The Definition and Prohibition of Genocide:
Genocide, often viewed as the most severe form of crimes against humanity, is a term that became commonplace following the atrocities perpetrated by the Nazi regime, in what is known as the Holocaust, and more recently by the Hutu militias in the Tutsi genocide in Rwanda in 1994.
The Convention on The Prevention and Punishment of the Crime of Genocide (the “Genocide Convention” was signed in 1948, and the prohibition is widely considered a customary norm of international law, and as such it applies on both international and non-international armed conflicts. Article 2 of the “Genocide Convention” defines the act of “Genocide” as an intent to “destroy, in whole or in part, a national, ethnical, racial or religious group” by:
- Killing members of the group;
- Causing serious bodily or mental harm;
- Deliberately inflicting on the group condition to bring about its physical destruction;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
Article 3 of The Convention defines acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, an attempt to commit genocide, and complicity to commit genocide as crimes. It is important to note that the Rome Statute of 1998 adopts the Genocide Convention’s definitions.
Hamas Actions on October 7th, 2023:
On the day of October 7th Hamas and the Palestinian Islamic Jihad launched an indiscriminate attack on the Israeli population with a clear intention to abolish the Jewish population and eliminate Israel. As part of Hamas’ attack, terrorists and other of Gaza residents killed, mutilated, and kidnapped Jewish and Israeli people as such. The actions against Israel on October 7th are a textbook violation of the Genocide Convention and are punishable under the convention and norms of international law.
Israel’s Actions following October 7th, 2023:
After the act of genocide that was committed against Israel and its civilian population, Israel declared war against Hamas and the PIJ. Soon after, the media started covering vague or blanket statements made by some Israeli politicians as expressing the intent to commit Genocide on the Residents of Gaza. Such statements neither constitute an intention to commit genocide nor do they indicate that the IDF followed suit. As a matter of fact, there are no signs that the IDF received such instructions; on the contrary, Israel’s Prime Minister and its War Cabinet members express their commitment to International law again and again. Moreover, de facto, the IDF actions are in accordance with the Law of Armed Conflict, and many time even exceeds its obligations. It is important to note that the IDF has legal advisors who review and approve the means, methods, and targets before each strike to comply with the laws of armed conflict (LOAC).
Additionally, effective warnings of civilians prior to targeting an area that results in the displacement or the dispersing of a civilian population also does not qualify as Genocide.
Bombardments and targeting that comply with LOAC, even if they affect the whole population of the territory, far more extensively and deeply than the action of Hamas or the asymmetrical warfare, including the number of casualties, have no significance when analyzing an alleged genocide under the Genocide Convention.
A recent example of bombardments that left entire cities in rubbles is the Russian invasion of Ukraine, including the mass killing of civilians in the town of Bucha and the deadly bombardment of Mariupol – these bombardments targeted civilians only, whereas the IDF is only targeted legitimate military targets, regardless of unfortunate civilian casualties.
An unsubstantial invoking of the word “Genocide” is dangerous because, without sufficient legal backing, it is an emotional outcry that ignores LOAC.
In recent days, we’ve seen academics and diplomats making unfounded claims that Israel has shown an “intent” and took actions to “bring about the destruction of the group as a whole or in part as part of the policy a closure and a siege of Gaza. However, a maritime blockage as part of an armed conflict has been recognized as permissible under LOAC, and therefore would not inherently be considered a proof of intent.
LOAC is a complicated body of law intended to protect civilian population during an armed conflict. Emotions are running high during armed conflicts and footages are heartbreaking. We must either understand the complexities of the legal theories before making any claims and demand that all parties comply with LOAC.
1 https://www.washingtonpost.com/world/2023/11/07/genocide-israel-gaza-palestine/
