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If there is a party guilty of genocidal intent and acts in this war, it is Hamas — although, because it is not a state, the terrorist group cannot be brought before the ICJ. Hamas speaks in its founding charter of “the Jews’ usurpation” of the land and “our struggle against the Jews.” It proclaims that “the day of Judgment will not come about until Muslims fight Jews and kill them.”
Hamas is committed to the destruction of Israel and would repeat the atrocities of Oct. 7 if permitted. “Israel is a country that has no place on our land,” senior Hamas official Ghazi Hamid told a Lebanese TV station after the attack. “We must teach Israel a lesson, and we will do this again and again. The Al-Aqsa Flood is just the first time, and there will be a second, a third, a fourth.” Who has genocidal intent here?
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None of this is to defend the entirety of Israel’s actions before or after Oct. 7. I am a proud Jew and Zionist, but I am also no supporter of the Israeli government under Prime Minister Benjamin Netanyahu and his ultra-Orthodox and settler allies. Israel’s relentless expansion of settlements in the West Bank and mistreatment of Palestinians are indefensible and counterproductive.
As to the current war, Hamas is doubly at fault, yet that does not leave Israel blameless. First, Hamas is responsible for the barbaric attack; Israel was amply justified in responding to prevent future slaughter. Second, Hamas is responsible for the terrible scope of civilian casualties, having deliberately embedded itself within the civilian population in Gaza. Keep in mind: None of this — none — would be happening were it not for Hamas.
Still, Israel is left in a terrible predicament as it seeks to hobble, if not destroy, Hamas and recover the hostages, whose seizure and captivity itself constitute a war crime. When attacks can be expected to cause civilian casualties, the law of war requires that they be proportionate to the military objective; there is a duty to take all feasible precautions to minimize harm to noncombatants. Given the ferocity and scope of the attack, Israel has the right and duty to defend itself.
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But it is fair to question, as the Biden administration has, whether the Israeli response has gone too far — whether the collateral damage is disproportionate, given the effective impossibility of eradicating Hamas, and, at the very least, whether Israel is doing itself a disservice in the court of public opinion.
All of this is a far cry, however, from deeming Israel’s actions genocidal. Let’s go to the text of the genocide convention, which requires both acts and intent. The acts include killing members of a “national, ethnical, racial or religious group”; causing them “serious bodily or mental harm”; and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” Those acts must be accompanied by intent: “to destroy, in whole or in part, a national, ethnical, racial or religious group.”
Is that Israel’s aim here? Killing civilians serves the interests of Hamas and undermines those of Israel. Israel has taken extraordinary steps to prevent civilian casualties and otherwise mitigate the suffering of innocents. To argue those have not been enough — or even that Israel’s conduct violated international humanitarian law — is not to conclude that the actions are genocidal. If Hamas magically disappeared tomorrow, if Israel found its safety somehow assured, it would have no interest, none, in causing any harm to the civilian population.
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The court’s opinion conveniently ignores this. You would not know from reading it that Hamas locates its operations within the civilian population, precisely to use civilians as human shields and to maximize casualties. The order focuses instead on a few statements by Israeli officials in the immediate aftermath of Oct. 7 that were inadvisable but fall far short of demonstrating genocidal intent — for example, Defense Minister Yoav Gallant’s statement, “We are fighting human animals.”
The sole dissenter, Justice Julia Sebutinde of Uganda, said South Africa hadn’t come close to proving its case. She noted Israel’s “restricted and targeted attacks of legitimate military targets in Gaza,” its “mitigation of civilian harm by warning them through leaflets, radio messages and telephone calls of impending attacks,” and its “facilitation of humanitarian assistance.”
The problematic Israeli statements, she said, were yanked out of context or misinterpreted, while the “official war policy of the Israeli Government, as presented to the Court, contains no indicators of a genocidal intent.” Somehow, the majority couldn’t manage to say the same.
