Speaking in May at a celebration of Jewish Heritage Month, President Biden denounced the decision earlier that month by the prosecutor of the International Criminal Court (ICC) to seek arrest warrants for Israel’s Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant. Biden declared that Israel’s campaign in Gaza “is not genocide.” Biden could have saved his anger: The prosecutor seems to agree.
Prosecutor Karim Khan has alleged numerous crimes against Netanyahu, Gallant, and three leaders of Hamas: Yahya Sinwar, Hamas’ head in Gaza, Mohammad Diab Ibrahim ‘Deif’ al-Masri, commander of the Al-Qassam Brigades, and Ismail Haniyeh, head of Hamas’ Political Bureau. (All three Hamas leaders have since been killed; charges against Haniyeh have been withdrawn.) They are accused of: starvation, attacking civilians (Israel); rape, hostage-taking (Hamas); extermination, murder, ‘other inhumane acts’ (both) – but not genocide.
That might surprise anyone listening to the news over the past year: campus protests declaring Israel a genocidal state, and America too for supporting Israel; counter-protests labeling Hamas genocidal; cases at the International Court of Justice (ICJ), by South Africa against Israel and even by Nicaragua against Germany for abetting Israeli genocide; a report by UN officials suggesting Israel is committing genocide. This new willingness to confront genocide, even in court, reaches beyond the Middle East: Since 2019, the ICJ has also heard cases involving Myanmar’s attacks on the Rohingya and Russia’s attack on Ukraine. Genocide is everywhere.
So a genocide charge at the ICC might seem plausible. South Africa’s case against Israel at the ICJ is a state-to-state case, not a criminal one, but the ICJ has issued provisional orders three times in response to the complaint’s catalogue of killings and disturbing rhetoric by Israeli officials calling for the destruction of “human animals” (“hayot-adam” in Hebrew). Still, although the ICC prosecutor only needs “reasonable grounds to believe” crimes were committed to obtain a warrant, no charge of genocide. Arguably it’s even easier to call Hamas’ actions on 7 October 2023 genocidal, but the prosecutor didn’t charge that either.
Perhaps that’s the pressure of equivalence – after all, what would it mean to charge one side with the ultimate crime but not the other? But there’s another reason: Saying a charge against Hamas is easier doesn’t mean it’s easy. Genocide is very, very hard to prove. The prosecutor’s silence tells us a lot about the difficulties a prosecution would face, and why genocide law is barely usable.
Genocide is often associated with the Holocaust or Shoa – Raphael Lemkin coined the word ‘genocide’ during the Second World War, in which he lost dozens of members of his extended family – but in fact he began his advocacy in the interwar period, motivated in significant part by the Armenian massacres during the First World War. Genocide is mentioned in the Nuremberg indictment, though not as a formally separate crime, rather as a descriptive term for crimes against humanity. In negotiations after the war, Lemkin’s earlier, more expansive proposals were watered down, but a new, separate crime was identified in the Genocide Convention of 1948.
If genocide law were what lay people imagine, then killing many, many people would be genocide. But it’s not. Genocide requires specific acts – such as killing, causing serious bodily or mental harm, removing children – committed with intent to destroy some national, racial, ethnic, or religious group as such. Genocide is a “goal-oriented crime”: The group’s destruction must be intentional – must in fact be the core purpose for the underlying acts – not a byproduct. (That may be more complicated for low-level offenders, for whom merely acting with knowledge of a genocidal context might suffice. But on the dominant view, and especially for leadership, purpose is still the clear standard.) That’s an evidentiary problem because people kill people for all sorts of reasons.
Israel has killed over 40,000 people in Gaza, mostly civilians, during an intensive military campaign. That “unusually intemperate” UN report says Israel has “distorted jus in bello principles [rules governing war] (…) in an attempt to legitimize genocidal violence against the Palestinian people.” That just shows the problem with identifying genocide during hostilities: ‘Distortion’ is possible, because wars are fought for many reasons, and it’s difficult to isolate genocidal intent from operational goals. Israel is bombing Gaza into oblivion, and the supposed genocide is the bombing. It’s not enough to point to deathscapes of rubble; what’s needed is evidence of a plan and intention to destroy the group as such.
Even Hamas’ ‘Al-Aqsa Flood’ operation attacking civilians had complex purposes that would make proving genocide difficult. A Hamas’ operative’s notorious statement that the operation would be repeated “until Israel is annihilated” would make ambiguous evidence in a courtroom: He spoke of annihilating Israel, not Jews or even Israelis. (Compare Israel’s insistence that it is targeting Hamas, not Palestinians.) Such distinctions make little difference to those fleeing bombs, held in dungeons, or shot delivering aid, but those distinctions are genocide law – they are what separate genocide from other crimes or the harms of war. Proving those other crimes (which have their own subtle distinctions and tests) seems much more plausible, and regretting or condemning the death and suffering inflicted by each side is something any moral actor could do as a political matter; but the distinctions that constitute genocide law make it different, and difficult to prove that genocide is what’s happening between the river and the sea.
