Genocide in Gaza
I’ve been thinking about the charge that Israel, or its leaders, may be committing genocide in Gaza. The problem seems simple but conceals complexities. It is clear that in addition to war crimes and crimes against humanity, Israel has committed acts of genocide. However, prosecuting the legal crime of genocide requires both the a genocidal act, and proof of an additional mental element of the specific intent to destroy a protected group in whole or substantial part. If so, for purposes of individual criminal liability we can ask: does the evidence establish proof beyond a reasonable doubt? (To establish state liability, which is apart from individual liability, the issue is whether the evidence of criminal intent is fully conclusive). It’s not enough for purposes of legal liability to say that someone has probably committed genocide — Israel and its leaders clearly meet this standard. One can also confidently say that Israel’s leaders have committed the separate and lesser crime of inciting genocide. But for prosecuting individuals for the crime of genocide, the issue is: does the circumstantial evidence exclude every other reasonable possibility of a non-genocidal intent? Perhaps not.
A United Nations Special Rapporteur has found “reasonable grounds” that Israel is committing genocide in Gaza. South Africa has sought to invoke state responsibility for genocide by prosecuting a case before the International Court of Justice. That court, has issued a provisional order finding plausible evidence that Israel is committing genocide in Gaza. South Africa has also gone further and obtained provisional orders from the ICJ requiring Israel to permit delivery of food, water and other supplies to the starving Palestinians in Gaza.
Recently, 600 British jurists, citing grave breaches of international law, have called upon Great Britain to cease sending arms to Israel. They argue that the likelihood that genocide is occurring in Gaza puts the United Kingdom at risk for complicity in genocide and is also in breach of its obligation to prevent genocide. This in turn would put the UK in direct violation of the genocide convention. Nation States have an obligation to take steps to prevent genocide and complicity in genocide is a mode of responsibility under the genocide convention. In a similar vein, Nicaragua has brought a case before the ICJ against Germany asserting that, as a result of its arms aid to Israel, Germany is in violation of both the Genocide Convention, and the Geneva Conventions.
The logic of these moves to hold nations accountable for their complicity in genocide applies to all other nations assisting Israel in its war in Gaza (are you hearing this President Biden?). Every nation supplying arms and assistance to Israel is on notice that they are at risk of complicity in genocide. The U.S. has not been brought before the ICJ for its arms deliveries to Israel. The reason is that the U.S. does not automatically accept ICJ jurisdiction so cannot be brought before that court without its consent. However, it is a party to both the Genocide and Geneva Conventions and is therefore legally responsible for breaching those treaties.
The efforts of the Special Rapporteur, South Africa, Nicaragua, the ICJ and the above mentioned international lawyers, deserve considerable respect and consideration. Cumulatively they make a powerful case that we may be seeing genocide in Gaza. Moreover, they demand action of us, and our respective governments irrespective of whether or not evidence of the crime of genocide is presently provable.
These actions are an important first step. Serious people and serious countries can responsibly act on such “reasonable grounds.” It suffices to require countries like the US and UK to cease complicity with Israel’s war. Genocide is not the sole reason why nation states should cease to support Israel in this. Israeli war crimes and crimes against humanity also make a compelling moral case for ending complicity with Israel’s illegal war fighting.
Humility should limit one’s comments to what one can safely assert to be true. The truth does not make good copy. It goes too far to say without qualification that Israel is conclusively committing genocide. However, we can say that Israel is probably committing genocide. The evidence is sufficient for reasonable people to act and for responsible governments to cease complicity with war crimes, crimes against humanity, incitement to genocide, and most importantly, probable genocide. We, as citizens, must call upon our respective governments to cease assisting genocide and to honor their duty to take measures to prevent the scourge of genocide.