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Israel-Hamas Explainer: What Constitutes a Genocide?

Michel Porro/Getty Images
Michel Porro/Getty Images

In January 2024, South Africa launched a case against Israel at the International Court of Justice (ICJ), accusing the latter of committing genocide against Palestinians in Gaza. On Oct. 7, 2023, a group of Hamas fighters launched a deadly attack on Israel, to which Israel retaliated by bombing Gaza. Those  actions resulted in the deaths of more than 20,000 people, the vast majority of whom were Palestinian. Hamas' attacks came after months of surges in violence against Palestinians by the Israeli military.

South Africa’s legal team argued that Israel has committed a series of violations of the 1948 Genocide Convention, which both countries (Israel and South Africa) were party to.

South Africa also sought an injunction against Israel to stop its military operations in Gaza, noting that more than 23,000 Palestinians had been killed in Israeli operations since October 2023.

Israel rejected South Africa’s accusations, arguing that it had the right to defend itself after Hamas’ Oct. 7 attack, which resulted in the deaths of around 1,200 Israelis, most of whom were civilians. Hamas, which governs the Gaza Strip, is a Sunni Islamist political party and military organization that's considered a terrorist group by the U.S. and European Union (EU).

The key question being asked in these proceedings is whether Israel is committing genocide in Gaza, which we explore below.

What Is Genocide?

The term "genocide" was coined by Polish-Jewish lawyer Raphäel Lemkin in 1944 in his book "Axis Rule in Occupied Europe." The term combines the Greek prefix genos, which means race or tribe, and the Latin suffix cide, which means killing.

Lemkin described "genocide" partly in the context of Nazi policies to exterminate the Jewish people during the Holocaust, as well as other documented instances of targeting specific communities. Most of his description focused on the cultural extermination of a people — emphasizing the state’s erasure of religious, economic, cultural, political identity — as well as the act of killing. A more detailed description can be read in the preface of "Axis Rule in Occupied Europe."

The Genocide Convention of 1948 defines the term using similar but more vaguely worded descriptions. Article II of the convention states:

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.

As of April 2022, the Convention had been ratified by 153 nations.

What Historic Events Have Been Described as Genocides?

The framing of events as genocide has often been disputed by the parties who inflicted violence on specific groups. For example, Turkey does not recognize the killing of 1-1.5 million ethnic Armenians by the then-Ottoman empire in the early 20th century as a “genocide.” Armenians call the killings the first genocide of the 20th century, an argument supported by most scholars.

The United States was among the countries slow to recognize it as genocide. The U.S. House Foreign Affairs Committee termed the killings a genocide in a resolution in 2010, but fears of alienating Turkey, an important ally, led to then-U.S. President Barack Obama lobbying against the resolution. In 2021, almost a century after the events occurred, U.S. President Joe Biden became the first in his position to declare the mass killings of Armenians a genocide.

The use of the term has been fraught in courts. The ICJ has never judged a country responsible for genocide largely because, as David Simon, director of the genocide studies program at Yale, told us over email, so few cases exist of a country bringing another to court for genocide. The ICJ is a civil tribunal that overhears disputes between countries, but it has little investigative power and no police force or enforcement ability. The ICJ’s court orders are considered legally binding under international law but countries do not always adhere to them. The ICJ is judging the matter of South Africa v. Israel as a treaty dispute and not a criminal case—as it does not have the mandate to consider criminal cases. Hamas, which has political control of the Palestinian territory of Gaza, cannot be a part of the proceedings because it is not a state, nor is it a signatory to the Genocide Convention.

In 2007, the ICJ did say Serbia “violated the obligation to prevent genocide”  (emphasis, ours) when more than 8,000 Bosnian Muslim men and boys were massacred by nationalist Serb forces in July 1995, while exonerating Serbia from direct responsibility for the killings, rapes and "ethnic cleansing." The court also said genocide occurred only in Srebrenica where the aforementioned killings took place and not in other parts of Bosnia.

