Genocide in Gaza?
Decades of genocide research tell us to take warning signs of genocide seriously - even when it is difficult and uncomfortable.
(Photo by Palestinian News & Information Agency (Wafa) in contract with APAimages)
The Genocide Convention was adopted by the UN General Assembly on December 9, 1948, and establishes the obligation for state parties to take measures to prevent and to punish the crime of genocide.
The Convention defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." A population must be attacked because it belongs to a particular group.
Acts can include killing members of the group, or inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
Genocide, war crimes and crimes against humanity can be punished by the International Criminal Court (ICC), but of these crimes, countries can only bring alleged violations of the Genocide Convention to the ICJ.
Can what is happening in Gaza be defined as genocide?
[This post is a translation of an op.ed. published in Aftenposten 12 January 2024]
With Israel being summoned to the ICJ, the debate on the war in Gaza has become a legal issue, this time dealing with the complex term "genocide".
As a legal term, genocide is extremely difficult to apply: genocide research shows that it is almost always impossible to prove the presence of an intent to destroy a population long before a genocide occurs. Moreover, the term itself is contentious. Nonetheless, the debate on genocide extends far beyond Palestinian rights activists. As early as November 10, Israeli Holocaust expert Omer Bartov wrote warning that obvious risk factors for genocide were already present in the war.
A painful and complex term
Use of the term "genocide" to criticize Israel's warfare is particularly sensitive, and can be perceived as painful by Jews living in and outside Israel because as a term, a legal category and a field of research, it arose from the Holocaust. A discussion of genocide can therefore be interpreted as an accusation that Israel is perpetrating a new Holocaust and that Israeli authorities are as bad as the Nazis. But in genocide research, the Holocaust is not the sole determinant of how the phenomenon is understood. A common misconception is that genocide is always preceded by a clear plan for extermination. The case currently before the ICJ and a discussion of the risk factors cannot legitimize allegations that what is happening in Gaza is the same as what happened in the Holocaust or that a comprehensive extermination plan exists.
The Genocide Convention obliges all states to prevent genocide, not just punish the perpetrators through retrospective legal processes. When the Norwegian foreign minister says that the matter must be decided by a competent court, that is correct as far as it goes. But if the obligation to prevent genocide is to have any meaning, one cannot, of course, wait for years of court proceedings, so one must apply established knowledge about risk factors, even if the issue is sensitive, and even if it is difficult to prove that the legal threshold for defining something as genocide has been reached.
Hamas' attack: a crime against humanity
There is no question that the attack on Israel on October 7 and the ongoing hostage-taking are illegal under international law. Hamas and other groups committed multiple war crimes, including the mass murder of civilians, sexual violence, and hostage-taking. It is also reasonable to believe that the scope and brutality of the attack make it a "crime against humanity". Hamas lacks the capacity to pose any real risk of genocide to Israel, but there is a genocidal and antisemitic ideology underlying Hamas' activities that can be discerned in the organization's founding documents and in its threats of new attacks. Of course, Israel must defend itself against Hamas; the criticism of its warfare is directed at the manner in which it is going about it. A discussion of the risk of genocide in Gaza reflects the enormous risk faced by the civilian population due to bomb attacks that disproportionately impact civilians, the number of children being killed or left without family members, internal displacement, and the interruption of emergency aid that is putting a large part of Gaza's population in acute danger.
Warnings of ethnic cleansing and genocide
After the October 7 attack, it did not take long for warnings to come that Israel might commit serious violations of international law. Already on October 16, Israeli human rights lawyer Michael Sfard warned that the trauma from the October 7 attack could be exploited to justify ethnic cleansing, and that the extreme members of the Israeli government have long wanted to continue the forcible expulsion that began in 1948. And the rhetoric of ethnic cleansing has only escalated since then.
In an essay published in the New York Times a month or so into the war, Omer Bartov wrote that while there was no proof of genocide, war crimes and even crimes against humanity were likely taking place in Gaza. Still, he wrote, the risk factors for genocide were clearly present, particularly the displacement of the inhabitants of Gaza, and political statements that had been made could suggest that this was a form of ethnic cleansing. Bartov also pointed to the dehumanizing and extremist rhetoric of Israeli political leaders, including prime minister Netanyahu. History has taught us, Bartov wrote, that genocide often starts with ethnic cleansing. [Update: Bartov has later repeatedly argued that the threshold of genocide has now been crossed. He cites the IDF attack on Rafah on 6 May 2024 as the point where this threshold was crossed. https://www.theguardian.com/world/article/2024/aug/13/israel-gaza-historian-omer-bartov ]
Genocide as a security policy
A radicalized security policy is an additional risk factor for genocide and similar forms of mass violence that does not stem from evil, totalitarian ideology or a racist extermination plan. A comparative study of genocide and mass violence from 2022 showed how extreme forces within a conventional military and political regime can interpret conflicts in a radical light. Such an approach explains why genocide and mass violence can be perceived as political and moral catastrophes from the outside but as necessary and acceptable means of self-defence by the perpetrators. Several statements made by Israeli political and military leaders, many of which are cited in South Africa's case at the ICJ, portray Hamas as an existential threat and blur the line between civilian and military targets. Hamas' brutality is not a factor that mitigates the risk of genocide or mass violence; because the October 7 attack plays right into the radical security ideology and because Hamas' hostage-taking and rocket attacks continue, the risk of the dynamics of the war deteriorating even further increases.
A necessary warning
Since Bartov's warning of November 10, the situation for civilians in Gaza has only grown more dire. Alex DeWaal, a leading international expert in the use of starvation as a political weapon, warns that there is a real risk of mass death from starvation in Gaza and that starvation is being deliberately weaponized. Nonetheless, the ICJ may dismiss South Africa's allegation of genocide. The Genocide Convention was deliberately worded so as not to cover warfare that affects a civilian population in a catastrophic manner unless it can be proven that there is specific intent to destroy a people based on its group affiliation. But starvation of civilians can be a war crime, and shows that certain war crimes can be as serious as genocidal acts.
In its lead editorial on January 3, the Israeli newspaper Haaretz urged that the genocide charge serve as a wake-up call for Israel. Israel, it wrote, was led by an extremist government with members who openly discussed wiping out Gaza and starving the population. We know from research that certain risk factors can drag the parties into an even deeper disaster than the one already unfolding. Many decades of genocide research have shown us that we should take the warning signs seriously, no matter how difficult and uncomfortable that may be.
[Update: This text was published in January 2024. Since, the situation in Gaza has developed from bad to catastrophic, and numerous scholars and human rights agencies now argue that there is ongoing genocide in Gaza, including https://www.un.org/unispal/document/un-special-committee-press-release-19nov24/ and https://www.ohchr.org/en/press-releases/2024/10/un-commission-finds-war-crimes-and-crimes-against-humanity-israeli-attacks .]