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.[1] 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”.[2]
Some commentators have contemptuously dismissed the idea that Israel’s war on Gaza should be considered genocidal as an absurdity.[3] But academic experts have presented the question in a very different light and insisted on the need for urgent, morally serious debate.[4]
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,[5] and the overtly genocidal rhetoric that government officials have used to justify it.[6]
Defining genocide
The moving spirit behind the Genocide Convention was Raphael Lemkin, a Holocaust survivor who lost 49 members of his family in the Nazi genocide. He coined the term, drafted the convention, and campaigned for its adoption. 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 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.[7]
By the 1920s, Lemkin was formulating the concepts and laws that were articulated in his best-known book, Axis Rule in Occupied Europe (1944).[8] His unpublished manuscripts reveal that he regarded colonialism as an integral part of a world history of genocide.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 16th century and the slaughter of indigenous peoples in Australia, New Zealand and North America to the German massacre of the Hereros in Namibia in the early 20th century.[9] 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.[10]
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 ‘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.[11]
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. 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 separating 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. Perpetrators can be state or non-state parties.
Breakthrough
The convention was a breakthrough in many ways. Prior to it, the only international laws covering similar crimes were embodied in International Humanitarian Law, applicable only in times of war,[12] 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.[13] Both of these concepts are incorporated in the Rome Statute of the International Criminal Court.
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 worked to undermine a rigorous and enforceable law against genocide, fearing 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 which accompanied the partition of India and the Nakba in Palestine constituted genocide according to the law they were debating, while the Indian delegates 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.[14] 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 terrorist 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 entitled ‘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, Jewish leaders had made their intent to destroy Palestinians as such perfectly explicit. He cited as evidence Israeli Defence 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.[15]
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 not aware, not involved.[16]
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.[17]
The Likud prime minister Benjamin Netanyahu invoked a genocidal 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.[18]
Ezra Yachin, a veteran of the 1948 war who took part in the notorious Deir Yassin massacre, was enlisted to deliver the following message to 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.[19]
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 the 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.’[20]
Convenient fictions
These statements, combined with the mass murder of Palestinians, almost half of them children,[21] reveal that the supposed goals of rooting out Hamas and rescuing the 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;[22] 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.” [23] The fact that only one hostage was rescued by military action while at least three were killed by Israeli forces,[24] as well as plans to use sea water to flood tunnels where hostages are being kept,[25] 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[26] 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. As these eminent historians testify, other historical examples ‘demonstrate that forced displacement has regularly escalated to systematic mass murder and genocide.’[27] The Zionist agenda has always been the ethnic cleansing of Palestinians from the whole of Palestine, and Israeli government officials are publicly lobbying for the mass expulsion of Palestinians from Gaza under the guise of ‘voluntary migration’[28] – as if there could be any question of a ‘voluntary’ choice to leave when faced with the prospect of famine,[29] disease,[30] and relentless bombardment.
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.
(This article was published in Jacobin on 30 December 2023 and is available at https://jacobin.com/2023/12/biden-administration-israel-gaza-war-ethnic-cleansing-genocide-convention )
[1] Center for Constitutional Rights, ‘Palestinians sue
Biden for failure to prevent genocide, seek Emergency Order to stop military
and diplomatic support for Israeli government’s assault on Gaza,’ 13 November
2023. https://ccrjustice.org/home/press-center/press-releases/palestinians-sue-biden-failure-prevent-genocide-seek-emergency ; Center for Constitutional Rights, ‘Biden tries to
evade legal responsibility for Failure to Prevent – and Complicity in –
Israel’s genocide in Gaza,’ 9 December 2023. https://ccrjustice.org/home/press-center/press-releases/biden-tries-evade-legal-responsibility-failure-prevent-and
[2] Middle East Eye, ‘War on Gaza: South Africa files genocide case against Israel at International Court of Justice,’ 29 December 2023. https://www.middleeasteye.net/news/war-gaza-south-africa-launches-international-court-justice-case-accusing-israel-genocide
[3] Howard Jacobson, ‘Charging Jews with genocide is to declare them guilty of precisely what was done to them,’ The Guardian, 3 December 2023. https://www.theguardian.com/commentisfree/2023/dec/03/charging-jews-with-genocide-declare-them-guilty-precisely-what-was-done-to-them-middle-east
[4] Adam Tooze, Samuel
Moyn, Amia Srinivasan and others, ‘The principle of human dignity must apply to
all people,’ The Guardian, 22 November 2023. https://www.theguardian.com/world/2023/nov/22/the-principle-of-human-dignity-must-apply-to-all-people ; Jacob
Mikanowski, ‘A historian of genocide sounds the alarm: How Omer Bartov thinks
about the Israel-Hamas conflict,’ The Chronicle of Higher Education, 18
December 2023. https://www.chronicle.com/article/a-historian-of-genocide-sounds-the-alarm
[5] Yuval Abraham, ‘“A mass assassination factory”: Inside Israel’s calculated bombing of Gaza,’ +972 Magazine, 30 November 2023. https://www.972mag.com/mass-assassination-factory-israel-calculated-bombing-gaza/
[6] Chris McGreal,
‘The language being used to describe Palestinians is genocidal,’ The
Guardian, 16 October 2023. https://www.theguardian.com/commentisfree/2023/oct/16/the-language-being-used-to-describe-palestinians-is-genocidal
[7] Center for Jewish History, ‘Raphael Lemkin and the Quest to End Genocide.’ https://artsandculture.google.com/story/raphael-lemkin-and-the-quest-to-end-genocide-center-for-jewish-history/KgWBQNOMBB8A8A?hl=en
[8] Raphael Lemkin, Axis Rule in Occupied Europe. Laws of Occupation, Analysis of Government, Proposals for Redress (New Jersey: Lawbook Exchange) 2008.
