“Genocide” is a crime under international law and in most national legal systems. As in the prosecution of all crimes, the elements of genocide must be proved beyond a reasonable doubt. Today, it has become more than a legal term; outside courthouses, in some circles, genocide has become a slogan. As this essay argues, using genocide as a slogan or label cheapens the currency of what has been called the “crime of crimes.”
This essay starts with the legal definition of genocide, not because it is dispositive, but because it is the only agreed definition we have. It then considers how impossible it is to discuss the subject without addressing the allegations of genocide thrown at Israel. It concludes with reflections on the use of “genocide” as a term in political discourse.
Genocide as a Matter of International Law
International law contains a formal definition of genocide. As set forth in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention or, simply, the Convention), genocide is the commission of acts with “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The specified acts include killing, causing serious bodily or mental harm, imposing conditions designed to destroy the group, intentionally preventing births, forcibly transferring children to another group, or engaging in a conspiracy to commit genocide. The parties – more than 150 states out of 193 UN Member states – to the Convention “undertake to prevent and to punish” the crime of genocide. Pursuant to the Genocide Convention, jurisdiction to try genocide is the province of courts in the territory where the genocide has taken place or of an international tribunal for which purpose parties to the Genocide Convention have agreed, or, of course, pursuant to applicable domestic law. The states that created the International Criminal Court (ICC) conferred on it jurisdiction to try allegations of genocide.
“Crimes against humanity” are not so different as a matter of substance although a wider array of tribunals may have jurisdiction. In the words of the Charter of the International Military Tribunal at Nuremberg, which was the first international tribunal to specify the character of such crimes, crimes against humanity include “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population…” Genocide and crimes against humanity require intention. Case-by-case application of the Genocide Convention and the prohibition of crimes against humanity law is essential.
The International Court of Justice (ICJ) affirmed that an applicant alleging genocide has to establish by convincing proof the elements of the crime. Such proof does not require showing an ambition to kill all members of a defined group everywhere in the world, but members of the group within reach of the perpetrators. That was true of German genocides against Jews and Roma (or Romani), for example, in World War II. In reaching its conclusions, the ICJ relied on findings by the International Criminal Court for the Former Yugoslavia (ICTY), for example, in regard to the genocide at Srebrenica: the trial court determined that the perpetrators had the requisite specific intent to kill Bosnian Muslim males to meet the requirements of the Genocide Convention. As the ICTY held, killing part of a group because the victims were part of the group could qualify as genocide if the people killed were emblematic of the group and the killing also was emblematic of the fate the group could anticipate – intentional physical destruction.
Wikipedia lists at least 20 “genocides” since 1900. They include, of course, the Holocaust, in which at least two-thirds of Europe’s Jews were murdered, and the Roma genocide, involving at least 250,000 murdered including at the killing centers established principally to kill Jews. Raphael Lemkin, who came up with the word “genocide” to describe the intentional killing of a people with the goal of eliminating that people, was quick to note that Jews were not history’s first victims of genocide or the only victims of genocide in World War II. In the twentieth century, there were genocidal murders of Armenians and Ukrainians before the Holocaust. In previous centuries, African, American, Asian, Middle Eastern, and European groups, including Jews, had suffered mass murder deserving to be called “genocide.”
Wikipedia does not discuss whether Hamas’s or Iran’s repeated insistence that Israel be destroyed constitutes genocidal intent. Without analyzing Israel’s actions compared to the elements of the crime of genocide or in any way acknowledging uncertainty with regard to facts on the ground in Gaza, Wikipedia includes Israel’s response to the Oct. 7, 2023, attacks by Hamas and other fighters based in the Gaza Strip, in its list of genocides. Unless one includes Hamas’s fighters and aiders and abettors as forming a group protected by the Genocide Convention, it is hard to equate Israel’s intended killings of these lawful military targets with, for example, the murder of some 7-8,000 Bosniak Muslim men and boys at Srebrenica in 1995 or the slaughter a year earlier of some 900,000 Tutsis in Rwanda.
Israel
It is probably impossible to consider our subject without noting the singular role of Jews in creating the law against genocide. Europe’s Jews were the principal victims of Hitler’s extermination plans. Jewish lawyers were among those who successfully advocated for inclusion of crimes against humanity in the Nuremberg Charter, and the 1948 conclusion of the Genocide Convention and adoption of the Universal Declaration of Human Rights.
