As Israel And Hamas Pause Gaza Fighting, Legal Scholars Grapple With Question Of Genocide – Analysis

By Alex Whiteman

Since Oct. 7, Israel’s war with Hamas in the Gaza Strip has brought the inconsistencies of international law into sharp focus, with allegations of double standards and the contention of a two-tier system in global politics.

Central in this dispute is the claim that Israel’s seven-week bombardment of the Palestinian enclave, together with the crude comments made by several members of its governing establishment, form the basis of the world’s latest genocide.

During this period, more women and children have been reported killed in Gaza than the roughly 7,700 civilians documented as killed by US forces and their international allies in the entire first year of the 2003 Iraq invasion, according to Iraq Body Count, an independent British research group.

And in the battle to retake Mosul (2016-2017) from Daesh by Iraqi government forces with allied militias, an estimated total of 9,000 to 11,000 civilians died over a nine-month period, according to an Associated Press estimate.

Efforts to hold Israel guilty of genocide predate the latest conflagration. The National Lawyers Guild in 2014, the Russell Tribunal on Palestine also in 2014 and the Center for Constitutional Rights in 2016 described the siege of Gaza as a “slow-motion genocide.”

With the latest Israeli onslaught, a collective of over 800 international legal scholars have claimed that together with the pre-existing conditions there is even more evidence of genocide at play.

“Israel’s current military offensive on the Gaza Strip since Oct. 7, 2023, is unprecedented in scale and severity, and consequently in its ramifications for the population of Gaza,” stated the letter “Public Statement: Scholars Warn of Potential Genocide” posted on Twail Review.

To prove intent, the letter cited comments made on Oct. 10 by two high-ranking officers within the Israeli military sector.

Addressing Gaza residents, Maj. Gen. Ghassan Alian, the Israeli army coordinator of government activities in the territories, said: “Human animals must be treated as such. There will be no electricity, no water, only destruction. You wanted hell, you will get hell.”

On the same day, Daniel Hagari, the spokesperson for the Israeli army, stated that “the emphasis is on damage and not on accuracy.”

Some also point to Israeli Prime Minister Benjamin Netanyahu’s statements that Israelis were united in their fight against Hamas, likening the group to an ancient tribe, the Amalek, which the Book of Samuel tells the Israelites to “attack … and totally destroy all that belongs to them.”

The list of public statements has only grown in the interim, with claims that the deputy speaker of the Israeli parliament called for the burning of Gaza on Nov. 17.

In a since-deleted tweet captured by other users of X, Nissim Vaturi, a far-right Likud Party member, said: “All of this preoccupation with whether or not there is internet in Gaza shows that we have learned nothing. We are too humane. Burn Gaza now no less!”

According to experts in genocide studies and international law, the issue is more nuanced, although this has not stopped a growing chorus joining calls to condemn Israel’s assault as a genocide.

The experts say the verdict is by no means unanimous and stress that the bar is “incredibly high” when it comes to proving genocide.

Ernesto Verdeja, associate professor of peace studies and global politics at the University of Notre Dame, told Arab News that defining what was happening in Gaza as genocide was complicated for a litany of reasons.

“The term is used differently in different contexts, which leads to some confusion and, consequently, deep bitterness and anger when there are disagreements,” he told Arab News.

“In public discourse, genocide is used to signify a great evil committed against civilians. Thus, defenders of Israel accuse Hamas, and sometimes all Palestinians, of genocide, while Palestinians and their defenders accuse Israel of the same crime and call Zionism genocidal.”

But in international law, genocide has a specific meaning and this in turn means it is applied differently to its use in public discourse, according to Verdeja.

This definition, contained in the UN Convention on the Prevention and Punishment of the Crime of Genocide, states genocide is “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Acts include “killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and/or forcibly transferring children of the group to another group.”

Verdeja said key to proving any claim is being able to show that the perpetrators were aiming for the “intentional destruction of a civilian group in whole or part.”

Ben Kiernan, director of the Cambodian Genocide Program, told Time magazine that Israel’s assault on Gaza “however indiscriminate … and despite the numerous civilian casualties” did not meet that “very high threshold” for the legal definition of genocide.

Concurring, David Simon, director of genocide studies at Yale University, said that Israel had been explicit in its desire to exterminate Hamas.

He also told Time that Israel had not been explicit in its intent to “destroy a religious, ethnic or racial group,” adding that while it may be possible to conclude Hamas or the Israel Defense Forces were guilty of acts of genocide, “it’s certainly not textbook.”

Amid the debate, the endeavors for justice are not abating, with three Palestinian human rights organizations attempting to bring Israel before the International Criminal Court.

Al-Haq, Al-Mezan Center for Human Rights and the Palestinian Centre for Human Rights, represented by Emmanuel Daoud, attorney at the Paris Bar and the International Criminal Court, have filed a lawsuit with the ICC under claims of genocide.

The submission notes Israeli airstrikes, the siege, the forced displacement of Gaza’s population, the use of toxic gas, and the denial of necessities, such as food, water, fuel, and electricity.

Perhaps more important than the lawsuit filed, however, were the statements of Daoud, who also obtained an ICC arrest warrant against President Vladimir Putin after filing a lawsuit with the court against Russian leaders for their war crimes against Ukraine.

“Whether war crimes are committed in Ukraine or Palestine, the culprits should be held to account,” said Daoud, adding “there is no place for double standards in international justice.”

Echoing Daoud, M. Muhannad Ayyash, professor of sociology at Mount Royal University, drew stark comparisons between Western reactions to the killing of Israelis and reactions “or lack thereof” to the killing of Palestinians and its response to Russia’s war on Ukraine.

“We need to look at how Western governments have responded to the killing of Israeli civilians versus the killing of Palestinian civilians,” Ayyash wrote in The Conversation, an independent news website that publishes articles written by academics and researchers.

“For the Israeli state and victims, political, military, economic, cultural, and social institutions have fully mobilized to provide support. The same is entirely absent for the Palestinians. For the Palestinians, there are no evacuations.

“Aircraft carriers are not sent to provide military support. Mainstream political and cultural discourse does not humanize Palestinian life and mourn Palestinian death.”

That there is a perceived double standard is perhaps not surprising given that the genocide convention was negotiated and structured by powerful states in a way that many believe provided their leaders, contemporaneously and in the future, protection against charges of genocide.

Verdeja cautions that debate over genocide may be sucking oxygen from the more pressing issues, calling for sharper focus on pushing leaders to protect civilians and hold perpetrators accountable.

“In international law, there is no hierarchy between crimes against humanity, genocide, and war crimes. All are major violations of international law and so just because an actor is not committing genocide does not mean their actions are legal or otherwise justified,” he said.

“Unsurprisingly, it is easier to legally prove crimes against humanity and war crimes over genocide since the former do not require proving strict intentionality.”

Asked where he positioned himself in the debate, Verdeja said it is crucial to note genocide is not an event but rather a process that emerges over time as perpetrators find themselves in a position where their actions are insufficient to achieve their goals.

He is certain that both Hamas and Israel had committed crimes against humanity and war crimes but believes that Hamas, despite its leadership’s rhetoric, lacks the capacity for genocide.

As for Israel, he said it is “quite likely committing genocide.”