About the calling for Israel’s exclusion from Eurovision and alleged genocide

Eden Golan of Israel performs the song 'Hurricane' during the second semifinal at the Eurovision Song Contest in Malmo, Sweden, May 9, 2024. (AP Photo/Martin Meissner)

Eurovision this year aroused passions, which led to a demand for a boycott of the 20 years old Israeli candidate Eden Golan and a withdrawal of Israel from the European song contest. The parallel mentioned was that of the exclusion of Russia in 2022 following the invasion of Ukraine in February. As the saying goes in French “comparaison n’est pas raison” (comparisons are odious). In this article I would like to show why comparisons between the Russo-Ukrainian war and the Hamas-Israel war are indeed odious from the perspective of international law.

Russia’s invasion of Ukraine was launched on February 24, 2022 by order of Russian President Vladimir Putin. The invasion comes eight years after the outbreak of the Russo-Ukrainian war which followed Russia’s annexation of Crimea, as well as the start of the Donbass War from spring 2014.

The Israel-Hamas war began with the Hamas attack against Israel on October 7, 2023. After several thousand Qassam rockets were fired at Israel, the barrier between the Gaza Strip and Israel was breached and more than 3,000 Palestinian attackers invaded more than twenty towns and kibbutz in Israel, killing around 1,160 people before taking at least 240 Israeli and foreign civilians hostage.

Some commentators have linked this attack to the Arab-Israeli conflict that has existed between the State of Israel and surrounding Arab States since the creation of Israel in May 1948. However, to be precise, this attack must be included in the chronology of attacks perpetrated by Hamas against Israel since Operation Cast Lead in 2008, one year after the takeover of Gaza by Hamas in June 2007.

Borders, territories and crime of aggression

In international law, the territory delimited by its borders appears as one of the constituent elements of the State: it is the space of sovereignty. Based on this principle the notion of crime of aggression in international law defines crimes committed by persons or States having prepared, carried out or promoted an armed conflict aimed at destabilizing one or more sovereign States.

Although having undergone numerous changes throughout its history, the borders of Ukraine appear, at the time of independence, after the independence referendum of December 1, 1991. With regard to international law, the recognition of the Ukrainian borders in 1991 therefore makes it possible to affirm that the Ukrainian territories in Crimea have been occupied by the Russians since the Russo-Ukrainian war of 2014. Likewise the self-proclaimed people’s republics of Donetsk and Lugansk are not legitimate and Ukraine’s invasion by Russia meets the definition of crime of aggression.

On the other hand, the borders of the Jewish state are not as clear as those of Ukraine due to changes that appeared since its creation : UN partition plan of November 29, 1947; independence in 1948 and first Arab-Israeli war; Six-Day War in 1967 and Oslo Accords in 1993. However, its border with Gaza has been indisputable since the Disengagement Plan for the Gaza Strip in September 2005, which put an end to the Israeli presence on the Palestinian territory in the Gaza Strip under Israeli occupation since 1967.

Thus, the war between Israel and Hamas of 2023-2024 is not part of the continuity of the Israeli-Palestinian conflict (since the Oslo Accords, only the Palestinian authority is recognized as representative of the Palestinian people), but in the continuation of a series of attacks by Hamas against Israel since 2007. Those attacks are prepared, carried out and promote armed conflicts aimed at destabilizing (as defined by the definition of crime of aggression) the State of Israel recognized by the international community as a sovereign State.

All the Israeli responses which were strongly condemned by the international community (Operation Cast Lead in 2008-2009; Operation Pillar of Defense in 2012; Operation Protective Edge in 2014; crisis of 2021 and the war in 2023-2024) were military responses to the belligerent aggressions of Hamas against Israel. In this respect, Israel is closer to Ukraine than to Russia, using its legitimate right to defend itself against the crime of aggression committed by Hamas.

