Israel-Gaza: what the term genocide means under international law

Mend Mariwany, MDT/The Conversation

In the weeks since the Hamas attack on Israel on October 7 and the Israeli bombardment and ground assault on Gaza, both sides have traded accusations of genocide. Hamas killed 1,200 Israelis and took more than 200 hostage, while Israel’s subsequent aerial and ground attacks on Gaza have killed more than 15,000 Palestinians and displaced millions.

The term genocide was first coined by the Polish lawyer Raphael Lemkin in 1944 amid the horrors of the Nazi Holocaust.

Lemkin, who was Jewish, originally defined genocide as “the destruction of a nation or ethnic group”, encompassing both physical killings and an assault on the spirit of a group, including its social, economic and political ways of life.

Lemkin’s definition laid the foundation for the 1948 UN Genocide Convention, which specifies that genocide can occur “with with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. This can be through killing, destroying a group, preventing births, or transferring children to another group, among other means.

This convention was instrumental in setting up international tribunals in the 1990s to prosecute war criminals in the former Yugoslavia and Rwanda.

However, Alexander Hinton, a professor in anthropology at Rutgers University Newark in the US, says that the need to prove intent can pose a significant hurdle to prosecutions for genocide.

It’s much better to have a legal definition than not to have one … but it also means that when horrific acts take place that don’t fall within the purview of that legal definition, people say, ‘well, it’s not genocide’.

Hinton is an expert on the Cambodian genocide and testified during the UN-backed international tribunal that convicted some of the Khmer Rouge leaders of genocide. He cautions against focusing too much attention on proving the crime of genocide, rather than on other types of crimes that may be taking place. “Atrocity crimes, genocide, crimes against humanity, war crimes and ethnic cleansing are all horrific,” he says, adding that the priority should be on “crimes against humanity”.

Cases for atrocity crimes brought under international law can be slow, such as in The Gambia’s ongoing prosecution of Myanmar for the genocide of the Rohingya people. But Hinton hopes that the Genocide Convention, alongside institutions such as the International Criminal Court and the UN Office on Genocide Prevention, provide tools that can be used to bring an end to a conflict more swiftly.

Countries can also take independent actions against alleged perpetrators, such as naming and shaming or imposing sanctions.

When it comes to the current conflict between Israel and Hamas, Hinton refuses to be drawn on whether genocide is taking place under the legal definition of the term.

It has limitations and it’s also used politically, and so it’s important to understand there are other ways of understanding the term. And so ultimately each of us needs to bring our knowledge to bear, our critical thinking, and make a determination of what is taking place in Israel and Gaza.