For a year, not a day has gone by without the word “genocide” being brandished to denounce the bombings which continually increase the death toll in Gaza. Israel vehemently rejects this accusation of genocide, but what does international law say about it? Is there genocide, and why do some insist so much on the recognition of what has been called the “crime of crimes”?
On October 7, 2023, Hamas fighters entered Israeli territory to massacre civilians, triggering an imposing military response from the IDF, the Israeli army. Shortly after, faced with the painful count of civilian deaths, allegations of “genocide” began to circulate. At the beginning of November, experts consulted by Duty argued that it was too early to reach this conclusion, based on the legal criteria for the definition of genocide. However, they maintained that their comments did not amount to minimizing what was happening in Gaza or ignoring the atrocities committed by Hamas.
A year later, missiles are still being fired towards Gaza, and more than 40,000 Palestinians have lost their lives, according to the government of Hamas, the ruling Islamist movement. Duty therefore revisited the question.
International institutions
Whether or not genocide occurred has been examined by various international institutions, including the International Court of Justice (ICJ) — the highest UN court.
The Court was not tasked with deciding at this stage whether there is indeed a genocide underway in Gaza. But seized of the case urgently – an appeal brought by South Africa -, it nevertheless considered “plausible” last January that certain rights of Palestinians in Gaza were not respected, including that of “being protected against acts of genocide.
The ICJ therefore issued “provisional measures”, a form of injunction, ordering Israel to “take all measures in its power” to prevent the commission of genocidal acts., notably the murder of members of a group and the imposition of living conditions likely to bring about its annihilation.
Then, in March, the United Nations special rapporteur on the situation of human rights in the occupied Palestinian territories, Francesca Albanese, delivered her scathing report entitled Anatomy of a genocide. According to her, “there are reasonable grounds to believe that the threshold allowing the situation to be qualified as genocide has been reached”.
Israel rejected his findings. He maintains that his military strikes are aimed at Hamas, not the Palestinian people. He pleads self-defense against the savage aggression of October 7 — which Hamas promises to repeat. Recall that, according to Israel, around 1,200 people were killed that day and 251 were taken hostage. The Jewish state has declared that it is Hamas that has genocidal plans, seeking the annihilation of Israel.
The experts
When asked whether a genocide is underway, according to international law definitions, Marie Lamensch, project coordinator at the Montreal Institute for the Study of Genocide and Human Rights at Concordia University, Montreal responds that it will still take years to determine whether this is the case or not. Even the greatest legal experts say it, she adds: they want to wait for all the evidence before making a definitive decision.
Because proof of genocide is complex, and to obtain a conviction, it is necessary to demonstrate to the Court the precise “intention” to commit it.
And that’s where the difficulty lies: there are obviously no minutes detailing the intentions of the leaders, notes law professor William Schabas, a world expert in human rights and a reference in matters of genocide.
The professor, who teaches at Middlesex University in London, recalls that the ICJ is currently looking into the issue. He describes the cause led by South Africa as “very strong”, with good possibilities of success.
We are closer to a conclusion of genocide than last year, believes Mme Lamensch.
Law disconnected from reality on the ground?
But while the experts argue, the deaths pile up and many don’t care whether the legal criteria for genocide are met or not: they want the deadly bombings to stop.
“We debate the legal terms, but we talk little about the humanitarian situation”, which is “horrible”, deplores Marie Lamensch: there is famine, water and electricity cuts, hospitals in Gaza has almost nothing left to function and homes are destroyed.
And although it is called the Convention for the Prevention and Punishment of the Crime of Genocide, “in reality, it is a convention of repression”. That is to say, it allows us to condemn acts after the fact – not before, notes Mr. Schabas.
There were of course the provisional measures ordered by the ICJ, but Israel did not respect them, say the two experts.
This does not mean, however, that international law is useless: court orders can have a strong impact on public opinion and incite states to act and apply pressure.
The word “genocide” is often brandished during conflicts for its evocative power and its symbolism: it can push States to try to do much more, especially in terms of sanctions, believes Marie Lamensch. Because all signatories to the Convention have this obligation to prevent genocide, even if it does not take place on their territory. This can range from diplomatic efforts to economic sanctions and arms embargoes.
Canada signed it and therefore has this obligation. But apart from “declarations”, he doesn’t do much, she judges.
According to Mr. Schabas, a conviction by the Court for genocide would not allow more concrete actions by States on the ground than a conviction for crimes against humanity. There is, however, a legal reason why some insist on making allegations of genocide, he adds. The majority of United Nations member states do not accept the general jurisdiction of the ICJ, but submit to it for the application of specific treaties, including the Genocide Convention. Alleging this crime is therefore the only way to bring Israel before the ICJ, underlines the professor.