A different degree of genocide

In protests roiling college campuses across America, students are stridently charging Israel with genocide in Gaza. This should have the lawyers among us wondering about the legal case for that charge.

The devil is in the details of international law--specifically, the United Nations Convention on the Punishment of the Crime of Genocide. According to the Genocide Convention, genocide means specified acts "committed with intent to destroy, in whole or in [substantial] part, a national, ethnical, racial or religious group." The specified acts include "[k]illing members of the group" or "[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."

Three questions arise. First, are the Palestinians a national, ethnical, racial or religious group? Second, does the Israeli government intend to destroy a substantial part of the Palestinian people? Third, is Israel perpetrating such destruction by killing or by inflicting catastrophic living conditions?

The first question is easy. Only those on the extreme fringe of Israeli revanchism would say, as Golda Meir once said, that "[t]here is no Palestinian people."

The second question is not so simple. Intent is rarely easy to prove and usually must be inferred from circumstantial evidence. Occasionally, however, there is direct evidence of intent consisting of the perpetrator's own statements.

One might infer genocidal intent from the way Israel has conducted the Gaza war, with tens of thousands of deaths, forcible displacement of the populace, and massive damage to homes and infrastructure. But Israel insists this is unavoidably collateral to an existential effort to destroy Hamas. The circumstantial evidence seems equivocal.

In the weeks following the Oct. 7 atrocities, however, Israeli government officials made public statements that constitute direct evidence of genocidal intent. Defense Minister Yoav Gallant announced he had ordered a "complete siege" of Gaza and "there will be no electricity, no food, no fuel." Speaking later to Israeli troops, Gallant added: "I have released all the restraints." President Isaac Herzog proclaimed: "It's an entire nation out there that is responsible... and we will fight until we'll break their backbone." Energy and Infrastructure Minister Israel Katz said: "All the civilian population in [G]aza ... will not receive a drop of water or a single battery until they leave the world."

Perhaps the most compelling evidence is what Prime Minister Benjamin Netanyahu told the Israeli people on Oct. 28: "You must remember what Amalek has done to you, says our Holy Bible. And we do remember."

The Amalekites committed atrocities against the Israelites during their Exodus from Egypt. Deuteronomy quotes Moses telling the Israelites: "Remember what Amalek did to you on the way when you came out of Egypt... you shall wipe out the remembrance of Amalek from under the heavens, you shall not forget." 1 Samuel quotes the prophet's instructions to Saul to "heed the voice of the words of the Lord" and "'go and strike down Amalek, and put under the ban everything that he has, you shall not spare him, and you shall put to death man and woman, infant and suckling, ox and sheep, camel and donkey.'" The "ban," according to Biblical scholar Robert Alter, was "one of the cruelest practices of ancient Near Eastern warfare ... an injunction of total destruction--of all living things--of the enemy."

Here we have a confluence of both types of evidence--not just circumstantial evidence supporting an inference of genocidal intent, but also direct evidence of statements by government officials voicing such intent. Together, they make a plausible case to sustain a finding of intent to destroy a substantial part of Gaza's populace.

The third question--whether Israel is perpetrating genocidal destruction by killing or by inflicting catastrophic living conditions--calls for a comparison with the Holocaust.

In her book "The War Against the Jews," Lucy Dawidowicz describes three stages of the Nazi genocide: First, "disemancipation," in which European Jews were deprived of human rights they had achieved over the previous century. Second, "ghettoization," in which Jews were forced into ghettos under increasingly worsening living conditions that caused widespread disease and famine. Third, "annihilation," in which Jews were systematically murdered en masse--initially by Einsatzgruppen "Special Task Forces" which followed behind invading troops, emptied towns of Jews, marched them into the countryside, and then shot them; and later by transportation of ghettoized Jews to death camps, where they were gassed.

More than seven dozen of my paternal relatives perished outside their Belarussian town at the hands of the Einsatzgruppen, who shot the town's 3,000 Jewish men and boys on Aug. 10, 1941, and subsequently shot the town's remaining 1,300 Jewish women, girls and infants on Sept. 10, 1942. My youngest murdered relative was a year old; the oldest was 88. That's what systematic annihilation en masse looks like.

The Palestinian citizens of Israel are to some extent disemancipated. But they are not ghettoized, and they are not being systematically annihilated en masse.

The Palestinians in the West Bank are fully disemancipated and are in the process of being ghettoized with walls and bypass roads. But their ghettoization is not under catastrophic living conditions causing widespread disease and famine, and they are not being systematically annihilated en masse.

The Palestinians in Gaza are now suffering catastrophic living conditions and are on the brink of widespread disease and famine. But still, they are not being murdered in the Nazi manner. Gaza has been bombed largely to rubble, with some 34,000 deaths as of this writing, but few would argue that this amounts to systematic annihilation en masse. Israel has killed about 1.6% of the total population of Gaza and 0.6% of the total Palestinian population in the Middle East--as compared with the 67% of European Jews murdered in the Holocaust, or the 75% of Tutsis murdered in the Rwanda genocide of 1994.

Viewing Gaza through the lens of Dawidowicz's three stages of the Nazi genocide helps to explain why so many Jews take extreme offense at characterizations of Israel's war in Gaza as genocidal. The third stage of the Holocaust--systematic annihilation en masse--is absent from Gaza.

Yet, according to the Genocide Convention, widespread disease and famine from catastrophic living conditions can also be genocidal. If Israel's leaders are to be taken at their word, what's happening in Gaza is indeed genocide. But it's not a Nazi-style genocide by systematic annihilation en masse. Rather, it's what the Genocide Convention calls deliberately inflicting, on a substantial part of a people, conditions of life calculated to bring about partial physical destruction by disease and famine.

It's a different degree of genocide.