law essays on genocide

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Search form, donate button, the genocide of the palestinian people: an international law and human rights perspective.

While there has been recent criticism of those taking the position that Israel is committing genocide against Palestinians, there is a long history of human rights scholarship and legal analysis that supports the assertion. Prominent scholars of the international law crime of genocide and human rights authorities take the position that Israel’s policies toward the Palestinian people could constitute a form of genocide. Those policies range from the 1948 mass killing and displacement of Palestinians to a half-century of military occupation and, correspondingly, the discriminatory legal regime governing Palestinians, repeated military assaults on Gaza, and official Israeli statements expressly favoring the elimination of Palestinians. 

Genocide is a term that has both sociological and legal meaning. The term genocide was coined in 1944 by a Jewish Polish legal scholar, Raphael Lemkin. For Lemkin, “the term does not necessarily signify mass killings.” He explained: 

More often [genocide] refers to a coordinated plan aimed at destruction of the essential foundations of the life of national groups so that these groups wither and die like plants that have suffered a blight . The end may be accomplished by the forced disintegration of political and social institutions, of the culture of the people, of their language, their national feelings and their religion. It may be accomplished by wiping out all basis of personal security, liberty, health and dignity. When these means fail the machine gun can always be utilized as a last resort. Genocide is directed against a national group as an entity and the attack on individuals is only secondary to the annihilation of the national group to which they belong. [1]

Since Lemkin’s first invocation of the term, it has gained political, social, and legal meaning. For political scientists, historians, and sociologists, genocide is “understood as a major type of collective violence, with a distinctive place in the spectrum of political violence, armed conflict, and war, of which it is usually seen as a part.” [2]

From a legal perspective, genocide, like the crime against humanity of persecution, is an international crime distinguished by the specific intent to discriminate against a group on recognized grounds through a series of acts or omissions often reflected in and achieved through State policies. While different in degree, both genocide and persecution “[reduce] a person to their identification with or membership in a group,” but also “[attack] the group itself.” [3]  Persecution criminalizes the denial of fundamental rights for members of the group, and genocide criminalizes the most extreme stage of discrimination: efforts to actually destroy the group.

According to the Convention on the Prevention and Punishment of the Crime of Genocide, [4] genocide includes various acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” as such, including:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and

(d) Imposing measures intended to prevent births within the group. [5]

This definition is reflected in Article 6 of the Statute of the International Criminal Court (ICC), which has jurisdiction over crimes occurring on the territory of the State of Palestine since June 13, 2014. [6]

The Genocide Convention was written in the aftermath of World War II and the horrors of the Holocaust, especially to deter and prevent such horrors in the future and, failing that, to punish those responsible. The Convention thus provided a legal framework that clearly identifies the essence of the crime of genocide, regardless of the political, social, or cultural permutations in which the crime may be attempted or carried out and regardless of the specific qualities, stage, or scale of the genocidal process. The Holocaust set the terms by which a form of general or pervasive violence against a group might be legitimately termed “genocide” as a general sociological concept as it need not “imply a comparison to any other specific case.” [7]

Scholars of genocide have distinguished it as a crime different from other forms of war, killing, violence, discrimination, and repression. “Genocidal action aims not just to contain, control, or subordinate a population, but to shatter and break up its social existence. Thus genocide is defined, not by a particular form of violence, but by general and pervasive violence.” [8] They note that settler colonial regimes are structurally prone to genocide, and may indulge in “genocidal moments” when they become frustrated by the resistance of a colonized or occupied people. [9]           

The term “genocide” has been used to describe the mass murder of Armenians by the Ottomans, Stalin’s expulsion of Chechens, Ingush Tartars, and Jews from the U.S.S.R., the removal of Jews and Hungarians from Romania, and Italy’s efforts to clear Slovenes and Croats from the Dalmatian coast. [10] There have been successful prosecutions of individuals for genocide arising out of efforts to destroy the Tutsi population in Rwanda in 1994 [11] and Srebrenica in Bosnia-Herzegovina in 1995. [12]  

Numerous prominent human rights authorities, advocates, and scholars have claimed that Israel’s policies and actions with respect to the Palestinian people have amounted to a form of genocide. 

Expulsion and Killing of Palestinians in 1948

With respect to the creation of the Israeli state in 1948, there has been a robust scholarly debate about whether the settlement of Jews and the expulsion of Palestinians in Mandate Palestine could be described as genocide. Sociologist Martin Shaw, one of the most distinguished modern scholars of genocide, has written, “We can conclude that pre-war Zionism included the development of an incipiently genocidal mentality towards Arab society.” [13] “Israel entered without an overarching plan, so that its specific genocidal thrusts developed situationally and incrementally, through local as well as national decisions. On this account, this was a partly decentred, networked genocide, developing in interaction with the Palestinian and Arab enemy, in the context of war.” [14]  

In 2010, the Journal of Genocide Studies hosted a conversation between Martin Shaw and another prominent scholar of genocide, Omer Bartov, on whether the term “genocide” could be reasonably applied to the Israeli treatment of Palestinians, particularly the expulsion and killing of Arabs in 1948. [15] The two scholars took very different positions on the question, but the journal rejected complaints from some quarters that it was an illegitimate, or worse, a bigoted question to pose and debate at all. [16]

Francis Boyle, a professor of international law, testified in 2013 that “The Palestinians have been the victims of genocide as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.” [17] He argued that:

For over the past six and one-half decades, the Israeli government and its predecessors in law – the Zionist agencies, forces, and terrorist gangs – have ruthlessly implemented a systematic and comprehensive military, political, religious, economic, and cultural campaign with the intent to destroy in substantial part the national, ethnical, racial, and different religious group (Jews versus Muslims and Christians) constituting the Palestinian people. [18]

  Long-Term Military Occupation of Palestinian People

When the international community ratified legal rules that would regulate the actions of occupying powers while also protecting the rights of occupied peoples and nations/states, it was understood that military occupation would be a short-lived necessity attendant to armed conflict, and that occupying forces would be withdrawn at the end of the conflict. [19] Israel’s prolonged belligerent occupation of the West Bank, including East Jerusalem, and Gaza for 50 years far exceeds the kind of occupation that animated the creation of legal rules of occupation contained in international law. Given the seemingly permanent nature of the Israeli occupation of the West Bank and Gaza, some human rights experts, including Israeli historian Ilan Pappé, have warned of an “incremental genocide” of Palestinians and the ultimate destruction of Palestinians as a national group. [20] This “incremental genocide” through the policies and practices that have both sustained and served as the hallmarks of Israel’s occupation is accomplished, they argue, by a normalization of the Israeli annexation of Palestinian territory and the exile or absorption of the national group of people who identify as Palestinian. International law is clear that an occupying power may not annex the people or territory it occupies. [21]

The late human rights lawyer and Center for Constitutional Rights Board President Michael Ratner also charged Israel with committing “incremental genocide” against the Palestinian people: “There’s no doubt again here this is ‘incremental genocide,’ as Ilan Pappé says. It’s been going on for a long time, the killings, the incredibly awful conditions of life, the expulsions that have gone on from Lydda in 1947 and ‘48, when 700 or more villages in Palestine were destroyed, and in the expulsions that continued from that time until today. It’s correct and important to label it for what it is.” [22] He argued further, “I want to emphasize today [that] these killings are part of a broader set of inhuman acts by Israel constituting international crimes, carried out by Israel over many years, going back to at least 1947 and 1948. They include crimes that aren’t talked about that much in the media or the press, the crimes of genocide, crimes against humanity, and apartheid. These crimes can be prosecuted in the International Criminal Court and are defined there.” [23]

The Russell Tribunal on Palestine, a nongovernmental “people’s body” made up of prominent international human rights experts and advocates, convened between November 2010 and September 2014 to investigate the question of human rights violations in the context of the Israeli occupation of the West Bank, including East Jerusalem, and Gaza. [24] It took testimony and deliberated specifically on the question of whether Israel may have committed genocide in relation to the Palestinian people. The jury concluded that some Israeli citizens and leaders may have been guilty in several instances of the separate crime of incitement to genocide, which is specified in Article 3(c) of the Genocide Convention. “The cumulative effect of the long-standing regime of collective punishment in Gaza appears to inflict conditions of life calculated to bring about the incremental destruction of the Palestinians as a group in Gaza. The Tribunal emphasises the potential for a regime of persecution to become genocidal in effect.” [25]

Military Assaults on Gazan Population

With respect to Israel’s most recent military offensive, the so-called “Operation Protective Edge” launched against Gaza in the summer of 2014, prominent human rights authorities expressed concern that the campaign constituted a violation of international humanitarian law as contained in the Geneva Conventions:

• Amnesty International issued a statement proclaiming “an International Criminal Court (ICC) investigation is essential to break the culture of impunity which perpetuates the commission of war crimes and crimes against humanity in Israel and the Occupied Palestinian Territories. The case for such action is made all the more compelling in the light of the ongoing serious violations of international humanitarian law being committed by all parties to the current hostilities in the Gaza Strip and Israel.” [26]
• The ICC has jurisdiction over genocide, and the U.N. Special Advisers on the Prevention of Genocide issued a statement two weeks into the 2014 offensive that they were “disturbed by the flagrant use of hate speech in the social media, particularly against the Palestinian population,” finding that “individuals have disseminated messages that could be dehumanising to the Palestinians and have called for the killing of members of this group,” while “remind[ing] all that incitement to commit atrocity crimes is prohibited under international law.” [27]
• Al-Haq, the oldest Palestinian Human Rights organization, found that serious violations of international law were committed in the course of the 2014 Israeli offensive against Gaza. [28] Al-Haq, along with other Palestinian human rights organizations the Palestinian Center for Human Rights, Al-Mezan, and Aldameer, submitted a legal file to the International Criminal Court urging it to open an investigation and prosecution into the crimes against humanity and war crimes committed during the course of Israel’s 2014 Gaza offensive. [29] The crimes suggested for prosecution by these human rights organizations include genocide.
• Dozens of Holocaust survivors, together with hundreds of descendants of Holocaust survivors and victims, accused Israel of “genocide” for the deaths of more than 2,000 Palestinians in Gaza during the 2014 Israeli military offensive against Gaza, "Operation Protective Edge". [30]
• Others who have charged that Israel committed genocide during Operation Cast Lead include Bolivian President Evo Morales, who recalled that country's ambassador from Israel. He stated, “What is happening in Palestine is genocide.” [31]
• Author and activist Naomi Wolf wrote, “I mourn genocide in Gaza because I am the granddaughter of a family half wiped out in a holocaust and I know genocide when I see it.” [32]

Israeli Government Statements Targeting Palestinians

Finally, prominent Israeli politicians have publicly called for action against the Palestinian people that unequivocally meets the definition of genocide under the 1948 Convention. For instance, in February 2008, Matan Vilnai, Israel’s deputy defense minister, declared that increasing tensions between the Israelis and Palestinians in the Gaza Strip could bring on themselves what he called a shoah , or holocaust, “The more Qassam [rocket] fire intensifies and the rockets reach a longer range, they will bring upon themselves a bigger shoah because we will use all our might to defend ourselves.” [33]

Israeli Justice Minister Ayelet Shaked posted a statement on Facebook in June 2014 claiming that “the entire Palestinian people is the enemy” and called for the destruction of Palestine, “including its elderly and its women, its cities and its villages, its property and its infrastructure.” Her post also called for the killing of Palestinian mothers who give birth to “little snakes.” [34]

In August 2014, Moshe Feiglin, then-deputy speaker of the Israeli Knesset and member of Prime Minister Benjamin Netanyahu’s ruling Likud Party, called for the destruction of Palestinian life in Gaza and offered a detailed plan for shipping Palestinians living in Gaza across the world. Specifically, he envisioned a scenario where the Israeli Defense Forces (IDF) would find areas on the Sinai border to establish “tent encampments...until relevant emigration destinations are determined.” He further suggested that the IDF would then “exterminate nests of resistance, in the event that any should remain.” [35] He subsequently wrote in an op-ed, “After the IDF completes the ‘softening’ of the targets with its fire-power, the IDF will conquer the entire Gaza, using all the means necessary to minimize any harm to our soldiers, with no other considerations.” [36] He continued, “Gaza is part of our Land and we will remain there forever. Liberation of parts of our land forever is the only thing that justifies endangering our soldiers in battle to capture land. Subsequent to the elimination of terror from Gaza, it will become part of sovereign Israel and will be populated by Jews. This will also serve to ease the housing crisis in Israel. The coastal train line will be extended, as soon as possible, to reach the entire length of Gaza.”

