Genocide

Translated by Giulia Maffeis

“Sciences Po, Sciences Po, you can’t hide, you’re supporting genocide!”

Protests' echo on American campuses has reached the Old Continent, where students have been asking their universities for months to call for a ceasefire in the Gaza Strip and to make public relationships and partnerships with Israeli institutions.

Sciences Po is no exception, being a European and global excellence in political studies and a training ground for France's ruling class.  In the heart of Paris, the student mobilization was met with a violent intervention by law enforcement and the suspension of regional funds decided by Valérie Pécresse, President of the Île-de-France Regional Council and member of the centre-right party Les Républicains (LR).

From chants to petitions, denouncing the opacity of the university administration, the word "genocide" echoes in 27 Rue Saint-Guillaume's halls, where keffiyehs and Palestinian flags have coloured Sciences Po's ecosystem for weeks. Along with riot police vans, stationed almost permanently at the corner of Boulevard Saint-Germain and Rue de Grenelle.

The university environment is not the only one that has associated the "crime of crimes" with the current military operation conducted by the Israeli Defense Forces (IDF) in the Gaza Strip.

At 2023's end, South Africa brought Israel before the highest UN court, the International Court of Justice (ICJ),  accusing the Netanyahu government's military campaign of being genocidal.
 

Dura lex, sed (quae) lex?

According to Art. II of the 1948 Genocide Convention, genocidal acts against a national, ethnic, racial, or religious group include: killing, causing serious physical and mental harm, imposing living conditions meant to destroy the group, measures to prevent births, and the forced transfer of children.

Art. III further specifies that not only the act of genocide itself but also conspiracy, incitement, attempt, and complicity in committing it constitute crimes. However, the clear formal terms clash with a more opaque reality, as explained by Prof. William Schabas in a lecture in February at Sciences Po.

“The definition of genocide requires the intention to destroy a group by killing its members and causing serious physical and mental harm,” states the Professor. “The harm [in Gaza] is quite evident, but the real challenge is the intention.”

Intentions are on trial

The data reported by the UN Office for the Coordination of Humanitarian Affairs (OCHA) on the impact of the conflict in Gaza since October 7 are merciless. Over 70,000 housing units were destroyed, almost 80,000 injured, and over 35,000 victims. Of these, 52% are said to be constituted by women and children.

The specific weight of these figures is further aggravated by the dimensions of the Strip. Gaza, barely longer than Genoa, makes one of the most densely inhabited areas on the planet, with over two million inhabitants squeezed into a strip of land equal to a third of Rome. According to UN estimates, 1.7 million of these are displaced people.

Regarding intentions of genocide, Francesca Albanese, the current UN Special Rapporteur on the situation of human rights in the occupied Palestinian territories since 1967, has devoted an entire section in her report titled "Anatomy of a Genocide." It denounces how a “genocidal rhetoric [has] depicted the entire [Palestinian] population as the enemy to be erased and removed by force.” Examples include dehumanizing talks by high officials in Tel Aviv, from Prime Minister Netanyahu to Defense Minister Gallant, as well as from Israeli civil society and the military.
One of the most relevant conclusions is about the strategic use of international law language by Israel as a “'humanitarian camouflage' to legitimize its genocidal violence in Gaza.” Finally, the report frames the current military campaign within the “genocidal logic integral to [Tel Aviv's] colonization project in Palestine” preceding October 7.

In mid-May, an independent group of international law experts published a document on the subject. In over 100 pages, they list evidence of Israel’s genocidal intentions through words – particularly, the biblical reference to the extermination of the Amalekites – acts – from the indiscriminate and mass killing of Palestinian civilians to the creation of mass graves and the desecration of cemeteries in the Strip – and a political context that “reinforces Jewish supremacy and prevents the possibility of a two-state solution.”

The evidence, the experts think, indicates that Israel is not only committing genocide but also directly inciting it.


Plausibility

In addition, the ICJ itself, in the provisional measures in the case of South Africa against Israel, found that “at least some of the rights invoked by South Africa and for which [Pretoria] is seeking protection are plausible.” Given the matter of genocide, the Court's words take on even greater severity.

This said, provisional measures do not create a conviction against Israel. Indeed, then-ICJ President Joan Donoghue highlighted a fundamental distinction often overlooked by the media.

