What's happening in Gaza tantamount to genocide, international law shows

By Selman Aksunger

AMSTERDAM (AA) — More than 1 million people in Gaza have been forced to migrate due to Israel's attacks on the besieged enclave, where supply of food, water, power, medicine, and fuel have dwindled to a trickle.

While the death toll has surged past 14,000, some Israeli officials have even voiced support for plans to deport the population of Gaza to the Sinai Desert in Egypt.

All these have evoked memories of the Srebrenica genocide, which led to the killings of more than 8,000 Bosniaks by Serb forces in 1995.

The civilian death toll in Israel's attacks in Gaza and remarks by Israeli officials against Palestinians suggest genocidal intent according to international law. Anadolu has compiled information on the emergence of the concept of genocide and its background.

- Origin of the word

The term "genocide" is formed by combining the Greek word "genos" for "race, nation or lineage" and the Latin suffix "-cide," meaning "to kill."

It was coined in 1944 by Polish jurist Rafael Lempkin, who entered the international law literature with his book "Axis Rule in Occupied Europe."

The concept of "genocide" was not defined as a crime in the Charter of the Nuremberg Tribunal, which started in 1945 to try Nazi officers after World War II.

However, prosecutors referred to the concept as a crime against humanity in their indictment and opening addresses of the trials.

- How is genocide regulated in international law?

"Genocide" was first included in international documents with the 1948 UN Convention on the Prevention and Punishment of Genocide.

Article 2 of the Genocide Convention says the following:

"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."

The Genocide Convention, which forms the basis of genocide law and came into force in 1951, requires party countries to recognize genocide as a crime in their national laws and to prosecute those who commit such crimes.

The statutes of the international criminal tribunals established for Rwanda and the Former Yugoslavia, where the crime of genocide is included as an article of criminal law, and the Rome Statute, the founding agreement of the International Criminal Court, used the definition in the UN Genocide Convention exactly.

The crime of genocide was regulated in Article 6 of the Rome Statute as follows:

"For the purpose of this Statute, '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."

The key factor in identifying this crime lies in determining the perpetrator's "genocidal intent." Actions aiming to destroy one of the four types of group "for no other reason than because of membership in that group" indicate genocidal intent.

The definition of genocide, often called the "crime of crimes," includes the intent to target and destroy a specific group of people.

- Are the elements of genocide present in Gaza?

When we examine the definitions in key international agreements to assess the situation in Gaza, it becomes evident that most of those killed in Israel's attacks share the same nation and ethnicity as Palestinian Arabs, while a majority follow the same religion as Muslims.

So, Palestinians fit the definition of a "group" in the context of the crime of genocide, with the same ethnic, religious, and national identity.

The fact that attempts have been made to get people of other national, religious, and ethnic groups out of Gaza since the beginning of the conflict shows that Palestinians are the target of the attacks.

Also, the fact that those killed include people of other nationalities, religions, and ethnic groups does not negate the crime of genocide, since the main victims were overwhelmingly Palestinians.

Committing just one of the five prohibited acts is enough to establish the presence of the crime of genocide. In the case of Israel's practices, it seems that they align with at least three of the acts defined in this crime.

First, according to the government in Gaza, 14,532 people, including more than 6,000 children and 4,000 women, have been killed in the Gaza Strip in Israeli attacks since Oct. 7, which meets condition of "killing members of the group."

Palestinians in Gaza, including tens of thousands of wounded, are reported to have suffered "serious bodily or mental harm," which is also included in the definition of genocide.

Thirdly, the cutting off of electricity, water, food and all other humanitarian needs, and the displacement of 1.5 million people, coincide with "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."

- Is there genocidal intent in Gaza?

The crime of genocide does not require the total extermination of all people in Gaza.

There is no specific death toll requirement, and the existence of genocidal intent may be deemed sufficient for the crime to be recognized.

Intent is generally identified via an assessment of orders, statements, and actions of officials of the group or state that committed the crime at the time of the attack.

In his address to Israeli soldiers participating in attacks on the Gaza Strip, Israeli Prime Minister Benjamin Netanyahu likened Palestinians to an ancient tribe known as Amalek, referenced in the Hebrew Bible as a recurring foe of the Israelites that must be wiped out.

Another statement came from Israel's far-right heritage minister, Amihai Eliyahu, who said the use of a nuclear bomb in Gaza was "an option" in an interview.

Eliyahu, who was criticized by Israeli officials for his remarks, which were later withdrawn, also said there were "no civilians" in Gaza not involved in the conflict, showing apparent genocidal intent.

Israeli Defense Minister Yoav Gallant described his country's war with Palestinian groups in the Gaza Strip as "deadly" and said it would "change the situation forever," indicating that Israel has permanent plans against those in the enclave.

"We are fighting against animals," Gallant said of Palestinians in Gaza.

Israeli Health Minister Moshe Arbel's statement that injured Palestinians who were captured during an attack on Israel would not be treated, while Israel's former Permanent Representative to the UN Dan Gillerman's statement that Palestinians were "horrible, inhumane animals."

Israeli lawmaker Ariel Kallner said "the enemy must be brought to an end" and another, Moshe Saada, asserted: "No more surgical operations, humanitarian corridors, and door-knocking operations."

Besides these, Zvi Sukkot, another Israeli legislator who called Hamas "Nazis," said: "We will kill the Nazis and their assistants. We will not settle for less than this."

Israeli President Isaac Herzog attempted to justify civilian casualties by saying that civilians in Gaza were aware of Hamas' attacks and were complicit.

In addition to actions aimed at the collective punishment of people in Gaza, all these remarks reveal the Israeli government's genocidal intent.

Such remarks have not been limited to officials.