            Prominent human rights advocates and scholars have argued that the killings of Palestinians and their forceful expulsion from mandate Palestine in 1948, the Israeli occupation of the West Bank, East Jerusalem, and Gaza, and the violence and discrimination directed at Palestinians by the Israeli government have violated a number of human rights protections contained in international human rights law, genocide being among them.   

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[1] Raphael Lemkin, Genocide – A Modern Crime , 4 Free World 39 (1945), available at: http://www.preventgenocide.org/lemkin/freeworld1945.htm (emphasis added).

[2] Martin Shaw, Genocide , Oxford Bibliography, September 30, 2013, available at: http://www.oxfordbibliographies.com/view/document/obo-9780199756384/obo-9780199756384-0029.xml.

[3] Helen Brady and Ryan Liss. Historical Origins of International Law Vol. 3, “The Evolution of Persecution as a Crime Against Humanity,”FICHL Publication Series No. 22 (2015) p. 554, available at https://www.fichl.org/fileadmin/fichl/FICHL_PS_22_web.pdf. Notably, “some scholars suggest[ ] that any distinction [between genocide and persecution] has effectively disappeared,” with the two crimes “offer[ing] two different but related visions of the same harm: in short, a crime against the individual as a member of a group (persecution) or a crime against the group itself (genocide).” Id . at 491.

[4] Convention on the Prevention and Punishment of the Crime of Genocide, Adopted by the General Assembly of the United Nations on December 9, 1948 as General Assembly Resolution 260, and entered into force on 12 January 1951, available at: https://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf .  The Genocide Convention has 147 signatories, including the United States, Israel and Palestine.

[5] Genocide Convention, Article II.

[6] Declaration Accepting the Jurisdiction of the International Criminal Court, Mahmoud Abbas, President of the State of Palestine, Dec. 31, 2014, available at http://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf . On January 6, 2015, the United Nations Secretary General, acting in his capacity as depository for the Rome Statute, accepted Palestine’s accession to the Rome Statute. United Nations, Depository Notification, Ref: C.N.13.2015.TREATIES-XVIII.10, 6 Jan. 2015, available at https://treaties.un.org/doc/Publication/CN/2015/CN.13.2015-Eng.pdf . On January 16, 2015, the Prosecutor of the ICC, Mrs. Fatou Bensouda, opened a preliminary examination into the situation of Palestine.

[7] Martin Shaw in Martin Shaw & Omer Bartov, The Question Of Genocide In Palestine, 1948: An Exchange Between Martin Shaw And Omer Bartov , 12 Journal of Genocide Research 243, 244 (2010).

[8] Martin Shaw, Palestine In An International Historical Perspective On Genocide , 9 Holy Land Studies 1, 5 (2010).

[9] A. Dirk Moses, An Antipodean Genocide? The Origins Of The Genocidal Moment In The Colonization Of Australia , 2 J. of Genocide Research 89, 90 (2010).

[10] Martin Shaw, Palestine In An International Historical Perspective On Genocide , 9 Holy Land Studies 1, 9 (2010).

[11] See, e.g., Prosecutor v. Jean-Paul Akayesu , ICTR, http://www.icty.org/x/cases/karadzic/tjug/en/160324_judgement.pdf .

[12] See, e.g., Prosecutor v. Radovan Karadžić, ICTY, http://www.icty.org/x/cases/karadzic/tjug/en/160324_judgement.pdf .

[13] Martin Shaw, Palestine In An International Historical Perspective On Genocide , 9 Holy Land Studies 1, 13 (2010), noting the comments of the President of the Zionist Organization Chaim Weizmann’s comment in 1941 “if half a million Arabs could be transferred, two million Jews could be put in their place.”

[14] Id . at 19.

[15] Martin Shaw in Martin Shaw & Omer Bartov, The Question Of Genocide In Palestine, 1948: An Exchange Between Martin Shaw And Omer Bartov , 12 Journal of Genocide Research 243, 244 (2010).

[16] See Gal Beckerman, Top Genocide Scholars Battle Over How To Characterize Israel’s Actions , Forward, February 16, 2011, available at: http://forward.com/news/135484/top-genocide-scholars-battle-over-how-to-character/ .

[17] Professor Francis A. Boyle, The Palestinian Genocide by Israel Before

The Kuala Lumpur War Crimes Tribunal , August 21-24, 2013, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2339254.

[18] Id . at 3.

[19] See Geneva Convention III: Articles 1-4 ; Geneva Convention IV 1907: Section Three – Occupied Territories – Articles 47-56 ; Geneva Convention IV 1949: Section Three – Occupied Territories – Articles 47-78 ; Additional Protocols I and II .

[20] Ilan Pappé, A Brief History of Israel’s Incremental Genocide , in ON PALESTINE (Noam Chompsky and Ilan Pappé ed.; Haymarket 2015) pp. 147-154.  See also, Steve Lendman, Israel’s Slow-Motion Genocide in Occupied Palestine , in THE PLIGHT OF THE PALESTINIANS (William A. Cook ed., Palgrave 2010).

[21]   Article 2(4) of the United Nations Charter states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”  See also: Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 Section III, Art. 47, “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.”

[22] Michael Ratner, UN's Investigation of Israel Should Go Beyond War Crimes to Genocide , The Real News, July 27, 2013, available at: http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=12155 .

[23] Id .  See also Saree Makdisi, Palestine Inside Out: An Everyday Occupation (Norton 2010) for the notion of a “slow motion” extension and consolidation of the genocidal aspects of 1948.

[24] Russell Tribunal On Palestine, “About,” http://www.russelltribunalonpalestine.com/en/about-rtop.

[25] http://www.russfound.org/RToP/RToP.htm.

[26] Israel and Occupied Palestinian Territories: The International Criminal Court must investigate war crimes, August 1, 2014 http://www.amnesty.org/en/documents/MDE15/019/2014/en/.

[27] UN, Department of Public Information, Statement by the Special Advisers of the Secretary-General on the Prevention of Genocide, Mr. Adama Dieng, and on the Responsibility to Protect, Ms. Jennifer Welsh, on the Situation in Israel and in the Palestinian Occupied Territory of Gaza Strip, July 24, 2014, available at

www.un.org/en/preventgenocide/adviser/pdf/24.07.2014%20Special%20Advisers'%20Statement%20on%20the%20situation%20in%20Israel%20and%20the%20occupied%20Gaza%20strip.pdf .

[28] See , Divide and Conquer: A Legal Analysis of Israel’s 2014 Military Offensive Against the Gaza Strip, 2015, available at: http://www.alhaq.org/publications/publications-index/item/divide-and-conquer .

[29] Palestinian Human Rights Organisations Deliver Submission to the International Criminal Court on Alleged Israeli War Crimes and Crimes against Humanity during 2014 Gaza offensive, Nov. 23, 2015, available at: http://www.alhaq.org/advocacy/targets/international-criminal-court-icc/998-palestinian-human-rights-organisations-deliver-submission-to-the-international-criminal-court-on-alleged-israeli-war-crimes-and-crimes-against-humanity-during-2014-gaza-offensive.

[30] Zachary Davies Boren, Holocaust survivors and their descendants accuse Israel of ‘genocide’ , The Independent, August 24, 2014, http://www.independent.co.uk/news/world/middle-east/holocaust-survivors-and-their-descendants-accuse-israel-of-genocide-9687994.html .

[31] Bolivian president: Israel air strikes on Gaza is 'genocide' , July 16, 2014, http://www.itv.com/news/update/2014-07-16/bolivian-president-israel-air-strikes-of-gaza-is-genocide .

[32] Naomi Wolf walked out of synagogue when they had nothing to say about Gaza massacre , July 22, 2014, http://mondoweiss.net/2014/07/synagogue-nothing-massacre.html .

[33] Israeli minister warns of Palestinian 'holocaust' , The Guardian, February 29, 2008, https://www.theguardian.com/world/2008/feb/29/israelandthepalestinians1.

[34] Text of Shaked’s Facebook post (in Hebrew), since deleted, is available here: https://electronicintifada.net/sites/default/files/styles/original_800w/public/2014-07/ayelet-shaked-facebook-post-30-june-2014-genocide.jpg?itok=k5yvVqQp&timestamp=1448949295 .

[35] Jill Reilly, Israeli official calls for concentration camps in Gaza and 'the conquest of the entire Gaza Strip, and annihilation of all fighting forces and their supporters' , Daily Mail, August 4, 2014, available at: http://www.dailymail.co.uk/news/article-2715466/Israeli-official-calls-concentration-camps-Gaza-conquest-entire-Gaza-Strip-annihilation-fighting-forces-supporters.html .

[36] Moshe Feiglin, My Outline for a Solution in Gaza , Arutz Sheve, August 15, 2014, available here: http://www.israelnationalnews.com/Articles/Article.aspx/15326#.VCLljPldXTo.

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• > An Introduction to International Criminal Law and Procedure
• > Genocide

Book contents

• Frontmatter
• Preface to the Second Edition
• Table of Cases
• Table of Treaties and other International Instruments
• Table of Abbreviations
• PART A INTRODUCTION
• PART B PROSECUTIONS IN NATIONAL COURTS
• PART C INTERNATIONAL PROSECUTIONS
• PART D SUBSTANTIVE LAW OF INTERNATIONAL CRIMES
• 10 Genocide
• 11 Crimes Against Humanity
• 12 War Crimes
• 13 Aggression
• 14 Transnational Crimes, Terrorism and Torture
• PART E PRINCIPLES AND PROCEDURES OF INTERNATIONAL PROSECUTIONS
• PART F RELATIONSHIP BETWEEN NATIONAL AND INTERNATIONAL SYSTEMS

10 - Genocide

from PART D - SUBSTANTIVE LAW OF INTERNATIONAL CRIMES

Published online by Cambridge University Press:  05 June 2012

Introduction

Genocide, as General Assembly Resolution 96(1) declared, ‘is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings’. It is a crime simultaneously directed against individual victims, the group to which they belong, and human diversity.