Gambia took Myanmar to the ICJ in 2019, accusing it of committing genocide against the Rohingya. In 2020, the court directed Myanmar to "take all measures within its power" to prevent the commission of acts defined in the Genocide Convention, though the case is still ongoing. Ukraine’s case brought against Russia in 2022 accusing the country of planning genocide is still pending at the court.

The first official conviction for genocide of a person under international law took place in 1998. The United Nations Security Council-organized International Criminal Tribunal for Rwanda (ICTR) declared Jean-Paul Akayesu guilty for acts he engaged in and oversaw as mayor of the Rwandan town of Taba. The trials continued for more than a decade, which included the 2008 conviction of three former senior Rwandan defense and military officials for organizing the genocide. Genocide trials also took place in Rwandan courts. (The International Criminal Court or ICC — a separate body from the ICJ that conducts criminal tribunals unlike the ICJ which conducts civil tribunals— was created in an effort to avoid the ad hoc nature of tribunals like the ICTR. However, some African countries complained that the court disproportionately targeted African countries.)

Scholars debate whether current events in Gaza should be considered genocide. In November 2023, U.N. experts illustrated what they said was evidence of increasing genocidal incitement in Israel, overt intent to “destroy the Palestinian people under occupation,” calls for a “second Nakba" (a word that means "catastrophe," referring to the 1948 expulsion of 750,000 Palestinians from their homes by Zionist forces) in Gaza and the rest of the occupied Palestinian territory, and the use of powerful weaponry with indiscriminate impacts, resulting in a colossal death toll and destruction of life-sustaining infrastructure.

Israeli historian Raz Segal wrote in October 2023 that Israel’s actions in Gaza were a “textbook” case of genocide. He cited the words of Israeli Minister of Defense Yoav Gallant as an example of incitement to genocide. Gallant had declared on Oct. 9, 2023: “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.”

However, others disagreed. Ben Kiernan, director of the Cambodian Genocide Program at Yale University, told Time magazine, “Israel's retaliatory bombing of Gaza, however indiscriminate, and its current ground attacks, despite the numerous civilian casualties they are causing among Gaza's Palestinian population, do not meet the very high threshold that is required to meet the legal definition of genocide.” Many scholars told Time that finding parties guilty of crimes against humanity was a likelier outcome than a conviction of genocide.

What Are Parties in the ICJ South Africa Case Saying?

South Africa seeks to prove that Israel's actions against the Palestinians in Gaza constitute genocide by relying on the definition laid out in the Genocide Convention (shared above). Adila Hassim, South Africa's advocate, contends that Israel had violated Article II of the convention.

The first example raised was the “mass killing of Palestinians in Gaza” while showing photographs of mass graves that were “often unidentified.” The second, they argued, was serious bodily or mental harm inflicted on Palestinians in Gaza, noting that around 60,000 Palestinians were wounded and maimed, the majority of them women and children, and civilians including children who had been arrested, blindfolded, and forced to undress.

Tembeka Ngcukaitobi, another lawyer, argued that Israeli political leaders and others in official positions had “systematically and in explicit terms declared their genocidal intent.” He recalled Israeli Prime Minister Benjamin Netanyahu’s words from Oct. 28, 2023, when he urged ground troops entering Gaza to “remember what Amalek has done to you,” referring to “the biblical command by God to Saul for the retaliatory destruction of an entire group of people,” the lawyer said.

Israel’s team, in response, argued that South Africa had “decontextualized” and “distorted” Israel's military actions in Gaza. They said Hamas’ attack on villages on Oct. 7, 2023, and their taking of hundreds of hostages, started the war, and Israel was acting in self-defense. Tal Becker, a legal expert on the team, said Israel was fighting a “war it did not start and did not want.”

In response to claims about “genocidal intent” of Israeli leaders, the Israeli legal team argued that the statements were taken out of context and did not conform with government policy. The Israeli team focused on the Oct. 7 attack, sharing video footage and audio with the court. The team also said that Hamas was using civilians as human shields, and that Israel had attempted to “minimize” harm by issuing warnings.

We reached out to a number of experts to learn their views in light of the ICJ case, and will update this story as we get more information.

