As per the January 24, 2024 Reuter’s report, “Judges at the International Court of Justice (ICJ) will rule on Friday whether or not they will grant emergency measures against Israel following accusations by South Africa that the Israeli military operation in Gaza is a state-led genocide.”

To my way of thinking, however one describes the widespread devastation and harm occurring to Palestinians in Gaza by the Israeli military for 4 months, if it doesn’t fit the legal term of genocide as narrowly defined by the 1948 Genocide Convention, what’s happening in Gaza can be considered as “war crimes” and/ or “crimes against humanity.”

In my opinion, Hamas, the Iranian backed terrorist governing group of Palestinians in Gaza, which led a savage attack against Israelis on October 7, 2023, brutally killing about 1,200 and taking 240 as hostages, are also guilty of committing “crimes against humanity” or “war crimes” as defined under international law.

The below 2 months old VOX report which doesn’t require a subscription to read, explains how what most folks define as genocide may not fit within the constraints of the legal definition under international law. This article is lengthy and detailed, so that I included only a limited number of excerpts.

As per the November 13, 2023 VOX article, “Why Israel has been accused of committing genocide in Gaza“ by Nicole Narea and Sigal Samuel:

Excerpts:

“As bloody as the war in Gaza has been so far, it may not fit the popular conception many have of genocide from the 20th century, when the death tolls were far larger and, in retrospect, the intent by perpetrators to wipe out an entire people was undeniable. But there are different ways to define genocide — from the colloquial to the scholarly and political to the strict legal sense. And it is the legal definition, which includes a narrow set of criteria, that ultimately determines formal accountability.”

“Many experts Vox spoke to agreed that war crimes had likely been committed both by Hamas and Israel throughout this conflict. In some ways, the semantic fixation on whether what’s happening in Gaza is or isn’t genocide under the legal framework risks losing sight of that larger picture. Experts pointed out that charges of “genocide” carry no more legal or moral weight than “crimes against humanity” or “war crimes” under international law.”

“But it’s also true that the words we use to describe the conflict carry real weight. And that is why, at a moment when all the world is weighing the atrocities and victimizations of one side and the other, it is so vital to understand what is meant, and what isn’t, by the term “genocide.”

Four different ways of understanding genocide

“There are 4 main ways to conceptualize genocide, according to Verdeja, and each depends on how and where the term is being used — whether in the legal world, the realm of social science, the arena of international politics, or among the general public. That means what might constitute genocide to many members of the public might not to someone with a background in international law.”

“First, there’s the legal definition. According to the Genocide Convention, which entered into force in 1951 and has been ratified by 153 states, 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”:

• Killing members of the group
• Causing serious bodily or mental harm to members of the group
• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
• Imposing measures intended to prevent births within the group
• Forcibly transferring children of the group to another group

“Notice that there are 2 components here. One is a physical element — the 5 acts just listed — which can be empirically determined. But the other is a mental element — the “intent to destroy” a group “as such” — and that’s much harder to prove.”

“By “as such,” the Convention means that the victims must be deliberately targeted not as individuals but because of their membership in a national, ethnic, racial, or religious group and as part of a broader plan to destroy that group. That second part is key: Not every violent attack against civilians — even if it is motivated by national, ethnic, racial, or religious bias — qualifies as genocide. It has to be intended to eliminate the group as a collective. (Note that genocide can be perpetrated against only part of a group, so long as it’s an identifiable and substantial part.)”

“To prove that intent exists, court precedent has also required the “existence of a state or organizational plan or policy.” The statements of public officials and other decision-makers can help support that case, though they may not be enough alone. It’s even more difficult to prove that the threshold has been met while the atrocities are still ongoing.”

“Only three genocides in history have been officially recognized under the definition of the term in the 1948 Genocide Convention and led to trials in international criminal tribunals: one against Cham Muslim and ethnic Vietnamese perpetrated by Khmer Rouge leaders in Cambodia in the 1970s, the 1994 Rwandan genocide, and the 1995 Srebrenica Massacre in Bosnia. (The Holocaust occurred before the adoption of the 1948 Convention.) The mass killings of the Yazidis by ISIS in Iraq and of the Rohingya in Myanmar have been recognized as genocide by the United Nations as a whole. Though the US called the killing of Black Africans in the Sudanese region of Darfur between 2003 and 2005 “genocide,” a UN investigation ruled it was not genocide.”

“The prosecution of genocide is rare in part because its definition under the Convention is the product of post-World War II compromise among UN member states and narrow by design so that certain atrocities they had perpetrated would not be recognized as genocide: for example, mass killing and famine in the Soviet Union and lynchings and racial terror in the US. But that definition proved perhaps too narrow to effectively prevent and respond to genocides when they happen. That has left some searching for a more expansive definition.”

