The Japan Times - What is genocide and is it happening in Gaza?

Israel says it is seeking to wipe out Gaza's Islamist rulers and free its hostages still held in the occupied Palestinian coastal strip since the Hamas militant attack in Israel on October 7, 2023.

But Israel's devastating war on Gaza -- largely populated by descendants of Palestinian refugees who were expelled from or fled what became Israeli land in 1948 -- has killed tens of thousands of civilians and sparked growing global outrage.

The accusation against Israel of genocide has been made with increasing force from quarters ranging from "Schindler's List" star Ralph Fiennes to Amnesty International and some Israeli historians.

What does the legal term really mean and who can decide whether it applies?

What is 'genocide'?

The word genocide -- derived from the Greek word "genos", for race or tribe, and "cide", from the Latin for "to kill" -- was coined in 1944 by Raphael Lemkin.

Lemkin, a Polish Jew who had fled to the United States, used it to describe the crimes committed by Nazi Germany during the Holocaust.

It was used for the first time within a legal framework by an international military tribunal at Nuremberg to try Nazi leaders for their crimes in 1945.

However, those accused were eventually convicted on charges of crimes against humanity.

It has been recognised within international law since 1948 and the advent of the UN Genocide Convention.

That text defines genocide as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group".

These five acts include killing members of the group, causing them serious bodily or mental harm, imposing living conditions intended to destroy the group, preventing births and forcibly transferring children out of the group.

Regardless of the definition, the qualification of "genocide" has been hugely sensitive over the decades.

What is happening in Gaza?

Israel's military offensive on Gaza since October 2023 has killed 54,677 people, mostly civilians, according to the health ministry in the occupied Palestinian territory.

The United Nations has said the territory's entire population of more than two million people is at risk of famine, even if Israel said last month it was partially easing the complete blockade on aid it imposed on Gaza on March 2.

Despite international calls for an end to the war, a ceasefire agreement between Israel and Hamas remains elusive.

The latest war started after Hamas fighters attacked Israel on October 7, 2023.

The attack resulted in the deaths of 1,218 people, mostly civilians, according to an AFP tally based on official Israeli figures.

Of the 251 hostages seized, 55 remain in Gaza, including 32 the Israeli military says are dead.

Who speaks of 'genocide' in Gaza?

In December 2023, South Africa brought a case to the International Court of Justice (ICJ), the United Nations' highest judicial organ, alleging that Israel's Gaza offensive breached the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide.

Israel denies the accusation.

In rulings in January, March and May 2024, the ICJ told Israel to do everything possible to "prevent" acts of genocide during its military operations in Gaza, including by providing urgently needed humanitarian aid to prevent famine.

While no court has so far ruled the ongoing conflict is a genocide, human rights groups and international law experts -- including several who are Israeli -- have used the term to describe it.

Amnesty International has accused Israel of carrying out a "live-streamed genocide" in Gaza, while Human Rights Watch has alleged it is responsible for "acts of genocide".

A UN committee in November found Israel's warfare in Gaza was "consistent with the characteristics of genocide".

And a UN investigation concluded in March that Israel carried out "genocidal acts" in Gaza through the destruction of the strip's main IVF clinic and other reproductive healthcare facilities.

Omer Bartov, an Israeli scholar of the Holocaust, wrote in August last year that "Israel was engaged in systematic war crimes, crimes against humanity and genocidal actions".

Fellow Israeli historians Amos Goldberg and Daniel Blatman in January co-wrote an article in which they said: "Israel is indeed committing genocide in Gaza."

Western governments have largely refrained from using the word, with France's President Emmanuel Macron saying it was not up to a "political leader to use to term but up to historians to do so when the time comes".

But Turkish President Recep Tayyip Erdogan has used it, while Brazilian President Luiz Inacio Lula da Silva has accused Israel of "premeditated genocide".

What does Israel say?

Israel alleges it is exercising its right to security and "self defence", an argument echoed by its staunch ally the United States.

Israel has dismissed accusations of genocide as "blatant lies" and Prime Minister Benjamin Netanyahu has accused the UN Human Rights Council of being "an antisemitic, corrupt, terror-supporting and irrelevant body".

He has said UN experts should instead focus on "crimes against humanity and the war crimes committed by the Hamas terrorist organisation in the worst massacre against the Jewish people since the Holocaust", referring to October 7.

The International Criminal Court (ICC) in November issued arrest warrants for Netanyahu and former Israeli defence minister Yoav Gallant over alleged crimes against humanity and war crimes in Israel's war in Gaza -- including starvation as a method of warfare.

It also issued an arrest warrant for Hamas military chief Mohammed Deif over allegations of crimes against humanity and war crimes in the October 7 attack, but the case against him was dropped in February after confirmation Israel had killed him.

ICC prosecutor Karim Khan also initially sought warrants against Hamas leaders Yahya Sinwar and Ismail Haniyeh, but dropped those applications after their deaths in Israeli attacks.

Who decides and when?

Thijs Bouwknegt, a genocide expert, said the Israeli policy in Gaza seemed to be "designed to make a civilian population either perish or leave" but a court would have to decide if it was genocide.

"It bears the hallmarks of it but we still have to wait and see whether it actually was," said the historian, who has conducted research for the ICC and observed trials over genocide in Rwanda and former Yugoslavia.

In the case of Rwanda, in which the United Nations said extremist Hutus killed some 800,000 Tutsis and moderate Hutus in 1994, it took a decade for the International Criminal Tribunal to conclude genocide had happened.

It was not until 2007 that the ICJ recognised as genocide the murder by Bosnian Serb forces of almost 8,000 Muslim men and boys in Srebrenica in 1995 during the Bosnian war.

"The threshold for genocide is nearly impossible to meet," Bouwknegt explained.

"You have to prove that there was an intent and that there was the only possible explanation for what happened."

Has there been intent?

French-Israeli lawyer Omer Shatz said "there is no doubt that war crimes, crimes against humanity are being committed" in Gaza.

But the international law expert agreed intent was more difficult to prove.

That is why, after the ICC issued an arrest warrant against Netanyahu and Gallant, he filed a report with the court in December arguing they were among eight Israeli officials responsible for "incitement to genocide in Gaza".

"If incitement is established, that establishes intent," he told AFP.

His 170-page report lists such alleged incitements, including Gallant at the start of the war saying Israel was fighting "human animals" in Gaza and far-right Finance Minister Bezalel Smotrich urging "total extermination" in the Palestinian territory.

It cites President Isaac Herzog failing to differentiate between Palestinian militants and civilians when he spoke of "an entire nation out there that is responsible" for the October 7 attack.

Mathilde Philip-Gay, an international law expert, said it was ultimately up to a judge to decide on whether the genocide label applied.

But, she warned: "International law cannot stop a war."

"The judiciary will intervene after the war. The qualification (of genocide) is very important for victims but it will come later," she said.

What now?

The 1948 Genocide Convention says signatories can call on UN organs "to take such action... for the prevention and suppression of acts of genocide".

But while it implies they should act to stop any such crime from occurring, it does not detail how.

Activists have called for an arms embargo and sanctions against Israel.

The European Union last month ordered a review of its cooperation deal with Israel and Britain halted trade talks with the government.

But the United States and Germany, two major weapons suppliers, are not likely to want to review their relationship with Israel.

M.Matsumoto--JT