Genocide: a crime as difficult to prove as it is to commit

In 1948, the Convention for the Prevention and Punishment of the Crime of Genocide was approved. It defines this crime as the attempt to destroy, totally or partially, a national, ethnic, racial or religious group by acting on its members, whether by killing them, preventing births or placing the group in conditions of existence aimed at causing their extermination. The very existence of certain human groups is protected; Individuals are chosen for being part of the group and attacked with the intention of annihilating the group itself.

Currently, genocide is one of the four categories of crimes over which the International Criminal Court (ICC) has jurisdiction. This court establishes the criminal responsibility of individuals for violating international law. Next to it there is another older court, the International Court of Justice (ICJ), in charge of settling disputes between States in the application of international law. The ICJ can decide the international responsibility of a State for breaching the duties established in the 1948 Convention. The responsibility of the State and that of individuals can coexist. Thus, the genocide committed in Srebrenica caused, on the one hand, the sentencing of the responsible individuals to prison terms, decided by the International Criminal Tribunal for the Former Yugoslavia, and, on the other, the condemnation by the ICJ of the State of Serbia and Montenegro for not avoiding it.

Both courts, the ICC and the ICJ, are involved in prosecuting the atrocious acts committed in Gaza. In 2021, the ICC affirmed its jurisdiction in reference to any crime within its jurisdiction committed since 2014 in the territories occupied by Israel: Gaza and the West Bank, including East Jerusalem. The statements made to date by the Prosecutor’s Office focus, however, on war crimes and crimes against humanity, without any references to a possible genocide. But this does not mean that the qualification of the facts cannot vary or expand as the investigations progress. For its part, the ICJ must resolve the lawsuit filed by South Africa against Israel for violating the Genocide Convention.

The main problem in affirming the commission of this crime lies in proving the intention to destroy the group as such in whole or in part. The ICJ has faced this problem in the judgment in which it convicted Serbia in 2007 and in the 2015 judgment in which it acquitted that same State. According to the ICJ, the intentional death of members of the group is not enough, not even if such deaths are committed en masse and for a discriminatory motive, or if they are part of a campaign of ethnic cleansing aimed at expelling a certain population through intimidation. The direct intent to destroy the group must be proven. This distinction may seem strange to the layman, but in fact ethnic cleansing, the most frequent phenomenon, is not synonymous with genocide if violence is used for expulsion, although it can include it if the goal of extermination exists. For this reason, genocide is not only difficult to prove (especially in a conflict situation in which it is not possible to obtain evidence), with this strict definition it is also difficult to commit, and infrequent.

However, although the requirement of direct intention restricts the possibilities of committing genocide, the virtuality of limiting oneself to partial destruction expands them. The intention to destroy may be limited to the part of the group existing in a certain geographical area, such as Srebrenica, or Gaza, or even to a substantial part of it, quantitatively and qualitatively, in that area, which must be essential for the survival of the group as a whole, such as the entire male population. But it is still necessary to prove the intention of physical extermination. Furthermore, according to international criminal courts (contrary to what a minority of us have been demanding), destruction must be the direct goal pursued by the author, it is not enough to foresee it merely as as a possible consequence that is accepted.

The reader may be indignant at this point. But, without quite ruling out yet the classification of genocide, we must not forget that there are other international crimes in which the facts could fit: war crimes and crimes against humanity. The latter constitute the fundamental core of criminal law, since they protect the fundamental assets of the individual against the excesses of power. On the other hand, the collective dimension of victim and perpetrator that the term genocide entails carries a risk of political manipulation (suffice it to remember its use as an excuse by Putin to attack Ukraine). I am not claiming that such a thing is happening in the case of Gaza. I am trying to explain why it is important to preserve a strict concept of genocide.

The South African lawsuit asserts that civilian deaths, injuries, population transfers, destruction of hospitals, cutting off supplies, preventing humanitarian aid from entering the area, etc., have been carried out with the intention of causing the physical destruction of the Palestinian people. As proof, statements by Israeli politicians are presented, such as Prime Minister Benjamin Netanyahu’s references to the biblical mandate to exterminate Amalek in his speeches to the troops, the blaming of the Palestinian people in the speeches of President Isaac Herzog and other Israeli ministers, the harangues of military commanders calling for revenge and denying the neutrality of civilians, and statements dehumanizing the Palestinians. The lawsuit also cites the concern of the special rapporteur of the United Nations and international organizations about this escalation in speech and actions and about the risk of the commission of genocide. Likewise, as precautionary measures, the immediate cessation by Israel of military operations in Gaza was requested.

In contrast with this rhetoric for domestic consumption, the Israeli prime minister has different words for international public opinion in which he affirms that his fight is only against terrorists and that he has no intention of occupying Gaza permanently. Israel’s defense in The Hague argues that these “individual incidents” do not prove the overall intention of the military operation, and opposes precautionary measures arguing that this would mean allowing the other party to continue its attacks.

The success of the lawsuit, given the precedents, is uncertain. Perhaps the plaintiff's intention was to obtain these precautionary measures. It was difficult for the ICJ to order Israel to unilaterally cease military operations. But it was foreseeable to obtain, as happened on Friday, measures similar to those issued in 2020 against Myanmar for the persecution of the Rohingya: the obligation of the State to use the necessary resources to prevent a genocide and preserve possible evidence of its commission. That is, an order to Israel that implies ceasing attacks against the civilian population and taking measures to protect Gazans.

Along with the aforementioned cases, the ICJ has pending Ukraine's lawsuit against Russia for violating the Genocide Convention. In the resolution of these three disputes we will verify the standards of proof of genocidal intent and we will witness the confirmation of a strict concept of genocide, or, on the contrary, its evolution.

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