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The most searing statement of all came from Israel’s representative to the court, Aharon Barak, a former Israeli Supreme Court justice who survived the Holocaust as a boy in Lithuania and emerged to be a champion of human rights in Israel. “Genocide is more than just a word for me; it represents calculated destruction and human behavior at its very worst,” Barak wrote. “It is the gravest possible accusation and is deeply intertwined with my personal life experience.”
Barak, invoking Lemkin, convincingly demonstrated how the court’s approach served to “dilute the concept of genocide” and was at odds with the high standards for proving intent applied in other, far more compelling cases. For example, he noted, the ICJ concluded that, except for the 1995 massacre of Muslims in Srebrenica, “the widespread and serious atrocities committed in Bosnia and Herzegovina were not carried out with the specific intent to destroy, in part, the Bosnian Muslim group.”
In comparison to the “scant evidence” of genocidal intent by Israel relied on here, he noted, the ICJ, investigating Myanmar’s treatment of the Muslim Rohingya, engaged in “meticulous collection of evidence over two years, which included 400 interviews with victims and eyewitnesses, analysis of satellite imagery, photographs and videos, the cross-checking of information against credible secondary information, expert interviews and raw data” before concluding that there was “plausible” proof of intent.
What accounts for the different treatment of Israel? I can’t help but think it is the same one that necessitated the existence of a Jewish state to begin with.
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Somewhere, Raphael Lemkin is weeping.
Lemkin was a Polish Jew who escaped the Holocaust, coined the term “genocide” and campaigned for the United Nations to declare genocide a crime punishable under international law. On the 50th anniversary of the genocide convention in 2001, U.N. Secretary General Kofi Annan called Lemkin “an inspiring example of moral engagement.”
The same cannot be said of Annan’s institution. In a complaint to the International Court of Justice, the United Nations’ main judicial body, South Africa accused Israel of acts that are “genocidal in character” in waging war in Gaza — and, grotesquely, quoted Lemkin in support of its charges. “Israel, its officials and/or agents, have acted with the intent to destroy Palestinians in Gaza,” South Africa claimed.
On Friday, the ICJ issued a preliminary ruling against Israel. It could have been far worse: The order stopped short of instructing Israel to immediately cease military operations in Gaza, as South Africa had sought. But the court found, in the anodyne language of international law, that “at least some of the acts and omissions alleged … to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.”
This is a gross misreading of genocide; indeed, it is a perversion of the term. It would be appalling applied against any state, but it is especially offensive wielded against Israel — a country that was forged in the ashes of the worst genocide in human history, that was one of the early signatories to the genocide convention and that is now responding to the greatest slaughter of Jews since the Holocaust.
If there is a party guilty of genocidal intent and acts in this war, it is Hamas — although, because it is not a state, the terrorist group cannot be brought before the ICJ. Hamas speaks in its founding charter of “the Jews’ usurpation” of the land and “our struggle against the Jews.” It proclaims that “the day of Judgment will not come about until Muslims fight Jews and kill them.”
Hamas is committed to the destruction of Israel and would repeat the atrocities of Oct. 7 if permitted. “Israel is a country that has no place on our land,” senior Hamas official Ghazi Hamid told a Lebanese TV station after the attack. “We must teach Israel a lesson, and we will do this again and again. The Al-Aqsa Flood is just the first time, and there will be a second, a third, a fourth.” Who has genocidal intent here?
None of this is to defend the entirety of Israel’s actions before or after Oct. 7. I am a proud Jew and Zionist, but I am also no supporter of the Israeli government under Prime Minister Benjamin Netanyahu and his ultra-Orthodox and settler allies. Israel’s relentless expansion of settlements in the West Bank and mistreatment of Palestinians are indefensible and counterproductive.
As to the current war, Hamas is doubly at fault, yet that does not leave Israel blameless. First, Hamas is responsible for the barbaric attack; Israel was amply justified in responding to prevent future slaughter. Second, Hamas is responsible for the terrible scope of civilian casualties, having deliberately embedded itself within the civilian population in Gaza. Keep in mind: None of this — none — would be happening were it not for Hamas.
