To all those of you who are outraged by genocide allegations against Israel in Gaza since 2023: Maybe, instead of just focusing on the biases and bad intentions, ideological distortions and factual misrepresentations from certain actors, instead of feeling insulted by the allegation and seeing veiled attempts to excuse Hamas, destroy Israel, or even to trivialise the Holocaust everywhere, we can at least also agree on what Alexander Greenawalt—an expert on the legal persecution of acts of genocide and author of probably the most-cited paper on genocidal intent, a scholar remote from being a vocal activist—already wrote early last year:
“Israel’s position is that civilian deaths in Gaza reflect not an attack on the Palestinian national group itself, but instead unavoidable incidental harms resulting from defensive attacks on Hamas military targets. But one might accept that conclusion while also raising the concern that Israel’s willingness to tolerate tens of thousands of civilian casualties hinges on the fact that Palestinian rather than Israeli lives are at stake. Although such a claim does not fit easily within the genocidal intent framework, it nevertheless raises concerns that are at the heart of the Genocide Convention, namely that groups may face destruction because of who they are.”
Of course this consideration is all the more relevant, since a lot of what we saw and see in Gaza was in fact avoidable: Disproportional collateral damage in airstrikes is avoidable—albeit by risking lives of IDF soldiers to save more Palestinians. A culture of impunity concerning individual transgressions is avoidable. Not providing security for a proper humanitarian zone, as an IDP camp under Israeli (and potentially allied security forces) control with full humanitarian services and the express guarantee to be allowed to return home after the war, was avoidable (although it would have required taking risks, too). House destruction in areas that have already been cleared is avoidable. Raiding the same area seven times to withdraw afterwards is avoidable. Threatening starvation claiming this would force Hamas to release hostages, and then only rolling back the decisions after people have already starved to death, is avoidable.
And of course the current military offensive, against the advise of the military leadership, is totally avoidable. Already in March Israel could have agreed on the Egyptian proposal to have a hostage deal and then have an international Arab force providing security and taking over the administration in Gaza without a Hamas government. And a similar hostage deal (implying that Hamas gives up governing, but does not disarm) would have been possible more than a year ago as well.
In a better world the general public would use much more fine-grained analytical tools to understand all kinds of mass violence and State crime phenomena, instead of sticking to the simplistic genocide paradigm. In a better world there would be a more comprehensive legal convention than just the Genocide Convention and more comprehensive institutions than just the current system of international courts to create or even to enforce general obligations of States to prevent systematic killings. At the moment, this is not the case, and whatever Ramaphosa’s motivations might be, the Genocide Convention was the only way to address violations of rights of the Palestinian people at the ICJ, even if it is “just” about “genocide-related” crimes and genocide prevention obligations. For “mere” war crimes the ICJ does not have jurisdiction.
To all those who were sure that there is genocide in October 2023, or who already saw a genocide in the 1980s, or who even claim that there would have been a genocide since 1948: Let us please agree that there are serious questions to be answered, not only about the matters of fact concerning the actions of the IDF and the Israeli government, but also about the legal interpretation of genocidal intent and how to apply this concept to the complex and contradictory decision-making process, including many different actors and motivations, during this war.
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