[9] Michael A. McDonnell and Dirk Moses, ‘Raphael Lemkin as historian of genocide in the Americas,’ Journal of Genocide Research 7(4), 2005, pp.501–529.
[10] Raphael Lemkin, ‘Soviet Genocide in the Ukraine,’ 1953. https://43f70ce0-6f30-48c5-af8a-b85f37910e81.filesusr.com/ugd/24deff_09cae19509e44ebf82004129a25213d2.pdf
[11] United Nations, ‘Convention on the Prevention and
Punishment of the Crime of Genocide.’ Approved and proposed for signature and
ratification or accession by General Assembly resolution 260 A (III) of 9
December 1948. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf
[12] International Committee of the Red Cross, ‘What is International Humanitarian Law?’ https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf
[13] Raphael Lemkin, ‘Genocide – A Modern Crime,’ Prevent Genocide International, 1945. http://www.preventgenocide.org/lemkin/freeworld1945.htm
[14] Douglas Irvin-Erickson, ‘The Life and Works of Raphael Lemkin: A Political History of Genocide in Theory and Law,’ (PhD dissertation submitted to the Graduate School Newark Rutgers, 2014.) https://rucore.libraries.rutgers.edu/rutgers-lib/45631/PDF/1/play
[15] Raz Segal, ‘A textbook case of genocide,’ Jewish Currents, 13 October 2023. https://jewishcurrents.org/a-textbook-case-of-genocide
[16] Rageh Omaar, ‘Israeli president Isaac Herzog says Gazans could have risen up to fight “evil” Hamas,’ itv News, 13 October 2023. https://www.itv.com/news/2023-10-13/israeli-president-says-gazans-could-have-risen-up-to-fight-hamas
[17] Iris Leal, ‘Israel’s gov’t tender souls who call for an ethnic cleansing of Gaza,’ Haaretz, 5 November 2023. https://www.haaretz.com/opinion/2023-11-05/ty-article-opinion/.premium/israels-govt-tender-souls-who-call-for-an-ethnic-cleansing-in-gaza/0000018b-9c0e-db71-a7df-fdcfbde20000
[18] Noah Lanard, ‘The dangerous history behind Netanyahu’s Amalek rhetoric,’ Mother Jones, 3 November 2023. https://www.motherjones.com/politics/2023/11/benjamin-netanyahu-amalek-israel-palestine-gaza-saul-samuel-old-testament/
[19] Rayhan Uddin, ‘Israel-Palestine war: Israeli veteran, 95, rallies troops to “erase” Palestinian children,’ Middle East Eye, 14 October 2023. https://www.middleeasteye.net/news/israel-palestine-war-veteran-ezra-yachin-soldiers-erase-children
[20] The New Arab, ‘Retired Israeli general says spread of disease in Gaza “will bring victory closer”’, 21 November 2023. https://www.newarab.com/news/israeli-general-praises-spread-disease-gaza
[21] Branko Marcetic, ‘Israel’s assault on Gaza is unlike any war in recent memory,’ Jacobin, 19 December 2023. https://jacobin.com/2023/12/israel-defense-forces-gaza-palestine-civilian-death-casualties-women-children-journalists-war
[22] Wafaa Shurafa, Jack Jeffery and Melanie Lidman, ‘9 Israeli soldiers killed in Gaza City ambush in sign that Hamas resistance is still strong,’ Associated Press, 14 December 2023. https://apnews.com/article/israel-hamas-war-news-12-13-2023-10a0370b7b320d73def6b6a2a137f16a
[23] Neil MacFarquhar, ‘Skepticism grows over Israel’s ability to dismantle Hamas,’ New York Times, 27 December 2023 https://www.nytimes.com/2023/12/27/world/middleeast/israel-hamas-war-military.html
[24] Frank Gardner, ‘Israel Gaza: The perils of hostage rescue,’ BBC News, 17 December 2023. https://www.bbc.com/news/world-middle-east-67740329
[25] Joshua Zitser, ‘Israel may try to drive Hamas out of its tunnels in Gaza by pumping them full of seawater: WSJ,’ Business Insider, 5 December 2023. https://www.businessinsider.com/israel-plans-flood-hamas-tunnels-in-gaza-seawater-wsj-2023-12?IR=T
[26] ‘Declaration of William A. Schabas in Support of Plaintiffs’ Motion for Preliminary Injunction,’ Center for Constitutional Rights. https://ccrjustice.org/sites/default/files/attach/2023/11/Schabas%20Declaration_w.pdf
[27] ‘Declaration of Dr. John Cox, Dr. Victoria Sanford and Dr. Barry Trachtenberg in Support of Plaintiffs’ Motion for Preliminary Injunction,’ Center for Constitutional Rights. https://ccrjustice.org/sites/default/files/attach/2023/11/Historians%20Declaration_w.pdf
[28] Haaretz, ‘Israeli MK: Countries in South America, Africa offered to accept refugees from Gaza, in exchange for payment,’ 26 December 2023. https://www.haaretz.com/israel-news/2023-12-26/ty-article/israeli-mk-israel-has-received-inquiries-from-countries-to-accept-refugees-from-gaza/0000018c-a50e-d408-a99f-ed5ec4f00000
[29] Al Jazeera, ‘UN agency says 40 percent of Gaza’s population “at risk of famine”’, 28 December 2023. https://www.aljazeera.com/news/2023/12/28/un-agency-says-40-percent-of-gazas-population-at-risk-of-famine
[30] Bassam Masoud and Saleh Salem, ‘Gaza faces “perfect storm” of deadly diseases,’ Reuters, 14 December 2023. https://www.reuters.com/world/middle-east/gaza-faces-perfect-storm-deadly-diseases-2023-12-14/