The legal concept of genocide is narrowly circumscribed, the term ‘genocide’ being reserved in law for a particular subset of atrocities which are committed with the intent to destroy groups, even if colloquially the word is used for any large-scale killings. Most of the crimes committed by the Pol Pot regime in Cambodia in 1975–78, for example, are atrocities which do not readily fit within the narrow definition, however dreadful the suffering they caused. A decision that a particular atrocity is not ‘genocide’ does not of course remove the moral or legal guilt for conduct that falls within the definition of other international crimes. Many acts which do not constitute genocide will constitute crimes against humanity.

The form of intent that is a necessary element of the crime, that of intending to destroy a group, marks it out from all other international crimes. This explains why genocide is regarded as having a particular seriousness, and has been referred to as the ‘crime of crimes’.

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• Robert Cryer , University of Birmingham , Hakan Friman , University College London , Darryl Robinson , Queen's University, Ontario , Elizabeth Wilmshurst , University College London
• Book: An Introduction to International Criminal Law and Procedure
• Online publication: 05 June 2012
• Chapter DOI: https://doi.org/10.1017/CBO9780511760808.011

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18 U.S. Code § 1091 - Genocide

2009—Subsec. (a). Pub. L. 111–122, § 3(a)(1) , struck out “, in a circumstance described in subsection (d)” before “and with the specific” in introductory provisions and “or attempts to do so,” before “shall be punished” in concluding provisions.

Subsec. (c). Pub. L. 111–122, § 3(a)(2) , struck out “in a circumstance described in subsection (d)” before “directly”.

Subsecs. (d) to (f). Pub. L. 111–122, § 3(a)(3) , (4), added subsecs. (d) to (f) and struck out former subsecs. (d) and (e) which related to the required circumstance for offenses referred to in subsecs. (a) and (c) and nonapplicability of certain limitations, respectively.

2007—Subsec. (d). Pub. L. 110–151 added subsec. (d) and struck out former subsec. (d). Text of former subsec. (d) read as follows: “The circumstance referred to in subsections (a) and (c) is that—

“(1) the offense is committed within the United States; or

“(2) the alleged offender is a national of the United States (as defined in section 101 of the Immigration and Nationality Act ( 8 U.S.C. 1101 )).”

2002—Subsec. (b)(1). Pub. L. 107–273, § 4002(b)(7) , substituted “subsection (a)(1),” for “subsection (a)(1),,”.

Pub. L. 107–273, § 4002(a)(4) , made technical correction to directory language of Pub. L. 103–322 . See 1994 Amendment note below.

1994—Subsec. (b)(1). Pub. L. 103–322 , as amended by Pub. L. 107–273, § 4002(a)(4) , substituted “, where death results, by death or imprisonment for life and a fine of not more than $1,000,000, or both;” for “a fine of not more than $1,000,000 and imprisonment for life,”.

Pub. L. 107–273, div. B, title IV, § 4002(a)(4) , Nov. 2, 2002 , 116 Stat. 1806 , provided that the amendment made by section 4002(a)(4) is effective Sept. 13, 1994 .

Pub. L. 100–606, § 1 , Nov. 4, 1988 , 102 Stat. 3045 , provided that:

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The Concept of Cultural Genocide: An International Law Perspective

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Cultural genocide remains a recurrent topic, appearing not only in the form of wide-ranging claims about the commission of cultural genocide in diverse contexts but also in the legal sphere, with recent discussions before the International Criminal Tribunal for the Former Yugoslavia and in the drafting of the UN Declaration on the Rights of Indigenous Peoples. These discussions have however displayed the lack of a uniform understanding of the concept of cultural genocide and, consequently, of the role that international law is expected to fulfil in this regard. This book therefore intends to present an exhaustive review of how international law has been approaching the core idea underlying the concept of cultural genocide, i.e. the intentional destruction of group cultures, and how this framework can be strengthened and fostered. It therefore traces developments, from the early conceptualization of cultural genocide to the contemporary question of its reparation. Through this journey, it discusses the evolution of various branches of international law in relation to both cultural protection and cultural destruction, in light of a number of legal cases in which either the concept of cultural genocide or the idea of cultural destruction has been discussed. Such cases include the destruction of cultural and religious heritage in Bosnia and Herzegovina, the forced removals of Aboriginal children in Australia and Canada, and the case law of the Inter-American Court of Human Rights in relation to Indigenous and tribal groups’ cultural destruction.

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GENERAL DISCLAIMER

“How does law protect in war?” promotes practice-based IHL teaching. Its contents are developed in partnership with academia and do not necessarily reflect the views of the ICRC. By continuing on this website, you agree to its terms and conditions .

The prevention and punishment of genocide, as an international crime, was laid down in a UN Convention adopted in the aftermath of the Second World War. The crime of genocide generally involves the deliberate and systematic extermination of a group. Art. II of the UN Genocide Convention notes that the following acts, if committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, may constitute genocide:

• killing members of the group;
• causing serious bodily or mental harm to members of the group;
• deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
• imposing measures intended to prevent births within the group;
• forcibly transferring children of the group to another group.

In addition to the genocidal acts themselves being punishable as international crimes, other punishable conduct includes conspiracy to commit genocide, direct and public incitement to commit genocide, attempts to commit genocide and complicity in genocide (Art. III of UN Genocide Convention).

 Genocide may occur in the absence of an armed conflict. If committed in time of war, acts of genocide also correspond to  war crimes .

See Breach , Violations ; War Crimes ; Crimes Against Humanity ; International Criminal Court ; ICTY ; ICTR ; International criminal law ; Individual criminal responsibility ;

 OUTLINE

 cases.

Germany, International Criminal Code (s.7)

Sudan, Report of the UN Commission of Enquiry in Darfur (A. paras 640-642)

Case Study, Armed Conflicts in the Great Lakes Region (1. A)

ICTR, The Prosecutor v. Akayesu ( A. Paras 492 - 523 )

ICTR, The Media Case

Switzerland, The Niyontese Case ( B. III. B )

32nd International Conference of the Red Cross and Red Crescent, Sexual and gender-based violence: joint action on prevention and response

 BIBLIOGRAPHIC RESOURCES

1st Edition

The Criminal Law of Genocide International, Comparative and Contextual Aspects

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Description

This collection of essays presents a contextual view of genocide. The authors, who are academic authorities and practitioners in the field, explore the legal treatment, but also the social and political concepts and historical dimensions of the crime. They also suggest alternative justice solutions to the phenomenon of genocide. Divided into five parts, the first section offers an historical perspective of genocide. The second consists of case studies examining recent atrocities. The third section examines differences between legal and social concepts of genocide. Part four discusses the treatment of genocide in courts and tribunals throughout the world. The final section covers alternatives to trial justice and questions of prevention and sentencing.

Table of Contents

Ralph Henham is Professor of Criminal Justice at Nottingham Law School, Nottingham Trent University, UK. Paul Behrens is at the University of Leicester, UK

Critics' Reviews

'The Criminal Law of Genocide is a provocative examination of genocide as both a legal and a social concept. Deeply interdisciplinary in its focus, this edited volume presents bold arguments from fresh voices and from seasoned experts.' Mark A. Drumbl, Washington and Lee University, USA 'A very stimulating collection of interdisciplinary study that is rare in the emerging field of International Criminal Justice. Its thoughtful analysis provides fresh insights into an issue that rightfully should not be left to be dealt with only by lawyers.' Stefan Kirsch, Rechtsanwalt and Counsel before the ICTY and ICTR, Germany 'No library collection on human rights and/or genocide would be complete without this contemporary, well-conceived, and authoritative assessment of the many faces of genocide.' American Society of International Law Newsletter 'The chapters cover a remarkable variety of areas, touching upon difficult - and in some cases quite fascinating - issues addressed by or likely to be addressed by international judicial bodies. This book represents a diverse and topical collection of essays on genocide of value to the student of the law, as well as to students of politics.' Law & Politics Book Review 'The Criminal Law of Genocide: International, Comparative and Contextual Aspects provides a thorough approach to the study of genocide; it's inter-disciplinary analyses help inform the reader of not only the legal, but also the political, historical, social and cultural aspects that have underpinned the crime. The book will therefore appeal to not only legal practitioners but also to policy-makers, historians, academics and scholars.' Commonwealth Law Bulletin

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• Definitions
• Atrocity Crimes
• Crimes Against Humanity
• Ethnic Cleansing

The word “genocide” was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos , meaning race or tribe, and the Latin suffix cide , meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later on, Raphäel Lemkin led the campaign to have genocide recognised and codified as an international crime.

Genocide was first recognised as a crime under international law in 1946 by the United Nations General Assembly ( A/RES/96-I ). It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The Convention has been ratified by 153 States (as of April 2022). The International Court of Justice (ICJ) has repeatedly stated that the Convention embodies principles that are part of general customary international law. This means that whether or not States have ratified the Genocide Convention, they are all bound as a matter of law by the principle that genocide is a crime prohibited under international law. The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law ( or ius cogens ) and consequently, no derogation from it is allowed.

The definition of the crime of genocide as contained in Article II of the Genocide Convention was the result of a negotiating process and reflects the compromise reached among United Nations Member States in 1948 at the time of drafting the Convention. Genocide is defined in the same terms as in the Genocide Convention in the Rome Statute of the International Criminal Court (Article 6), as well as in the statutes of other international and hybrid jurisdictions. Many States have also criminalized genocide in their domestic law; others have yet to do so.

Convention on the Prevention and Punishment of the Crime of Genocide

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

• Killing members of the group;
• Causing serious bodily or mental harm to members of the group;
• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
• Imposing measures intended to prevent births within the group;
• Forcibly transferring children of the group to another group.

Elements of the crime

The Genocide Convention establishes in Article I that the crime of genocide may take place in the context of an armed conflict, international or non-international, but also in the context of a peaceful situation. The latter is less common but still possible. The same article establishes the obligation of the contracting parties to prevent and to punish the crime of genocide.

The popular understanding of what constitutes genocide tends to be broader than the content of the norm under international law. Article II of the Genocide Convention contains a narrow definition of the crime of genocide, which includes two main elements:

• A mental element : the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such"; and
• Killing members of the group
• Causing serious bodily or mental harm to members of the group
• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
• Imposing measures intended to prevent births within the group
• Forcibly transferring children of the group to another group

The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis , that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organizational plan or policy, even if the definition of genocide in international law does not include that element.

Importantly, the victims of genocide are deliberately targeted - not randomly – because of their real or perceived membership of one of the four groups protected under the Convention (which excludes political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and “substantial.”