On January 30, 1939, Adolf Hitler told the Reichstag that, “If the international Jewish financiers in and outside Europe should succeed in plunging the nations once more into a world war, then the result will not be the Bolshevization of the earth, and thus the victory of Jewry, but the annihilation of the Jewish race in Europe!” Ironically, Israel, since 1948 has been subject to armed attacks by states and non-state actors committed to its destruction.
Today, Iran and Hamas stand out among such states and non-states. Given that Israel calls itself a “Jewish” state and has a substantially Jewish citizenry, their goal should be considered genocidal intent as a matter of law.
Governments and commentators have hesitated to say so. Perhaps the consideration behind this reluctance is prudential. It is difficult to negotiate or make peace with those accused of genocide. In a discussion in 2003 of the UN role in restoring peace and justice to war-torn societies, then-Secretary General Kofi Annan made this point: “There should be no amnesties for war crimes, genocide, crimes against humanity or other serious violations of international human rights and international humanitarian law.” Yet, some commentators and others have not hesitated to turn a blind eye to such crimes where Israelis are the victims.
In the wake of Hamas’s attacks on Israel on Oct. 7, 2023, and Iran’s and Iran’s other proxies’ attacks in the following days, Israel responded with force. That response, particularly in the Gaza Strip, prompted immediate claims that Israel was committing genocide in Gaza. Stenciled messages appeared overnight on New York’s sidewalks calling on walkers to stop the Gaza genocide. No such messages ever have greeted Iran’s or Hamas’s calls for the destruction of Israel or Russia’s aggression against Ukraine or the kidnapping and removal to Russia of Ukrainian children. The immediate appearance of such messages and protests suggested an organized, well-funded effort to discredit Israel’s right to defend itself, indeed, to exist at all.
At the end of December 2023, moreover, not even two months after the Hamas attacks on Israel of October 7, and the commencement of Israel’s counterattacks, South Africa brought a case – some have suggested that Iran or others have funded the case – against Israel before the ICJ alleging that those counter-attacks violated the Genocide Convention. The South African representative illuminated the true point of the litigation:
At the outset South Africa acknowledges that the genocidal acts and omissions by the State of Israel (‘Israel’) ‘inevitably form part of a continuum’, of illegal acts perpetrated against the Palestinian people since 1948. The Application places Israel’s genocidal acts and omissions within the broader context of Israel’s 75-year apartheid, 56-year occupation and 16-year siege imposed on the Gaza Strip – a siege which itself, has been described by the Director of UNRWA Affairs in Gaza, as ‘a silent killer of people.’
In short, he argued, the existence of Israel constitutes a continuum of illegality of which “genocide” in the Gaza Strip is merely the culmination.
Cheapening the Currency
In 1951, the ICJ noted that the Genocide Convention defined genocide as a crime under international law because it involved “a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind . . .” That fact caused the ICJ subsequently to observe that the prohibition of genocide “assuredly” was a peremptory norm of general international law (jus cogens) – a mandatory norm that overrides all others that might conflict with it. Among the most frequently cited such norms are those at the core of the UN Charter – the prohibition on the threat or use of force except in self-defense. The UN Charter itself suggests this idea by stating that treaties inconsistent with the Charter are without force and effect. From outside the UN Charter, the list of peremptory norms usually includes the prohibitions on genocide, the slave trade and slavery, torture, and, often, apartheid and other offenses.
However defined, jus cogens norms are fundamental, part of the bedrock of the international system. Violations do not invalidate the mandatory norm. Accusing a government of violating one of them should not be done lightly. In recent years, such accusations, particularly of genocide, frequently have appeared in public discourse. When this usage occurs, the elements of the crime are not specified.
Conclusion
Genocide is a real crime with real elements. In this respect, it is like murder, although on a larger scale and with a larger purpose. In ongoing conflicts, facts having to do with intent, the identity of victims, and the circumstances under which people were harmed are difficult to determine. Our information technology context adds to the ordinary fog and uncertainties of war by increasing the means, and access to them, of deception and misrepresentation. Propagandists for a particular view exploit the uncertainties and these new technologies. Those who make accusations of genocide, whatever the circumstances, rarely if ever express doubt about the evidence. Or the need for more.
We live at a time where words of opprobrium are used where effect is more important than accuracy.
Nicholas Rostow is Senior Research Scholar, Yale Law School; Fellow, Institute for Security, Technology, and Society, Dartmouth College; and Executive Partner, Zumpano Patricios, PA. The views expressed are his own.
