Is Israel Committing "Genocide" in Gaza?

Parsing the significance of a politically-charged term

The International Court of Justice is currently hearing a case brought by South Africa against Israel that its actions in the Gaza Strip over the past several months constitute a genocide against the Palestinian people. The term “genocide” has been regrettably politicized in recent years. In popular discourse, it is regularly invoked in any case of armed conflict or killing, usually just to raise alarm and awareness about the subject. I dislike both hyperbole and inaccuracy on principle so usually do not endorse such statements. That said, the term actually does have a discrete legal meaning separate from the manner in which it may be tossed around by random politicians and social media users, and that is also relevant to present events in Gaza. The legal definition of genocide has its origins in the personal efforts of a Polish-Jewish lawyer named Raphael Lemkin responding to the horrors of World War II-era mass killings in Europe, particularly the destruction of European Jewry. His efforts were famously written about in a now-ironic book by Samatha Power, and are enshrined in an internationally recognized U.N. Genocide Convention of which most states around the world, including Israel, are today signatories.

The text of the convention is available online for anyone to read themselves. I won’t restate it all here but will highlight something important for present purposes. In popular understanding, genocide is often perceived as an attempt to kill every single member of a particular group. But that is not how the term is defined in the convention, nor how the ICJ or other international legal bodies interpret it. Among other criteria, the convention legally defines genocide as, “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” In light of current events in the Gaza Strip, where the physical infrastructure of the territory has been destroyed beyond the point of likely habitation in future and roughly 3 percent of the total population has been killed or injured, it is reasonable to consider if this criteria is being met.

There is no doubt Palestinian civilians are suffering horribly at the moment. But the hardest thing in proving an accusation of genocide is not pointing to visible human rights abuses, which are plentiful in the world. The real difficulty is proving the motive and intent behind these acts. Incriminating statements are usually only discoverable in private archives of government communications, often only made available years later or after the collapse of a particular regime. What is remarkable in Israel’s case is that these “genocidal” statements were all telegraphed publicly by senior Israeli political and military officials before and during the commencement their military campaign in Gaza. It is these statements, about “human animals,” “Amalek,” and “no uninvolved civilians,” that are all readily viewable on video shared and compiled on social media platforms, and which now form the basis of South Africa’s case at the ICJ. Israel simply left little to no ambiguity about whether the suffering now taking place in Gaza was intentional or not.

It is difficult to understand why Israeli officials would make highly incriminating public statements right before taking part in these acts. I can only assume that it was borne out of rage following Hamas’ cruel attacks on Israeli civilians on October 7th, mixed with a sense of official arrogance. Individuals react with emotion and that is understandable, but states have extensive legal teams specifically to make sure that they act in a way that prevents their officials from getting into the kind of trouble that winds up with videos of their statements being played at an ICJ genocide trial. Israeli officials, including, experienced, politically mainstream figures, failed this basic task of statesmanship. The more extremist and less professional members of the government like Bezalel Smotrich and Itamar Ben Gvir (and many less conspicuous members of the Knesset) are actually continuing to make genocidal statements up to the present.

I spoke with former UN Human Rights official Craig Mokhiber who told me much the same about this case:

“The hardest thing is providing intent. Normally you have to dig through dusty government archives to find secret communications saying that there was intent to destroy a particular group. In this case, which is the rarest thing, you have Israeli leaders publicly on the record declaring genocidal intent over and over gain. This is not just crazies on the fringe: It is the prime minister, senior ministers, senior military commanders, soldiers themselves, openly declaring genocidal intent and then carrying out the acts they were threatening to carry out, which are in violation of the Genocide Convention.”

Added Mokhiber:

“There is a lot at stake here. If you were to see a failure on the part of the court, where you have such a clear, compelling, and well-documented presentation of a case for genocide – a stronger case for genocide than we have seen before the court ever – the credibility of international law will be in tatters. The entire world is watching this case.”

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Many Israelis, or supporters of Israel, including some people whose opinions I respect and take seriously, have responded to the ICJ case by saying that the court is unfairly singling Israel out amid a world of unaddressed war crimes. Others have pointed out that the current conflict was triggered by a Hamas massacre on October 7th that targeted Israeli civilians that likewise might be deemed “genocide” under legal scrutiny. I think these are points worth engaging with, so I did want to comment on them.

It is true that Israel does receive more scrutiny than, say, Sudan or Ethiopia, in international fora. But unlike those states it also benefits from inclusion in the Western-led international system and all the legal, political, and economic benefits that affords. Accordingly it is being held to a standard that one does not hold Syria, which is rightly treated as a pariah of that same system. Likewise, Hamas leaders have many years of genocidal statements on the public record in their public speeches and communications. But these statements and their conduct are exactly why Hamas is considered verboten around the world, and association with officials of the group itself is legally dangerous in many places.

Through its statements and actions Israel is placing itself on the same footing as states and groups that are considered radioactive by the international system. Even worse, this was done for no conceivable strategic or political purpose. It is not a case of singling out but holding Israel to the same standards according to which it enjoys many benefits of the Western-bloc of countries. Israel could theoretically join BRICS or the Arab League where it could get away with different behavior, just as David Ben Gurion attempted to attend the Bandung anti-colonial conference. But these states would demand creation of a Palestinian state at minimum for entry, which Israeli leaders are unwilling to countenance. As such, they are trapped between two worlds.

An ICJ ruling against Israel would have real consequences. Genocide is a crime with universal jurisdiction, so you would likely see criminal cases opened around the world in domestic courts against implicated Israeli officials. This would make traveling too risky for many of them, just as Vladimir Putin has stopped traveling since his indictment by the International Criminal Court. While the U.S. would veto any measures against Israel at the UN Security Council, the General Assembly would likely pass resolutions against Israel following an ICJ ruling of genocide that could mean likely severing consular ties, non-recognition of Israeli passports, expulsion of Israel from international forums, among other measures. As such, I expect Israel and the U.S. to fight hard against the court having such a ruling, including by putting political pressure on individual judges.

Accusations of genocide on social media are one thing, but international lawyers and judges do not level such charges where they believe the legal criteria does not exist. Israel was always going to be scrutinized for its actions in Gaza, which is one of the world’s political flashpoints. What is surprising is not that they responded to October 7th in a brutal manner that caused mass civilian suffering, but that senior Israeli officials would do so much to publicly implicate themselves in these crimes, whose gravity only seems to be dawning on them now, as their initial rage begins to subside.