What is genocide, and who is committing it now in the Middle East?

Hamas’s Oct. 7 attacks against Israel have provoked accusations of genocide. The massive scale, complexity, and lethality of the attacks are unprecedented. In The Atlantic, terrorism expert Bruce Hoffman has recently parsed Hamas’s founding covenant, arguing that it documents a long-term plan, and intent, for the destruction of the Jewish people in a way comparable to Hitler’s “Mein Kampf.”

The Israeli government’s increasingly brutal military response to the attacks have generated similar accusations, often from unsurprising sources. On Oct. 10, the Palestinian envoy to the United Nations described Israel’s bombardment of Gaza “nothing less than genocidal.” Iran’s foreign minister, Hossein Amirabdollahian, declared that Israel’s total siege “created conditions where the Zionists are seeking a genocide of all people in Gaza.” More accusations employing the word “genocide” followed from the Turkish Foreign Minister and Venezuelan President Nicolas Maduro.

Previously, charges of “genocide” had followed upon both Israel’s 2014 Operation Protective Edge and its attacks on Gaza in May 2021. Both had included indiscriminate bombing of civilian targets, including schools, mosques and hospitals.

Mutual accusations of genocide are bound to generate attention, whether upon the accused, the accuser, or both. But they tend to generate much more heat than light.

Genocide is a term that famously carries both a narrow legal meaning and a broad political, cultural, and historical resonance. The relation between these two registers has never been easy to negotiate. After Oct. 7, many genocide accusers, whether toward Hamas or Israel (or both), use the term because of its emotional and political power, evoking an ultimate, unsurpassable crime.

In the case of accusations against Israel, this power is considerable. Unlike the other international crimes of atrocity — war crimes and crimes against humanity — genocide encapsulates a near-century of human tragedy and mourning, a shocking failure of the international world order, and the foundational story of the Jewish state.

Identifying genocide as the “ultimate evil” — again, an association rarely made with the other two atrocity crimes — suggests that genocide is qualitatively different, transcending our comprehension. No wonder that, in its 80-year history, the word has been employed so often by so many in such different contexts.

The legal definition of the crime of genocide was codified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The first international treaty of the post-World War II UN, the convention was created in the shadow of the Holocaust and the opening of the Cold War, and it shows the influence of both.

The convention prohibits certain acts committed with a specific “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The forbidden acts themselves include killing, causing serious bodily or mental harm, “deliberately inflicting on the group conditions calculated to bring about its physical destruction in whole or in part,” imposing measures to prevent births within the group, and forcibly transferring their children to another group. So in order to commit genocide, one must commit one of those specific acts, and do so with the special intent outlined above.

The “intent” requirement lies at the heart of the legal definition of genocide and distinguishes it most sharply from the adjacent international crimes. In practice, intent can be difficult or nearly impossible to prove beyond reasonable doubt especially when perpetrators deny, destroy, or conceal implicating evidence.

Atrocity acts such as forced displacement and ethnic cleansing, for example, may be parts of policies intended to physically expel an ethnic or national group from a perpetrator’s territory, but not to destroy the group “as such.”

Does this mean the definition is too stringent? Some have indeed speculated that the “intent” requirement is an artifact of the opening of the Cold War, with both the Soviet Union the U.S., worried over their own exposure to charges of treaty violations, demanding a clause that would make genocide so difficult to prove as to make the convention toothless.

In both the cases of Hamas’s anti-Zionist foundations, as well as the case of Israel’s ongoing siege and assault on Gaza, there is little compelling evidence that the crime of genocide is taking place as the convention defines it. The Islamist rhetoric of Hamas’s founding charter, as violent as it is, doesn’t really amount to a definitive plan for physical extermination.

Israel’s forced displacement of one million Gazans from North to South Gaza in the midst of a siege that leaves them without food, water, electricity or shelter, on the other hand, appears in many respects to be just the “deliberate infliction on the group conditions calculated to bring about its physical destruction in whole or in part.” Absent more substantial evidence or a stronger inference of an intent to physically destroy the Palestinian people, the case that these acts are “deliberate” and “calculated” in just the way the convention requires is not strong. 

This may seem like legal hair-splitting. Yet for the legal determination of the crime of genocide in international law, these distinctions matter. It is intent, not just evil or even horrific actions, that constitute the crime of genocide distinct in law.

Nor is there a hierarchy of atrocity crimes. Genocide, crimes against humanity, and war crimes are not ranked on any scale of gravity, whether legal, moral, or metaphysical. They are distinguished by the material nature of the acts, the mental state of the perpetrators, the context of armed conflict, and a myriad of other factors.

Nor is this just the domain of international lawyers. For the global community of atrocity prevention practitioners as well, abandoning the view that genocide is the “crime of crimes” can make a significant practical difference. The recognition that crimes against humanity and war crimes are no less grave, no less a matter of international attention and condemnation, than genocide would be a significant gain. For in the past, institutional findings that did not support a determination of genocide have been interpreted to imply less urgency or gravity, even where they found compelling evidence of crimes against humanity or war crimes. The absence of genocide wrongly results in a loss of global attention and political will.

While there is not (as of yet) substantial evidence that either Hamas or Israel has committed or is contemplating genocide, there is growing evidence that both of them have committed, or are preparing to commit, both crimes against humanity and war crimes. Hamas’s status as a political authority in Gaza renders it fully liable to charges of war crimes and crimes against humanity for its slaughter and kidnapping of innocent people, clear violations of both the law of war and crimes against humanity.

Israel’s attacks on civilian targets in Gaza appear increasingly indiscriminate. Its ongoing siege, and the forced displacement of a million defenseless people under current conditions, are looking more and more like egregious failures to meet its legal and moral duties to protect civilians during armed conflict. These are war crimes, and any impending ground offensive in Gaza where civilians will have still less protection would threaten to multiply them. 

In the immediate wake of horrific violence, and with more violence on the horizon, accusations of genocide rarely focus on the legal questions. The broad, resonant conception of genocide often elbows legal questions to the sidelines. But that broad conception is too broad to be of much help in understanding what is at stake in the coming days and weeks.

Reciprocal charges of genocide in this context serve as much as distractions as they do as interventions. Hamas has lost whatever credibility it may have enjoyed as a representative of Palestinians, who deserve far better. Reeling from its losses, Israel must now decide whether it will commit war crimes against civilians under the banner of national security, or to live up to its international obligations to protect the dignity, security, and human rights of all persons.

Every state has the right to self-defense and the responsibility to protect its citizens. No state may do so by committing atrocities, whether or not they legally constitute genocide.

Maxim Pensky is a professor of philosophy at Binghamton University and co-director of the Institute for Genocide and Mass Atrocity Prevention.