Outcries of genocide and war crimes in Gaza

Genocide – A question of numbers and proportions?

Public outcry and pro-Palestine demonstrations seem to think that the large numbers of people killed in Gaza and the proportionally smaller number killed by Hamas on October 7 and by their rocket barrages is sufficient to accuse Israel of committing genocide and carrying out war crimes on the people in Gaza.

But are genocide and war crimes really a question of numbers and proportions? Let us if the accusations will hold up under a closer scrutiny.

Accusations of genocide in Gaza

At a press conference held on November 20, UN Secretary-General Guterres said:

“…without entering into discussing the accuracy of the numbers that were published by the de facto authorities in Gaza, what is clear is that we have had in a few weeks thousands of children killed. So, this is what matters. We are witnessing a killing of civilians that is unparalleled and unprecedented in any conflict since I am Secretary-General.”

Guterres apparently did not want to say the killings war crimes or genocide, but denounced the violations of international humanitarian law and violations of protections of civilians. Thus, in fact making a very serious accusation against Israel in the war against Hamas in Gaza.

On November 16 so-called experts at the UN Office of the High Commissioner for Human Rights (OHCHR) warned about the risk of genocide in Gaza and “the failure of the international system to mobilise to prevent genocide.”

Others have been more forthright. At a BRICS meeting on November 21 discussing the situation in the Middle East, South African President Ramaphosa called an immediate ceasefire saying “The collective punishment of Palestinian civilians through the unlawful use of force by Israel is a war crime. The deliberate denial of medicine, fuel, food and water to the residents of Gaza is tantamount to genocide.”

“The reality in Gaza, with its unbearable pain and trauma on the survivors, is a catastrophe of enormous proportions,” (OHCHR, press release, November 16).?In the U.S. a Civil liberties group is trying to sue President Biden for failing to prevent Israel from committing genocide in Gaza.

And then there are the unarticulated outcries of “Genocide.” Thousands of protestors in western countries with large Muslim populations have been screaming genocide, carrying bloodied baby puppets, and played dead civilians in Gaza, demanding a ceasefire and yelling “Free Palestine.”

At the same time Gaza has been almost completely blockaded by Israel, making it almost impossible to provide help, except for strictly limited truck deliveries and water provisions. Certainly, a catastrophe for those confined to Gaza, but does this automatically mean that Israel is committing war crimes and genocide??

Genocide, what does it mean?

The term Genocide was coined by the Polish-Jewish jurist Raphael Lemkin in his book “Axis Rule in Occupied Europe” in 1944. Before the war, while still living in Poland his studies had led to him to see a necessity for some kind of international law, that would guard against the eradication of whole human groups or nations.

In his book Lemkin called for a new term and a new conception for destruction of ethnic groups and nations, writing: “New conceptions require new terms. By ‘‘genocide” we mean the destruction of a nation or of an ethnic group. This new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin cide (killing), thus corresponding in its formation to such words as tyrannicide, homocide, infanticide, etc.

Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. (Emphasis added.) The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.” (Lemkin, 1944).

According to Lemkin genocide has two phases, First the destruction of the national pattern of an oppressed group. Secondly, the imposition of the national pattern of the oppressor. Apparently meaning either that an oppressed group may remain in their territory after imposition of the national of the oppressor. Or the oppressed group may be eradicated and the territory colonized by the oppressor.

?UN definition of genocide

“The Convention on the Prevention and Punishment of the Crime of Genocide” was approved by the General Assembly on December 9 1948. In Article II it states:

“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”

It is important to note that Article II talks of “the intent” to destroy. Meaning “must having the mind, attention, or will concentrated on something or some end or purpose.”

“To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organizational plan or policy, even if the definition of genocide in international law does not include that element.” (UN office on Genocide protection).

No evidence of Israel committing genocide

On November 16 the OHCHR reported that Israel’s war against Hamas, had led to the killing of over 11,000 people (the number has now risen to more than 14,000), injured 27,000 and displaced around 1.6 million in Gaza. 41 per cent of those killed are said to be children and 25 cent women. According to the OHCHR statement almost 200 medics, 102 UN staff and 41 journalists have also been killed. Infrastructure have been destroyed, as have thousands of houses, together with hospitals schools, mosques, bakeries, water pipes, sewage and electricity networks.

One might get the impression that the 14,000 dead are all civilians, but presumable an unknown proportion of the dead must be Hamas fighters killed in action. Trying to make a guesstimate of the number of Hamas and Jihad fighters that may be included in this total number of killed, one might perhaps use the proportions of 2008-09 war. U.S. congressional service state that 1.440 were killed and of these up to 700-750 may have been fighters or around half of those killed. Even if this proportion is too large it might indicate that a large proportion of the 14,000 killed may have been Hamas or Islamic Jihad fighters. Fighters who often use civilian clothes.

