. And that’s why debates have focused on whether that strictest definition of genocide applies.

Evaluating the allegations of genocide in Gaza

Experts in human rights and war crimes are generally hesitant to call Israel’s killing of Palestinians in Gaza “genocide” as understood in international law. That’s especially the case in the absence of “clear evidence verified by a third-party investigation,” said Franziska Boehme, an assistant professor of political science at Texas State University.

But several of the scholars Vox spoke to caution that the violence could certainly become genocidal, may already be perilously close to meeting the threshold, and that the international community must hold Israel responsible for any atrocities it may have committed and prevent further ones, regardless of how we define them.

Israel has already killed and injured Palestinians in Gaza en masse, mostly women and minors. There is no specific threshold number of deaths or proportion of a group killed required under the Genocide Convention or resulting case law, only that they be substantial.

Israel has said its siege and bombardment of Gaza — which Prime Minister Benjamin Netanyahu said on November 3 will continue with “all of [Israel’s] power” — is intended to eliminate Hamas, after the horrors of October 7. It has denied that it intentionally targets civilians and, in a statement to Insider, the IDF said it is “fully committed to respecting all applicable international legal obligations,” putting procedures in place to ensure as much. Instead, it says civilian deaths are the unfortunate collateral damage of its war on Hamas, which Israel has accused of hiding behind civilian infrastructure.

International law does not outright ban civilian casualties during war. Principles around “proportionality,” for instance, imply that some civilian deaths can be acceptable depending on the military objective. But hundreds of scholars and practitioners of international law have argued that, beyond any one incident, the “widespread killing, bodily and mental harm, and unviable conditions of life” that Palestinians are being subjected to means there is “a serious risk of genocide being committed in the Gaza Strip.”

Beyond killing civilians en masse, Israel appears to be inflicting “conditions of life calculated to bring about [the targeted group’s] physical destruction,” as prohibited by the convention, said Adam Jones, a professor of political science at the University of British Columbia who has written a textbook on genocide. He pointed to Israel’s decisions to let in only limited humanitarian assistance that is far from sufficient to provide for the needs of 2.2 million people; to cut off fuel, water, and electricity; and to deprive people of adequate access to medical care. As of November 5, some 370 aid trucks had reportedly arrived in Gaza since they were first allowed to enter on October 21, but more than 100 trucks daily would be required to meet the needs of the population.

A group of people, including children, stand with heads bowed and arms crossed across their chests in prayer. Before them on the ground lie several body bags.
People perform funeral prayer for those who were killed in the Israeli attacks on the 30th day of the conflict after they were moved from the morgue of Nasser Hospital to be buried at a cemetery in Khan Yunis, Gaza, on November 5, 2023.

Some human rights lawyers and scholars say that entertaining allegations of genocide against Israel at this point is not just premature, but also cheapens the concept. Dov Waxman, a professor of political science and Israel studies and the director of the UCLA Y&S Nazarian Center for Israel Studies, writes in Jewish Currents that while there may be a “risk of genocidal actions” in Gaza, claims that it is happening now require “stretching the concept too far, emptying it of any meaning.” Eitay Mack, a human rights lawyer based in Jerusalem, writes in Haaretz that the accusation of genocide is “a false claim not founded in international law” and one that “will not be useful for ending the war or promoting the freedom of the people in Gaza.”

Among those who do see substantial risk of genocide, though, the biggest sticking point in the debate centers on what Israel’s intentions are.

Verdeja said that intentionality is tough to prove beyond a reasonable doubt, especially “when you’re looking at these types of atrocities happening in real time.”

Michael Becker, an assistant professor of international human rights law at Trinity College, Dublin, similarly said that “because the requirement of genocidal intent has been construed so restrictively by international courts, it is not obvious that Israel’s actions satisfy the legal definition of genocide, notwithstanding the evidence of mass atrocity.”

The same hurdle of proving intentionality applies to any evaluation of whether Hamas’s October 7 attack constitutes genocide. Hamas, which governs Gaza and is designated by many countries as a terrorist organization, promises the destruction of Israel in its founding charter and has said it has plans for more attacks like the one on October 7. Its “wild and indiscriminate killing” of more than 1,400 people is characteristic of what social scientists refer to as a “genocidal massacre” that should be “acknowledged and condemned as such,” but the intentionality requirement under the law is still a “high evidentiary bar to reach,” Jones said.

Raz Segal, an associate professor of Holocaust and genocide studies at Stockton University, said that Hamas’s charter alone isn’t enough to prove intent as required by the narrow definition in the Convention. “I definitely see intent to kill a significant number of members of the group, to instill unbelievable trauma and terror among members of the group,” he said. “But I don’t see intent to destroy in relation to the Hamas attack that would render it an act of genocide.”

Similarly, there is already some support for the notion that Israel is intentionally trying to destroy the Palestinian population in Gaza, though, again, proving that intent requires clearing a high bar. Scholars have pointed to statements by Israeli leaders as one piece of evidence that the country’s military campaign may be targeting Palestinians in Gaza broadly.

A short, non-exhaustive list: Prime Minister Benjamin Netanyahu pledged to reduce parts of Gaza “to rubble” and invoked the people of Amalek, the foe that God ordered the ancient Israelites to genocide in the Bible, in a recent speech. Defense minister Yoav Gallant called for a “complete siege” on Gaza and stated that “we are fighting human animals, and we are acting accordingly.” Army spokesperson Daniel Hagari said forces would turn Gaza into a “city of tents” and admitted that Israel’s “emphasis is on damage and not on accuracy” in dropping hundreds of tons of bombs on Gaza.

