Genocide: When lawfare masquerades as human rights

The aftershocks of Hamas deadly terror assault on October 7, 2023, are still being felt. Many in the world decided to characterize Israel’s response as an act of genocidal aggression instead of an obviously needed act of self-defense that the government of any sovereign nation would be obligated to undertake in such circumstances. 

South Africa’s pursuit of the charge of genocide by Israel against Palestinians in Gaza in the International Court of Justice has opened the eyes of some to the use and abuse of human rights law to score political points in a conflict and affect its outcome. This has a name and it’s called “lawfare.” 

Lawfare is the correct term for the efforts by pro-Palestinian human rights groups to use lawsuits to ban export of war materiel to Israel based on allegations of genocide. For example, human rights groups in the Netherlands have sought to get Dutch courts to intervene in preventing the export of F-35 parts to Israel. A similar effort by Canadian lawyers took place in March to discourage Canadian exports of any military goods, including non-lethal equipment, to Israel. Subsequent to that lawsuit filing, a March 18 vote by the House of Commons declared an end to new Canadian arms sales to the Jewish State. Pro-Palestinian groups in Germany have filed case against leading German politicians to stop arm exports to Israel. 

Pushing back in word and deed 

In the case of Israel, some of our country’s strongest allies have pushed back against the lawfare and smear allegations.  

“The German government decisively and expressly rejects the accusation of genocide brought against Israel before the International Court of Justice. The accusation has no basis in fact,” according to a German government statement quoted by Middle East Monitor.  The statement went on to criticize South Africa for “politicizing” genocide, while reiterating the German government’s commitment to the UN Genocide Convention. 

The U.S. government also reiterated it’s support of Israel by authorizing this past week a $17 billion aid package to help it fight the war in Gaza. 

Another country’s experience 

However, in other cases, countries lacking the backing of strong allies can be painted into a corner by legal processes that are an extension of war by other means. The abuse of the term genocide to score political points can be traced back at least to the Srebrenica massacre of roughly 8,000 Bosnian Muslim men and boys in July 1995 during the war in Bosnia amid the breakup of the former Yugoslavia. 

The massacre was a clear war crime, one that has been acknowledged by both Serbia and Republika Srpska, the ethnic Serb constituent part of Bosnia and Herzegovina, for which the massacre’s perpetrators fought. In 2015, then Prime Minister of Serbia Aleksandar Vučić even visited the memorial site for the massacre victims at Potocari to pay his respects and the Serbian government donated $5 million to the development of Srebrenica as a gesture of reconciliation and atonement. 

Turning a massacre into ‘a genocide’  

However, during and especially in the aftermath of the war, there was a successful attempt to paint the Srebrenica massacre not just as a war crime but also as the “first post-World War II genocide in Europe.”  

Using an expansive definition of what may constitute the crime, the UN’s International Criminal Tribunal for the former Yugoslavia (ICTY) declared Srebrenica a genocide. Moreover, the externally imposed Office of the High Representative for Bosnia held by Valentin Inzko made it a crime to deny that the massacre met the definition of genocide in 2021– imposing a victor’s history on the Bosnian Serb population. 

Most people are unaware that in 2007 the International Court of Justice found Serbia not guilty of committing genocide in Bosnian and Herzegovina during the 90’s. It did however, find Serbia guilty of not preventing genocide by Bosnian Serb forces specifically in Srebrenica in July 1995. The logic being that there was no overarching effort to destroy the overall Bosnian Muslim population of Bosnia and Herzegovina during the war, but there was an effort to destroy a part of the Bosnian Muslim population in Srebrenica and that was enough to deserve the term genocide. 

The term “genocide” itself was coined by the Polish Jewish lawyer Raphael Lemkin in his 1944 book Axis Rule in Occupied Europe. The term is a combination of the Greek “genos” meaning race or tribe and the Latine “cide” meaning murder.  

Genocide was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Italics are mine for emphasis. 

In the convention, genocide was defined to mean 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. 

The problem with the legal definition under humanitarian law is that the use of the words “in part” enables the term to genocide to apply to even a relatively small fraction of a group of people. This opens up the application of the term genocide to the vagaries of international politics and the ploys of lawyers.

Accounting for scale and duration 

Consequently, in the case of Srebrenica the murder of 8,000 Muslim males of arms bearing age during a vicious civil war is considered a genocide. However, Russia’s documented transfer of Ukrainian children to Russian families amid an aggressive war of choice is not. 

What separates the two? Yugoslavia in the 90’s was short on influential friends in the halls of international diplomacy. Russia still has some. 

Now, the UN General Assembly is considering a draft resolution that would declare July 11 as the International Day of Remembrance for the Genocide in Srebrenica. Bear in mind that  not even the Armenian Genocide that resulted in the death of up to 1.5 million people has a day of commemoration dedicated to it. The only two events of mass murder that have received that distinction until now were the Holocaust and the Rwanda genocide. Both of those genocides were well-planned events that occurred on a much larger scale and a longer duration than Srebrenica. 

What could happen in the Israeli context 

Israel is targeting active combatants in Gaza and the civilians killed are unfortunate casualties of Hamas’ strategy of hiding behind the civilian population and infrastructure. As a result, most observers on a government-to-government level do not deem the IDF’s activities as genocide.  

However, Israel and its supporters should be wary of efforts to water down the term genocide that we are seeing at the UN and amid broad swathes of global public opinion these days. It’s a only a short hop, skip and a jump from where we are now to some jurists in an international court taking a few statements from National Security Minister Itamar Ben Gvir and the likely casualties that will ensue from a battle for Rafah and branding Israel a permanent pariah. 

It’s happened to other countries and talking facts and logic won’t work once the horse has left the barn. Once a war is successfully painted with the term genocide, anything short of accepting that one side are total victims and the other are villainous perpetrators becomes “genocide denial.” 

This is what happened in Bosnia and what demonstrators and ill-meaning governments want to happen to Israel in its complex relationship with the Palestinians.  

Crimes occur in wartime and should not be excused. However, we should avoid the dilution of language to serve political goals both as a matter of principle and as a matter of self-preservation.  

The UN General Assembly should not raise the Srebrenica massacre on a pedestal and enshrine Bosnian Muslims as the absolute victims of the war in Bosnia. Rather it should let the once feuding communities resolve their differences and find a path towards reconciliation.  

Similarly, Israel will have to find a way to move past the Hamas-led massacre of October 7 and the subsequent war to reach some sort of arrangement with the Palestinian population of Gaza. Labeling either Hamas’ initial assault on Israeli civilians or Israel’s military response “a genocide,” does not reflect the meaning of the word and would only make a resolution of the conflict more difficult.