South Africa has asked the International Court of Justice to rule that Israel is guilty of “genocidal acts” in Gaza. The architects of the Genocide Convention intended it to be used to stop the mass killing of civilians before it is too late.
US president Joe Biden (L) and Israeli prime minister Benjamin Netanyahu (C) meet in Tel Aviv, Israel, on October 18, 2023. Israeli defense minister Yoav Gallant (R) also attended the meeting. (Israeli Ministry of Defense / Handout / Anadolu via Getty Images)
Earlier this month, the Biden administration joined governments around the world in marking the seventy-fifth anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on December 9, 1948. At the very same time, US government officials were trying to fend off a legal action accusing them of complicity with Israel’s “unfolding genocide” of Palestinians in the Gaza Strip. Now the South African government has filed a case with the International Court of Justice, invoking the Genocide Convention and accusing Israel of “genocidal acts.”
Some commentators have contemptuously dismissed the idea that Israel’s war on Gaza should be considered genocidal as an absurdity. But academic experts have presented the question in a very different light and insisted on the need for urgent, morally serious debate.
The dismissive attitude to the charge of genocide betrays two forms of ignorance. The first concerns the definition of genocide in the convention itself. Although that definition was greatly influenced by the crimes of Nazism, its understanding of genocide also applies to a wider set of cases.
The second form of ignorance concerns the deliberately murderous nature of the Israeli onslaught on the people of Gaza, and the overtly genocidal rhetoric that government officials have used to justify it.
Defining Genocide
The moving spirit behind the Genocide Convention was Raphael Lemkin, a Holocaust survivor who lost forty-nine members of his family in the Nazi genocide. He coined the term, drafted the convention, and campaigned for its adoption.
Raphael Lemkin’s unpublished manuscripts reveal that he saw colonialism as an integral part of a world history of genocide.
However, Lemkin’s preoccupation with the intentional destruction of a group of people predated the Holocaust. He studied the 1915 mass killing of Armenians by the Ottomans as a young student, and he was outraged by the fact that the killing of one person — murder — was a punishable crime, whereas the killing of tens of thousands by a state went unpunished.
By the 1920s, Lemkin was formulating the concepts and laws that were articulated in his best-known book, Axis Rule in Occupied Europe (1944). His unpublished manuscripts reveal that he saw colonialism as an integral part of a world history of genocide.
Those manuscripts covered an extremely wide range of cases where European colonial powers were responsible for mass killing, from the Spanish conquest of the Americas in the sixteenth century and the slaughter of indigenous peoples in Australia and New Zealand to the German massacre of the Hereros in Namibia a few decades earlier. He also regarded “the destruction of the Ukrainian nation” as “the classic example of Soviet genocide,” and referred in passing to the “annihilation” of other ethnic groups, including the Crimean Tatars.
Thus, despite Lemkin’s personal experience of the Holocaust and the unspeakable cruelty it entailed, it was not the only case of genocide in his mind when he formulated the Genocide Convention. The common element in all cases was the assumption of racial superiority on the part of the perpetrators and their dehumanization of the victims.
However, the aims of the perpetrators might be different — from grabbing the land of the victims to enforcing their understanding of “racial purity” — and the methods varied widely. This broad focus is reflected in the text of the Convention on the Prevention and Punishment of the Crime of Genocide. Its first three articles read as follows:
Article I
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
Article II
In the present Convention, 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:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article III
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
It is notable that under the convention, genocide can still take place even if the intent is to destroy a group only in part; and that any of the acts described in Article II define it as genocide.
Under the convention, genocide can still take place even if the intent is to destroy a group only in part.
The following actions all count as acts of genocide if they are committed with genocidal intent: raids, arbitrary arrests, and incarceration; home demolitions and expulsions causing serious bodily and mental harm; deprivation of food, fuel, shelter and means of livelihood in ghettos or camps; causing injuries or diseases while depriving victims of medical care; forcible sterilization, mass rape, or the separation of men from women; and transferring children from the victim group to that of the perpetrators.
Evidence for “intent” has to be provided by the words or actions of the perpetrators. The perpetrators can be either state or nonstate parties.
Breakthrough
The convention was a breakthrough in many ways. Prior to its adoption, the only international laws covering similar crimes were embodied in International Humanitarian Law, applicable only in times of war, whereas the Genocide Convention is applicable in times of peace as well as war and belongs to the category of international criminal law.
States have an obligation to prevent genocide, not merely to punish it after it has occurred. It brings two new concepts into play: what is now called “command responsibility,” the culpability not only of the perpetrators of the crime but also of those who have authority over them; and universal jurisdiction, the possibility of apprehending and trying perpetrators in any country, not just their own country or the country in which the crime was committed. Both of these concepts are incorporated in the Rome Statute of the International Criminal Court.
States have an obligation to prevent genocide, not merely to punish it after it has occurred.