Ideas with Nahlah Ayed

More on ideas, previously aired.

We have laws against genocide, defined as "the deliberate attempt to erase a national, ethnic, religious or racial group." But how do we make them stick? IDEAS host Nahlah Ayed speaks with scholar William Schabas about the history of the UN Genocide Convention and what needs to change.

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A girl carrying a bird cage reacts as people flee following an Israeli strike in Rafah in the southern Gaza Strip on November 23, 2023.

The Nation Publishes Gaza Genocide Article Killed by Harvard Law Review

"palestine brings to legal analysis an unmasking force: it unveils and reminds us of the ongoing colonial condition that underpins western legal institutions," argues rabea eghbariah..

The Nation this week published a piece about Israel's genocidal war on the Gaza Strip that the Harvard Law Review commissioned from a Palestinian scholar but then refused to run after several days of internal debate, a nearly six-hour meeting, and a board vote.

The essay—"The Ongoing Nakba: Towards a Legal Framework for Palestine ," by Rabea Eghbariah, a human rights attorney and doctoral candidate at Harvard Law School—begins: "Genocide is a crime. It is a legal framework. It is unfolding in Gaza. And yet, the inertia of legal academia, especially in the United States, has been chilling."

The controversy over Eghbariah's own piece helps prove his point. In an email to Eghbariah and Harvard Law Review president Apsara Iyer, online chair Tascha Shahriari-Parsa, one of the editors who commissioned the blog article, called the bid to kill it an "unprecedented decision" by the academic journal's leadership.

The Intercept reported on that email and others from those involved:

"As online chairs, we have always had full discretion to solicit pieces for publication," Shahriari-Parsa wrote, informing Eghbariah that his piece would not be published despite following the agreed-upon procedure for blog essays. Shahriari-Parsa wrote that concerns had arisen about staffers being offended or harassed, but "a deliberate decision to censor your voice out of fear of backlash would be contrary to the values of academic freedom and uplifting marginalized voices in legal academia that our institution stands for." Both Shahriari-Parsa and the other top online editor, Sabrina Ochoa, told The Intercept that they had never seen a piece face this level of scrutiny at the Law Review . Shahriari-Parsa could find no previous examples of other pieces pulled from publication after going through the standard editorial process.

In a statement, the Harvard Law Review said that it "has rigorous editorial processes governing how it solicits, evaluates, and determines when and whether to publish a piece. An intrinsic feature of these internal processes is the confidentiality of our 104 editors' perspectives and deliberations. Last week, the full body met and deliberated over whether to publish a particular blog piece that had been solicited by two editors. A substantial majority voted not to proceed with publication."

According to The Nation , 63% of editors who participated in the anonymous vote opposed publication.

"At a time when the Law Review was facing a public intimidation and harassment campaign, the journal's leadership intervened to stop publication," 25 editors said in a statement shared with The Nation and The Intercept . "The body of editors—none of whom are Palestinian—voted to sustain that decision."

"We are unaware of any other solicited piece that has been revoked by the Law Review in this way," they added. "This unprecedented decision threatens academic freedom and perpetuates the suppression of Palestinian voices. We dissent."

Eghbariah wrote in an email to an editor: "This is discrimination. Let's not dance around it—this is also outright censorship. It is dangerous and alarming."

It is also part of a broader trend identified by more than 1,700 lawyers and law students. In a letter to the American Bar Association last week, they noted "increasing instances of discrimination and censorship faced by Palestinian, Muslim, Arab, South Asian, Black, Indigenous, immigrant, and other communities within law schools, universities, law firms, and other corporate entities, particularly due to their expression of support for the Palestinian people."

Since Israel declared war in response to a Hamas-led attack on October 7, genocide experts around the world have used the term to describe Israeli airstrikes and raids that have killed more than 14,500 Palestinians in Gaza—among them over 6,000 children—and destroyed infrastructure including residential, educational, medical, and religious buildings.

"Some may claim that the invocation of genocide, especially in Gaza, is fraught . But does one have to wait for a genocide to be successfully completed to name it? This logic contributes to the politics of denial ," Eghbariah wrote in his essay.

After pointing to both statements from Israeli politicians and the forming consensus among genocide scholars, he stressed that "genocide is the material reality of Palestinians in Gaza: an entrapped, displaced , starved , water-deprived population of 2.3 million facing massive bombardments and a carnage in one of the most densely populated areas in the world."

"And yet, leading law schools and legal scholars in the United States still fashion their silence as impartiality and their denial as nuance. Is genocide really the crime of all crimes if it is committed by Western allies against non-Western people?" he added. "This is the most important question that Palestine continues to pose to the international legal order. Palestine brings to legal analysis an unmasking force: It unveils and reminds us of the ongoing colonial condition that underpins Western legal institutions."

Eghbariah also explained the term Nakba, or "catastrophe," which is used to describe the ethnic cleansing of over 750,000 Palestinians during the creation of the modern state of Israel in the 1940s—and argued that "the Nakba is ongoing."

"The Nakba is both the material reality and the epistemic framework to understand the crimes committed against the Palestinian people," he wrote. "And these crimes—encapsulated in the framework of Nakba—are the result of the political ideology of Zionism, an ideology that originated in late 19th-century Europe in response to the notions of nationalism, colonialism, and antisemitism."

"We must imagine that one day there will be a recognized crime of committing a Nakba, and a disapprobation of Zionism as an ideology based on racial elimination . The road to get there remains long and challenging, but we do not have the privilege to relinquish any legal tools available to name the crimes against the Palestinian people in the present and attempt to stop them," he concluded. "The denial of the genocide in Gaza is rooted in the denial of the Nakba. And both must end, now."

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Harvard Law Review Editors Vote to Kill Article About Genocide in Gaza

The article on the Gaza war and the Nakba was commissioned, edited, fact-checked, and prepared for publication — but was then blocked amid a climate of fear.

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A week after Hamas’s October 7 massacre, by which time Israel’s all-out assault on Palestinians in the Gaza Strip had killed thousands of civilians, the online editors of the prestigious Harvard Law Review reached out to Rabea Eghbariah.

The two online chairs, as they are called, had decided to solicit an essay from a Palestinian scholar for the journal’s website. Eghbariah was an obvious choice: A Palestinian doctoral candidate at Harvard Law School and human rights lawyer, he has tried landmark Palestinian civil rights cases before the Israeli Supreme Court.

Eghbariah submitted a draft of a 2,000-word essay by early November. He argued that Israel’s assault on Gaza should be evaluated within and beyond the “legal framework” of “genocide.”

In line with the Law Review’s standard procedures, the piece was solicited, commissioned, contracted, submitted, edited, fact checked, copy edited, and approved by the relevant editors. Yet it will never be published with the Harvard Law Review.

Following an intervention to delay the publication of Eghbariah’s article by the Harvard Law Review president, the piece went through several committee processes before it was finally killed by an emergency meeting of editors. The essay, “The Ongoing Nakba,” would have been the first from a Palestinian scholar published by the journal.

In an email to Eghbariah and Harvard Law Review President Apsara Iyer, shared with The Intercept, online chair Tascha Shahriari-Parsa, one of the editors who commissioned the essay, called the move an “unprecedented decision.”

“Let’s not dance around it — this is also outright censorship. It is dangerous and alarming.”

“As Online Chairs, we have always had full discretion to solicit pieces for publication,” Shahriari-Parsa wrote, informing Eghbariah that his piece would not be published despite following the agreed upon procedure for blog essays. Shahriari-Parsa wrote that concerns had arisen about staffers being offended or harassed, but “a deliberate decision to censor your voice out of fear of backlash would be contrary to the values of academic freedom and uplifting marginalized voices in legal academia that our institution stands for.”

Both Shahriari-Parsa and the other top online editor, Sabrina Ochoa, told The Intercept that they had never seen a piece face this level of scrutiny at the Law Review. Shahriari-Parsa could find no previous examples of other pieces pulled from publication after going through the standard editorial process. Another editor, who spoke on the condition of anonymity, echoed the view that Eghbariah’s treatment is unprecedented.

The anonymous editor said that, based on their research, Israeli scholars had been well represented in the pages of the magazine, but not Palestinians. The editor also said that they could find no previous examples, based on their research, of a publication-ready article being pulled.

In one of his responses to the editors, Eghbariah wrote, “This is discrimination. Let’s not dance around it — this is also outright censorship. It is dangerous and alarming.”

According to emails shared with The Intercept, as well as Shahriari-Parsa and Eghbariah’s accounts, Iyer at first delayed the essay’s publication over what she said were safety concerns and the desire to deliberate with editors. According to an email from Shahriari-Parsa to the author, however, Iyer also said in meetings that “she was personally unwilling to allow the piece to be published.” (Iyer responded in the email chain with Eghbariah that there were “numerous inaccuracies” in the rejection email, claiming the story had gone through the normal process and that the piece had been rejected based on the requested publication timeline.)

Following requests from over 30 editors, an emergency meeting of the entire journal body was called. After nearly six hours, the more than 100 editors voted anonymously on running the piece or not, with a strong majority voting against publication.

“Like every academic journal, the Harvard Law Review has editorial processes governing how it solicits, evaluates, and determines when and whether to publish a piece,” the Harvard Law Review said in a statement. “An intrinsic feature of these internal processes is the confidentiality of our 104 editors’ perspectives and deliberations. After a full body meeting and vote of the entire membership last week, a substantial majority voted not to proceed with publication.”

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Entirely run by students — Iyer and Shahriari-Parsa, like Eghbariah, attend Harvard Law School — Harvard Law Review is a well-known launch pad for estimable legal and political careers. Barack Obama was the journal president during his time at the law school, and graduates regularly go on to clerkships with Supreme Court justices and jobs at top-tier law firms. With careers potentially on the line, the Harvard Law Review’s decision on Eghbariah’s essay came amid a crackdown in academia, in Ivy League schools and elsewhere, against pro-Palestinian speech following the October 7 Hamas attack and Israel’s subsequent onslaught against the Gaza Strip.

“I can only speculate about the reasons of individual editors,” said Ryan Doerfler, a law professor at Harvard who attended a meeting with Law Review staff about the Palestine article. “What I can observe, though, is that the vote took place amidst a climate of suppression of pro-Palestinian advocacy.”

A second editor who asked for anonymity to speak freely about the process said that fear of backlash played a key role in their personal decision to vote “no” on Eghbariah’s piece. The editor said they found “substantive flaws” in the piece that were exacerbated by a fear among editors that they would have their names and faces plastered on billboard trucks around campus accusing them of being Hamas supporters — something that happened to pro-Palestine Harvard students who signed a controversial open letter.

The editor said substantive flaws are generally removed from pieces prior to publication, but they did not feel such edits would have been possible in this case because of the lack of agreement on underlying facts. “Reasonable scholarly debate couldn’t happen in that context,” they said. “Partly because we’re not at a point in time where that debate can happen without your face being put on a truck.”

Doerfler praised Eghbariah’s draft amid that climate of fear. “It is a forceful piece of legal scholarship,” he said, “and it articulates a position that takes real courage to put forward.”