“The Court decided that the Palestinians had the plausible right to be protected from genocide,” Joan Donoghue told the BBC. “[The Court] also considered the facts, but [...] has not decided that the accusation of genocide was plausible.”

The concept of ‘plausibility of rights,’ introduced by the ICJ in the case of Belgium v. Senegal, has never received a clear and comprehensive explanation. Analyzing the Court's jurisprudence, Dr. Roy Schöndorf, employed at the Israeli law firm Herzog, is associating the concept with two elements. First, the connection between the rights and the treaty invoked by the requesting country – in this case, the right of Palestinians to protection from genocide and the 1948 Convention invoked by South Africa – must be plausible in abstract, i.e., apart from of the facts. Second, the requesting country must present facts to defend the accusation, regardless of their truthfullness, on which the Court is not required to express an opinion to issue provisional measures. Thus, the threshold for ‘plausibility of rights’ would be very low.

However, as denounced by Prof. Marko Milanovic, the confusion that's obscuring the distinction highlighted by Joan Donoghue is primarily caused by the Court itself. Indeed, while focusing on the ‘plausibility of rights,’ the Hague Tribunal often allows for a factual analysis that hints at the ‘plausibility of the accusation.’

In this sense, South Africa against Israel is no exception. In the Order of the provisional measures, the Court cited explicitly UN officials and agencies in describing the “catastrophic humanitarian situation in the Gaza Strip.” It also reports a series of incriminating statements by senior Israeli officials, considering the alarm raised by special rapporteurs, independent experts, and the Human Rights Council regarding a “‘genocidal and dehumanizing rhetoric’” from Tel Aviv.

The Only Reasonable Conclusion

The low yet opaque threshold of plausibility opposes the very high threshold for genocidal intent.

In the case of Croatia v. Serbia, the ICJ stated that intent can be deferred indirectly from circumstantial evidence, provided that “it is necessary and sufficient that [the intention] is the only conclusion that can reasonably be drawn from the acts in question.” As a consequence, warns Assistant Prof. Rana Moustafa Essawy, a standard has been imposed so the Court rejects any inference of genocidal intent if the evidence suggests any other motive.

Logically, various motives can coexist without excluding each other, such as genocidal intent with the desire to obtain personal economic or political benefits, or with the achievement of military objectives.

Regarding this, in November 2023, Canada, the Netherlands, the United Kingdom, Germany, France, and Denmark intervened in the case of Gambia v. Myanmar, denouncing the current threshold of genocidal intent as virtually irreachable. A solution would be to use the standard of the only reasonable conclusion not in an absolute way, but only to compare “alternative explanations,” and incompatible.

With this approach, Moustafa Essawy argues, the IDF’s stated goal of destroying Hamas would not prevent inferring a genocidal intent on the part of Israel.


Quo vadis?

Nevertheless, given the current standard, Professor Milanovic is practically certain that the Court will not convict Israel of genocide. Indeed, he warns that the focus on the "crime of crimes" will devalue other violations of humanitarian law attributable to Tel Aviv over which the Court has no jurisdiction. A lack of conviction could be seen by Israel as a complete exoneration and interpreted by the Palestinians as a failure of international justice.

The ICJ is not the only authoritative voice. Karim A.A. Khan, prosecutor of the International Criminal Court (ICC), recently requested arrest warrants for war crimes and crimes against humanity against Netanyahu and Gallant, as well as three Hamas leaders. However, the absence of law enforcement to execute ICC sentences and the non-recognition of the Court's jurisdiction by the USA, Russia, China, and Israel risk reducing any warrants to mere symbols without concrete consequences.

The golden age of the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) belongs to the past. Last April, the ICTR declared the conclusion of its nearly thirty-year mission to bring justice for the 1994 Rwandan genocide, having confirmed the death of the last two fugitives.

Yet, the various courts can still pressure Israel and its supporters, even if only on a reputational level. Equal pressure can emerge from an informed and engaged civil society, without waiting years for a verdict.
Regardless of ICJ's judgment, the invocation of genocide by student groups becomes instrumental in drawing attention to the dramatically exceptional situation in Gaza.

A slogan, a banner, or a chant does not aim to rival a legal ruling which, despite the 'scientific' strength of the law, cannot uproot the political root behind the different interpretations of international law.

Similarly, a demonstration is not a conference. Change can come from both slogans and dialogue, especially when they work in symbiosis. At Sciences Po, I have seen students give life to both.

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