“Several of the scholars Vox spoke to caution that the violence could certainly become genocidal, that it may already be perilously close to meeting the threshold, and that the international community must hold Israel responsible for any atrocities it may have committed and prevent further ones, regardless of how we define them.”

“Israel has already killed and injured Palestinians in Gaza en masse, mostly women and minors. There is no specific threshold number of deaths or proportion of a group killed required under the Genocide Convention or resulting case law, only that they be substantial.”

“Israel has said its siege and bombardment of Gaza — which Prime Minister Benjamin Netanyahu said on November 3 will continue with “all of [Israel’s] power” — is intended to eliminate Hamas, after the horrors of October 7. It has denied that it intentionally targets civilians, and in a statement to Insider, the IDF said it is “fully committed to respecting all applicable international legal obligations,” putting procedures in place to ensure as much. Instead, it says civilian deaths are the unfortunate collateral damage of its war on Hamas, which Israel has accused of hiding behind civilian infrastructure.”

“International law does not outright ban civilian casualties during war. Principles around “proportionality,” for instance, imply that some civilian deaths can be acceptable depending on the military objective. But hundreds of scholars and practitioners of international law have argued that, beyond any one incident, the “widespread killing, bodily and mental harm, and unviable conditions of life” that Palestinians are being subjected to means there is “a serious risk of genocide being committed in the Gaza Strip.”

“Beyond killing civilians en masse, Israel appears to be inflicting “conditions of life calculated to bring about [the targeted group’s] physical destruction,” as prohibited by the convention, said Adam Jones, a professor of political science at the University of British Columbia who has written a textbook on genocide. He pointed to Israel’s decisions to let in only limited humanitarian assistance that is far from sufficient to provide for the needs of 2.2 million people; to cut off fuel, water, and electricity; and to deprive people of adequate access to medical care. As of November 5, some 370 aid trucks had reportedly arrived in Gaza since they were first allowed to enter on October 21, but more than 100 trucks daily would be required to meet the needs of the population.”

“Some human rights lawyers and scholars say that entertaining allegations of genocide against Israel is not just premature, but also cheapens the concept. Dov Waxman, a professor of political science and Israel studies and the director of the UCLA Y&S Nazarian Center for Israel Studies, writes in Jewish Currents that while there may be a “risk of genocidal actions” in Gaza, claims that it is happening now require “stretching the concept too far, emptying it of any meaning.” Eitay Mack, a human rights lawyer based in Jerusalem, writes in Haaretz  that the accusation of genocide is “a false claim not founded in international law” and one that “will not be useful for ending the war or promoting the freedom of the people in Gaza.”

How should we describe what’s happening in Gaza?

“Ultimately, experts said, the debate over whether what we’re seeing in Gaza is or isn’t genocide risks overshadowing the gravity of the harms that are being committed.”

“There are other terms that might end up being more appropriate, after independent bodies conduct third-party investigations and scholars evaluate the conditions. In the legal arena, a group of independent UN experts says Israel’s siege and bombardment constitute collective punishment — the harming of a person or group of people based on the actions of another member of their group — which is a war crime prohibited under the Geneva Conventions. Some experts also warn that Israel’s campaign against Hamas might become an “ethnic cleansing” of Palestinians in Gaza writ large. That term carries no legal weight, but it is used by scholars to describe operations aimed at making a geographic area ethnically homogeneous, often through tactics that can constitute war crimes, like indiscriminate killings or forced displacement.”

“Debates about whether Israel’s actions constitute genocide or ethnic cleansing are an unhelpful distraction from the fact that we are witnessing a situation of mass atrocity involving what appear to be egregious violations of international law, and that states need to press upon Israel to adopt a radically different approach in responding to the threat posed by Hamas,” Becker said.”

“The term “genocide” grabs the world’s attention. But the devastation in Gaza should command attention just as much even if “war crimes” or “crimes against humanity” turn out to be better descriptors from a legal point of view. “These terms also speak to horrible atrocities and should be taken no less seriously,” Becker said.”

“It’s important to remember that there is no hierarchy among crimes under international law,” Amnesty International said in a statement. “As stated in the preamble of the Rome Statute of the International Criminal Court; genocide, crimes against humanity and war crimes all are ‘the most serious crimes of concern to the international community as a whole [and] must not go unpunished.’”

“Verdeja put it even more simply. “The international community has responsibility already,” he said. “Whether it’s genocide or not I think is a little bit beside the point.”

See: The Promise and Risk of South Africa’s Case Against Israe/ Just Security