Is there a genocide in Gaza?

Photo: Omar Al-Qattaa Agence France-Presse A woman mourns her child killed in an Israeli strike on September 21.

Stéphanie Marin

Published at 12:00 am

• Middle East

For the past year, not a day has gone by without the word “genocide” being used to denounce the bombings that continually increase the death toll in Gaza. Israel vehemently rejects this accusation of genocide, but what does international law say about it? ? Is there genocide, and why do some insist so much on recognizing what has been called the “crime of crimes” ?

On October 7, 2023, Hamas fighters entered Israeli territory to massacre civilians, triggering a massive military response from the IDF, the Israeli army. Shortly thereafter, given the painful count of civilian deaths, allegations of “genocide” began to circulate. In early November, experts consulted by Le Devoirargued that it was too early to reach this conclusion, based on the legal criteria for defining genocide. They argued at the time, however, that their comments did not amount to minimizing what was happening in Gaza or ignoring the atrocities committed by Hamas.

A year later, missiles are still being fired into Gaza, and more than 40,000 Palestinians have died, according to the Hamas government, the Islamist movement in power. Le Devoir has therefore revisited the question.

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International institutions

The existence or not of genocide has been examined by various international institutions, including the International Court of Justice (ICJ) – the highest UN court.

The Court was not tasked with deciding at this stage whether there is indeed a genocide underway in Gaza. But when the case was brought urgently – an appeal brought by South Africa – it nevertheless judged it “plausible” last January that certain rights of Palestinians in Gaza were not respected, including that of “being protected against acts of genocide”.

The ICJ therefore issued “provisional measures”, a form of injunction, ordering Israel to “take all measures in its power” to prevent the commission of genocidal acts, including the murder of members of a group and the imposition of living conditions likely to lead to its annihilation.

Then, in March, the UN Special Rapporteur on the situation of human rights in the occupied Palestinian territories, Francesca Albanese, delivered her scathing report, titled Anatomy of a Genocide. She said, “there are reasonable grounds to believe that the threshold for classifying the situation as genocide has been reached.”

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Israel has rejected her findings. It maintains that its military strikes are directed at Hamas, not the Palestinian people. It claims self-defense against the savage assault of October 7—which Hamas vows to repeat. Israel says about 1,200 people were killed that day and 251 were taken hostage. The Hebrew state has declared that it is Hamas that has genocidal plans, wishing for the annihilation of Israel.

The experts

When asked whether genocide is occurring, as defined by international law, Marie Lamensch, project coordinator at the Montreal Institute for Genocide and Human Rights Studies at Concordia University in Montreal, says it will take years to determine whether or not that is the case. Even the greatest legal experts say so, she adds: they want to wait for all the evidence before making a definitive decision.

Because proving genocide is complex, and to obtain a conviction, one must demonstrate before the court the precise “intent” to commit it.

And that's where the difficulty lies: there are obviously no minutes detailing the intentions of the leaders, notes law professor William Schabas, a world expert in human rights and a reference on genocide.

The professor, who teaches at Middlesex University in London, recalls that the ICJ is currently looking into the issue. He describes the case brought by South Africa as “very strong”, with good chances of success.

We are closer to a conclusion of genocide than last year, believes Ms. Lamensch.

The law disconnected from the reality on the ground ?

But while the experts discuss, the dead pile up and many do not care whether the legal criteria for genocide are met or not: they want the deadly bombings to stop.

“We debate the legal terms, but we talk little about the humanitarian situation,” which is “horrible,” Marie Lamensch laments: there is a famine, water and electricity cuts, Gaza hospitals have almost nothing left to function and homes are destroyed.

And although it is called the Convention on the Prevention and Punishment of the Crime of Genocide, “in reality, it is a convention of repression.” That is to say, it allows acts to be condemned after the fact — not before, notes Mr. Schabas.

There were of course the provisional measures ordered by the ICJ, but Israel did not respect them, say the two experts.

This does not mean, however, that international law is useless: court orders can have a strong impact on public opinion and incite states to act and exert pressure.

The word “genocide” is often brandished during conflicts for its evocative power and symbolism: it can push states to try to do much more, especially in terms of sanctions, believes Marie Lamensch. Because all signatories to the Convention have this obligation to prevent genocide, even if it does not take place on their territory. This can range from diplomatic efforts to economic sanctions and embargoes on the sale of arms.

Canada has signed it and therefore has this obligation. But apart from “declarations,” it does not do much, she believes.

According to Mr. Schabas, a conviction by the Court for genocide would not allow for any more concrete action by states on the ground than a conviction for crimes against humanity. There is, however, a legal reason why some insist on making allegations of genocide, he adds. The majority of UN member states do not accept the general jurisdiction of the ICJ, but submit to it for the application of specific treaties, including the Genocide Convention. Alleging this crime is therefore the only way to bring Israel before the ICJ, the professor emphasizes.