These are people directly presiding over or involved in the military operations in Gaza, whose words carry more weight. But Israeli lawmakers and officials have also been invoking dehumanizing language that experts say should not be overlooked in evaluating Israel’s ambitions.

Israeli President Isaac Herzog blamed Palestinian civilians in Gaza as a whole for Hamas’s October 7 attack: “It is an entire nation out there that is responsible.” Amichay Eliyahu, the minister of heritage, told a Hebrew radio station that there were no non-combatants in Gaza and advocated for dropping a nuclear bomb on the territory. (Netanyahu suspended Eliyahu, but reportedly gave in to pressure from his other coalition members and did not fire the minister entirely.) Revital Gotliv, a Parliament member from Netanyahu’s ruling Likud party, called for Israel to use nuclear weapons in Gaza: “It’s time for a doomsday weapon. Shooting powerful missiles without limit. Not flattening a neighborhood. Crushing and flattening Gaza.” Galit Distel Atbaryan, also of Likud, posted on X in Hebrew that Israelis should invest their energy in one thing: “Erasing all of Gaza from the face of the earth” and forcing the “Gazan monsters” either to flee the Strip to Egypt or to face their death.

Comments like those prompted Segal to argue in Jewish Currents recently that Israel’s actions constitute a “textbook case of genocide.” He told Vox that those statements, indiscriminate bombing of civilians, and cutting off of resources taken together point to the requisite “intent to destroy.”

“If this is not special intent to destroy, I don’t know what is,” Segal told Vox. “How many Palestinians need to die for these statements to be recognized as what they are?”

Israel, for its part, has urged civilians to move south as its troops encircle Gaza City and warned that anyone who remains could be seen as “sympathizers of a terrorist organization.” But some are unable to move or have refused to move, fearing permanent displacement from their homes. Israel is continuing its bombardment, even on corridors to the south. Its reliance on aerial bombing, as opposed to “ground-level, up-close-and-personal killing,” may allow for “obfuscation” about who exactly it’s targeting, Jones said.

When Israel first bombed the Jabalia refugee camp in northern Gaza City, where it claimed to have killed a Hamas commander, it did so knowing that many civilians there would die. “This is the tragedy of war,” an IDF spokesperson told CNN. Israel has since rebuffed UN concerns that the bombing could constitute a war crime and bombed the site two more times, leveling every building in an approximate area of at least 2,500 square meters and resulting in reportedly hundreds of deaths and injuries. “Attacking a camp sheltering civilians including women and children is a complete breach of the rules of proportionality and distinction between combatants and civilians,” UN experts said in last week’s joint statement.

An aerial shot of flattened buildings, reduced to gray rubble. A bulldozer moves debris.
Palestinians conduct a search and rescue operation after the second bombardment of the Israeli army in the last 24 hours at Jabalia refugee camp in Gaza City, Gaza, on November 1, 2023.

Though some have pointed out that Israel could have killed even more people in Gaza if it really wanted to do so, it does not necessarily have to unleash its full arsenal to commit genocide. “It’s quite plausible that the state uses some of its firepower and nevertheless is carrying out the attacks in the context of the destruction of the target group,” Verdeja said.

All of this suggests that Israel’s operations in Gaza are “definitely going in the direction” of genocide, Verdeja said.

How should we describe what’s happening in Gaza?

Ultimately, experts said, the debate over whether what we’re seeing in Gaza is or isn’t genocide risks overshadowing the gravity of the harms that are being committed.

There are other terms that might end up being more appropriate, after independent bodies conduct third-party investigations and scholars evaluate the conditions. In the legal arena, a group of independent UN experts says Israel’s siege and bombardment constitute collective punishment — the harming of a person or group of people based on the actions of another member of their group — which is a war crime prohibited under the Geneva Conventions. Some experts also warn that Israel’s campaign against Hamas might become an “ethnic cleansing” of Palestinians in Gaza writ large. That term carries no legal weight, but it is used by scholars to describe operations aimed at making a geographic area ethnically homogeneous, often through tactics that can constitute war crimes, like indiscriminate killings or forced displacement.

“Debates about whether Israel’s actions constitute genocide or ethnic cleansing are an unhelpful distraction from the fact that we are witnessing a situation of mass atrocity involving what appear to be egregious violations of international law, and that states need to press upon Israel to adopt a radically different approach in responding to the threat posed by Hamas,” Becker said.

The term “genocide” grabs the world’s attention. But the devastation in Gaza should command attention just as much even if “war crimes” or “crimes against humanity” turn out to be better descriptors from a legal point of view. “These terms also speak to horrible atrocities and should be taken no less seriously,” Becker said.

“It’s important to remember that there is no hierarchy among crimes under international law,” Amnesty International said in a statement. “As stated in the preamble of the Rome Statute of the International Criminal Court; genocide, crimes against humanity and war crimes all are ‘the most serious crimes of concern to the international community as a whole [and] must not go unpunished.’”

Verdeja put it even more simply. “The international community has responsibility already,” he said. “Whether it’s genocide or not I think is a little bit beside the point.”