Israel’s Obligations Under The Genocide Convention

Israel’s Obligations Under the Genocide Convention

I. Obligation

Israel’s war in Gaza is not a violation of its commitments as a contracting party to the 1948 Genocide Convention. It is, in fact, a fulfillment of its obligations under the treaty.

For Israel to do nothing in the face of Hamas’ actions on October 7, or to cut its actions short and somehow acquiesce to a reality where that orgy of murder, rape, torture, and abduction would recur, would be a violation of the first article of the Convention, which states:

“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”

The Second Article of the Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”

When Hamas Einsatzgruppen swept into southern Israel on the morning of October 7, their rampage spared no one they were able to reach. It was not a military campaign targeting only security installations or key national infrastructure or targets of political, economic, or religious symbolism. Nor was it a terrorist attack on random civilians designed to shock or pressure others.

It was an attack on every Israeli they could get to. There are no stories of people spared for any reason. Wherever Hamas forces made contact with Israelis, they killed. And if they didn’t kill, it was to kidnap. Villages on the border that weren’t scenes of fire, looting, and murder were those where Hamas forces were either repelled successfully or which they never managed to penetrate before their forces were  overcome. Wherever Hamas militants could kill Israelis, they did so, making no effort to distinguish soldier from civilian, man from woman, adult from child, or even Jew from Arab.

None of this is inconsistent with the basic ideological and theological commitments of Hamas as an organization or of the larger movement of which it is only one manifestation. Its Charter evinces a pathological and conspiratorial conception of Jews and openly calls for their physical annihilation. And its spokespersons openly boast of their intention to execute more October 7-style actions in the future.

These beliefs and actions meet all the minimal requirements of the definition in Article II of the Convention. There is the intent to destroy a national group, and that group is targeted “as such.” That is, the killing of civilians who are members of the target group is not a side effect of other acts war, but the goal itself, stated in words and observable in deeds.

If a Jewish state has any purpose at all, it is to prevent this. And if the State of Israel has any obligation under the Genocide Convention, adopted in 1948, the year of Israel’s birth, and conceived largely as a response to the genocide of the Jewish people which had just concluded three years before, it is to act forcefully against it.

At this moment, Israel stands accused of violating its commitments under the Genocide Convention, not because it hasn’t acted forcefully enough against the Hamas regime which has controlled the Gaza Strip for the last 17 years, but rather because it is acting at all.

II. Accusation

The case brought by South Africa before the International Court of Justice, alleging that Israel has committed genocide, rests on two claims: one regarding the conduct of Israel's war;  and the second about the rhetoric of Israel's leaders.

Following the October 7 massacre, Israel launched a massive military offensive in the Gaza Strip. Israeli aircraft bombed Hamas targets, and Israeli ground forces moved house by house, school by school, hospital by hospital, eliminating weapons stores, tunnel shafts, and command posts.

The operation has led to widespread destruction, the displacement of nearly the entire population of Gaza City and the majority of the population of the entire Gaza Strip, and a death toll significantly higher than that of any Arab-Israeli war since 1982. The Palestinians report at least 22,000 fatalities compared to some 1500 Israeli fatalities, 1200 of which were on October 7.

Based on current estimates, the ratio of noncombatant to combatant fatalities in Gaza is somewhere between 2:1 and 3:1. It's a morally challenging figure to come to terms with, but it in no way is determinative of a war crime. Wars conducted by Western armies in Iraq, Afghanistan, Serbia and elsewhere had slightly worse ratios; those conducted by armies of non-democratic regimes have been much worse.

A comparison with the US-led operations against ISIS in Raqaa or Mosul shows that the Israelis have done a better job protecting civilians while taking much greater losses to their own forces. This is notable since the combat environment in Gaza is much more challenging in virtually every way, from the presence of tunnels to the much higher population density. Furthermore, Hamas attacks on Israel were far deadlier than anything ISIS did in France or the US.

The rhetorical claims are even weaker. They rest on inflammatory remarks made by, among others, an Israeli pop star and a middling municipal official. Some of the remarks are indeed appalling, but they are not in any way different from remarks one could find from equally unimportant people in the US after 9/11 or France after the 2015 attacks.

The few remarks attributed to senior officials, including the Prime Minister and Defense Minister, don’t come close to indicating genocidal intent even by the most uncharitable interpretation.

"We are fighting human animals," the Israeli defense minister said on October 9, as the IDF was literally fighting Hamas still on Israeli soil, where some of its fighters were still holed up in Sderot and Kibbutz Be’eri.

The Israeli Energy Minister also declared that no electricity or water would be supplied to the Gaza Strip by Israel until the hostages were released. If not supplying your enemy with electricity and water during war is a crime, then every army in history is guilty of it.

The Prime Minister spoke of the Hamas massacre early on in the war and cited the biblical commandment to “remember what Amalek has done to you.” Amalek has[SM1]  long been an understood reference for Jews invoking both an ultimate evil and an incorrigible antisemitism.

There is a long tradition of antisemites claiming Jews reference satanic ritual injunctions in their holy texts for a host of imagined sins, and the claim that Netanyahu was secretly inciting  mass murder in this instance is no different.

