The War in Gaza Has Exposed the Limits of the Word “Genocide”

Since Israel launched its military campaign against the Palestinian militant group Hamas after the horrific attacks of Oct. 7, the situation on the ground for Gazan civilians has deteriorated markedly. Israel ordered Palestinians to evacuate from the northern half of the Gaza Strip on Oct. 13, sparking a mass civilian exodus amid heavy aerial and artillery bombardment. As the ground campaign expanded on Oct. 27, it increasingly looked as if there was nowhere for civilians to go that was safe from violence. At least 17,000 Palestinians, most of them civilians, have already died, leading some activists and scholars to charge Israel with the grave crime of genocide.

The genocide rhetoric is now flying in both directions. At a House Education Committee hearing on Tuesday in which Republicans grilled the presidents of Harvard University, Massachusetts Institute of Technology, and the University of Pennsylvania about antisemitism on campus, New York GOP Rep. Elise Stefanik pressed the claim that activists chanting “From the River to the Sea, Palestine Will Be Free” or even using the Arabic word intifada (which, according to my trusty Hans Wehr Arabic-English Dictionary, means “shaking off” or, more colloquially, “uprising”) constitute “calls for genocide against Jews.” With the idea—both the word and the crime outlined in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide—front and center in debates, it is worth taking the time to think systematically about what this accusation means and how it fits with existing international law.

The U.N. Convention on the Prevention and Punishment of the Crime of Genocide was crafted in the aftermath of World War II, as part of an effort to understand the Holocaust, prevent a recurrence, and offer a potential crime for which German officials could be held accountable. The existence of the convention is itself quite remarkable. The term genocide had been coined only a few years earlier, by Polish lawyer Raphael Lemkin, and his advocacy on behalf of the concept has to be considered one of the most successful efforts in world history to give real weight to a neologism.

Yet, from its inception, both the concept and the Genocide Convention were controversial and contested. During negotiations, the legal term was subject to jockeying from the major powers, who wanted carve-outs to avoid culpability for their own actions, past or planned. The final product was, therefore, both extremely narrow in what it defined as outside the scope of the convention, and maddeningly vague. I spoke with Ronan Lee, an independent research fellow at Loughborough University London, who called it a “compromised document” due to its inherent limitations.* “It’s a document of its time,” he noted. Nevertheless, it was an important innovation. “The very specific nature of genocide is that it’s a crime against a people,” he said.

The main text of the Genocide Convention is brief. It defines the crime as “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” by way of five acts: “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.”

Notably excluded from the definition of genocide were political or class groups, at the insistence of the Soviet Union, which did not want its leaders hauled before tribunals for the Great Terror, the Holodomor in Ukraine, or other Stalin-era mass killings. “The Soviet view was that they were destroying classes,” Lee argued. “So class is not listed.” This compromise made it more difficult to charge officials of Cambodia’s Khmer Rouge regime, which carried out a program of mass killing against its own citizens from 1975–79 but did not target any of the groups “as such” as outlined in the convention.

But the United States also contributed to limitations on the term’s scope. I also reached out to Ohio State University sociologist and genocide expert Hollie Nzitatira, who noted that “some countries, including the United States, wanted to exclude cultural groups so they, too, were ultimately excluded in the treaty.” The bracketing of multiple types of potential mass killing has provided, over time, a variety of paths for wrongdoers to escape culpability.

Even more than who was left out of the convention, the question of motivation looms large. The bar of “intent to destroy” leaves out all manner of wartime and peacetime atrocities, like reprisals against civilians, the deliberate targeting of civilian neighborhoods during bombing campaigns, and even so-called campaigns of “ethnic cleansing” and expulsions, which have been a depressingly frequent occurrence in the postwar world. And the establishment of intent remains vexing for those seeking to hold the perpetrators of genocide accountable.

Lee argues that the Nazis left a voluminous and unambiguous paper trail that established their intent to murder every Jew in Europe but that today’s would-be génocidaires are savvier. “Nowadays, people are aware of what the law is,” he told me, “and they are aware that intent to destroy is an issue” that could get you hauled before the International Criminal Court. Nzitatira says, “People often forget that intent can evolve over time and that there may not be a clear documentation of the intent of people implementing the genocide.” Governments have also become adept at driving trucks through the treaty’s holes. Officials of Myanmar, for example, have long claimed that they are not targeting the country’s Rohingya minority as such but rather addressing a security threat.

Countries that have ratified or acceded to the treaty are obligated to “prevent or punish” it. The international community has a better track record, to put it mildly, of punishment than it does of prevention. Since the convention entered into force, there have been multiple instances of violence that appear to clearly fit the definition, including the 1994 mass murder of ethnic Tutsis in Rwanda, the ongoing massacres and expulsion of the Rohingya minority in Myanmar and the 2003–05 killings in the Darfur region of Sudan. None of these atrocities were addressed in a timely fashion by the signatories to the convention, and some campaigns that arguably meet the definition, like China’s mass detention of its Uyghur minority and other crimes against civilians that remain “free,” are ongoing without much sign of active contestation from other countries.

In addition to those limitations, the Genocide Convention is also misunderstood in a variety of ways. Both Nzitatira and Lee emphasized that there is much more to genocide than mass killing. Lee noted, “You can have genocide very clearly without an obvious mass-killing element. It might involve removing children from the group. It might involve a repression of their ability to express themselves in religious terms or in terms of language.” Nzitatira said, “Raphael Lemkin created the term to try to encapsulate ‘destruction of essential foundations of life.’ This destruction can involve the eradication of language or culture.” She added, “The harms brought by the eradication of culture are very hard to quantify, but they are no less important.”