Lemkin’s tireless campaign for the convention was unpopular among the most powerful states. Britain, France, Belgium, Canada, the United States, and the Soviet Union all worked to undermine a rigorous and enforceable law against genocide, fearing that it might be used against them. It was a coalition of smaller states, many of them former colonies, that ensured it was adopted.
Delegates from Pakistan and Egypt observed that the carnage that accompanied the partition of India and the Nakba in Palestine constituted genocide according to the text they were debating, while the Indian representatives supported it as a Gandhian law. Lemkin also garnered support from prominent authors, public intellectuals, and diplomats, as well as anti-colonial movements and women’s groups. This attempt by the big powers to dilute the Genocide Convention and restrict its use has continued to this day.
Statements of Intent
Less than a week after the Hamas attack on Israel and the start of the Israeli bombing of Gaza on October 7, 2023, genocide and Holocaust scholar Raz Segal published an article titled “A Textbook Case of Genocide.” He pointed out that the first three of the five acts, any of which constitute genocide, were being carried out in Gaza.
Segal observed that in contrast with many other cases, Israeli leaders had made their intent to destroy Palestinians as such perfectly explicit. He cited as evidence Israeli defense minister Yoav Gallant’s declaration:
We are imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals, and we will act accordingly.
There are numerous other examples of such statements being made by Israeli government officials. During the first week of the war on Gaza, the Israeli president Isaac Herzog attributed collective guilt to the Palestinian people for the actions of Hamas: “It’s an entire nation out there that is responsible. It’s not true, this rhetoric about civilians [being] not aware, not involved.”
Galit Distel-Atbaryan, a Knesset member from the ruling Likud party, urged the government to “erase Gaza from the face of the Earth.” She continued:
Let the Gazan monsters rush to the southern border and flee into Egypt, or die. And let them die badly. Gaza should be wiped off the map, and fire and brimstone on the heads of the Nazis in Judea and Samaria. Jewish wrath to shake the earth around the world. We need a cruel, vengeful IDF here. Anything less is immoral.
The Likud prime minister Benjamin Netanyahu invoked a notorious passage from scripture: “You must remember what Amalek has done to you, says our Holy Bible. And we do remember.” The passage in question includes the following injunction:
Now go, attack the Amalekites and totally destroy all that belongs to them. Do not spare them; put to death men and women, children and infants, cattle and sheep, camels and donkeys.
Ezra Yachin, a veteran of the 1948 war who took part in the notorious Deir Yassin massacre, was enlisted to deliver the following message for Israeli soldiers:
Be triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live.
Major General Giora Eiland, the former head of Israel’s National Security Council, presented the spread of disease in Gaza as a weapon of war in an article for the newspaper Yedioth Ahronoth:
The international community is warning us against a severe humanitarian disaster and severe epidemics. We must not shy away from this. After all, severe epidemics in the south of Gaza will bring victory closer.
Eiland went on to dismiss the idea of sparing Palestinian civilians: “Who are the ‘poor’ women of Gaza? They are all the mothers, sisters, or wives of Hamas murderers.” Netanyahu’s coalition partner, the finance minister Bezalel Smotrich, shared Eiland’s column on his Twitter/X account and said that he “agrees with every word.”
Convenient Fictions
These statements, combined with the mass murder of Palestinians, almost half of them children, reveal that the supposed goals of rooting out Hamas and rescuing hostages are convenient fictions to mislead gullible Israelis and the international community.
The supposed goals of rooting out Hamas and rescuing hostages are convenient fictions to mislead gullible Israelis and the international community.
Virtually no progress has been made on annihilating Hamas, as the rising death toll of Israeli soldiers shows; it is Palestinian civilians who are being annihilated. Eiland, the man who welcomed the prospect of “severe epidemics” in Gaza, told the New York Times that there was no prospect of an Israeli victory over Hamas on the battlefield after nearly three months of war: “I cannot see any signs of collapse of the military abilities of Hamas nor in their political strength to continue to lead Gaza.”
The fact that only one hostage was rescued by military action while at least three were killed by Israeli forces, as well as plans to use sea water to flood tunnels where hostages are being kept, demonstrates a willingness on the part of Netanyahu’s government to kill hostages along with Palestinians and make the strip uninhabitable.
The testimony of international law expert William Schabas and historians John Cox, Victoria Sanford, and Barry Trachtenberg in the cases of complicity in genocide against Joe Biden, Anthony Blinken, and Lloyd Austin summarize evidence that could equally well be used to prosecute the Israeli political and military leadership for genocide in the International Criminal Court.
Israeli government officials are publicly lobbying for the mass expulsion of Palestinians from Gaza under the guise of “voluntary migration” — as if there could be any question of making a “voluntary” choice to leave when faced with the prospect of famine, disease, and relentless bombardment.
Historical examples of other genocides show that forced displacement has regularly escalated to systematic mass murder and genocide. Genuinely working to prevent and punish genocide involves combating all racist definitions of identity and ensuring that perpetrators are prosecuted and forced to pay reparations to survivors.