Yale's David Simon told us that while South Africa’s case is “powerful, as a narrative [...] it is not quite perfectly sealed as a legal case, partially because much of the law pertaining to genocide is not settled, resting as it does on a somewhat vaguely worded convention and a fairly small body of case law.”

The "hidden weakness" in South Africa's argument, Simon said, which Israel "latched onto in its response, was the nature of the connection between [so-called genocide inciting] statements and those harm-causing actions. Clearly they are not unrelated, but are the elements of intent discernable? Somebody may be intending to destroy the Palestinians of Gaza, but are those somebodies the ones designing the policies that are causing damage and harm?"

He added while Israel appears to have inflicted a number of enumerated harms (related to the crime of genocide) on Gaza, it is more difficult to prove genocidal intent:

I would say there are roughly two major categories of statements alleged to indicate genocidal intent. The first category includes statements by Israeli firebrands who dehumanize Palestinians in bloodthirsty language. Most, as far as I can tell, are by people unlikely to have had an impact on the intent of those actually conducting operations in Gaza — though there is a question as to whether individual soldiers or units on the ground who embraced or engaged in such rhetoric are liable for committing acts of genocide, which could be possible without the situation as a whole (all of the violence) constituting genocide.

This category also includes statements by Netanyahu and other high-ranking Israelis that clearly dehumanize Palestinians and appear to incite violence against them. Again, it is not clear that these actually informed the shape of defense strategy or policy. [...] There is a case that they could have done so, but there is also a plausible rebuttal that IDF undertook its actions on the basis of strategic planning that were not at all informed by such exhortations, and were strictly limited to an attempt to punish or even eliminate Hamas.

The second category are statements by politicians that make claims along the lines of  "all Gazans are supporters of Hamas, and are thus fair to target in this (so-called) defensive operation." Russia has made similar claims with respect to its invasion of Ukraine, and it does seem like a tripwire into genocidal intent territory. [...] South Africa would need to show that these statements reflect the actual intent of the designers of the policy.

We should note that South Africa did present video evidence of Israeli soldiers dancing and repeating Netanyahu’s statements about Amalek and singing “there is no such thing as uninvolved civilians.”

Discussing the merits of South Africa’s case, Simon added:

[The] strongest element of the South African case is that the policy of imposing a state of siege on Gaza through limiting energy, food, medicine, and other basics of daily life, which is reported to be leading to a famine, is tantamount to "imposing upon a group conditions of life intended to bring about its destruction" (i.e., the language of clause 2c of the Convention). It is strong as a legal matter because some of the utterances that the brief quotes regarding the imposition of siege policies speak to the intentional harm of all those likely to suffer from it— and not just those connected to Hamas. As the effects of the siege become more extreme, I think the genocidal charge on this element of the Israeli campaign becomes more plausible.

He added that evidence of genocide had been inevitably easier to determine in hindsight. The Holocaust, he said, had records of the Wanssee Conference (meetings of high-ranking Nazi Party officials to discuss implementation of the so-called “Final Solution" of mass killings of Jews), while Rwanda had transcripts from hate radio as well testimonies of participants at genocidaire (referring to the French term for "those who commit genocide" that became commonly used in Rwanda after the genocide) leadership meetings.

“One thing that may come out in the future is documentation about the deliberations behind Israel's war strategy," he added:

Maybe the discussions over the siege policy will reveal a state consensus that suggests intent. Maybe someone will uncover statements that show that Israel's "fair warnings" to Gazan civilians (problematic for many reasons as they are) were designed only as a facade, and not seriously implemented to prevent harm.  Or maybe evidence will come out the other way, showing in great detail how Israel actually did seek to avoid civilian casualties but Hamas maneuvered to place Gazan civilians in the line of fire.  All of those are hypothetical developments reflecting active contentions of the moment.

Ultimately, Simon added, the case brought by South Africa was the “best use of institutions that are available.” i.e., the ICJ under Article 9 of the text of the Genocidal Convention “to request a definitive-as-it-gets assessment of whether a genocide is occurring.”

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Updates:

Jan. 23, 2024: The story was updated with clarifying language around the roles of the ICJ and the ICC.