“Genocide” has a legal definition and the word should be used very carefully
Law! What is it good for? Well, defining the rules of war for one thing.
Understandably, many of us do not know the laws overseeing armed conflict, their definitions, and their attempt to find paths through the complexities of war. However, this does not always act as a restraint against emotionally throwing around legally-defined terms such as genocide, and war crimes.
I discovered this to my detriment after an appearance on LBC Radio to discuss the Israel/Gaza war. As always in discussion of this conflict, both terms were illiberally distributed by callers throughout the programme. My attempt to illustrate why, to date, and in the absence of an international inquiry, Israel’s actions should not be described as such prompted indignant listeners to call in and query my sanity. Social media keyboard warriors denounced me as a “puppet of the Zionists”, and “a clown”, amid a deluge of sarcasm.
It was assumed that explaining the legal terms was to agree with them, and, much worse, in doing so, a failure to denounce the Israeli assault on Hamas as “war crimes”, and the actions of the IDF as “genocide”. However, one of the reasons the legal terms exist is so that, if the responsibilities laid down in articles such as the Geneva Conventions are flouted, action can be taken.
An assumption many people make is that if any civilians are killed in, for example, an air strike, then excessive force has been used.
Not necessarily.
There is recognition that it is inevitable that civilians will be caught up in fighting during a conflict and so International Humanitarian Law (IHL) addresses “proportionality” and “distinction”. Both concepts are well established as part of the “just war” doctrine (jus ad bellum) This means that damage, injury, and even death caused in an attack cannot be “excessive” relative to the “military advantage anticipated from a strike against a military target”. Of course, this brings into question what is a military target, and what is excessive.
Civilian buildings such as schools, apartment blocks, and hospitals cannot be directly attacked – but there is a caveat. Under the First Additional Protocol to the Geneva Conventions, if enemy forces have taken up position within the buildings, then they can, potentially, be bombed within the rules of war. This does not give carte blanche to the attacking force, but this is when the rules of proportionality kick in.
IDF lawyers are embedded in command centres and must sign off on many targets. It is a horrible, cold, calculating affair, but one required by law.
In a situation where civilians might be harmed due to proximity to Hamas, the IDF looks at the value of the military advantage an attack might carry against the foreseeable potential damage to civilian life and property. There are numerous factors to consider. For example, intelligence might suggest a building has been used to fire 200 rockets at Israel and that there are another 200 in the basement. But there are five civilians in the building along with 20 Hamas men. In another example, only ten rockets have been fired, it’s not known if there are more, and there are 50 civilians and two Hamas men. Other factors could include the range of the rockets, if any were guided missiles, and the rank of the Hamas men.
Based on the evidence available at the time, the military lawyer must then make a call on the distinction between military and non-military targets, and on proportionality. While doing so, she or he is aware that a wrong call could lead to accusations of war crimes or even prosecution at some point in the future following an international investigation.
Genocide? Well, it’s a noun. It’s also “the deliberate killing of a large number of people from a particular nation or ethnic group with the aim of destroying that nation or group”. Examples are the Holocaust, Iraq’s Al-Anfal campaign against the Kurds in the late 1980s, and Rwanda in 1994.
If Israel is trying to end the existence of the Palestinians, as has been claimed for decades, it is doing a spectacularly incompetent job. During those years, Palestinian life expectancy has gone up, infant mortality has gone down, population growth is the 39th highest in the world, and there will be more Palestinians than Israelis by the end of the decade.
That does not necessarily mean that the Israeli government did not make the decision to begin a genocide this year. However, such a claim would have to explain why, prior to October 7, thousands of Palestinian patients from the West Bank and Gaza were treated in Israeli hospitals. If the decision was made on Oct 7, the explanation must be given as to why when the bombing campaign began the IDF practice of “roof knocking” was continued. “Roof knocking” is when an IDF plane drops a small bomb on the roof of an apartment block believed to contain Hamas and weapons. Residents (and Hamas) know they have about 30 minutes to evacuate the building. Other attempts are made such as phone calls, and leaflet drops. On occasions, the IDF has even broken into TV programmes to issue warnings.
It is the case that the intensity of this round of fighting has decreased such warnings, and it appears that the interpretation of “proportionality” has given more weight to approving attacks than cancelling them. It also seems that Israel has on a few occasions resorted to “dumb bombs” as opposed to precisio-guided munitions. The IDF has a responsibility to explain its target selection with greater clarity. It is also against established ethics to cut off food and water. Israel supplies about 10% of Gaza’s water but blocked this between October 9 and 15. However, this does not validate claims of genocide.
Given the scale of operations it is mounting, the IDF has resorted to mass leafletting telling civilians to move ahead of air attacks and ground operations. Given the size of Gaza, and the lack of accommodation to move to, this is of limited help to the beleaguered civilians, but it is still not consistent with attempts to “destroy a nation or group|”. If it was, Hamas could be complicit. Its leadership has repeatedly told the population not to move. For example, on Oct 10, the interior ministry reacted to IDF phone warnings by writing on its Telegram channel, “An important note: We repeat our call on the residents to ignore the voice messages being sent randomly by the occupation to their phones demanding that they leave their homes. Their goal is to arouse panic and fear as part of a psychological warfare accompanying the occupation’s aggression against us.” As we saw during the population movement from the north to the south last month, most people ignored Hamas and there are numerous signs that many people are increasingly disenchanted with them.
Without question, the people of Gaza are suffering and dying in large numbers. Most are killed by Israeli weapons, although it’s probable that hundreds have died due to Hamas rockets misfiring as about 1 in 4 do. The Hamas-run Health Ministry says 16,000 people have died so far and the UN and Red Cross believes the numbers to be credible. The IDF claims it has killed about 5,000 Hamas men. If so, the ratio of civilian to combatant fatalities is roughly in line with most modern wars at about 3 to 1, although there are studies arguing the figure is 9 to 1.
None of this is to minimize the brutality of war, nor the immense tragedy that is the Israel/Hamas conflict. It is simply to argue that in the absence of credible proven allegations, we need careful language not emotional outbursts. And we need a legal perspective, not selective outrage.
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