In 2007, Hamas fired 1,115 Qassam rockets and 1,435 mortar rounds into Israel. In 2008, prior to the December initiation of Operation Cast Lead, the number of rockets launched increased to 1,540 and the number of mortar rounds to 1,600. In the case of Operation Pillar of Defense in 2012,  the operation began in response to the launch of over 100 to 120 rockets at Israel during a 24-hour period. In 2014, Hamas fired a great number of rockets into Israel from the Gaza Strip, following Operation Brother’s Keeper after three Israeli teenagers were kidnapped and murdered in the West Bank. Finally, during the crisis in 2021, approximately 4,360 rockets were fired towards Israel from Gaza.

Thus, the attack of October 7, 2023 is a continuation of Hamas’s desire to push Israel towards retaliation, to benefit from a strategy based on military asymmetry, to use its own population (Hamas’s infrastructures are located in schools and hospitals) and to win international support in order to legitimize the existence of the terrorist organization supported by Iran and allegedly defending the Palestinian cause.

In this sense, comparisons are indeed odious. Despite the large number of Palestinian victims which is causing international turmoil, Israel’s war against Hamas cannot be compared to the war between Ukraine and Russia. The request for the exclusion of the young Eden Golan from the Eurovision song contest was therefore unjustified and the demonstrations in Malmö against her presence were disconnected from the understanding that we must have of the polysemous notion of war.

The difficult qualification of genocide

In international law, the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention, is the international treaty that criminalizes genocide. After World War II, Polish-Jewish lawyer Rafael Lemkin intervened at the first UN assemblies to make the crime of genocide part of international law. On December 9, 1948, the UNGA adopted the Genocide Convention. The Convention entered into force on 12 January 1951 became the first human rights treaty adopted by the United Nations.

Article II of the Genocide Convention states :

a) killing of members of the group;

(b) serious harm to the physical or mental integrity of members of the group;

(c) intentional subjection of the group to conditions of existence calculated to bring about its total or partial physical destruction;

(d) measures aimed at preventing births within the group;

e) forced transfer of children from the group to another group.

It was not until the adoption of the Rome Statute at the end of the 1990s that genocide truly became the subject of jurisprudence. The text of the Rome Statute adopted on July 17, 1998 takes up in its article 6 the definition of the Genocide Convention and mentions in its article 5 that :

The jurisdiction of the Court is limited to the most serious crimes which affect the entire international community. Under this Statute, the Court has jurisdiction over the following crimes:

a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

d) The crime of aggression.

Since its creation, the UN has recognized only three genocides : the genocide of the Armenians committed by the Ottoman Empire in 1915-1916 when between 600,000 to 1,2 million Armenians were killed; the genocide of the Jews committed by the Nazis, from 1941 to 1945 when approximately 6 million Jews were murdered and the genocide of Tutsis committed by the Hutu power in Rwanda in 1994 when approximately 800,000 people were massacred in just 100 days.

Therefore, while the definition of genocide is established in international law, identifying an act as genocidal in practice is challenging. Regarding Israel, Joan Donoghue, the former president of the International Court of Justice, clarified recently that the ICC’s interim ruling on January 26 did not imply that the Court found it “plausible” that Israel was committing genocide. Yet what do the definitions of the Genocide Convention and the Rome Statute tell us in the case of the war between Israel and Hamas?

In the case of the Genocide Convention, the definition clearly states that a genocidal act is based first and foremost on an intention (“genocide means any of the following acts committed with intent to destroy”). The acts listed above (a, b, c, d and e) can only be read and interpreted in light of the intent to destroy a given population.

The Rome Statute is also interesting because not only does it highlight the impossibility of legally qualifying the Israeli military response as genocide, but it also reveals that Hamas’ crimes could also fall under the jurisdiction of the International Criminal Court (ICC). We will elaborate on this aspect in our last part. As we saw when we talkd about the Genocide convention, the crime of genocide for the ICC is also characterised by the specific intent to destroy in whole or in part a national, ethnic, racial or religious group.

Israel has never expressed its desire to destroy the Palestinian people. Israeli Arabs, Palestinians who remained on their land when Israel was created in 1948, represent approximately 20% of Israel’s population. If Israel truly intended to destroy the Palestinian people for being a unique “national, ethnic, racial or religious group”, it could do so on its own territory as it is the case in China accused of sterilization and genocide against the Uighur population or by forced transfer of children as it is the case in Russia.