Convictions are possible, for example in Rwanda, where 800,000 people were slaughtered by their own neighbors in a few months, or for the brutal persecution and enslavement of Yazidis by ISIS. But a better indicator of the blurred space genocide law occupies is Yugoslavia, whose brutal civil war confounded the doctrinal purity of genocide, even when discriminatory crimes were flagrant. Despite shocking acts and statements that could compete with the worst quotes in South Africa’s case against Israel or Hamas’ most explicit statements, the International Criminal Tribunal for the Former Yugoslavia found genocide only in one Bosnian town, Srebrenica, but nowhere else. That is not an accident, or even bad judging; it is a predictable reaction to the doctrinal limitations girding this crime. Genocide’s bar is high, and when it happens during conflict, the fog of war covers the blood-soaked earth below.
To advocates of international justice, the ICC prosecutor’s charges for the Israeli-Hamas conflict “cut through the polarizing language of the moment” to affirm a lawfully governed world. Maybe so – though there’s little evidence polarization has lessened – but those charges don’t include genocide. And they almost never do – not for Palestine, not for Ukraine, not for most conflicts; in fact the ICC has only charged genocide once, for President al-Bashir in Sudan, and the prosecution actually failed to meet the low threshold for indictment the first time it tried. Whether that thin record is the result of risk-aversion or political pressure, the message is the same: genocide is not the legal tool people think it is.
Genocide sounds like the supreme crime, and claiming it’s happening has become a potent rhetorical weapon, but charging genocide is risky, because proving it requires more than chanting and moral certainty. Protestors’ passion inversely correlates with this crime’s legal value: Genocide’s inchoate, Protean plasticity combines with crimped, legalistic constraints to make it useful in politics, nearly worthless in law.
But even with its evidentiary and conceptual defects, surely genocide law is necessary for cases when there is no doubt? To some, it seems unacceptable to reduce the Holocaust to ‘just’ six million murders. I’m not sure that’s right, because it actually is possible to prosecute genocide using ordinary categories: Germany convicted Oskar Gröning for accessory to murder of 300,000 people at Auschwitz. But practicalities aside, rather than insisting on genocide as the interpretative frame, we might do better to focus on individuals and their suffering – to see, in each of those six million, those 40,000, those 1,200, a single human being’s harm.
Nothing prevents us from telling the reasons for that harm in other ways – as history, theater, literature, social critique. Genocide is a socially meaningful term; it’s just not clear it’s necessary in law. And focusing myopically on this redundant crime trivializes our response to other crimes, reducing the victims of ‘mere’ crimes against humanity or war crimes to second-class status.
There’s little evidence that genocide law ends genocides anyway. Although Israel has submitted a confidential report to the ICJ outlining its compliance with the court’s provisional measures, there is no evidence that those measures have had any discernible effect on the course of Israel’s war. (Neither have the ICC prosecutor’s applications for arrest warrants for other crimes – it’s not only genocide law that has limited effects.) If we want robust action to hold genocidal actors “accountable” as then-President Trump demanded, or “prevent future genocides” as President Biden promised, we need other, better tools than courts. But we may be less likely to use those tools if we rely on formal legal standards, because focusing on slow, backwards-looking, technical processes can actually suppress political pressure to act in real time.
Genocide law isn’t going anywhere, and genocide will be charged from time to time. But not anywhere near as often as many people think it should, and that disconnection between doctrine and desire – between the law we have and what we think the law should do – is a signal.
If you doubt what’s happening in Israel or Palestine is genocide, you should be concerned by all the shouting and court cases and op-eds saying there’s a genocide happening. And if you’re convinced genocide is happening – even many genocides (in Afghanistan, Syria, Myanmar, Sudan, Nigeria, Ethiopia, Congo, Ukraine, Nagorno-Karabakh, Xinjiang, Canada, the United States…) – ask yourself: What good is law doing? Because apparently genocides are happening all the time.
Either way, the prosecutor’s silence is a message: Time to rethink a defective, counterproductive concept that isn’t doing what anyone thinks it should. Because there is a lot of shouting. And a lot of law. And somewhere in between, a lot of dead people who aren’t saying anything at all.
The author would like to thank an anonymous reviewer for helpful comments.
Timothy William Waters is Richard S. Melvin Professor and Associate Director at the Center for Constitutional Democracy at Indiana University Maurer School of Law. He holds a JD from Harvard University, an MIA from Columbia University, and a BA from UCLA.