Still, Israel is left in a terrible predicament as it seeks to hobble, if not destroy, Hamas and recover the hostages, whose seizure and captivity itself constitute a war crime. When attacks can be expected to cause civilian casualties, the law of war requires that they be proportionate to the military objective; there is a duty to take all feasible precautions to minimize harm to noncombatants. Given the ferocity and scope of the attack, Israel has the right and duty to defend itself.
But it is fair to question, as the Biden administration has, whether the Israeli response has gone too far — whether the collateral damage is disproportionate, given the effective impossibility of eradicating Hamas, and, at the very least, whether Israel is doing itself a disservice in the court of public opinion.
All of this is a far cry, however, from deeming Israel’s actions genocidal. Let’s go to the text of the genocide convention, which requires both acts and intent. The acts include killing members of a “national, ethnical, racial or religious group”; causing them “serious bodily or mental harm”; and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” Those acts must be accompanied by intent: “to destroy, in whole or in part, a national, ethnical, racial or religious group.”
Is that Israel’s aim here? Killing civilians serves the interests of Hamas and undermines those of Israel. Israel has taken extraordinary steps to prevent civilian casualties and otherwise mitigate the suffering of innocents. To argue those have not been enough — or even that Israel’s conduct violated international humanitarian law — is not to conclude that the actions are genocidal. If Hamas magically disappeared tomorrow, if Israel found its safety somehow assured, it would have no interest, none, in causing any harm to the civilian population.
The court’s opinion conveniently ignores this. You would not know from reading it that Hamas locates its operations within the civilian population, precisely to use civilians as human shields and to maximize casualties. The order focuses instead on a few statements by Israeli officials in the immediate aftermath of Oct. 7 that were inadvisable but fall far short of demonstrating genocidal intent — for example, Defense Minister Yoav Gallant’s statement, “We are fighting human animals.”
The sole dissenter, Justice Julia Sebutinde of Uganda, said South Africa hadn’t come close to proving its case. She noted Israel’s “restricted and targeted attacks of legitimate military targets in Gaza,” its “mitigation of civilian harm by warning them through leaflets, radio messages and telephone calls of impending attacks,” and its “facilitation of humanitarian assistance.”
The problematic Israeli statements, she said, were yanked out of context or misinterpreted, while the “official war policy of the Israeli Government, as presented to the Court, contains no indicators of a genocidal intent.” Somehow, the majority couldn’t manage to say the same.
The most searing statement of all came from Israel’s representative to the court, Aharon Barak, a former Israeli Supreme Court justice who survived the Holocaust as a boy in Lithuania and emerged to be a champion of human rights in Israel. “Genocide is more than just a word for me; it represents calculated destruction and human behavior at its very worst,” Barak wrote. “It is the gravest possible accusation and is deeply intertwined with my personal life experience.”
Barak, invoking Lemkin, convincingly demonstrated how the court’s approach served to “dilute the concept of genocide” and was at odds with the high standards for proving intent applied in other, far more compelling cases. For example, he noted, the ICJ concluded that, except for the 1995 massacre of Muslims in Srebrenica, “the widespread and serious atrocities committed in Bosnia and Herzegovina were not carried out with the specific intent to destroy, in part, the Bosnian Muslim group.”
In comparison to the “scant evidence” of genocidal intent by Israel relied on here, he noted, the ICJ, investigating Myanmar’s treatment of the Muslim Rohingya, engaged in “meticulous collection of evidence over two years, which included 400 interviews with victims and eyewitnesses, analysis of satellite imagery, photographs and videos, the cross-checking of information against credible secondary information, expert interviews and raw data” before concluding that there was “plausible” proof of intent.
What accounts for the different treatment of Israel? I can’t help but think it is the same one that necessitated the existence of a Jewish state to begin with.
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