Moreover, the Oslo Accords prove that Israel’s intention is not aiming at an “intentional subjection of the group to conditions of existence calculated to bring about its total or partial physical destruction” since Israel recognized in 1993 the Palestinian people and the Palestine Liberation Organization as the legitimate representative of these people.

This being said, we must however take into account in the case of the war between Israel and Hamas the fact that due to the population density in the Gaza Strip, the number of victims is much higher than during a conflict extending over a larger area. For instance, according to the Office of the United Nations High Commissioner for Human Rights (OHCHR), more than 306,000 civilians have been killed in ten years of conflict in Syria. By 2019, 3,987 Palestinians, including 467 women and 200 children, had been killed in Syria since the beginning of the country’s civil war in 2011. But does it make it a genocide?

Why aren’t we talking more about Hamas’ war crimes?

Although the Gaza Strip is densely populated, it is also the stronghold of Hamas, which has more fighters within its ranks. Before 7 October, Hamas was thought to have about 30,000 fighters in Gaza according to Israel. On average, it is generally estimated that about 20,000 to 25,000 Palestinians are members of the Izz ad-Din al-Qassam Brigades, explicitly listed as a terrorist organization by the European Union, Australia, New Zealand, Egypt and the United Kingdom.

When we talk about genocide, in the sense of point a. and b. of the Genocide convention, we must ask ourselves if Israel is intentionally killing “members of the group” in an indiscriminate manner or whether Israel targets members of the Izz ad-Din al-Qassam Brigades, which is causing collateral losses among the civilian population.

If the war triggered by the attack of October 7 is indeed a war and not an episodic conflict as some international law experts are led to believe, then Hamas too should answer for its obligations under international law.

The Rome Statute lists 15 forms of crimes against humanity (meaning “attack directed against any civilian population”) among them : murder, extermination, rape, enforced disappearance of persons (such as abduction) or persecution against any identifiable group. On this last point, let us recall here that since its foundation in 1987, Hamas’ objective has been to achieve the destruction of Israel – meaning the State, its people and the Jews.

Furthermore, hostage-taking is a grave breach of the Geneva Conventions of August 12, 1949. Article 34 of the Fourth Geneva Convention prohibits the taking of civilian hostages. According to the International Law Commission, established by the United Nations in 1950, the killing of hostages is a war crime. In 1979, with the adoption of the International Convention against the Taking of Hostages, this crime was once more condemned by the international community.

Similarly, the crime of aggression is recognized by the ICC as falling within its jurisdiction, making the Hamas attacks an act that not only legitimately authorizes Israel to defend itself, but should also compel the ICC to investigate the massacre perpetrated against Israel’s civilian population on October 7, 2024 by more than 3,000 Palestinians from Gaza.

Israel is often criticized for not respecting international law. However, as the State of Palestine is not internationally recognized, Hamas is also outside the scope of international law. Hamas uses military asymmetry in its strategy, but also benefits from legal asymmetry.

If only signatory States of the Rome treaty or the UN Security Council can refer a case to the ICC, the Court can also be seized by a prosecutor who considers it imperative to open an investigation. In December 2019, ICC’s prosecutor Fatou Bensouda announced the opening of an investigation into war crimes accusing both Israel but also members of armed Palestinian organizations, including Hamas, accused of deliberately attacking Israeli civilians and using Palestinians as human shields.

Already in 2019, Fatou Bensouda’s report stated that there is a “reasonable basis” to believe that members of Hamas and Palestinian armed groups are guilty of war crimes. On his part, ICC’s prosecutor Karim Khan also condemned the October 7 raid by Hamas and underlined that the taking of hostages was a war crime during his visit to Egypt in October 2023.

However, no declaration has been made or demonstrations have been organized in Europe and in the rest of world to protest against Hamas’ war crimes. Furthermore, no resolution has been adopted by the UN to condemn the attack of October 7. Perhaps this also explains Israel’s tenacity when it comes to its right to self-defense under international law.

About the Author
Nathalie Boehler, former journalist in Israel for i24NEWS and doctoral student in public law specialized in International Law, Criminal, Environmental and Humanitarian Law.
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