The Charge of Genocide Does Not Fit the War in Gaza

The devastation is undeniable, and alleged violations demand investigation. But genocide is a specific legal crime requiring proof of an intent to destroy a protected group—not simply evidence that a war has produced civilian harm.

What do Troy Jackson, Robin Kelly, Abdul El-Saed, Chris Van Hollen, Angie Nixon, Zohran Mamdani, Margery Taylor Green, and Tucker Carlson have in common? They all are abusing their use of the word genocide for their own political purpose. What follows is a distillation of the difference between genocide and war based on 40 years of teaching, research, and advocacy on the issues of genocide.

The word genocide carries a precise legal meaning. As the 1948 Genocide Convention states, prohibited acts become genocide when they are committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. That requirement of specific intent is not a technical escape hatch; it is the element that distinguishes genocide from even a brutal war in which civilians are killed, displaced, starved or traumatized. The terrible scale of suffering in Gaza therefore cannot, by itself, settle the legal question.

The stronger reading of the evidence is that Israel’s objective has been to defeat Hamas, dismantle its military capacity and recover hostages—not to destroy Palestinians as a people. Israel says its forces use advance phone calls and text messages, leaflets, mapped evacuation zones, designated routes, real-time surveillance, legal review of targets, precision weapons and cancellation or delay of some strikes when civilians are detected. It has also coordinated humanitarian corridors, aid crossings, field hospitals and medical evacuations. These measures have often been criticized as inadequate, inconsistent or impossible for civilians to follow safely, and their existence does not make every resulting attack lawful. They nevertheless bear directly on intent: an army attempting—however imperfectly—to move civilians away from targets and facilitate relief is not behaving like a state pursuing a uniform policy of extermination.

Hamas and other Palestinian armed groups have also increased the danger to Gaza’s civilians. UN human-rights reporting has documented indiscriminate rocket fire and addressed allegations that armed groups operated from or near densely populated civilian locations. The use of civilians to shield military objectives is prohibited, and storing weapons, building military tunnels or conducting operations in and around homes, schools or medical sites can expose nearby residents to grave danger. Palestinian rockets have also malfunctioned and fallen within Gaza in reported incidents, while hostage-taking and continued combat have prolonged a war devastating the population. Reports over many years have also alleged recruitment, training or use of minors by Hamas and other Palestinian armed groups; where verified, such conduct violates international standards, and recruitment or use in hostilities of children under 15 can constitute a war crime.

Casualty reporting requires the same discipline. The Gaza Health Ministry’s aggregate death toll does not classify each person as a civilian or a combatant, a limitation noted in major news analyses. Consequently, the total number of deaths cannot simply be relabeled a civilian death toll, nor can demographic categories such as “women and children” establish the status of every person counted. At the same time, the absence of a combatant breakdown does not prove that the overall total is fabricated; independent analysts and international organizations have treated much of the ministry’s named data as informative while disputing completeness, revisions and classification. A sound argument should therefore separate three questions: the overall number killed, the number who were combatants, and whether deaths resulted from lawful attacks, unlawful attacks, Palestinian fire or other causes. Collapsing those questions can produce misleading civilian-casualty ratios and then use those ratios as circular proof of genocidal intent. Moreover, British and US military experts such as John Spencer of West Point, Colonel Richard Kemp, formerly commander of British forces in Afghanistan and a recent US Armey 78-page report titled “Israeli Defense Force Medical Lessons Learned” all testify that the IDF employed “unprecedented tactical and medical steps” to reduce deaths in an urban combat environment.

Hamas’s conduct does not absolve Israel. Even when an adversary unlawfully embeds military activity among civilians, Israel still must distinguish military targets from civilians, take all feasible precautions and refrain from attacks expected to cause excessive civilian harm. The laws of war separately prohibit intentionally attacking civilians, disproportionate attacks, hostage-taking, indiscriminate rocket fire and using starvation or human shields as methods of warfare. The International Criminal Court has issued warrants alleging war crimes and crimes against humanity against Israeli and Hamas figures; those allegations are serious, but they are not a judgment that Israel is committing genocide. A credible defense of Israel should therefore acknowledge Palestinian suffering, demand independent investigation and support accountability for proven violations by every party.