There is also no magic process that gets set into motion if a genocide is recognized as taking place. Nzitatira says that this trips up people who think that declaring genocide will trigger intervention and that government officials are reluctant to use the term, because they believe that it will obligate them to launch some kind of intervention. She noted, “Nothing officially dictates that states must intervene in ongoing genocidal violence, and efforts at creating norms to encourage intervention—like the Responsibility to Protect—are far from accepted.” Lee points out that in some ways the convention has created “the worst of both worlds,” in that governments are reluctant to act “​​until the threshold is reached.” However, he says, Myanmar has shifted its behavior in response to a 2020 ruling from the International Court of Justice demanding that the government stop committing acts of genocide against the Rohingya.

Several scholars have noted their frustration with the recent focus on genocide, even beyond as it relates to the war in Israel and Gaza. To them, the attention has crowded out the importance of other war crimes and crimes against humanity. Nzititara says, “Within scholarly circles, there is actually a move away from the term genocide because it can be so politicized and because the crime of genocide has been positioned as the ‘crime of crimes.’ ” Lee thinks that fixating on the niceties of the convention is somewhat beside the point. “I think the only people that really get it in their mind about whether or not a potential perpetrator is going to meet the threshold of the convention are government policymakers at a fairly high level. I actually think governments respond to public opinion.”

For Lee, the question is whether the public is uneasy with what it is seeing; if so, it is going to demand action, “whether that is under the strict rubric of the Convention or not.” Nzititara concurred: “Situations of extreme violence should not need a fancy label to spur people to action.” In a recent appearance on The G-Word: A Podcast on Genocide, City College of New York professor A. Dirk Moses argued, “The threshold for that which is shocking and unbearable should be lowered considerably. In doing so,” he added, “this would implicate many of us in ways we might not expect,” pointing to the Saudi war on Yemen and American support for it as an example of what should be considered unacceptable but flies under the radar due to genocide’s position as the only atrocity that tends to compel international action.

And speaking only for myself, it is possible to find Israel’s uprooting of the entire civilian population of northern Gaza under conditions of mass deprivation and violence to be a shock to the human conscience without thinking that it meets the narrow standards of the Genocide Convention. In the all-or-nothing world of genocide discourse, many actions that are in fact illegal according to other statutes and conventions get shunted aside in favor of accusations of genocide, which are thought to carry with them a greater obligation for response than do violations of the Fourth Geneva Convention, which clearly prohibits, among several other things that Israel could plausibly be held accountable for, laying siege to civilian hospitals and their personnel and forcible evacuation of civilians from a conflict zone without “proper accommodation,” as well as the maintenance of “satisfactory conditions of hygiene, health, safety and nutrition” for the displaced. In a 2005 article, international lawyer Peter Quayle wrote, “Not all extreme atrocity need be, legally, genocide. Instead they are, more likely, crimes against humanity. These crimes have an underrated descriptive power and a legally provable definition.”

Where does that leave us with the tragedy unfolding in Gaza? It should be fairly obvious that protestors chanting a slogan (“From the River to the Sea”) that they insist means not an ethnic cleansing of Israeli Jews but a call for the establishment of a single, binational state for Jews and Palestinians is very much not a call for genocide. You can even find that phrasing distasteful or counterproductive, but trying to hang the word genocide on it, and to punish anyone who uses it, is tendentious. For anyone wishing to protect Israeli Jews, rather than chase after whoever’s using the slogan, better to keep the focus on Hamas, whose genocidal intent in both word and deed is close to indisputable.

As for Israel, it is getting increasingly difficult to argue that the military campaign in Gaza is not “deliberately inflicting conditions of life calculated to bring about its physical destruction in whole or in part.” That is especially true in the absence of any stated plan from the Israeli government to resettle the uprooted and devastated civilian population back in their homes, which have been mostly destroyed, and in light of ominous statements from Israeli officials, like Agriculture Minister Avi Dichter’s insistence that the war will result in “Gaza Nakba 2023,” a reference to the term Palestinians use to describe the mass displacement of Palestinian civilians during the 1948–49 war that established Israel.

Using genocide in the context of this particular conflict, though, does come with significant political downsides. For one thing, even many liberal Jews in the United States find this usage to be a stretch. Political scientist Dov Waxman, the director of the Younes and Soraya Nazarian Center for Israel Studies at the University of California, Los Angeles, wrote in mid-October that leaping to an accusation of genocide at that stage was tantamount to “emptying it of all meaning,” and that while there are worrisome signs of ethnic cleansing in Gaza, in order for “our warnings about this frightening possibility to be taken seriously, we must avoid making unsubstantiated charges of genocide.” Genocide’s association with the singular crime of the Holocaust also complicates any effort to apply its terms to the Israeli government.

Beyond that, charging genocide against the Israeli government has also invited bad-faith counteraccusations from the political right, leveled not just at college students but also at, for example, anti-Zionist Jews or peaceful pro-Palestinian protesters. It may be such a loaded term, in other words, that it obscures the nature of ongoing crimes, leads to an exhausting debate that calcifies rather than moves public opinion, and gives unnecessary ammunition to those who believe that Hamas’ atrocities justify anything Israel chooses to do in Gaza. Pro-peace activists might be wise to choose another framework if the goal is to bring as swift as possible an end to civilian suffering in Gaza.

Likewise, those like the members of Congress who use the word genocide as a cudgel to foment rage and invite opprobrium (in this case on college presidents) should know that their looseness with the term makes it all the more accessible to those they seek to punish. Meeting accusations of genocide with hysterical hypotheticals in the opposite direction is a terrible way to present oneself as the more credible authority on what it is and what it is not.