Over the past six months, the term genocide has played a central role in framing the conflict in Gaza and the rhetoric surrounding it. Given the ubiquity of the term, it has become almost beside the point to consider whether it actually applies to the events in Gaza. The conflict has laid bare that the construct of genocide, at least as in its legal definition, is ill-suited to drive public debate.
Israel’s greatest legal liability for genocide lies not in the thousands of civilian deaths resulting from Israel Defense Force’s military action but from the humanitarian crisis that has unfolded over the course of that action. In essence, the argument is that knowingly causing conditions of famine while preventing efforts to alleviate it constitutes a fact pattern consistent with Clause 2c of the Genocide Convention, which identifies “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” as a genocidal act.
When South Africa filed a petition with the International Court of Justice in December seeking clarification as to whether Israel’s conduct in Gaza constituted a genocide, the court called upon Israel to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.” Given that the court has standing in this case to address only issues related to the claim of genocide, these enjoinders suggest that Clause 2c is of central concern to the court.
The focus on famine represents an important development for genocide jurisprudence. But it is practically tangential to the heated rhetoric in the public sphere. For one, it says nothing about whether Hamas’s pogrom-like raids on Israel on Oct. 7, 2023, might also constitute genocide. After all, civilians were targeted on the basis of their Jewish identity and/or Israeli nationality, and Hamas has previously called for the destruction of Israel as a Jewish state. It also ignores the high civilian death toll — as many as two-thirds of the 33,000 Gazans killed in the first six months of the war — resulting from Israel’s campaign against Hamas.
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Both omissions reflect how international law and institutions frame considerations of genocide: Hamas does not have standing before the International Court of Justice, which has authority only over state parties. And the IDF’s civilian toll is not in itself a violation of the Genocide Convention. One of Israel’s war aims is indeed to destroy Hamas — but that is a political group and is not protected by the Convention.
The relentless focus on the term “genocide” leads us to ignore that both Israel and Hamas are highly likely to have been responsible for war crimes and crimes against humanity. Hamas’s Oct. 7 pogrom that involved killing, raping, and hostage-taking constituted crimes under national and international law. The use of human shields and the diversion of humanitarian relief for military purposes by Hamas are also crimes against humanity. The IDF response, for its part, seems to have been disproportionate, killing tens of thousands and laying waste to much of the territory. In failing to take sufficient care to avoid civilian casualties, the IDF has violated the Geneva Conventions that define war crimes. Targeting civilian infrastructure (including hospitals and water facilities), forced displacement, and acts causing starvation are also crimes under international law.
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The obsession with attaching the label “genocide” to the actions of one side or the other obscures the fact that crimes and crimes against humanity are horrific — and prosecutable.
Those crimes are being overlooked for reasons that are at least partially political. The public rhetoric pivots on the emotional punch that “the G-word” packs. Genocide is frequently referred to as the “crime of crimes,” and the concept is central to the political theory of Zionism, which led to the creation of the state of Israel: Having been targeted for extermination as minorities in other countries, only in their own state could Jews guarantee their own safety. Hamas’s targeting of the Jewish population, accompanied by eliminationist rhetoric, strikes a foreboding chord for Jews in Israel and abroad. Conversely, the accusation of genocide against Israel comprises a direct attack on its moral standing. Can a nation founded in response to a genocide withstand being held responsible for another one?
While Article 9 of the Genocide Convention gives the ICJ a role in adjudicating genocide-related disputes, there is no analogous global treaty or convention that grants any court jurisdiction over potential state liability for war crimes and crimes against humanity. A convention on crimes against humanity is in the works, but it faces a long road before it is approved and ratified. Until then, only the International Criminal Court — which considers individuated guilt, as opposed to state liability — can weigh in on war crimes and crimes against humanity. ICC trials, however, are notoriously slow, sometimes lasting up to a decade. They’re also a target for political interference, as when Republican Senator Tom Cotton of Arkansas tweeted last week in response to rumors of pending ICC charges against Israeli leaders that he was “putting ICC officials on notice.”
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At bottom, the rhetoric about genocide conceals as much as it reveals. Invoking genocide against one’s enemy should not allow one to justify the atrocities being committed by one’s own side. And even if genocide were adjudicated as a matter of law, it would not obviate the responsibility to avoid committing other types of atrocities against civilian populations.
Waiting for an ICJ verdict on genocide is a high-stakes strategy. Whatever the ICJ eventually decides, it will be cast as a vindication for one side and grounds for delegitimizing the court by the other.
Both reactions would be a shame: Neither side should seek vindication for its actions. International justice faces an existential threat at this moment, and it’s time to recognize that our international norms extend well beyond genocide. Instead, each side must be held accountable for the terrible harms we witness today.
David J. Simon is director of the Genocide Studies Program at Yale University.