To some the number of dead, injured and the amount of destruction is seen as clear evidence of genocide. Some also look at the disproportionality between the numbers killed and injured in Israel and in Gaza. With Israel counting “only” a little more than 1.200 killed and around 230 abducted.

But neither the number of killed, the amount of destruction in Gaza nor the disproportion is clear evidence of genocide.Lemkin in his definition said that genocide included “the aim of annihilating the groups themselves.” Now, is there any clear indication that Israel is intending annihilate the population living in Gaza? Certainly not. Their aim is solely the annihilation of Hamas and Islamic Jihad as a force threatening Israel.

UN convention also states that genocide must include the “proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group.” The definition also mentions killing members of the group and or causing serious bodily or mental harm to members of the group. And Israel is killing members of the group by killing civilians. members of Hamas and of Islamic Jihad, but this does not signify that they intend to kill the group of people living in Gaza. Nor would it seem to be Israel’s intention to impose their “national pattern” on the people of Gaza.

Perhaps Israel is trying impose their “national pattern” on the Arab population living within its borders, but although this may signify intent, it may not be relevant here.

Revelations have brought to light the idea that Israel might want a solution where the people in Gaza would be persuaded or forced to leave Gaza, and moved to Arab states, for instance Egypt, to live in Mediterranean part of the upper Sinai. Even this may not represent genocide for two reasons. The UN convention mentions that dispersion of a group may not represent genocide, and even if that were the case, a possible intent found in certain circles in Israel, may be irrelevant as they do not have the means to follow up on their intent.

Also, ideas and intentions like this seem to have been buried effectively though, not the least because Arab countries do not seem to want to have unruly more Palestinians move to their countries. Actually, we have the very strange situation that a large part of Gaza is a kind of large refugee camp, supported since 1949 by UNRWA (United Nations Relief and Works Agency for Palestine Refugees in the Near East). And Arab countries certainly haven’t been eager to alleviate the situation for people living in Gaza by offering them a better life in their own countries.

Where doubt about genocide may arise is in relation to “Deliberately inflicting on the group conditions of life…” Israel is certainly making life difficult for everyone living in Gaza. The problem is that that it may impossible to help civilians in Gaza, without helping Hamas and other groups intent on eradicating Israel.

But surely Israel is committing war crimes…

In November the Human Rights Watch NGO, argued that Israel was committing war crimes in Gaza, arguing: “The Israeli military’s repeated, apparently unlawful attacks on medical facilities, personnel, and transport are further destroying Gaza’s healthcare system and should be investigated as war crimes. Concerns about disproportionate attacks are magnified for hospitals. Even the threat of an attack or minor damage can have massive life-or-death implications for patients and caregivers. Israeli government should end attacks on hospitals. The Independent International Commission of Inquiry on the Occupied Palestinian Territory and the ICC should investigate.”

On November 12 the WHO (World Health Organization) reported that Israeli forces had killed a number of people in 137 “attacks on health care” in Gaza.

Volker Türk, UN High Commissioner for Human Rights, has argued that some of the Israeli attacks might constitute war crimes: “The killing of so many people at schools turned shelters, hundreds fleeing for their lives from al-Shifa Hospital amid continuing displacement of hundreds of thousands in southern Gaza are actions which fly in the face of the basic protections civilians must be afforded under international law."

Seeing the videos and pictures of the result of Israel’s war in Gaza and listening to sensations seeking journalists retelling their most gruesome tales from the war in Gaza, one might easily get the impression that Israel is waging an unrestricted and ruthless campaign not only against a mostly invisible Hamas, but against an undefended civilian population.

Serious allegations indeed, but are they drawn too hastily, so to speak in the heat of the ongoing battle?

International humanitarian law

How are Israel’s action actions to be judged in relation to “International humanitarian Law” or IHL? IHL consists of a set of rules that based upon 4th Fourth Geneva Convention from 1949 supplemented with additional rules and protocols added at later stages. The set of rules are meant to limit the effects of armed conflict for humanitarian reasons and thus to protect civilians in a conflict.

The principle of distinction

Take the principle of distinction, which only allows attacks on groups of people and objects that constitute the armed forces of a party. “The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.” (Ihl-databases). The distinction also applies to how the attacks are carried out. Indiscriminate attacks, like aerial bombardment is banned. Some weapons, like chemical and biological weapons, anti-personal landmines or cluster ammunition, are also banned.