On social media, 95-year-old Israeli Ezra Yachin, reportedly an Israeli army volunteer, is on camera calling for a massacre of Palestinians saying: "Finish them and leave no one behind. Destroy even their memory. Destroy them and their families."

"Destroy their mothers and children. These animals can no longer survive. We have no excuse today. The Arabs here can also attack us. Every Jew with a gun should go out and kill them," Yachin said in clear evidence of genocidal intent.

More recently, retired Gen. Giora Eiland, former head of Israel's National Security Council, said in an article for the Yedioth Ahronoth newspaper, that Israel has no choice but to make Gaza temporarily or permanently uninhabitable and said: "Israel is not only fighting against terrorism but also against all of Gaza."

His use of the statement "Gaza will turn into a place where no human being can exist" shows the existence of genocidal intent.

- What happened in Srebrenica?

While the death toll in Gaza since the start of Israel's offensive has exceeded 14,000, surpassing the Srebrenica genocide in which Serb troops killed more than 8,000 Bosnian civilians in July 1995, perpetrators in both cases claim that the death tolls are exaggerated and are casualties of war.

The Serb commanders have also claimed that the death toll in Srebrenica was around 2,000 and that most of the dead were "civilian casualties," that is, civilians who were killed but not directly targeted during the war with Muslim Bosniak soldiers.

Similarly, Israeli officials claim that the death toll was exaggerated by officials in Gaza, that those "civilian casualties" were not directly targeted in the attacks on Hamas.

Civilian victims of the Srebrenica genocide hoped to survive by taking shelter in a "safe zone" under UN-protection. Likewise, many who escaped from Israeli bombardment were killed in attacks on UN schools and refugee camps.

- Genocide, crimes against humanity and war crimes: What are the differences?

The Rome Statute defines acts of genocide, crimes against humanity, and war crimes as separate categories. Genocide is defined in Article 6, crimes against humanity in Article 7, and war crimes in Article 8.

If the acts mentioned above were not committed with genocidal intent and occurred "as part of a widespread or systematic attack against any civilian," then a crime against humanity is considered to have been committed.

Unlike genocide, crimes against humanity do not require specific "intent." Again, unlike genocide, crimes against humanity include atrocities committed against all civilians, not just "national, ethnic, racial or religious groups."

The war crimes specified in Article 8 of the Rome Statute are broadly similar to genocide or crimes against humanity.

No specific intent is required for war crimes and they can be committed against any civilian group.

Unlike war crimes, genocide covers atrocities committed during war and peacetime, while war crimes can only be committed in times of armed conflict.

The difference between war crimes and crimes against humanity is that war crimes involve shorter-term actions and there is no requirement of being "systematic" or "widespread" as in crimes against humanity.

- Which courts determined genocide took place?

On Sept. 2, 1998, the International Criminal Tribunal for Rwanda convicted Jean-Paul Akayesu for his participation in the genocide when he was mayor of the city of Taba. This was the first verdict by an international court on genocide charges.

Two days after the Akayesu decision, the Rwandan Court found the country's former Prime Minister Jean Kambanda guilty of genocide and sentenced him to life imprisonment.

The International Criminal Tribunal for the Former Yugoslavia, meanwhile, concluded on Aug. 2, 2001. It ruled that the killing of Bosnian Muslim men in Srebrenica involved the intention to partially destroy the Bosnian Muslim group and therefore should be characterized as genocide.

In its decision, the court found Radislav Kristic guilty of genocide.

On June 10, 2010, the Yugoslav Tribunal recognized the genocide committed by members of the Bosnian Serb Forces against the Muslims of Eastern Bosnia and found Vujadin Popovic and Ljubisa Beara guilty of other crimes, including genocide.

In the same decision, Drago Nikolic was also convicted of aiding and participating in genocide.

The genocide in Srebrenica was also accepted by the International Court of Justice (ICJ).

While the court concluded that Serbia violated the Genocide Convention by not fulfilling its obligation to prevent and punish genocide, the decision was the first in history where a state was found to have violated the convention.

- Who can be tried for genocide?

The International Criminal Court only has the authority to try individuals, and anyone, regardless of their position, can be tried for the crime of genocide before the court.

This could be a head of state or government official who plans the genocide and orders its implementation, or a commander who commits the crime or an ordinary citizen who turns a blind eye to its commission.

While there is no statute of limitations for the crime of genocide, according to Article 29 of the Rome Statute, Article 33 says obedience to the orders of senior officials is not acceptable as a legal defense against the charge.

- Those enabling, aiding genocide also responsible

According to Article 25 of the Rome Statute, anyone who commits or attempts to commit the crime of genocide, orders its commission, or encourages or provokes it, is also considered culpable for crimes of genocide. In addition, according to Article 23, a person's direct and public incitement of others to commit genocide also constitutes the crime.

Those who assist the commission or attempt of genocide are also considered guilty. In accordance with the provision of Article 25 (3)(c) of the Rome Statute, anyone who helps or encourages another person to commit or attempt to commit genocide is considered guilty of genocide.

Article 25 (3)(f) states that anyone who attempts to commit the crime will be considered guilty, while Paragraph (3)(e) of Article 25 are specifically related to the act of "directly and publicly encouraging others to commit genocide" as a criminal case for the crime of genocide.

Looking at the statements of Israeli officials, it seems that Israelis are openly encouraged to commit genocide against Palestinians. In this case, the Israeli officials in question may be tried for genocide even if they do not directly engage in shooting or bombing.

Accordingly, Israeli officials and individuals who participated in the crime of genocide against the people of Gaza, such as attempting, aiding and abetting, inciting, and all kinds of planning activities, may be considered complicit in genocide.