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Stephen D. Smith
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Genocide is a clearly defined crime. Israel is not committing it.

A high civilian death toll is tragic, but does not mean Israel is trying to destroy the Palestinian people
The International Criminal Court building 2016 in The Hague. (Wikipedia)
The International Criminal Court building 2016 in The Hague. (Wikipedia)

Genocide is a crime, not an opinion.

Emotionally charged accusations of genocide are being broadcast by supporters of both sides in the Israel-Gaza war. It is a heavy claim, and one that should only be stated with full understanding of its implications in international law.

The crime of genocide was first defined in 1948 within the UN Genocide Convention. The 1949 Geneva Conventions also require humane treatment of civilians during times of war. The International Criminal Court (ICC) has four crimes under its jurisdiction: genocide, crimes against humanity, war crimes and aggression.

Just as the public does not get to decide whether a homicide is a manslaughter or murder. So too, the public does not get to decide what constitutes genocide. That’s down to the ICC. 

The UN Convention is clear that genocide is based on intent. Specifically, the intent to destroy in “whole or in part a national, ethnical, racial or religious group.” Its articles include killing members of the group, causing serious bodily or mental harm, creating conditions calculated to bring about the group’s physical destruction, preventing births, and transferring children. 

There are some guidelines that I use to help me review underlying intent to commit genocide within violent societies. They include: 

  1. A publicly declared genocidal ideology
  2. Genocidal rhetoric, propaganda, indoctrination, and societal conditioning
  3. Procurement of weapons, strategic planning, command infrastructure, and the training of killers
  4. Killing, rape, abduction, incarceration, physical and mental torture of the target civilian population, destruction of religious sites and property
  5. Denial of the facts 

Genocide is usually committed by a government. It is ideologically motivated, and not related to acts of war, although war often provides cover for genocide. The Holocaust happened during World War II, even though the Jews were not a military objective. Similar circumstances prevailed in Armenia, Rwanda, Bosnia, and Cambodia. 

Civilian body count is not a determinant of genocide. There is no claim that the 70,000 deaths of Britons during the Blitz on England during WWII constituted genocide, even though the ruling party of Germany at the time was well documented as being genocidal. 

It is also possible for the murder of a relatively small share of a total population to be considered a genocide. The 1995 murder of 8,000 Muslim men and boys in Srebrenica,

Bosnia, was defined in 2001 as genocide by the International Criminal Tribunal for the former Yugoslavia.

During a war, international crimes other than genocide may also occur, such as war crimes, committed when a belligerent fails to uphold the Geneva Conventions; crimes against humanity, which are committed when civilians are targeted for murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution, enforced disappearance, or apartheid; and aggression, which includes use of excessive force. 

The conflict between Israel and Gaza today is an extension of a 75 year history of regional territorial conflict between Israelis and Palestinians. Many Palestinian factions have used terrorism as their means to attack Jewish civilians in Israel over many decades. 

Since 2006, Hamas has been the ruling authority in Gaza. The State of Palestine is a signatory to both the Geneva Conventions and the ICC. As such they have its protections, and are also bound by its statutes. The founding covenant of Hamas has 36 articles predicated on the removal of Jews living in the State of Israel. It is by definition a genocidal charter. 

Hamas has deployed public propaganda, indoctrination, and social conditioning in pursuit of its charter. It has acquired weapons to target civilians, and trained its military to murder Jews. Its October 7th attack aimed at Israeli civilians included over 3,000 rockets directed toward civilian targets, as well as the murder, rape and abduction of over 1,600 unarmed civilians. As a signatory to the ICC, the State of Palestine will likely be investigated for those actions. 

Israel has the military strength to commit genocide, but has repeatedly stated that its fight is not with the Palestinian people. The war Israel is conducting against Hamas therefore does not meet the definition of genocide, notwithstanding the indescribable suffering that the Palestinian people are enduring. The situation on the ground is rapidly changing. As the ground war unfolds, it is Israel’s obligation to stay within all applicable international laws designed to protect civilians in times of war. 

Hamas is the military underdog in the forthcoming ground war, even if their ideological goals are more violent. As the governing body in Gaza, Hamas should remember that it is subject to the same standards in international law as the Israeli government. If Hamas believes it can use the misery of the Palestinian people as a fig leaf for genocidal goals, the long arm of international law will eventually catch up. It applies to all sides. 

No one wants to see a single civilian needlessly suffer. It is against all the principles of our shared humanity. The pain and rage are real and with it comes the urge to cry “genocide!” But before you do, remember that genocide is a crime adjudicated by international law. It is not a personal opinion.

About the Author
Stephen D. Smith is the Emeritus Executive Director USC Shoah Foundation and CEO and co-founder of StoryFile, the AI conversational video platform, which recently produced Tell Me, Inge, an immersive Holocaust education experience in partnership with Meta, the World Jewish Congress, UNESCO and Claims Conference. He was the inaugural UNESCO chair on Genocide Education, the editor of the Routledge Handbook of Religion, Mass Atrocity, and Genocide, and the founder of the Kigali Genocide Memorial, Rwanda.
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