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An increasing number of senior officials, NGOs and Western academics are ready to assert that the current Israeli military operation in Gaza is akin to a genocide.
But some law experts have sounded alarm on the risks linked to the use of this term, perceived as “crime of crimes”, in the absence of an appropriate definition or legal evidence.
They say that there is no concrete evidence to date that Israel has committed a genocide as defined by the 1948 Convention for the prevention and repression of genocide crime, of which Israel is a signatory.
“Israel commits war crime to use hunger as a weapon of war, which is prohibited by international law,” said Stefan Talmon, an eminent professor of international law at the University of Bonn.
“But there is a difference between war crime and genocide crime.
No clear genocidal intention so far
Created in 1944 by Polish Jewish lawyer Raphael Lemkin, the term “genocide” was defined in the 1948 Convention as a set of five crimes “committed with the intention of destroying, in whole or in part, a national, ethnic, racial or religious group”.
These crimes include “the murder of members of the group; the serious damage to the physical or mental integrity of members of the group; the intentional submission of the group under conditions of existence having to lead to its total or partial physical destruction; the imposition of measures aimed at hindering births within the group and the forced transfer of children from the group to another group”.
The war between Israel and Hamas in Gaza began after Hamas activists launched a Surprised attack on October 7, 2023 In southern Israel, killing 1,200 people and taking hundreds hostage. Fifty hostages are still detained, but less than half of them would still be alive.
Since then, UN agencies have warned That Israeli air strikes on Gaza, as well as the seat of the territory, led to the death of more than 60,000 people, the forced displacement of tens of thousands of others and growing evidence of a mass star caused by humans.
In December 2023, South Africa began a procedure Before the International Court of Justice (CIJ) against Israel for alleged violations of the 1948 Convention, arguing that “the acts and omissions of Israel […] have a genocidal character, because they are committed with the specific intention required […] to destroy the Palestinians of Gaza as part of the Palestinian national, racial and ethnic group in the broad sense “.
A year later, Amnesty International was one of the first international NGOs to conclude in a report that “sufficient elements suggest that Israel’s behavior in Gaza after October 7, 2023 is equivalent to a genocide”.
More recently, B’tselem, a leading Israeli NGO, also said that Israel’s policy in the Gaza Strip “as well as the declarations of senior Israeli political and military officials on the objectives of the attack” made it possible to conclude that “Israel conducts coordinated and deliberate action to destroy Palestinian society in the Gaza Strip”.
In a separate interviewOmer Bartov, specialist in genocides and holocaust, told Euronews That he had described the military campaign of Israel as a genocide in May 2024, when the Israeli army decided to shave Rafah after having ordered its inhabitants to evacuate the city located at the southern end of the Gaza Strip, to move them to Mawasi – a coastal area where there is hardly shelter.
But for an expert in international law and a lawyer like Mr. Talmon, there is no sufficient evidence of a clear intention to commit a genocide in Israel so far, and it will be “very difficult” for South Africa or any other country to prove that Israel commits a genocide.
“It’s not just about killing people as such and deliberately killing someone,” said Talmon. “You have to kill the person because you want to destroy the group of which it is part, in whole or in part”.
“This does not necessarily mean that it is necessary to kill the group in whole or in part,” continued Mr. Talmon. “We have seen people convicted of genocide when only one person had been killed … It is not necessary that 6 million people died as in the holocaust so that there is genocide.”
The proof is either “direct”, he said, as a decision of the Israeli security firm which “would clearly indicate that the cabinet fundamentally wants to exterminate the Palestinian people”.
But the CIJ can also require indirect evidence which “make it possible to deduce the intention to destroy in whole or in part from a certain action diagram”. In addition, he added, there must not be “other deduction than that of the intention to destroy”.
The example of Srebrenica
Mr. Talmon spoke of the genocide perpetrated in the city of Srebrenica, in eastern Bosnia, in July 1995, which ended in the systematic execution of more than 8,000 Bosnians, mainly men and boys.
Despite a certain number of genocide complaints filed against the military and political leaders of the Bosnian Serbs for crimes committed in different parts of the country, the CIJ estimated that the genocide had only been committed to Srebrenica.
“The Serbs (from Bosnia) separated the women and children from men and began, in a short time, to kill thousands of men of all ages, from 16 to 65 or 75, without worrying about whether they were soldiers or civilians,” he said.
“In this situation, the International Court of Justice said: What other explanation can these massacres can be given in the space of two days, if not the desire to destroy, in whole or in part, the Bosnian Muslims of this region and to exterminate them?
“We have not experienced such a situation in the Gaza Strip,” added Mr. Talmon.
Crime against humanity against genocide
In the absence of indisputable, direct or indirect evidence, of the intention to destroy, Israel could be prosecuted for war crimes or crimes against humanity, said Talmon.
According to UN rules, the term “war crimes” designates violations of international humanitarian law “committed against civilians or enemy fighters during an international or national armed conflict”. A crime against humanity designates a series of crimes “committed within the framework of a generalized or systematic attack launched against a civilian population and knowing this attack”.
“Of course, Israeli action can explain many other ways,” said Talmon. “Since the fight against Hamas to the rescue of hostages, it could be a simple brutality, reprisals, revenge, ethnic cleaning,” he said.
There are a multitude of other explanations to Israeli actions, and it will therefore be very difficult to decide, because the Israelis make excessive use of the force, push the Palestinians to the south of the Gaza strip, confine them in very specific areas, and fundamentally reduce the quantities of food, water and medical supplies at their disposal “, continued Mr. Talmon.” other reasons “.
Despite the absence of clear evidence or compliance with the high standards of the genocide, Mr. Talmon concluded that such a verdict would have devastating effects for the Israelis, many of whom are survivors or children of Holocaust survivors.
“If you conclude that Israel commits a genocide or that Germany has committed a genocide, it is not only the current government which will be considered as a genocidal“Said Mr. Talmon, using the French word to designate the author of a genocide.
“They are the whole people,” he said. “The Israelis become genocidaires … The Germans have become genocidaires”.
Founded in 1945, the CIJ made genocide verdicts in a handful of cases against individuals, and has not yet condemned any country for genocide.
The genocide affairs brought before international courts are an arduous company, which often takes more than a decade until a verdict is returned.
Israel vehemently rejected all the genocidal campaign allegations in Gaza, declaring in turn that his actions aimed to deprive Hamas from his means of action and destroy it.
He also repeatedly accused the militant group of intentionally endangering the life of the Palestinians by using them as human shields, while saying that he had done everything in his power to avoid civilian losses.