Eghbariah’s article was published Tuesday night at The Nation , under the headline “The Harvard Law Review Refused to Run This Piece About Genocide in Gaza.”

“Threatens Academic Freedom”

For some of the more than 100 editors at the Harvard Law Review, the delay and subsequent killing of Eghbariah’s piece did not hew to the usual process. In a forthcoming public statement viewed by The Intercept, 25 Harvard Law Review editors objected to the move to squash the essay.

“We are unaware of any other solicited piece that has been revoked by the Law Review in this way,” the editors wrote. “This unprecedented decision threatens academic freedom and perpetuates the suppression of Palestinian voices. We dissent.”

Public Defenders Get Restraining Order to Block Their Own Union From Voting on Gaza Statement

In an interview, the first anonymous Law Review editor told me that they have evaluated “hundreds of submissions” for the journal and that Eghbariah’s essay is “more than just ‘good enough.’” Both this editor and Shahriari-Parsa said that they believe the primary reason for the “no” votes was fear.

“Editors expressed that they supported the piece and wanted to uplift marginalized voices,” the second editor said, “but were voting against publishing it because they were afraid of the consequences and had worked too hard to now risk their futures. Some also expressed concerns that the blowback to the piece would discriminatorily target editors of color more than others.”

Students , writers , and artists speaking out for Palestinian liberation are facing extreme levels of censorship and censure — especially in academia. Columbia University and Brandeis University have suspended the campus chapters of Students for Justice in Palestine and Jewish Voice for Peace on spurious grounds of violating campus protest policy and risks to campus safety. Florida Gov. Ron DeSantis ordered public universities to shut down chapters of the groups. Harvard, too, has faced pressure from major donors to crackdown on pro-Palestinian speech. Students have been doxxed and harassed for writing a letter in the aftermath of October 7 saying Israel’s longtime oppression of Palestinians was “entirely responsible for all unfolding violence.”

“The Law Review specifically had just gone through an incident in which one of its members was doxxed after participating as a safety marshal at a ‘die in’ at the Harvard Business School campus organized by student activists,” said Doerfler, the professor. Doerfler, who had been brought into a meeting with Iyer, Eghbariah, and two Review editors on November 14 to discuss Eghbariah’s essay, said the editor who participated in the “die in” protest has been publicly criticized by a major university donor “as part of his broader criticism of the University’s handling of the crisis.”

“This is exactly the kind of work that good international legal scholarship should do.”

In the essay, Eghbariah argues that the atrocities in Gaza amount to genocide ; he considers the frames used to name Israeli policies in Palestine more broadly and calls for a distinctive legal framework for Palestine. According to Eghbariah, just as “the South African experience brought ‘Apartheid’ into the global and legal lexicon,” the distinctive nature of the domination Palestinians have faced should demand a new category of crime: “Nakba,” the word Palestinians use to describe their dispossession and expulsion at the founding of the state of Israel.

Yale Law School professor Asl? Bâli, an international and human rights law expert who said she has never met or worked with Eghbariah but was sent his essay and aware of the Harvard Law Review situation, said in an interview that the article constituted an “excellent piece of legal scholarship.” She noted that the essay’s arguments are no doubt contested, as is the nature of legal argumentation. “This is exactly the kind of work that good international legal scholarship should do,” she said.

Bâli told The Intercept that in her “quarter century” of experience in legal scholarship, she has never heard of a contracted article, which has gone through the editorial process, being pulled before publication. She said, “I’ve never heard of anything of this sort.”

Update: November 22, 2023 This story has been updated to include a reference to the publication of Eghbariah’s essay in The Nation late Tuesday evening.

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Holding hamas accountable at the icj through palestine.

David J. Scheffer

More than two months before South Africa brought its case at the International Court of Justice (ICJ) against Israel under the Convention on the Prevention and Punishment of the Crime of Genocide (1948) ( Genocide Convention ), observers decried a different alleged genocide—of Israelis on Oct. 7, 2023, resulting in the deaths of approximately 1,200 Israelis and foreigners and injuring an estimated 5,431 victims. On Oct. 16, 2023, a group of about 240 legal experts signed an open letter stating that “as these widespread, horrendous acts appear to have been carried out with an intent to destroy, in whole or in part a national group—Israelis—they most probably constitute an international crime of genocide.” (The letter now exceeds 300 signatories.) But those claims did not materialize as a lawsuit. Meanwhile, in the aftermath of the Oct. 7 attacks, Israel launched major military operations in Gaza. It is those operations that form the basis of South Africa’s claims against Israel at the ICJ.

But what of the initial accusations against Hamas? Does Hamas essentially enjoy immunity as a political and military organization? Can its actions on Oct. 7 escape scrutiny before the ICJ even though its leaders are being investigated by the International Criminal Court?

There actually is a way to reach the question of whether Hamas has committed genocide, which is to bring a case against the State of Palestine. Even if Hamas cannot be directly hauled into court, the State of Palestine—which, as I explain below, may be accountable for Hamas’s conduct—can be. Since 2014 it has been a state party to the Genocide Convention and thus accepted ICJ jurisdiction, recently confirming that acceptance directly in a filing with the ICJ. If such a case against the State of Palestine were submitted by another state party to the Genocide Convention, then the ICJ might find reason to join that case with the South Africa case.

Palestine Declaration Accepting the Competence of the ICJ  

There is a popular presumption that there is no way to procedurally challenge the State of Palestine at the ICJ regarding compliance with the Genocide Convention. However, Article IX of the Genocide Convention assigns disputes between states parties of the treaty to the ICJ for resolution. In the event there is a dispute between states parties regarding the interpretation, application, or fulfillment of the Genocide Convention, including any dispute “relating to the responsibility of a State for genocide or for any of the other acts listed in Article III” of the convention, that dispute should be lodged with the court and the State of Palestine agreed to that procedure when it acceded to the treaty. The “other acts” of genocide under the convention are conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide.

However, there is an important procedural point that has to be addressed. The State of Palestine is not party to the Statute of the ICJ because it remains a non-member observer state of the United Nations. If it were a member of the United Nations, then under Article 93(1) of the UN Charter , the State of Palestine would automatically be party to the Statute of the ICJ. ( Article 35(2) of the Statute of the ICJ provides that “the Court shall be open to other states” under conditions that, “subject to the special provisions contained in treaties,” are “laid down by the Security Council[.]”) But the State of Palestine filed a declaration (Palestine declaration) with the Registry of the Court on May 31 accepting “with immediate effect the competence of the International Court of Justice for the settlement of all disputes that may arise or that have already arisen covered by Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide (1948), to which the State of Palestine acceded on 2 April 2014.” It added that “[i]n doing so, the State of Palestine declares that it accepts all the obligations of a Member of the United Nations under Article 94 of the United Nations.”

Article 41 of the ICJ Rules of Court requires that the declaration of a non-party state to the ICJ Statute must be “made in accordance with any resolution adopted by the Security Council” under Article 35(2) of the ICJ Statute. The Security Council approved conditions for non-member participation in the ICJ in Resolution 9 (1946) , which stipulates that, in order to have access to the court, a state not party to the statute must previously have deposited in the Registry of the Court “a declaration by which it accepts the jurisdiction of the Court, in accordance with the Charter of the United Nations and with the terms and subject to the conditions of the Statute and Rules of the Court, and undertakes to comply in good faith with the decision or decisions of the Court and to accept all the obligations of a Member of the United Nations under Article 94 of the Charter[.]” Resolution 9 further states that such a declaration may be either particular (and relate to a particular dispute or disputes that have already arisen) or general (in respect of all disputes or of a particular class or classes of disputes that have already arisen or that may arise in the future).

To date, the State of Palestine has deposited only two declarations with the Registry of the Court. The first declaration was deposited on July 4, 2018 in connection with the Optional Protocol to the Vienna Convention on Diplomatic Relations Concerning the Compulsory Settlement of Disputes (1961) to which the State of Palestine acceded on March 22, 2018. In that declaration, the State of Palestine accepted the ICJ as the forum for dispute settlement under the Optional Protocol.

Palestine’s May 2024 submission was the second such declaration. The court stated in a press release dated June 3 that the Palestine declaration was filed “in accordance with Security Council resolution 9 (1946) (adopted by virtue of the powers conferred upon the Council by Article 35, paragraph 2, of the Statute of the Court)[.]” By its terms, the declaration encompasses all disputes under the Genocide Convention, including the South Africa case (if the intervention request by the State of Palestine is approved) and any case that might be filed against the State of Palestine in connection with the Oct. 7 attacks.

This eases the way for any state party to the Genocide Convention to hold the State of Palestine responsible for violations of the treaty at the ICJ. It remains entirely possible on a substantive basis that a claim under the Genocide Convention against the State of Palestine could fail. First, the ICJ could find that the crime of genocide did not occur on Oct. 7. Second, the court could find that even if Hamas had committed genocide, the State of Palestine (particularly the Palestinian Authority ) was powerless to do anything about it and thus did not violate its own obligations under the Convention to prevent or punish genocide. But even if the claims ultimately fail on the merits, the mere fact of facing such a case would require diplomats and officials of the State of Palestine to answer to the genocide charges, putting them under international pressure to condemn Hamas for its attacks in Israel on Oct. 7. They may also face demands that they clarify whether any component of the State of Palestine at least tried to prevent Hamas from committing genocide or to punish any Hamas perpetrators in the aftermath.

At present, the State of Palestine seeks to intervene in the South Africa case (see below) while not publicly condemning the acts of Hamas. The State of Palestine has escaped any responsibility under the Genocide Convention regarding what has occurred in Gaza under Hamas command and launched from the territory of Gaza. If that situation remains unanswered, there would result black holes in the Genocide Convention where terrorist, non-state, or de facto governing authorities and militant armed forces could commit genocide while relevant state party authorities eschew the responsibility to prevent or punish. 

Hamas and the State of Palestine

For those who have determined that there is a State of Palestine, and more than 140 nations have officially recognized it, there remains the strong probability that the ICJ would determine that the State of Palestine comprises the West Bank and Gaza. Israel, which does not recognize the State of Palestine, contests this characterization and regards the West Bank and Gaza as disputed territories. Israel continues to occupy the West Bank and in the view of many in the international community continued, even before Oct. 7, to exercise occupation powers over Gaza. However, it would be surprising to this observer if any nation that recognizes the State of Palestine, or the United Nations when describing the non-member observer State of Palestine, would explicitly confine the geographical reach of the State of Palestine only to the West Bank. Relevant U.N. General Assembly resolutions do not exclude Gaza from references to the State of Palestine. The ICC has not limited its investigatory work only to the West Bank and has focused on Gaza. The ICJ doubtless would have to confirm or otherwise clarify the geographical character of the State of Palestine if it were to accept a case against the State of Palestine. What happened in or was launched from Gaza, which the ICJ likely would confirm is a part of the State of Palestine, probably would be viewed as happening within the jurisdiction of a state party of the Genocide Convention. This understanding of the State of Palestine still could accept that Hamas is the longtime de facto governing authority and military presence in Gaza and acts separately from the Palestinian Authority, which exercises political governance in the West Bank albeit under the weight of Israeli occupation authority.

