In late December, South Africa filed a genocide case against Israel in the International Court of Justice (ICJ) arguing that Israel was in breach of its obligations under the 1948 Genocide Convention in its crackdown against Hamas in Gaza. Responding to South Africa’s suit, Israel’s foreign ministry blamed Hamas for the suffering of Palestinians by using them as human shields and stealing humanitarian aid from them, accusations that Hamas has denied.
Furthermore, the International Criminal Court (ICC), is separately investigating alleged atrocities in Gaza and the West Bank. However, Israel is not a member of the ICC and rejects its jurisdiction.
Obviously, the devastation of Gaza and its people is a historical catastrophe. But is it a genocide? And whether it is or isn’t, what in that case is the role of the United States as the financial and weapons enabler of Israel’s lethal counter-offense?
Let’s review the ground realities in Gaza in light of the Genocide Convention [see my “Displacing A Nation: What Led to (and Caused) the Gaza-Israel Catastrophe,” The World Financial Review, December-January 2024].
In December 1948, the just-created United Nations approved the Genocide Convention, greatly influenced by the Jewish Holocaust. Effective since 1951, the Convention (Resolution 260, III) defined genocide as:
- 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.
So, does the Gaza catastrophe manifest the five prohibited acts that, when committed with the requisite intent, amount to genocide?
Genocide Convention in Gaza
“Killing members of the group…” What followed in Gaza after October 7 was the Israeli army’s expanded authorization for bombing non-military targets, the loosening of constraints regarding expected civilian casualties, and the use of artificial intelligence (AI) to generate more potential targets than ever before. Almost half of the Israeli munitions dropped on Gaza have been imprecise “dumb bombs.” Hence, Gaza’s descent into a “mass assassination factory.”
“Causing serious bodily or mental harm…” This act comprises a broad variety of non-fatal genocidal acts, such as torture and other cruel, inhuman, or degrading treatment or punishment. When committed with the requisite intent, the objective is to cause serious bodily or mental harm to members of the group. As of now, over 23,000 Gazan Palestinians, some 70 percent of whom are women and children, have been killed and nearly 2 million of the 2.3 million Palestinians displaced. If the Israeli offensive would last almost year, which is the tacit goal of far-right Netanyahu government, over 100,000 Palestinians would be killed.
“Physical destruction in whole or in part…” The third act refers to deadly circumstances that do not support prolonged life. In early October, this was reflected by Daniel Hagari, the spokesperson of the Israeli Defense Force (IDF), who stated that the emphasis of the Israeli round assault “is on damage and not on accuracy.” Since October 7, Israel’s strategic objective, which the Biden administration has tacitly accepted, has been to destroy Gaza’s infrastructure; and Palestinian conditions of life. The transfer of the Palestinians from Gaza seems to be the strategic objective, as stated by the secret memorandum of the Israeli Ministry of Intelligence, just days after October 7.
“Preventing births …” The fourth act is aimed at preventing reproduction in the protected group. In Gaza, it characterizes particularly the targeting of hospitals, most of which have been fully destroyed by now, while some 70 percent of mass killings involve women and children. Hence, too, the purposeful endangering of the lives of some 50,000 pregnant Palestinian women in Gaza, and the operations and amputations of hundreds of children without anesthesia.
“Forcibly transfer children…” The final act refers to destruction of the group as a cultural and social unit. In the case of Gaza, transfers appear to be part of the overall net displacement effects.
On the basis of currently-available evidence, it would be challenging not to avoid the conclusion that, setting aside the opposing stated policies and vocal rhetoric, the net effect of the Gaza catastrophe renders evidence to the notion of genocidal intent. As do statements of the far-right members of the cabinet and certain military leaders.
Biden administration as the key enabler
Article 3 of the Genocide Convention defines the crimes that can be punished under the convention: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; and (e) complicity in genocide. It is particularly this last aspect that is likely to be used in any scrutiny of the U.S. role in Gaza.
As far as U.S. Secretary of State Antony Blinken was concerned, “the submission against Israel to the International Court of Justice distracts the world from all of these important efforts. And moreover, the charge of genocide is meritless.”
But this time, the Biden administration, as evidenced by the many divides within the State Department, may have opened a Pandora’s Box. As Israel’s legal authorities struggle to pooh-pooh away South Africa’s case in the Hague, Biden’s lawyers are preparing for federal court later in the month.
Complicity in Gaza
At the end of December, 77 groups – representing tens of thousands of lawyers, civil society leaders, and activists from six continents – filed an amicus brief. Impacted by Israel’s ongoing assault, Palestinian human rights organizations, residents of Gaza, and US citizens with family members brought against the lawsuit against the Biden administration.
They highlight the US’s “significant influence over Israel,” in particular through its “unparalleled support for Israel’s military”; “political and diplomatic cover to Israel”; since October 7, 2023, “meeting regularly and coordinating with Israeli officials and expressing their unrestrained support”; and “unconditional military financial assistance, equipment, and personnel to support and further its assault on Gaza.”
Furthermore, the complaint details the US refusal to “call for a ceasefire” and successful efforts to prevent other states from carrying out their duty to prevent genocide through the UN, despite knowledge of a “grave risk of genocide.”
The lawsuit against the Biden administration is headed for a hearing in the U.S. District Court for the Northern District of California later this month. The plaintiffs may have facts on their side, but not the kind of effective power that could result in the desired effect.
Yet, their case, the ongoing debates in the ICJ and ICC, and the protest marches in the major capitals, suggest that world opinion cannot accept either “genocidal intent” nor “complicity in genocide” in Gaza.
Dr. Dan Steinbock is the founder of Difference Group and has served at the India, China and America Institute (US), Shanghai Institutes for International Studies (China) and the EU Center (Singapore). For more, see https://www.differencegroup.net
For his Gaza analysis, see https://worldfinancialreview.com/displacing-a-nation-what-led-to-and-caused-the-gaza-israel-catastrophe/
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