Several UN-mandated experts and bodies, and the newest Nobel Peace Prize winner Navi Pillay, have nevertheless adopted the genocide label. Without proof and based on anecdotal evidence only, a UN special rapporteur found “reasonable grounds” to believe the threshold was met, and a UN Human Rights Council-mandated Commission of Inquiry later concluded that Israel had committed genocide. UN Watch, a Geneva-based non-governmental organization that monitors the United Nations, disputes those conclusions. In legal rebuttals, it argues that the reports fail to establish the required specific intent, selectively interpret statements by Israeli officials, rely on disputed casualty data and media accounts, minimize Hamas’s role as an active belligerent and its use of civilian areas, and give insufficient weight to Israeli precautions and alternative military explanations. UN Watch is an advocacy organization rather than a court, so its critiques should also be evaluated on their evidence and reasoning. The competing assessments are serious, but none is a final judgment of the International Court of Justice. The stronger editorial argument is therefore not that one advocacy group has conclusively disproved another, but that contested facts, incomplete casualty classifications and competing inferences cannot by themselves establish the specific intent genocide requires.

The International Court of Justice has likewise not issued a final ruling that genocide has occurred. It did issue a provisional warning to Israel to improve its procedures for protecting civilian lives.

Public statements by some Israeli officials have been reckless, dehumanizing and deserving of condemnation. But the legal inquiry concerns whether the state’s conduct, viewed as a whole, demonstrates the specific intent to destroy the protected group. A campaign directed at an armed organization, accompanied by warnings, evacuations, strike precautions and humanitarian coordination—however flawed in implementation—supports an inference of military purpose rather than an intent to eradicate Palestinians. That conclusion is reinforced by the fact that Hamas has endangered Palestinians through indiscriminate rocket fire, hostage-taking, operations amid civilian infrastructure and abuses against Gazans. Those realities do not determine whether any Israeli strike was lawful, but they do complicate claims that every Palestinian death reflects a genocidal Israeli policy.

Yet, there is another form of genocide ignored by anti-Israel genocide experts that explains much better what is happening in Gaza. What is happening may be called autogenocide. The definition of autogenocide is “the extermination of a country’s citizens by its own government or people, or the genocide of a particular group by members of that same group.” Examples of autogenocide include Pol Pot’s actions in Cambodia, Mao’ mass murder of Chinese party members in the Cultural Revolution 1966-1976, and other purges running from 1942 to 1957, Stalin’s various mass murders from the 1930’s to the 1950’s, and Sudan’s Arab Muslim murder of non-Arab Muslims in Darfur. We should be adding Hamas’ actions against its own people in Gaza to this list. Hamas began its murderous actions by executing Gazans connected to the Palestinian Authority as soon as it took over Gaza in the 1980’s. It continued through the 1990’s and early 2000’s of oppression and mass murder of Gazan’s who opposed Hamas’ control of the Gaza Strip. I what is the singular most egregious act of Hamas was the sacrifice of their own people as human shields in the various Hamas attempts to attack Israel culminating in the most recent war. By placing their command centers, weapons caches, operational infrastructure in schools, hospitals, mosques, and civilian apartment buildings to protect themselves, by appropriating food deliveries and starving their own people while blaming the Israelis, and arguing that civilian deaths caused by these actions were making martyrs of their own people for the sake of the ideological framework centered on armed jihad and martyrdom called “istishhad” or the “belief that the defense of Islamic land is a sacred, non-negotiable religious duty” as highlighted in the Hamas 1988 Charter. (note: this same Hamas Charter directly calls for the mass murder of Jews)

While Hamas may have lost the kinetic war with Israel, the mass hatred directed against both Israel and the diaspora Jewish community is in part because of the accusation of genocide against Palestinians, making Hamas the winner the propaganda war.

The right conclusion is neither complacency nor slogan. Israel must facilitate sufficient humanitarian relief, investigate misconduct, discipline offenders and comply with binding international law. Hamas must release hostages (which they have done), stop operating among civilians and end any recruitment or use of minors. Human-rights organizations and UN-mandated experts should have their evidence examined seriously, but their conclusions should not be mistaken for final judicial findings or insulated from scrutiny of sources, casualty classifications and competing explanations. Moral urgency does not justify collapsing every atrocity, war crime or humanitarian catastrophe into genocide. At the same time the world needs to recognize that the real genocide in Gaza is auto-genocide being caused by Hamas itself and their own treatment of their people as human shields and fodder for their ideological and religious war against Israel and the Jews. Because of the misuse and abuse of the word genocide by politicians, academics, college students and even legal experts like Navi Pillay worldwide are pursuing a misguided attack on both Israel and Jews for what is in reality the betrayal of Palestinians by their own leadership and the world for ignoring the abuses of Hamas, Islamic Jihad and the Palestinian Authority against their own people in what might be called an autogenocide.

On the evidence and legal standard now available, the more defensible judgment is that Israel is fighting a devastating war for both Palestinians and Israelis, but the required genocidal intent has not been conclusively established. While at the same time the actions of Hamas in the mass murder of their own people are being ignored. All of those politicians mentioned above abusing the use of the word genocide need to rethink what they are doing for political advantage and the long term fall out they are causing.