Does the fractured political reality of the West Bank and Gaza somehow nullify the application of the Genocide Convention to the State of Palestine? I would argue that the State of Palestine must still honor its obligations under the Genocide Convention, despite its chaotic and truncated governance before, on, and after Oct. 7, 2023. Even though Hamas is often described as a non-state actor and as a terrorist organization, and though the Palestinian Authority has no practical control over Hamas, the Genocide Convention contains no language immunizing a group like Hamas—deeply embedded in the territory, governance, and culture of a state party to the convention—from responsibility for genocide. Nor does this situation liberate a governing group like the Palestinian Authority from responsibility to uphold the convention with respect to the actions of all of the state party’s nationals, including those living in Gaza. Otherwise, the crime of genocide could be committed absent any accountability under the Genocide Convention so long as the perpetrator (including the individuals comprising it) is a non-state actor or a terrorist organization launching genocidal acts from the territory of that state party, particularly if the authorities who claim to represent the state party simply concede that they cannot control the perpetrator group. That reading of the Genocide Convention would give the Palestinian Authority carte blanche to comfortably acquiesce in the actions of Hamas and thus effectively insulate the State of Palestine from any responsibility under the Genocide Convention and eviscerate the value of its state party status.  

State Responsibility Principles

The International Law Commission’s Responsibility of States for Internationally Wrongful Acts (2001) ( ARSIWA ) offers no escape hatch for either Hamas as alleged perpetrator of genocide or the Palestinian Authority as a governing authority whose officials diplomatically represent the State of Palestine at the United Nations, with governments recognizing the State of Palestine, and in filings with the ICJ.

Article 9 of the ARSIWA states that “[t]he conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.” That would describe the actions of Hamas, for purposes of state responsibility, because the officials of the Palestinian Authority apparently were absent from the Hamas planning, preparation, and execution of the invasion of Israel on Oct. 7 and resulting atrocity crimes, including alleged genocidal acts. The circumstances for years prior to Oct. 7 certainly called for the Palestinian Authority at least to seek to exercise elements of authority with respect to Hamas and Gaza, particularly through negotiation, however futile, with Hamas leaders.

A claim against the State of Palestine could seek the ICJ’s determination that Hamas, acting from the territory of the State of Palestine and directing nationals of the State of Palestine, committed genocide on Oct. 7, and that whatever the reason for its incapacity or unwillingness to do so, the Palestinian Authority, representing the State of Palestine, failed to prevent or punish such genocidal acts. That could be a mitigating circumstance that would be factored into the judicial determination and any remedies, but it would not be a shield of immunity under the convention. 

One might question the legal validity of the Palestine declaration if Hamas was not part of the Palestinian Authority’s decision to file the declaration, but that argument would position Hamas irrefutably in the cross-hairs of the Genocide Convention as a purported de jure part of the government of the State of Palestine. The ICJ likely would not entertain the argument that it has to look behind the Palestine declaration as to the sufficiency of it, given that it was filed by the Ministry of Foreign Affairs and Expatriates of the State of Palestine.

If there were such an inquiry, then the issue would arise whether the Palestine declaration permits consideration of the State of Palestine request for intervention in the South Africa case.  If the ICJ invalidated the Palestine declaration because that document did not garner Hamas’s formal approval, then the ICJ would have to decline the State of Palestine’s request to intervene in the South Africa case. However improbable, were Hamas to have formally consented to the filing of the Palestine declaration (which covers any case under the Genocide Convention), then Hamas would have gone on record as essentially inviting states parties of the Genocide convention to file claims against the State of Palestine (and thus Hamas) at the ICJ. That is an unlikely scenario.

On the same day (May 31, 2024) that it filed the declaration recognizing the competence of the ICJ under the Genocide Convention, the State of Palestine filed an application for permission to intervene in the South Africa case. Palestine’s application presents a full-throated statement of support for the South Africa claim and requests to join the group of states parties to the Genocide Convention led by South Africa in pressing the full case against Israel, including enforcement of the provisional measures already ordered by the court and delivery of a final judgment on the merits of the South Africa claim. 

It would be cynical in the extreme for the State of Palestine to officially accept the jurisdiction of the ICJ for any dispute under the Genocide Convention; seek to join the South Africa case against Israel as a party before the Court and intervene to argue in favor of the South Africa claim; and yet deny (or be silent about) any responsibility for the October 7 attacks and, were a case filed against it, deny that there is any dispute with a claimant state party with respect to the October 7 attacks (when obviously there would be an active dispute).

In short, the State of Palestine would be seeking to intervene in the South Africa case with “unclean hands” if there were a claim filed against it under the Genocide Convention. Even if the State of Palestine application to intervene in the South Africa case were to be accepted by the court, the credibility of the State of Palestine as a champion of the Genocide Convention would be compromised in the wake of a case filed against it.

As it stands, the State of Palestine enjoys all the privileges and protections of being a state party to the Genocide Convention, including the right to request to intervene in the South Africa case. At the same time, the State of Palestine must shoulder the responsibilities of being a state party to the treaty.

A Potential Palestine Case

Any state party of the Genocide Convention could file a case against the State of Palestine before the ICJ under the erga omnes principle recently affirmed by the court in the South Africa case. The state party could request of the State of Palestine that it officially affirm that the Hamas attacks against Israel on Oct. 7 constituted acts of genocide (with required intent) and that the State of Palestine failed to prevent those acts and has further failed to punish Hamas and any other Palestinian perpetrators of such acts. The State of Palestine likely would reject the claims outright, and a dispute would ensue. After all, the State of Palestine has never publicly condemned the attacks by Hamas on Oct. 7 and neither has the UN General Assembly done so, though Secretary-General António Guterres and UN Security Council resolutions have.

Strengthened by the recent filing of the Palestine declaration, a nation that both recognizes the State of Palestine and is a state party to the Genocide Convention could file a case at the ICJ against the State of Palestine for genocidal acts against a protected group of people in Israel on Oct. 7. There are currently 33 nations that both recognize the State of Palestine and are party to the Genocide Convention and are neither Arab nor Islamic in character: Antigua and Barbuda, Armenia , Argentina, Bolivia, Brazil, Bulgaria, Chile, Colombia, Costa Rica, Cyprus, Czech Republic, Dominica, Dominican Republic, Ecuador, El Salvador, Georgia, Guatemala, Iceland, Ireland, Montenegro, Nepal, Norway, Paraguay, Peru, Philippines, Poland, Romania, Rwanda, Slovakia, Spain, Sweden, Ukraine, and Uruguay.

Which one or more of these nations that recognize the State of Palestine would have the political will to file a genocide case at the ICJ against the State of Palestine? Indeed, any one of these nations already could have expressed its support for the South Africa case, voiced empathy for the Palestinian population of Gaza and supported greater humanitarian access to Gaza, criticized Israel’s military campaign, and/or voted for membership of the State of Palestine in the United Nations, and still find clear cause to file a case against the State of Palestine. The claimant nation(s) also could request that the ICJ judges join the two cases.

If a state party of the Genocide Convention were to file a case against the State of Palestine, the court should consider joining that case with the South Africa case under Article 47 of the Rules of Court. The result would be a far more fulsome presentation of evidence before the judges of alleged acts of genocide and create a more realistic scenario for genocide analysis of the entire conflict than currently exists.

As it now stands, proverbial blinkers shield the judges in the South Africa case from the evidence that would explain how the Israel-Hamas war began (namely, that allegedly genocidal acts resulted in death and injury to a protected group in Israel) and would explain the aims of the enemy that Israel is fighting in Gaza, as demonstrated with the character of attacks on Oct. 7 and relevant rocket attacks, human shield tactics with hostages and the Palestinian population of Gaza, and Hamas incitement rhetoric. The German judge, Georg Nolte, for example, noted in his separate declaration to the order for provisional measures on Jan. 26, 2024 , that the South Africa case is of limited character and “does not concern possible violations of the Genocide Convention by persons associated with Hamas.”

In this article, I have sought neither to examine nor argue the merits of the South Africa case or of a hypothetical case concerning the State of Palestine. I simply propose that at least one state party to the Genocide Convention that also recognizes the State of Palestine and believes that genocidal acts with requisite intent occurred on Oct. 7 step forward and act at the ICJ.

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The Harvard Law Review Refused to Run This Piece About Genocide in Gaza

The “harvard law review” refused to run this piece about genocide in gaza.

The piece was nearing publication when the journal decided against publishing it. You can read the article here.

Harvard students protest for Palestine during the Yale-Harvard football game at the Yale Bowl in New Haven, CT November 18, 2023.

On Saturday, the board of the Harvard Law Review voted not to publish “The Ongoing Nakba: Towards a Legal Framework for Palestine,” a piece by Rabea Eghbariah, a human rights attorney completing his doctoral studies at Harvard Law School. The vote followed what an editor at the law review described in an e-mail to Eghbariah as “an unprecedented decision” by the leadership of the Harvard Law Review to prevent the piece’s publication. Eghbariah told The Nation that the piece, which was intended for the HLR Blog, had been solicited by two of the journal’s online editors. It would have been the first piece written by a Palestinian scholar for the law review. The piece went through several rounds of edits, but before it was set to be published, the president stepped in. “The discussion did not involve any substantive or technical aspects of your piece,” online editor Tascha Shahriari-Parsa, wrote Eghbariah in an e-mail shared with The Nation . “Rather, the discussion revolved around concerns about editors who might oppose or be offended by the piece, as well as concerns that the piece might provoke a reaction from members of the public who might in turn harass, dox, or otherwise attempt to intimidate our editors, staff, and HLR leadership.” On Saturday, following several days of debate and a nearly six-hour meeting, the Harvard Law Review ’s full editorial body came together to vote on whether to publish the article. Sixty-three percent voted against publication. In an e-mail to Egbariah, HLR President Apsara Iyer wrote, “While this decision may reflect several factors specific to individual editors, it was not based on your identity or viewpoint.” In a statement that was shared with The Nation , a group of 25 HLR editors expressed their concerns about the decision. “At a time when the Law Review was facing a public intimidation and harassment campaign, the journal’s leadership intervened to stop publication,” they wrote. “The body of editors—none of whom are Palestinian—voted to sustain that decision. We are unaware of any other solicited piece that has been revoked by the Law Review in this way. “ When asked for comment, the leadership of the Harvard Law Review referred The Nation to a message posted on the journal’s website. “Like every academic journal, the Harvard Law Review has rigorous editorial processes governing how it solicits, evaluates, and determines when and whether to publish a piece…” the note began. ”Last week, the full body met and deliberated over whether to publish a particular Blog piece that had been solicited by two editors. A substantial majority voted not to proceed with publication.” Today, The Nation is sharing the piece that the Harvard Law Review refused to run.