The principle of proportionality

Next, we have the principle of proportionality. “Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.” (ihl-databases).

Other principles ban attacks on hospitals, “including the personnel engaged in the search for, removal and transporting of and caring for wounded and sick civilians.”

Prohibit the use of human shields and demand that civilians must be removed from the vicinity of military objectives.

Demand target verification to make sure that targets are military objectives.

Demand advance warning whereby each party must give advance warning of attacks which affect civilians.

Not evident that Israel has committed war crimes

On the face of it, it may seem evident that Israeli forces have broken some of these rules and principles, civilians have been hit, lots of houses and infrastructure have been destroyed, hospitals and ambulances attacked, help for civilians been prevented from reaching them etc. But let us take a closer look and what seems to observers to be evident war crimes, may turn out to be more than doubtful.

It must remembered that the rules and principles are to be used in war, and war is not banned per se. They are also to a certain extent pragmatic, meaning that there are exceptions to the general set of rules. “IHL is suitably ambiguous to permit a broad interpretation, on a case-by-case-basis, while affording protections to those not part of the hostilities. This balancing act allows militaries enough scope to carry out their strategies, while at the same time alleviating suffering and ensuring accountability for acts that could amount to war crimes.” (e-ir.info).

Civilians killed

It is evident that many civilians have been killed, although the numbers may actually include a significant number of combatants.

What has Israel done to prevent the killing of civilians? First, we notice the large number aerial bombardments and the destruction thus caused may indicate a kind of indiscriminate carpet bombing. But in a strange way the numbers may indicate that this cannot be the case. Given how tightly Gaza is populated indiscriminate bombing would certainly have resulted a much larger number of civilians killed.

In fact, Israel seems to taken utmost care to avoid civilian casualties in the thousands of bombing missions. ?In a modern version of the Lieberman Code (from1863) and in accordance with the IHL-rules, Israeli forces seem have done their outmost to warn civilians before objects were to be bombed.

We have seen the mass drops of leaflets to warn people in the areas to be bombed. More specifically Israel apparently often attempts to warn occupants of objects like appartement buildings said to be housing Hamas, by a so-called roof-knocking action, firing smaller projectiles at a building in order to warn the occupants to leave the building.

In the ongoing war they are even using phone calls to warn individuals more precisely where they are going bomb or otherwise attack. During the 2008-09 conflict Israel is said to have made 165,000 phone calls to warn civilians in Gaza.?

IDF’s bombing of objects in Gaza also consists of precision attacks. Indicating high degree of distinction, and certainly not indiscriminate carpet bombing. Thus, adhering the principles and rules of IHL.

It also appears that Israel’s forces use extensive intelligence at least for above ground objects to allow them to pinpoint targets deemed military relevant. This even goes for the on the ground missions, where they centrally observe and approve attacks of objects for attack even for small units of the army, in order to take care to only attack what is deemed military objects or else to be ordered to abstain, when intelligence indicate that for instance civilians might be in danger. Again, this would signify an army taken utmost care to avoid civilian casualties.

Human shields made up civilians, either voluntarily or forced, are used by Hamas to avoid being attacked, apparently expecting Israeli forces to avoid attacking civilians. But “Military objectives protected by human shields do not cease to be legitimate targets for attack simply because of the presence of those shields … [Altough] attack will be possible if and only if the potential damage to civilians is not ‘excessive in relation to the concrete and direct military advantage anticipated.” (icrc.org).

?It is not known whether Israel have used this as an excuse for attacking military objects shielded by civilians. But if they have it may at least be doubtful if it must be seen as a war crime.

What about hospitals then?

Israeli forces have also tried to warn people to leave hospitals, but hospitals are not to be attacked, even giving warnings. So, have they committed a war crime in these instances? Perhaps not.

The immediate vicinity of hospitals or even hospital grounds have apparently been used by Hamas for attacks against Israeli forces. But does this mean that Israel is in their right to attack hospitals? As far it can be gleaned from the rules of proportionality and military necessity, there may be situations when hospitals may be attacked.

“Specific protection to which hospitals are entitled shall not cease unless they are used by a party to the conflict to commit, outside their humanitarian functions, an "act harmful to the enemy". (Emphasis added). (icrc.org).

Although if there is doubt one must refrain from attacking. Israel apparently was not in doubt, and Hamas at the very least have fired rockets or attacked Israeli forces very close to hospitals, presumable expecting to be immune from attack.

After IDF forces have entered the al-Shifa hospital they found holes and tunnels in the grounds and a (limited) collection of weapons to prove that Hamas was operating from the al-Shifa hospital, and more revelations may be forthcoming.

So, according to this interpretation Israel may have acted in accordance with the IHL rules and principles.?

