In its preliminary finding, the International Court of Justice rightly refused to accept a resolution brought by the Republic of South Africa accusing Israel of genocide.
The Netanyahu government has used excessive force in Gaza. That may be a war crime, but is not genocide.
The international convention defines genocide as killing or causing harm “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”
“Intent” is the key element in this definition. The perpetrators must be motivated by a desire to murder people based solely on their identity.
Several historical cases make clear the nature of genocide.
Fearing that its 1.5 million Armenian subjects might support Russia during WWI, the Ottoman Empire murdered between 664,000 to 1.2 million of them.
The Nazis viewed Jews as an alien presence, polluting Aryan blood and exploiting Germans by controlling the levers of economic power, and they sought to exterminate them.
Between 1938 and 1945, they murdered 6 million Jews, about a third of the entire Jewish population of the world at the time, as well as at least 2 million other members of “undesirable” groups, including the disabled, homosexuals and the Roma.
From 1975 to 1979, the communist Khmer Rouge murdered nearly 2 million people in what came to be called the “killing fields” of Cambodia. They sought to replace traditional society with a “classless agrarian utopia.”
Serbian paramilitary groups encouraged by the Belgrade government of Slobodan Milosevic and supported by the Bosnian Serb army, adopted a policy of “ethnic cleansing” to create a greater Serbia during the 1992-1995 war.
They employed murder and sexual assault to terrorize Bosnian Muslims from their homes. The strategy culminated in the infamous 1995 Srebrenica massacre of approximately 8,000 men and boys.
In 1994, the Hutu government and its supporters murdered nearly 800,000 members of the Tutsi ethnic minority community in Rwanda.
Horrific though it has been, the assault on Gaza has not risen in scope or intent to the level of genocide.
That does not mean the Israeli government is innocent of wrongdoing.
With its reliance on firepower and overly permissive rules of engagement, the Israel Defense Forces has killed more than 25,000 people (1 percent of the entire population), 10,000 of them children, according to Gaza’s health ministry.
The IDF campaign has left much of Gaza in ruins, displacing people and creating a massive refugee and humanitarian crisis.
However, the use of excessive force stems from an aversion to casualties, not genocidal intent.
If the massive assault on Gaza is not genocide, it may constitute a war crime, although that will be hard to prove.
Several clauses in the Geneva Convention and other international covenants could be used to indict the Netanyahu government, but one seems particularly applicable.
The United Nations says attacks are a war crime when actors launch them knowing they will “cause incidental loss of life or injury to civilians,” cause “damage to civilian objects or widespread, long-term and severe damage to the natural environment,” or if they are “clearly excessive in relation to the concrete and direct overall military advantage anticipated.”
But who decides what action is “clearly excessive” concerning the military advantage it conveys to the attacker?
With the exclusion of torture and inhumane treatment of prisoners, virtually every act deemed a war crime contains a military exception.
Netanyahu has repeatedly argued exigency to justify every IDF action, no matter how seemingly excessive.
For example, he claimed that tunnels under Shifa Hospital in Gaza City made it a legitimate target and has repeatedly insisted that Hamas hides within the general population.
Both accusations are probably true, but that does not excuse the level of force being used to root them out. The IDF is not intentionally killing civilians, but it is far too willing to accept their deaths as “collateral damage.”
If Netanyahu can make a case, however flimsy, that military necessity justifies the level of force employed in Gaza, no such argument can be made for what is being done to West Bank Palestinians.
Since Oct. 7, 367 Palestinians, including 94 children, have been killed in the West Bank, most of them by the IDF. Others have suffered vigilante violence at the hands of Israeli settlers, which increased after Netanyahu’s far-right government took office and has intensified since the war.
The Israeli government has detained 8,600 Palestinians, 3,291 of them under “administrative detention” without charge or trial. Before Oct. 7, the number detained under this draconian provision reached 1,200.
Palestinian and Arab citizens of Israel are not exempt from ill-treatment. According to a PBS Newshour report, 2,000 have been detained, some for nothing more serious than a social media post.
International law does allow for administrative detention under extreme circumstances, but human rights advocates have rightly criticized its abuse by Israel even before Oct. 7.
There is, of course, little chance that anyone in the IDF or the government will ever be held accountable for excesses committed during the conflict.
Netanyahu thumbs his nose at the U.N., human rights groups and anyone who criticizes his handling of the war.
He even defies the Biden administration, which has steadfastly supported him. He plans to seize Palestinian land to create a buffer zone around Gaza and refuses to countenance discussion of a Palestinian state.
That intransigence caused progressive senators led by Bernie Sanders (I-Vt.) to submit a resolution making further aid to Israel conditional on a “significant pause in military operations” and “commitment to broad peace talks for a two-state solution.”
The Senate defeated the motion 72 to 11, but it indicates what may be the only way to change Netanyahu’s approach to the war. Continuing to write him a blank check sends a message that he can continue to be intransigent.
The international court’s preliminary decision contains a strong admonition, calling on Israel to “take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention [on Genocide].”
If it fails to comply, the court’s final decision may not be in Israel’s favor.
Tom Mockaitis is a professor of history at DePaul University and author of “Conventional and Unconventional War: A History of Conflict in the Modern World.“
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