Hilly Moodrick-Even Khen

Israel is not committing genocide in Gaza: An international legal perspective

Three weeks have passed since the Black Sabbath of October 7, but if anyone needs to be reminded: Hamas terrorists have slaughtered 1400 people (Jews and Arabs) in the southern villages and towns of Israel. They raped women, tortured, mutilated and burned alive babies, children, women, men, elderly and disabled people. They fired thousands of rockets at Israeli villages, towns and cities and they took hostage to Gaza more than 200 civilians, among them older people and 30 children. Take heed, Mr. Antonio Guterres, it was Israel’s response that “did not happen in a vacuum,” and not Hamas attacks, as you shamefully framed the situation.

Responding to this harrowing attack, Israel launched a legitimate war of self defense, which is, in fact, not only its right but its obligation. It is also the obligation of the international community to invoke the principle of Responsibility to Protect (R2P) and join Israel in protecting its civilian population.

Truly, Israel’s military response has been harsh, but it was not conducted as a vindictive campaign. The military campaign is directed at achieving an overarching and significant military goal (“military advantage”, as it is legally named by the laws of armed conflict): eliminating the threat of Hamas to Israeli civilians and bringing about the destruction of this military organization.

For this purpose, and according to the IDF spokesman, Israel’s air force has struck down 7,000 military targets including scores of Hamas and Jihad rocket launchers, command centers and munitions factories, and 150 underground targets, among them Hamas tunnels, underground combat spaces and other infrastructure. It also killed some main figures in the terrorist organization’s chain of command. In the last days, Israel expanded its military campaign to include ground operations.

Sadly, the death toll of civilians in Gaza is very high. The IDF has not published official numbers, and the Hamas-run Gazan health ministry’s report of more than 7000 dead people is obviously exaggerated and does not differentiate between civilians and terrorists. And nevertheless, it is clear that the damage caused to Gaza’s civilian infrastructure and the death of civilians is tremendous.

Yet, this distressing scene of debilitated neighborhoods, and of people losing their loved ones and their homes can by no means suggest that Israel is engaged in a genocidal campaign in Gaza. This completely unbased claim that has been raised by human rights NGO’s and UN experts and given voice by the media, must be refuted.

Genocide is not a figurative term describing a mass killing or used to express the shocking spare of civilian lives during a bloody war. Genocide is a legal term, carefully defined in the Convention on the Prevention and Punishment of the Crime of Genocide that the UN adopted in 1948 after the Jewish Holocaust. It was a result of the moral and colossal shock that the whole world experienced owing to the helplessness of the international community and in particular international law to prevent or respond appropriately to the Nazis’ deeds and ideology. According to the convention, genocide is a crime committed against groups (national, ethnical, racial or religious) with the intention to bring about their destruction in whole or in part. Yes, this intent to destroy is embodied by one or all of five acts defined by the convention: killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting conditions of life calculated to bring about the group’s destruction, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group. But it is not the acts on their own that bring about genocide. It is only when they are accompanied by the special intent to destroy a group that genocide occurs.

In addition, genocide is not a synonym of causing a great loss of civilian lives. It is not about the number of victims, but the intent to destroy that turns such an act into genocide.

Israel’s military activities in Gaza are not conducted with an intent to destroy the Palestinian people in whole or in part. Israel does not aim to eliminate the Palestinian people, its culture, language, or heritage. It is not dehumanizing or degrading the Palestinians. If some Israeli leaders, such as Yoav Galant, the Minister of Defense, used the words: “human beasts” to describe the acts of October 7, they were referring to the terrorists and not to the whole Palestinian population. Israel is well aware of its obligation to prevent a humanitarian disaster in Gaza. It allows for basic products and humanitarian aid to be transferred to the south of Gaza and it relentlessly calls upon Gaza civilians to flee to the south of Gaza, where they can be safe, since Israel’s military campaign concentrates in Northern Gaza. Yet, it is Hamas that threatens the Palestinian civilians and prevents them from leaving Northern Gaza, as it cynically intends to use them as human shields. Not only that, but Hamas command centers have been shown to exist under the Shifa Hospital in Gaza both through Israeli satellite imagery as well from confessions of Hamas terrorists captured on October 7.

Finally, if we want to make a claim about genocide in the context of the Israeli-Hamas conflict, it is much more accurate to say that the heinous crimes Hamas committed in October 7 exposed its own genocidal intentions. Met with Hamas’ covenant that calls for the elimination of the State of Israel and the overarching incitement against Jews and Israelis that is rooted in all of the systems and civilian infrastructure in Gaza from the mosques to the schools, the art and the media, which prove Hamas specific intent to destroy the Jews and the Israelis, the horrid acts the terrorists committed on October 7 constitute the crime of genocide.

Mr. Guterres, this is the vacuum you should lead the UN to fill. Israel will hopefully succeed in eliminating Hamas military capacities. But it is the dangerous and horrifying ideology this extremist organization spreads that should be rooted out. This should be the mission of the international community. If UNESCO wanted to take a step in the right direction instead of denouncing Israel from sunrise to sunset it could apply a post-war education system for Gaza and the Palestinian Authority based on the models for denazification of Germany and its population after WWII.  These systems applied by the Allies after WWII, educated the German population according to the values of democracy and respect for life and basic human rights and rejection of the ideology of hatred, especially dehumanization and demonization of Jews. They can serve as an inspiration for the rehabilitation of Gaza, to which Israel has no intention to object. It is the genocidal Hamas it wants to destroy, not the Palestinian people.

About the Author
Dr. Moodrick-Even Khen is a senior lecturer of public international law and chair of Ariel University Center for the Research and Study of Genocide. She is an expert in international law, focusing especially on international humanitarian law (laws of war), international criminal law, and the philosophy of law, especially in the field of the laws of war. Dr. Moodrick-Even Khen published numerous articles and four books.The Syrian War: Between Justice and Political Reality (co-edited with Nir Boms and Sareta Ashraph, Cambridge UP, 2020); Ruth Lapidoth Book (The Hebrew University of Jerusalem, 2020) [Hebrew]; National Identities and the Right to Self -Determination of Peoples: "Civic- Nationalism- Plus" in Israel and Other Multinational States (Brill/Nijhoff, 2016); Terrorism and International Law: Combatants and Civilians in Modern Battlefields (the Hebrew University of Jerusalem, 2010)
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