?Hamas’s use of lawfare against Israel

?A NATO Stratcom report on “Hamas use of Human shields in Gaza” illustrates how Hamas’s in earlier military conflicts with Israel has adroitly turned the rules and principles of IHL against the IDF, in what has been termed lawfare, defined as “the use of legal action to cause problems for an opponent” (Cambridge Dictionary).

The report lists some situation where Hamas has used of human shields:

Firing rockets, artillery, and mortars from or in proximity to heavily populated civilian areas, often from or near facilities which should be protected according to the Geneva Convention (e.g. schools, hospitals, or mosques).

Locating military or security-related infrastructures such as HQs, bases, armouries, access routes, lathes, or defensive positions within or in proximity to civilian areas.

Protecting terrorists’ houses and military facilities, or rescuing terrorists who were besieged or warned by the IDF.

Combating the IDF from or in proximity to residential and commercial areas, including using civilians for intelligence gathering mission.

The report sees Hamas’s tactic as a am attempt to create a kind of win-win scenario. If the IDF attacks Hamas in such situations, they will likely cause civilian casualties, and with rising number of civilian casualties they will expect reactions like the ones we see the ongoing war: Accusations that Israel is committing war crimes. The accusations may turn opinion against Israel exactly as we have seen, and lead to political pressure on Israel to limit their warfare. The result would be a win, albeit a strange one, for Hamas.

If Israel then felt compelled to limit their military actions and to take utmost care to avoid civilian casualties, not attacking in situations where civilians may be killed, even though it might be possible under the IHL rules as we have seen, it would enable Hamas to preserve and protect their own forces. That they are committing war crimes is apparently a lesser problem for world opinion. Albeit making Israel’s fight inherently more inefficient and dangerous for its troops. Thus, the IDF would be caught in a kind of Catch 22 situation: Dammed if they attack when civilians are at risk and dammed if they don’t.

Israel may be dammed because they are strong, efficient and more or less obey the rules, while Hamas, being the weak part, may win public opinion, although breaking every rule in the book. Only the October 7 attack caused an outcry of damnation, that just lasted until Israel attacked Gaza. While the taking of mostly civilian hostages, the firing of a barrage of rockets which is meant to cause civilian casualties, and their use of human shields, does not provoke an outcry and condemnation.

“The most moral army?“

After the 2008-2009 war Gaza the so-called Goldstone Report, a UN fact finding mission on the Gaza conflict reached a very critical conclusion with regard to Israel’s conduct of the war against Hamas, not the least in relation to protection of civilians and for example hospitals.

“The Mission finds that in a number of cases Israel failed to take feasible precautions required by customary law reflected in article 57 (2) (a) (ii) of Additional Protocol I to avoid or minimize incidental loss of civilian life, injury to civilians and damage to civilian objects.”

“The Mission found numerous instances of deliberate attacks on civilians and civilian objects (individuals, whole families, houses, mosques) in violation of the fundamental international humanitarian law principle of distinction, resulting in deaths and serious injuries. In these cases the mission found that the protected status of civilians was not respected and the attacks were intentional,”

“The intentional strike at al-Quds hospital using high-explosive artillery shells and white phosphorous in and around the hospital also violated articles 18 and 19 of the Fourth Geneva Convention. With regard to the attack against al-Wafa hospital, the Mission found a violation of the same provisions, as well as a violation of the customary law prohibition against attacks which may be expected to cause excessive damage to civilians and civilian objects. “

The Goldstone Report thus concluded that Israeli forces were in several cases in conflict with humanitarian rules and principles, indicating that Israel had committed war crimes in the 2008-09 conflict

Hamas conduct in the conflict

With regard to Hamas’ conduct in the 2008-09 conflict that commission was very vague in its comments. In fact, the report seems rather shy, when looking at possible war crimes committed by Hamas, as evidenced for instance by this conclusion:

“The Mission examined whether and to what extent the Palestinian armed groups violated their obligation to exercise care and take all feasible precautions to protect the civilian population in Gaza from the inherent dangers of the military operations (chap. VIII). The Mission was faced with a certain reluctance by the persons it interviewed in Gaza to discuss the activities of the armed groups. On the basis of the information gathered, the Mission found that Palestinian armed groups were present in urban areas during the military operations and launched rockets from urban areas. It may be that the Palestinian combatants did not at all times adequately distinguish themselves from the civilian population. The Mission found no evidence, however, to suggest that Palestinian armed groups either directed civilians to areas where attacks were being launched or that they forced civilians to remain within the vicinity of the attacks.”