Genocide is a crime. It is a legal framework. It is unfolding in Gaza. And yet, the inertia of legal academia, especially in the United States, has been chilling. Clearly, it is much easier to dissect the case law rather than navigate the reality of death. It is much easier to consider genocide in the past tense rather than contend with it in the present. Legal scholars tend to sharpen their pens after the smell of death has dissipated and moral clarity is no longer urgent.

Some may claim that the invocation of genocide, especially in Gaza, is fraught . But does one have to wait for a genocide to be successfully completed to name it? This logic contributes to the politics of denial . When it comes to Gaza, there is a sense of moral hypocrisy that undergirds Western epistemological approaches, one which mutes the ability to name the violence inflicted upon Palestinians. But naming injustice is crucial to claiming justice. If the international community takes its crimes seriously, then the discussion about the unfolding genocide in Gaza is not a matter of mere semantics.

The UN Genocide Convention defines the crime of genocide as certain acts “committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” These acts include “killing members of a protected group” or “causing serious bodily or mental harm” or “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”

Numerous statements made by top Israeli politicians affirm their intentions. There is a forming consensus among leading scholars in the field of genocide studies that “these statements could easily be construed as indicating a genocidal intent,” as Omer Bartov, an authority in the field, writes . More importantly, genocide is the material reality of Palestinians in Gaza: an entrapped , displaced , starved , water-deprived population of 2.3 million facing massive bombardments and a carnage in one of the most densely populated areas in the world. Over 11,000 people have already been killed . That is one person out of every 200 people in Gaza. Tens of thousands are injured , and over 45% of homes in Gaza have been destroyed . The United Nations Secretary General said that Gaza is becoming a “ graveyard for children ,” but a cessation of the carnage—a ceasefire—remains elusive. Israel continues to blatantly violate international law: dropping white phosphorus from the sky, dispersing death in all directions , shedding blood, shelling neighborhoods , striking schools , hospitals , and universities , bombing churches and mosques , wiping out families , and ethnically cleansing an entire region in both callous and systemic manner. What do you call this?

The Center for Constitutional Rights issued a thorough, 44-page, factual and legal analysis, asserting that “there is a plausible and credible case that Israel is committing genocide against the Palestinian population in Gaza.” Raz Segal, a historian of the Holocaust and genocide studies, calls the situation in Gaza “a textbook case of Genocide unfolding in front of our eyes.” The inaugural chief prosecutor of the International Criminal Court, Luis Moreno Ocampo, notes that “Just the blockade of Gaza—just that—could be genocide under Article 2(c) of the Genocide Convention, meaning they are creating conditions to destroy a group.” A group of over 800 academics and practitioners, including leading scholars in the fields of international law and genocide studies, warn of “a serious risk of genocide being committed in the Gaza Strip.” A group of seven UN Special Rapporteurs has alerted to the “risk of genocide against the Palestinian people” and reiterated that they “remain convinced that the Palestinian people are at grave risk of genocide.” Thirty-six UN experts now call the situation in Gaza “a genocide in the making.” How many other authorities should I cite? How many hyperlinks are enough?

And yet, leading law schools and legal scholars in the United States still fashion their silence as impartiality and their denial as nuance. Is genocide really the crime of all crimes if it is committed by Western allies against non-Western people?

This is the most important question that Palestine continues to pose to the international legal order. Palestine brings to legal analysis an unmasking force: It unveils and reminds us of the ongoing colonial condition that underpins Western legal institutions. In Palestine, there are two categories: mournable civilians and savage human-animals . Palestine helps us rediscover that these categories remain racialized along colonial lines in the 21st century: the first is reserved for Israelis, the latter for Palestinians. As Isaac Herzog, Israel’s supposed liberal President, asserts : “It’s an entire nation out there that is responsible. This rhetoric about civilians not aware, not involved, it’s absolutely not true.”

Palestinians simply cannot be innocent . They are innately guilty; potential “terrorists” to be “neutralized” or, at best, “ human shields ” obliterated as “ collateral damage ”. There is no number of Palestinian bodies that can move Western governments and institutions to “unequivocally condemn” Israel, let alone act in the present tense. When contrasted with Jewish-Israeli life—the ultimate victims of European genocidal ideologies—Palestinians stand no chance at humanization . Palestinians are rendered the contemporary “savages” of the international legal order, and Palestine becomes the frontier where the West redraws its discourse of civility and strips its domination in the most material way. Palestine is where genocide can be performed as a fight of “ the civilized world ” against the “enemies of civilization itself.” Indeed, a fight between the “ children of light ” versus the “children of darkness.”

The genocidal war waged against the people of Gaza since Hamas’s excruciating October 7th attacks against Israelis—attacks which amount to war crimes —has been the deadliest manifestation of Israeli colonial policies against Palestinians in decades. Some have long ago analyzed Israeli policies in Palestine through the lens of genocide . While the term genocide may have its own limitations to describe the Palestinian past, the Palestinian present was clearly preceded by a “ politicide ”: the extermination of the Palestinian body politic in Palestine, namely, the systematic eradication of the Palestinian ability to maintain an organized political community as a group.

This process of erasure has spanned over a hundred years through a combination of massacres, ethnic cleansing, dispossession, and the fragmentation of the remaining Palestinians into distinctive legal tiers with diverging material interests. Despite the partial success of this politicide—and the continued prevention of a political body that represents all Palestinians—the Palestinian political identity has endured. Across the besieged Gaza Strip, the occupied West Bank, Jerusalem, Israel’s 1948 territories, refugee camps, and diasporic communities, Palestinian nationalism lives.

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What do we call this condition? How do we name this collective existence under a system of forced fragmentation and cruel domination? The human rights community has largely adopted a combination of occupation and apartheid to understand the situation in Palestine. Apartheid is a crime. It is a legal framework. It is committed in Palestine. And even though there is a consensus among the human rights community that Israel is perpetrating apartheid, the refusal of Western governments to come to terms with this material reality of Palestinians is revealing.

Once again, Palestine brings a special uncovering force to the discourse. It reveals how otherwise credible institutions, such as Amnesty International or Human Rights Watch, are no longer to be trusted. It shows how facts become disputable in a Trumpist fashion by liberals such as President Biden . Palestine allows us to see the line that bifurcates the binaries (e.g. trusted/untrusted) as much as it underscores the collapse of dichotomies (e.g. democrat/republican or fact/claim). It is in this liminal space that Palestine exists and continues to defy the distinction itself. It is the exception that reveals the rule and the subtext that is, in fact, the text: Palestine is the most vivid manifestation of the colonial condition upheld in the 21st century.

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What do you call this ongoing colonial condition? Just as the Holocaust introduced the term “Genocide” into the global and legal consciousness, the South African experience brought “Apartheid” into the global and legal lexicon. It is due to the work and sacrifice of far too many lives that genocide and apartheid have globalized, transcending these historical calamities. These terms became legal frameworks, crimes enshrined in international law, with the hope that their recognition will prevent their repetition. But in the process of abstraction, globalization, and readaptation, something was lost. Is it the affinity between the particular experience and the universalized abstraction of the crime that makes Palestine resistant to existing definitions?

Scholars have increasingly turned to settler-colonialism as the lens through which we assess Palestine. Settler-colonialism is a structure of erasure where the settler displaces and replaces the native. And while settler-colonialism, genocide, and apartheid are clearly not mutually exclusive, their ability to capture the material reality of Palestinians remains elusive. South Africa is a particular case of settler-colonialism. So are Israel, the United States, Australia, Canada, Algeria, and more. The framework of settler colonialism is both useful and insufficient. It does not provide meaningful ways to understand the nuance between these different historical processes and does not necessitate a particular outcome. Some settler colonial cases have been incredibly normalized at the expense of a completed genocide. Others have led to radically different end solutions. Palestine both fulfills and defies the settler-colonial condition.

We must consider Palestine through the iterations of Palestinians. If the Holocaust is the paradigmatic case for the crime of genocide and South Africa for that of apartheid, then the crime against the Palestinian people must be called the Nakba.

The term Nakba, meaning “Catastrophe,” is often used to refer to the making of the State of Israel in Palestine, a process that entailed the ethnic cleansing of over 750,000 Palestinians from their homes and destroying 531 Palestinian villages between 1947 to 1949. But the Nakba has never ceased; it is a structure not an event. Put shortly, the Nakba is ongoing.

In its most abstract form, the Nakba is a structure that serves to erase the group dynamic: the attempt to incapacitate the Palestinians from exercising their political will as a group. It is the continuous collusion of states and systems to exclude the Palestinians from materializing their right to self-determination. In its most material form, the Nakba is each Palestinian killed or injured, each Palestinian imprisoned or otherwise subjugated, and each Palestinian dispossessed or exiled.

The Nakba is both the material reality and the epistemic framework to understand the crimes committed against the Palestinian people. And these crimes—encapsulated in the framework of Nakba—are the result of the political ideology of Zionism, an ideology that originated in late nineteenth century Europe in response to the notions of nationalism, colonialism, and antisemitism.

As Edward Said reminds us, Zionism must be assessed from the standpoint of its victims, not its beneficiaries. Zionism can be simultaneously understood as a national movement for some Jews and a colonial project for Palestinians. The making of Israel in Palestine took the form of consolidating Jewish national life at the expense of shattering a Palestinian one. For those displaced, misplaced, bombed, and dispossessed, Zionism is never a story of Jewish emancipation; it is a story of Palestinian subjugation.

What is distinctive about the Nakba is that it has extended through the turn of the 21st century and evolved into a sophisticated system of domination that has fragmented and reorganized Palestinians into different legal categories, with each category subject to a distinctive type of violence. Fragmentation thus became the legal technology underlying the ongoing Nakba. The Nakba has encompassed both apartheid and genocidal violence in a way that makes it fulfill these legal definitions at various points in time while still evading their particular historical frames.

Palestinians have named and theorized the Nakba even in the face of persecution, erasure, and denial. This work has to continue in the legal domain. Gaza has reminded us that the Nakba is now. There are recurring threats by Israeli politicians and other public figures to commit the crime of the Nakba, again. If Israeli politicians are admitting the Nakba in order to perpetuate it, the time has come for the world to also reckon with the Palestinian experience. The Nakba must globalize for it to end.

We must imagine that one day there will be a recognized crime of committing a Nakba, and a disapprobation of Zionism as an ideology based on racial elimination . The road to get there remains long and challenging, but we do not have the privilege to relinquish any legal tools available to name the crimes against the Palestinian people in the present and attempt to stop them. The denial of the genocide in Gaza is rooted in the denial of the Nakba. And both must end, now.

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Rabea Eghbariah

Rabea Eghbariah is a human rights attorney completing his doctoral studies at Harvard Law School.

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• Copy URL https://www.pbs.org/newshour/nation/first-officer-convicted-of-murder-since-washington-passed-law-easing-prosecution-of-police

First officer convicted of murder since Washington passed law easing prosecution of police

A jury found a suburban Seattle police officer guilty of murder Thursday in the 2019 shooting death of a homeless man outside a convenience store, marking the first conviction under a Washington state law easing prosecution of law enforcement officers for on-duty killings.

