To understand, we must start with the definition of “genocide” and the often misused use of the term
In recent weeks, the word “genocide” has been used very frequently in connection with the war between Israel and Hamas in the Gaza Strip. Some Israeli officials have used “genocide” to describe the October 7 massacre of civilians by Hamas. Above all, there was talk of genocide in connection with the Israeli army’s massive bombing and ground invasion of the Gaza Strip, in which more than 11,000 Palestinians, mostly civilians, were killed.
The word genocide to describe what is happening to the population of Gaza is often used on social networks, but also by some legal experts and members of international institutions. However, others are much more reluctant to use this definition for various reasons. In order to have the appropriate tools to understand the ongoing debate, we must start with the definitions: knowing what genocide is and why clearly attributing this crime is very complicated from an international law perspective.
genocide
One of the main problems when discussing genocide is that the definition of the phenomenon is often quite confusing. In political and journalistic language, “genocide” is often used to mean a large massacre, mass killings or other events of this kind: it is a term used as an indicator of the violence or brutality or seriousness of a particular crime , regardless of the specific type of crime. In fact, there is a legal definition that is very strict and sets certain criteria and conditions.
A bloody footprint in Kibbutz Nir Oz, Israel (AP Photo/Bernat Armangue)
The definition of genocide codified under international law is contained in the so-called Genocide Convention, an international treaty adopted by the UN General Assembly in 1948. The 1948 Convention provides the formal definition of genocide, on the basis of which international bodies determine the presence or absence of genocide, as well as possible responsibilities and punishments determined by international courts. The definition is:
In this Convention, genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such:
a) Killing group members;
b) serious violation of the physical or mental integrity of group members;
c) the fact that the group is intentionally exposed to the intended living conditions
cause its physical destruction, in whole or in part;
d) measures to prevent births within the group;
e) forced transfer of children from one group to another.
The conditions adopted by the Convention to talk about genocide are quite precise and do not seem to leave much room for doubt, but there is an element that complicates everything, namely “the intention to destroy, in whole or in part, a country. “Group of a national, ethnic, racial or religious nature as such”. In practice, this means that in order to speak of genocide, it must be proven that the person who committed the act had the intention to exterminate a group of people as such. For this reason, the Holocaust is defined as a genocide (the goal of the Nazi regime was to systematically exterminate the Jewish people as such), while it is much more difficult to attribute this definition to a large massacre of civilians during a war.
For this reason too, since the adoption of the 1948 Convention (i.e. after the Shoah) to date, there have only been three cases in which the crime of genocide has been recognized at the international level and prosecuted by the International Criminal Court: the Khmer genocide in Cambodia Rossi in the late 1970s, the Rwandan genocide in 1994 and the Srebrenica massacre in Bosnia in 1995.
In recent decades, from 1948 to the present, there have obviously been many other cases of massacres that could indicate genocide, but none have been defined as such because it has not been possible to establish with sufficient certainty in international courts which crimes were committed it was carried out with the “intent” of destroying a group.
For example, in 2003, militias loyal to then-President Omar al-Bashir conducted an ethnic cleansing campaign in Darfur, a separatist region of Sudan, in which around 300,000 people were killed. Many countries, including the United States, spoke of genocide, and even today it is quite common to hear of the “Darfur genocide.” But in 2005, a UN commission concluded that the Sudanese government had not pursued a “genocidal policy,” although some people, including government officials, had acted with “genocidal intent.”
An important aspect that experts and international jurisprudence emphasize must be taken into account here: there is no formal hierarchy of gravity between different international crimes. This is another problem with the public debate, where there is a tendency to view genocide as the worst and most notorious of all crimes, which implicitly means that, for example, crimes against humanity such as extermination are less serious. From an international law perspective, this is not necessarily the case, but this perception leads to very polarized and confusing rhetoric and debate surrounding the accusation of genocide.
– Also read: What is legal and what is not in the war against Gaza?
Gaza
In recent weeks, many people have described the Israeli bombings and invasion of Gaza as genocide. There is a lot of talk about it on social networks, but some leaders of Islamic countries, such as Turkish President Recep Tayyip Erdogan, have also said it explicitly. In all of these cases, however, reference was always made to the political and non-legal definition of genocide, which expressed a particular disgust at the mass killing of civilians.
The debate is also lively among experts and people who study international law or work for international organizations. The most notable case is that of Craig Mokhiber, director of the New York office of the UN High Commissioner for Human Rights, who announced his resignation in early November in protest at the UN’s cautious stance. supportive that what is happening in Gaza is a “textbook case” of genocide.
Public appeals have also been made, for example by some independent UN advisors or international law scholars, which, however, do not directly speak of genocide, but rather of “risk of genocide” or “potential genocide”. This is obviously a different and more cautious position, implying that there may be some extremes to talk about genocide, but they are still tenuous and, above all, have not been independently identified.
Experts who believe that there may be reasons to at least speak of a “threat of genocide” and that, therefore, in the actions of the Israeli army “the intent to destroy” a group such as the Palestinians can be found, point to the fact that several representatives of the Israeli government and institutions have made extremely violent statements about the war in Gaza. The President of Israel, Isaac Herzog, said: “Out there [nella Striscia di Gaza] There is a whole nation that is responsible,” meaning all the Palestinians who are said to be responsible for the October 7 Hamas attack. Prime Minister Benjamin Netanyahu said he would “reduce Gaza to rubble” and Defense Minister Yoav Gallant said: “We are fighting with people and will act accordingly.”
However, many experts are hesitant to say that these statements are enough to prove intent to commit genocide, also because there have been more numerous statements in which the army and the government said they were working to save the lives of civilians protect, even though Netanyahu himself has recently admitted that these attempts are not producing results (of course, simply saying that he wants to protect the lives of civilians is of no use if measures are then taken that go in the opposite direction). In short, it is currently very difficult to prove that the Israeli government has genocidal intent.
Another reason for caution is that an independent reconstruction of the facts is currently not possible.
When a genocide investigation is opened in international courts (which is extremely simplified: in cases involving international crimes, the International Criminal Court deals with the responsibility of individuals, while the International Court of Justice deals with the responsibility of states) , the public prosecutor is responsible for dealing with the case, carrying out lengthy on-site investigations, having access to the locations, inspecting any mass graves and corpses and interviewing the witnesses. Access to the Gaza Strip is currently completely blocked and it is not possible to bring charges based on independent investigations.
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