The Commission mentions that Hamas’ rocket attacks on Israel have been indiscriminate, as Hamas was not able make sure their rockets only hit military targets. With the result that the Hamas bombardment of Israel “have succeeded in causing terror within Israel’s civilian population, as evidenced by the high rates of psychological trauma within the affected communities. The attacks have also led to an erosion of the social, cultural and economic lives of the communities in southern Israel, and have affected the rights to education of the tens of thousands of children and young adults who attend classes in the affected areas.”

Critique of the Goldstone report

The focus of the Report was very much on Israel’s conduct of the war. One just has to see ?that the majority of the report is focussing on Israel.

The Goldstone Report “predictably saw a line-up of the world’s worst abusers condemn democratic Israel for human rights violations. In a heated lynch mob atmosphere, Kuwait slammed Israel for “intentional killing, intentional destruction of civilian objects, intentional scorched-earth policy,” saying Israel “embodied the Agatha Christie novel, ‘Escaped with Murder’.” Pakistan said the “horrors of Israeli occupation continue to haunt the international community’s conscience.”” (UN Watch)

Colonel Richard Kemp, a British officer with experience as commander of British forces in Afghanistan, in a debate on the Goldstone report, reached the opposite conclusion: “… based on my knowledge and experience, I can say this: During Operation Cast Lead, the Israeli Defense Forces did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare. Israel did so while facing an enemy that deliberately positioned its military capability behind the human shield of the civilian population.” (unwatch.org).

Later in 2011 judge Goldstone himself also retracted some of the conclusions in the Goldstone report. In Washington Post he wrote: “If I had known then what I know now, the Goldstone Report would have been a different document… Although the Israeli evidence that has emerged since publication of our report doesn’t negate the tragic loss of civilian life, I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.”?

?Genocide and war crimes —depending on viewpoint?

We have seen that number of casualties and proportionality in numbers do not really permit the judgement of genocide. Instead, we have to conclude that for now there is a lack of evidence to say that Israel is committing genocide or war crimes on the people of Gaza. On the contrary there are indications that Israel is striving to act in accordance with rules and principles of IHL under very difficult circumstances, against a Hamas not abiding with any rules.

The IDF has surely used overwhelming force in their attempts to reach and eradicate Hamas fighters, and there are certainly indications that they have hit Hamas even at hospitals and mosques. But what is abundantly clear is that Israel is not trying to eradicate civilian population in Gaza. They are trying hard to hit Hamas, with Hamas using hit and run guerrilla tactics. But IDF’s use of overwhelming force and the unfortunate collateral killing of civilians cannot be seen as evidence that IDF and Israel is committing genocide. The problem is that in Israel’s war against Hamas it may be very difficult to make clear distinction between people and objects that are fighting Israeli forces and those who are not. We are not seeing a battle between two easily identifiable armies, but a battle between an army and what might be seen as guerrilla fighters popping in and out of the fight.

Who is actually in danger of being eradicated? It is Israel, not the people in the West Bank or Gaza, but an Israel surrounded by a collection of Arabian and Persian enemies having openly expressed their intent to destroy Israel, in the sense that Lemkin, meant when defining genocide. Hamas have expressed their ultimate goal or intent is to eliminate the state of Israel, using whatever means available. In interview in 2010 co-founder and leader of Hamas Mahmoud Al-Zahhar said that "Our plan for this stage is to liberate any inch of Palestinian land, and to establish a state on it. Our ultimate plan is [to have] Palestine in its entirety. I say this loud and clear so that nobody will accuse me of employing political tactics. We will not recognize the Israeli enemy." (gatestoneinstitute.org).

The atrocities committed against people in Israel on October 7 indicates that Hamas is willing to commit genocide, but not quite having the means to carry out their intent, they transgress every rule and principle in order inflict casualties on Israel.? In a repugnant way Gaza civilians being killed are used by Hamas as a “weapon” in the war against Israel.? ???

Being the military weak part in the ongoing war has helped Hamas and its allies amongst Muslim countries and leftish movements in the West to turn realities upside down. Leading media, politicians and the UN General Secretary to accuse Israel of Genocide and not Hamas. Thus, succeeding in their attempt at lawfare (the use of legal action to cause problems for an opponent).

With a large art of the world conveniently forgetting the fact Israel is the beleaguered state, with enemies lurking in Hezbollah Lebanon, in Houthi Yemen and of cause, for some bizarre ??antisemitic reason and most of all, Mullah Iran.

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HAMAS, the acronym for Harakat al-Muqawama al-Islamiya (the Islamic Resistance Movement).

IDF, the acronym for the Israeli Defence Forces, also known as in Israel by its Hebrew acronym Tzahal.