Protestor holds up a "Stop Genocide" sign during a demonstration in solidarity with Palestine, held in Warsaw, Poland, on Oct. 29, 2023. (Credit: AFP)
In an address to the Security Council on Oct. 30, Israel’s ambassador to the United Nations wore a yellow star on his chest, vowing to continue wearing the badge until council members condemn Hamas “atrocities.”
“Some of you have learned nothing in the past 80 years,” he said. “Some of you have forgotten why this body was established,” he added as he denounced the Security Council for “staying silent” over Hamas's deadly attack on Oct. 7.
This move was promptly disapproved by the head of Israel’s Yad Vashem Holocaust memorial Dani Dayan, who said it “dishonors both the victims of the Holocaust and the State of Israel.”
A few days earlier, Israeli Prime Minister Benjamin Netanyahu condemned the Hamas attack as “one of the worst crimes committed against the Jewish people since the Holocaust,” adding that in recent years “the threat of a second Holocaust” has resurfaced with a potential Iranian nuclear weapon.
On the Palestinian side, another historical analogy is being drawn between ongoing colonization and a “continuation of the Nakba.”
Both narratives have a similar goal, which is being used by both sides to leverage the moral authority of the term to denounce the other enemy, according to Martin Shaw, a research professor at the Institut Barcelona d’Estudis Internacionals (IBEI).
“The concept of genocide is employed by all parties,” said Johann Soufi, a lawyer and international prosecutor. “It is consistently used, often genuinely, as the subjective perception of the victims and affected communities is that of genocide.”
In recent weeks, the concept of genocide has extended beyond its memorial and political dimensions. The nature of the killings by Hamas on Oct. 7 and the violent Israeli shelling targeting civilians in the Gaza Strip have prompted questions and garnered attention from experts and civil society alike.
Last week, French lawyer Gilles Devers submitted, on behalf of a hundred organizations and 300 colleagues, a file requesting an inquiry into genocide in Gaza to the International Criminal Court (ICC).
A few days earlier, 800 practitioners of international law signed a petition “sounding the alarm about the possibility of a crime of genocide being perpetrated by Israeli forces against Palestinians in the Gaza Strip.”
In a New York Times article on Nov. 10, Omer Bartov, a professor of Holocaust and genocide studies at Brown University, wrote, “As a historian of genocide, I believe that there is no proof that genocide is currently taking place in Gaza, although it is very likely that war crimes, and even crimes against humanity, are happening.”
‘Genocidal massacres’
The debate is raging because beyond its moral and political connotation, the term genocide entails a precise legal codification, albeit one that some experts consider to be lacking in certain respects.
Appearing for the first time in a study published in 1944 by lawyer Raphaël Lemkin to qualify Nazi crimes against the Jewish people, the notion of genocide is enshrined in international law in two founding texts: The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (art. 2) and the Rome Statute (art. 6) founding the ICC in 1998.
Genocide is defined as one or more acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
The acts falling within the scope of this definition include: Murder, physical or mental harm, intentional subjugation resulting in total or partial physical destruction, measures to prevent births, or forcible transfer of children.
“What differentiates genocide from war crimes or crimes against humanity is intention: The fact of committing the crime with genocidal intent,” said Soufi.
For Shaw, “To prove genocide, it must therefore be established that the perpetrator intended to destroy ‘in whole or in part’ the group, ‘its social existence.’”
However, this definition is criticized by some experts as being too restrictive.
“It is not always interpreted as applying to small-scale events,” explained Shaw.
For instance, even if the victims of the Oct. 7 massacres were targeted “because of their Israeli-Jewish identity,” these attacks cannot represent a threat of total destruction, as Hamas is not in a position to inflict such destruction on Israel.
Shaw mentioned “a wave of genocidal massacres,” a more specific notion coined by researcher Leo Kuper in the 1980s.
Conversely, “even though almost 2 million Gazans have been displaced, terrorized, deprived of basic necessities, the death of ‘only’ 11,000 Gazans, or 1% of the population, may appear only ‘accidental’ in the achievement of Israel’s main objectives,” said Shaw.
In an op-ed in New Lines magazine, however, Shaw wrote, “Israel’s expressed determination to ‘totally’ eliminate Hamas also amounts to an intention to partially destroy the conditions of life for Gazans and the very framework of Gazan society — as is already happening. This intentional destruction should be seen as genocidal in itself, but even in terms of the prevailing legal interpretations of the convention, this social destruction undoubtedly includes a genocidal element since it includes the deliberate partial physical destruction of the Gazan population.”
Prevention
“Only an impartial, independent and time-consuming investigation can determine the nature of the crime,” said Soufi.
The ICC is the only international court empowered to investigate crimes of genocide, and can be seized by state parties to the jurisdiction or by member countries of the UN Security Council.
Although Israel is not a member of the institution, in 2021, ICC Prosecutor (at the time) Fatou Bensouda was able to open an investigation into “crimes committed in Palestine” in 2014 — drawing the ire of Netanyahu, who described the move as “the essence of anti-Semitism” and has been renewing his jurisdictional objections ever since.
For Soufi, however, “the ICC has jurisdiction over crimes committed on the territory of a State Party (which is the case of Palestine), or by the nationals of a State Party. Yet the Oct.7 acts were committed by Palestinians.” International arrest warrants can also be issued against Israeli nationals, who can be arrested if they travel to the territory of a State Party, which is obliged to cooperate in such matters.
For Bensouda, “only international justice can offer a form of appeasement, a search for the truth, a denunciation of the facts and contribute to a political solution.”
Pending a decision by international justice, “NGOs or UN experts who use the term genocide are doing their job: They are alerting and warning. The word must be used to prevent genocide from taking place,” she said.
The 1948 Genocide Convention emphasizes prevention, requiring states to act when there are signs of genocidal intent.
For some analysts, Hamas’s charter, which was amended in 2017, provides for genocidal intent against Jews, including the call for the destruction of the “Zionist occupation.”
For his part, Kenneth Roth, former director of Human Rights Watch, considered that Netanyahu's speech at the end of October justifying the deaths of thousands of Palestinians with a biblical quotation evoking Israel's hereditary enemy (“Remember Amalek…”) could also constitute potential evidence of genocidal intent against Gaza.