Since the outbreak of the Gaza war, the claim that Israel is committing genocide against the Palestinians has persisted. But what is the truth of the accusation? The assessment of legal experts is clear – also with regard to the Hamas massacres.
Pro-Palestinian protesters worldwide are accusing Israel of committing genocide in the Gaza Strip. “This is a genocide” is written something like this on countless posters and banners. A serious accusation that is not only made on the street. The international section of Fridays for Future, Turkish President Recep Tayyip Erdogan or cabinet members in Spain, and a few NGOs – they are all united by the genocide accusation against Israel.
No criminal offense in international law is more serious. In the wake of the Holocaust, the United Nations passed a convention in 1948 that criminalized genocide or genocide. This presupposes the intention to “destroy a national, ethnic, racial or religious group as such in whole or in part” – this is what it says in international criminal law. The crime therefore requires two components: the actual act and the motive behind it.
But does this apply to Israel’s conduct of the war in Gaza? The Israeli army says it has attacked 14,000 targets there so far. The Hamas-controlled health authority in Gaza reports more than 10,000 deaths. The war was only triggered by the Hamas terrorist attack on October 7th, in which around 1,400 people were murdered and hundreds more were kidnapped.
“The decisive factor is the intention to destroy”
“There are no signs that Israel is committing genocide,” says international law expert Stefan Talmon in an interview with ntv.de. There is no doubt that civilians are dying in the Gaza Strip. “But the decisive factor is the intention to destroy – and international law sets very high hurdles for this,” said the professor of international law at the University of Bonn.
For the Gaza Strip, Talmon explains it this way: Members of one group – the Palestinians – are being killed by Israel. If bombs are dropped on an area inhabited by many civilians, this could possibly even be done deliberately. In order to speak of genocide, the sole intention behind these killings would have to be to wipe out the Palestinians in whole or in part. “I don’t see that anywhere near here,” says Talmon.
On the one hand, Israel has the right to use force in self-defense. On the other hand, the Israeli government’s declared goal is to destroy Hamas as a terrorist organization and not the Palestinian people. However, individual politicians in the country are resorting to significantly more radical rhetoric. Most recently, Israel’s Minister of Cultural Heritage, Amihai Eliyahu, caused a stir because he described dropping a nuclear bomb on Gaza as “an option.”
Isn’t this a clear intention to destroy? “It always depends on the context,” says Talmon. A head of government who sets the official government line could, under certain circumstances, make statements that are binding under international law. “But if a culture or education minister says something like that, then it is irrelevant under international law.” In fact, Israeli Prime Minister Benjamin Netanyahu has distanced himself from this statement and temporarily suspended the minister.
War crimes are not the same as genocide
Talmon also emphasizes the distinction between genocide and war crimes. “The blockade of the Gaza Strip is contrary to international law. And I also see evidence of war crimes when individual bombs are dropped.” However, if one only takes dead civilians or war crimes as a benchmark, every war would be a genocide – and the term would thus be undermined.
The international lawyer Wolff Heintschel von Heinegg comes to a similar assessment. “You can be critical of the Israeli government in many ways. But talking about genocide here goes far beyond what is happening there,” he tells ntv.de. He sees a tendency for politics to be made using legal terms. “The accusation of genocide is then in the air. Getting rid of it is not that easy.”
Ultimately, genocide must be determined by courts. However, if you apply the criteria to the Gaza war, according to Talmon, the accusation only applies to one party: Hamas. In its charter from 1988, the terrorist group formulates the goal of wiping the state of Israel off the map. Hamas’ destructive intent was made clear in the massacres of October 7, Talmon said. “If I kill every Jewish person indiscriminately, from babies to pensioners, then that is genocide,” he says.