Calling Israel’s actions ‘genocide’ harms the cause of human rights everywhere
‘Genocide’ has a very specific legal definition within human rights law — it shouldn’t be used carelessly to make polemical points
Protesters demonstrate in Washington, DC. Photo by Getty Images
Contributing Columnist Jay Michaelson October 20, 2023
What is happening in Gaza right now is a horrible tragedy. Depending on your political views, you may see it as an awful but necessary military operation, or a brutal and pointless assault on a civilian population. Your heart should break either way.
But it is not a genocide, as some have charged. And it does not help the cause of human rights or Palestinian liberation to label it as such.
“Genocide” is a legal term, with a specific definition and specific elements that constitute it. It was first recognized as a crime under international law by the United Nations in 1946, in the wake of the Holocaust (the term itself was coined in 1944), and its definition is contained in Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. That definition is as follows:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group
Obviously, the Israeli operation has already involved acts (a) and (b), just as any large scale act of war would. However, it has not involved acts (c), (d), or (e), and, perhaps most importantly, is not intended (and cannot be said to intend) “to destroy, in whole or in part” the Palestinian people.
The “conditions of life” in Gaza are indeed appalling, but they are not “calculated to bring about [the Palestinians’] physical destruction in whole or in part.” On the contrary, the stated intent of the operation is to destroy Hamas, and the horrible bombardment (and pending invasion) of Gaza bears that out. Israel has provided warnings to civilians to leave areas where Hamas is based. It has stated that its shutoff of electricity and water is meant to be a bargaining chip for the release of the hostages Hamas kidnaped on October 7.
Of course, maybe Israel is simply lying; maybe its true intent is to wipe out the civilian population entirely. Surely, some voices have indeed called for that, both on the Israeli right and in American right-wing media — and that would indeed be genocide. But there is no affirmative evidence that that is Israel’s true intention, and plenty of negative evidence showing that it is not. What there is is rage.
Once again, one may legitimately argue that Israel actions do not adequately minimize the loss of innocent life. One may argue for an immediate ceasefire, or for negotiations to release the hostages. Indeed, one may argue that Israel’s entire operation is tactically, militarily, and morally bankrupt. But that does not make it genocide.
And it is extremely short-sighted for leftists, peace activists, and anyone interested in human rights to do so. There are actual genocides in the world: China is clearly committing one in Xinjiang against the Uighur minority there. The Myanmar military junta committed one in 2017 against the Rohingya. (You could argue Russia tried to commit one in Ukraine, though the facts there are not as clear-cut.) These heinous acts fulfill the legal criteria of genocide, and are clearly what the law is meant to be about: the attempt by one group to exterminate another.
And in a time in which China, Russia, and others are openly challenging international human rights norms, arguing that they should simply not apply to anyone, we need to uphold, not dilute, those norms.
If “genocide” means any horrible action by one group against another, then it loses its specific moral and legal meaning. It becomes just another word that partisans use against one another. I’m pro-Palestine, therefore I call this a genocide; you’re pro-Israel, therefore you deny it. That represents a terrible loss for the rule of law, and the persecuted minorities that are the targets of actual genocide. No one who cares about minority rights, indigenous rights, or human rights should be cavalier in the use of this term.
Finally, it does not aid the cause of Palestinians to level this charge. The genocide charge enflames hatred against Israel, and in turn exacerbates Israelis’ sense of being alone and isolated in a world of antisemites who will say anything against them. All that supports the extremists on Israel’s right wing.
This is not to suggest that solidarity with Palestine means supporting the Israeli action — that would be ridiculous. It is simply to say that all of us — left, right, and center; sympathetic to one side or the other or both — need to be careful with language and contribute to some eventual resolution, or at least mitigation, of this conflict. Painting the enemy in terms of good and evil does a disservice not merely to the “other side” but to the very prospect of coexistence between two peoples with complex and interwoven histories.
That goes for pro-Israel voices too: Hamas’ heinous actions were also not genocide. They were terrorism, they were evil, but they were not genocide. Advocates for peace and justice should carefully choose their words and actions.
All that being said, there have been several high-profile accusations of genocide in connection with the Israel-Hamas war. Yet these accusations fall apart under close scrutiny.
I will focus on one example: a highly circulated piece by Raz Segal calling the operation a “textbook case of genocide.” He cites part (but not all) of the Genocide Convention quoted above, and states, “In its murderous attack on Gaza, Israel has loudly proclaimed this intent” – namely the intent “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”
What is the evidence for this? Segal quotes the following statement by Israeli Minister of Defense Yoav Gallant: “We are imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals, and we will act accordingly.”
Nothing about this statement evinces the intent to destroy the national, ethnic, racial, or religious group of Palestinians. The only possible way to read Gallant’s statement as possessing that intent is the (deplorable, in my view) statement that “we are fighting human animals, and we will act accordingly.” However, Israeli officials have repeatedly said that they are fighting Hamas, not Palestinians as such — Hamas fighters are the “human animals” he refers to.
True, Gallant may also be dog-whistling to Israeli nationalists who will hear his statement as referring to all Palestinians. But that is contradicted by all of the rhetoric and actions surrounding the operation. And indeed, even if he were referring to all Palestinians, “fighting” is not the same as an intent to commit genocide. And that is literally the only piece of evidence Segal adduces to prove the Israeli government’s intent: one 29-word statement.
Segal also irresponsibly quotes the Genocide Convention’s criteria in part, rather than in whole; he omits criteria 4 and 5 entirely, and mentions only those portions that support his argument. He next moves on to quote genocidal statements on social media. These are indeed genocidal and repellant. But they are not evidence of any intent on behalf of the Israeli government, just as the most extreme commentator on Fox News does not reflect the policies of the U.S. government.
Lastly, Segal’s reference to a recent statement by 800 international law experts is disingenuous. That statement much more carefully warns of “potentially genocidal intent” and a “serious risk of genocide.” To be sure, it is far to the left of what any supporter of Israel would find acceptable. But it is careful in stating that genocide is a potential risk, not a current action. That is not the same as the broad, careless, irresponsible, and counterproductive accusations of genocide that are now commonplace at pro-Palestine protests and, lamentably, articles in the press as well.
Israel’s actions in Gaza are extremely grave. While many believe they are justified to uproot the Hamas terrorist organization in the wake of its unprecedented and evil attack, many others may reasonably believe that the civilian cost is too high, that other avenues should be exhausted first, and that Israel’s actions should be condemned.
All that is within the bounds of political discourse, dissent and protest. What is out of bounds is misusing and ultimately diluting a critical term of international human rights law to make a polemical point. In fanning the flames of rage against Israel, activists who use the term “genocide” are unwittingly undermining the entire, fragile framework of international law upon which human rights depend.
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