The injunction to “remember Amalek” is from Deuteronomy. The violent end of the Amalekites far away in a different part of the Bible (and not in the Torah) in Book of Samuel. It was those latter bits that were cited in all the learned commentary about Netanyahu’s supposedly genocidal dog whistle. It’s an incredibly poor reading that reveals just how deeply some want to believe in Israel’s irredeemable guilt.

The outrage over this is a mix of projection and ignorance. If someone describes a new lover as a “Romeo,” do we worry that she is secretly plotting a poisoning? This would be not only a misreading of Shakespeare’s play, but a willfully ignorant misunderstanding of a cultural touchstone and its symbolic meaning to readers and non-readers alike over generations.

III. Anticipation

There are other supposedly "dehumanizing statements" attributed to Israeli leaders, such as when the Israeli president counseled patience in Israel's war effort in Gaza saying "it will take time to eradicate a cancer."

Except, of course, that this phrase was not uttered by  Israeli President Isaac Herzog. It was President Obama who said this when describing the war against ISIS, the one that included the battles in Raqaa and Mosul mentioned above. It shouldn't even be necessary to say this, but: Obama was not calling for a genocide. This is clear when one considers  the full — and accurate — context of that quotation, as well as by a critical look at the goals and methods of the US-led operation and  the kind of enemy it was fighting. All of which is equally true for Israel.

But despite this, accusations of genocide were not made against President Obama then. Or since. The explanation for this is not because of power differentials and not because of hypocrisy and not because the world is just so damn unfair. It goes much deeper.

Hanging over any discussion of Israel and any discussion of Jews and violence is the long, unremitting, and unfading shadow of the Shoah. It is impossible to understand just how much Israel bothers Western intellectuals without understanding how much the Holocaust bothers them. Haunts them. Frightens them.  And, occasionally, thrills them.

Last year I spoke at a conference at the Oslo Institute for Social Research. I had no idea that Hamas was planning its October 7th  massacre. (And, anyways, that was far from the topic of the paper I was presenting.) But I did tell my audience that at the next outbreak of Arab-Israeli violence, Israel would be accused by right-minded activists and NGO's of "genocide."

How did I know this? The campaign to appropriate this word in the cause of pathological obsessive Israel hatred was following in the well-worn path of previous rhetorical campaigns for the terms "collective punishment," "ethnic cleansing," and "apartheid", among others. Fringe elements were already using the term, with the mainstream of human rights organizations affecting a simpering and obviously temporary reluctance about it.

Days before I spoke in Oslo, the UN's Special Rapporteur on the Occupied Palestinian Territories, Francesca Albanese, was asked if she would use the word "genocide" to describe Israel's actions. "I personally refrain from it because I want to be absolutely sure of the argument when I make it. And I will get there. I will get there."

Less than a year later, she got there, and not coincidentally, she got there in the immediate aftermath — not of an Israeli action — but of an action directed against Israel. The genocide accusations began in the wake of the October 7th  massacre, well before Israel had begun to mount a substantive military response. This, too, followed a well-worn pattern. Previous rhetorical escalations against Israel generally happened on the backdrop of some terrorist atrocity against it.

Albanese wasn't the only one who “getting there”.

Hauling the Jews in to plead their case before  a special tribunal and face the charge that they are the real Nazis has been the fantasy of every antisemite since the first gavel hit a soundblock in Nuremberg in 1946. It is the dark fantasy behind the insistence over decades on speaking of controversial Israeli actions always in terms of "war crimes." This, and not a poor grasp of complex legal arguments, is the reason every Israeli military action in the last half century has been criticized as "collective punishment" or "disproportionate." As long as the Shoah looms large in the civilized conscience, there will be those among us who project our fears and our discomfort in the most transparent way.

The damage from this obsession is enormous, both to the cause of human rights and to the people this obsession claims to care about, the still-stateless Palestinians.

That it is impossible today to enter the milieu of people who care about global justice, climate change, international law, or world health without being committed to the theology of a uniquely evil Jewish state standing in the path of world peace is a moral travesty, but it is not an accident. A panoply of bad actors from decidedly non-progressive regimes have benefited enormously from turning the kinds of post-1945 institutions that should be protecting the world's most vulnerable into talk shops of Israel hatred. Every well-meaning institution and every progressive cause that has been colonized by anti-Israel activism has emerged from it hollowed out and irrelevant.

If the Genocide Convention goes the way of, say, the UN Human Rights Council, and becomes a meaningless provision used by failing regimes and wealthy petro-dictatorships to mobilize hatred against Israel and distract from their own problems, we will all be poorer for it.

For the Palestinians, the tragedy is compounded. The best hope for the Palestinian people and the Palestinian cause remains making peace with Israel and establishing a state alongside it, rather than wasting another generation in a pointless attempt to eliminate it. What prevented the Palestinians from coming to terms with their previous defeats was the denial that they were defeated and the invention of a counter-narrative of boundless victimhood and ultimate triumph in a magical distant future.

This form of amnesia confers a kind of moral victory to efface the actual experienced defeat, but it also ensures a repetition of the mistakes and fantasies that led to the previous catastrophe.