After deliberating for three days, the jury found Auburn Police Officer Jeffrey Nelson guilty of second-degree murder and first-degree assault for shooting Jesse Sarey twice while trying to arrest him for disorderly conduct. Deliberations had been halted for several hours Wednesday after the jury sent the judge an incomplete verdict form Tuesday saying they were unable to reach an agreement on one of the charges.

READ MORE: In recording, a Seattle police officer joked after woman’s death. He says remarks were misunderstood

The judge revealed Thursday that the verdict the jury was struggling with earlier in the week was the murder charge. They had already reached agreement on the assault charge.

Nelson was ordered into custody after the hearing. He’s been on paid administrative leave since the shooting in 2019. The judge set sentencing for July 16. Nelson faces up to life in prison on the murder charge and up to 25 years for first-degree assault. His lawyer said she plans to file a motion for a new trial.

The King County Prosecuting Attorney’s office thanked the jury for their efforts on the case, which has gone on for more than three weeks.

“We appreciate the hard work of all parties to get to these important verdicts,” spokesman Casey McNerthney said in an email. “All along we felt this was a case that needed to be tried before a jury. Our thoughts continue to be with Mr. Sarey’s loved ones.”

Prosecutors said Nelson punched Sarey several times before shooting him in the abdomen. About three seconds later, Nelson shot Sarey in the forehead. Nelson had claimed Sarey tried to grab his gun and a knife, so he shot him in self-defense, but video showed Sarey was on the ground reclining away from Nelson after the first shot.

The case was the second to go to trial since Washington voters in 2018 removed a standard that required prosecutors to prove an officer acted with malice — a standard no other state had. Now they must show the level of force was unreasonable or unnecessary. In December, jurors acquitted three Tacoma police officers in the 2020 death of Manuel Ellis.

Nelson had responded to reports of a man throwing things at cars, kicking walls and banging on windows in a shopping area in Auburn, a city of 70,000 about 28 miles (45 kilometers) south of Seattle. Callers said the man appeared to be high or having mental health issues.

Sarey was the son of survivors of the Khmer Rouge genocide in Cambodia and became homeless after aging out of foster care, his family said.

Nelson confronted Sarey in front of the store and attempted to get him into handcuffs. When Sarey resisted, Nelson tried to take Sarey down with a hip-throw and then punched him seven times. He pinned Sarey against the wall, pulled out his gun and shot him. Sarey fell to the ground.

Nelson’s gun jammed, he cleared it, looked around and then aimed at Sarey’s forehead, firing once more.

A witness, Steven Woodard, testified that after the first shot, “Mr. Sarey was ‘done,’ lying on the ground in a nonthreatening position.”

Nelson claimed Sarey tried to grab his gun, leading to the first shot. He said he believed Sarey had possession of his knife during the struggle and said he shot him in self-defense. Authorities have said the interaction lasted 67 seconds.

“Jesse Sarey died because this defendant chose to disregard his training at every step of the way,” King County Special Prosecutor Patty Eakes told the jury in her closing argument Thursday. The shooting was “unnecessary, unreasonable and unjustified,” she said.

Nelson’s attorney, Kristen Murray, told the jury officers are allowed to defend themselves.

“When Mr. Sarey went for Officer Nelson’s gun, he escalated it to a lethal encounter,” she said.

Auburn settled a civil rights claim by Sarey’s family for $4 million and has paid nearly $2 million more to settle other litigation over Nelson’s actions as a police officer.

Sarey was the third person Nelson has killed in his law enforcement career. Jurors did not hear evidence about Nelson’s prior uses of deadly force.

Prior to fatally shooting Sarey, Nelson killed Isaiah Obet in 2017. Obet was acting erratically, and Nelson ordered his police dog to attack. He then shot Obet in the torso. Obet fell to the ground, and Nelson fired again, fatally shooting Obet in the head. Police said the officer’s life was in danger because Obet was high on drugs and had a knife. The city reached a settlement of $1.25 million with Obet’s family.

In 2011, Nelson fatally shot Brian Scaman, a Vietnam War veteran with mental issues and a history of felonies, after pulling Scaman’s vehicle over for a burned-out headlight. Scaman got out of his car with a knife and refused to drop it; Nelson shot him in the head. An inquest jury cleared Nelson of wrongdoing.

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FROM THE LEFT

From “ It’s Time for Progressives to Recommit to Academic Freedom ,” by Tascha Shahriari-Parsa in The Nation at tinyurl.com/4sdbx6zt .

The context, from the author: Last November, The Nation published an article titled “The Harvard Law Review Refused to Run This Piece About Genocide in Gaza.” I am the Harvard Law Review editor who commissioned that piece.

The excerpt: Many of my peers offered an additional justification for censorship, one that progressive students have popularized: that we must protect ourselves, and each other, from harmful speech. That if your friend alerts you that certain words make them feel unsafe, you should listen to them. That your responsibility, as a progressive, is to prevent those words from being heard. During the 20th century, many progressives embraced academic freedom as a core principle. But in recent years, we changed tack and encouraged the suppression of conservative voices on our campuses. Now, the same justifications we once offered to restrict conservative speech are being used to silence us. It is time for progressive students to reclaim our commitment to academic freedom.

From “ The Dead End of ‘Anti-Racist’ Discrimination ,” by Dustin Guastella and Jennifer C. Pan in Jacobin at tinyurl.com/2hhruybr .

The context, from the authors: What a failed racial equity program for farmers tells us about the pitfalls of race targeting.

The excerpt: In this context of economic scarcity and sustained insecurity, policies designed to exclude one group or another, based on characteristics no person can choose or change, are guaranteed to breed resentment. Avoiding this sort of political catastrophe in the future requires rejecting two animating theories of liberal governance that continue to inform progressive policy making. First, we have to reject the zero-sum theory that past discrimination can only be redressed by current discrimination — even if that discrimination is supposedly anti-racist. And, second, we have to reject the “ disparitarian ” logic that seeks only to ensure that certain racial groups aren’t disproportionately subject to economic hardship, as opposed to seeking to eliminate that hardship itself.

From “ Trump Distancers? ” by Massimo Faggioli in Commonweal Magazine at tinyurl.com/xbyy4ufc .

The context, from the author: Some conservative Catholics seem to be reassessing support for former President Donald Trump.

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FROM THE RIGHT

From “ Julian Assange’s Plea Deal Is a Tragedy ,” by Noah Rothman in The National Review at tinyurl.com/2j6kwhbj .

The context, from the author: Julian Assange’s “crime” was not limited only to the publication of documents that explicitly imperiled U.S. interests and provided insurgent organizations with actionable intelligence on military bases, prisons, and the movement of U.S. troops and local security forces. It was to facilitate the pilfering of those documents in the first place.

The excerpt: So many of Assange’s defenders have confused reportorial best practices with activism. Not just any activism, in this case, but acts of criminality designed to imperil U.S. interests and put American soldiers in additional danger. It’s perhaps too much to ask that American journalists display a modicum of patriotism, but it’s not a big ask to demand that they observe the laws meant to keep America’s men and women in uniform safe.

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From “ How ‘Pro-Life’ Lost all Meaning ,” by Charles Sykes in The Atlantic at tinyurl.com/mr3evmy8 .

The context, from the author: The pro-life movement may have won the battle two years ago with the U.S. Supreme Court’s Dobbs decision, but they’re losing the war — and turning an entire generation away from their cause.

The excerpt: I saw all of this play out as a longtime supporter of the pro-life movement. ... For nearly 50 years, I was politically aligned with the folks who celebrated their victory in the Supreme Court. But I watched as a movement that should have championed compassion for women and young children instead tightened its ties to those who embraced performative cruelty, including forced family separations at the border . As I wrote two years ago, the court’s ruling plunged “a fateful (and deeply personal) choice into the cauldron of the culture war at a moment of maximum demagoguery, extremism, disinformation, and bad faith.”

From “ Surgeon General’s ‘Public Health Emergency’ Is Anti-Second Amendment Scaremongering ,” by David Harsanyi in The Federalist at tinyurl.com/ebm7pt3y .

The context, from the author: The U.S. surgeon general wants to take gun ownership “out of the realm of politics and put it into the realm of public health.”

The excerpt: Fortunately, the Constitution already has purview over the individual’s right to own a firearm. But setting aside the fact that (Surgeon General Vivek) Murthy’s goal is unconstitutional, the premise of his report is also highly misleading. For starters, like most anti-gun activists, Murthy dishonestly conflates suicides (a mental health issue) with homicides (a criminality issue) to make sweeping contentions about firearms. Murthy even throws in incidents where guns are used in self-defense as a “harm” plaguing the nation’s health. But that’s just the beginning.

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The Supreme Court Walks Back Clarence Thomas’ Guns Extremism

This is part of  Opinionpalooza , Slate’s coverage of the major decisions from the Supreme Court this June. Alongside  Amicus , we kicked things off this year by explaining  How Originalism Ate the Law . The best way to support our work is by joining  Slate Plus . (If you are already a member, consider a  donation  or  merch !)

The Supreme Court upheld a federal law disarming domestic abusers on Friday, significantly narrowing a radical 2022 precedent in the process. Its 8–1 ruling in U.S. v. Rahimi is a major victory for gun safety laws, a much-needed reprieve after two years of unceasing hostility from the federal judiciary. Chief Justice John Roberts’ majority opinion walked back maximalist rhetoric—recklessly injected into the law by Justice Clarence Thomas—that had imperiled virtually every modern regulation limiting access to firearms. Thomas was the lone dissenter, signifying the rest of the court’s mad dash away from his extremist position on the Second Amendment.

Rahimi involves a violent criminal, Zackey Rahimi, who beat his girlfriend, then fired shots at either her or a witness as she fled his abuse. His girlfriend subsequently obtained a restraining order from a state court that found that he posed “a credible threat” to her “physical safety.” Rahimi, however, continued harassing her, threatened a different woman with a firearm, and was identified as the suspect in at least five additional shootings. When the police searched his apartment, they found a pistol, a rifle, ammunition, and a copy of the restraining order.

Rahimi was indicted under a federal law that bars individuals from possessing firearms while subject to a restraining order for domestic violence. He argued that this statute violated his Second Amendment rights, and the U.S. Court of Appeals for the 5 th Circuit agreed . The court rested its analysis on New York State Rifle and Pistol Association v. Bruen , the Supreme Court’s 2022 decision establishing a constitutional right to carry firearms in public. Thomas’ opinion in Bruen , though, went much further than that specific holding, declaring that all restrictions on the right to bear arms are presumptively unconstitutional unless they have a sufficient set of “historical analogues” from the distant past. (He didn’t bother to clarify the precise era, but it seemed to be sometime between 1791 and 1868.)

That approach posed two fundamental problems, which the lower courts quickly encountered when trying to apply Bruen : First, judges are not historians and cannot parse the complex, often incomplete record in this area with any consistency or reliability; and second, modern problems require modern solutions , especially when past bigotry prevented lawmakers from perceiving those problems in the first place. Rahimi is Exhibit A: Men were generally permitted to abuse their wives in the 18 th and 19 th centuries, with courts hesitant to interfere with what they deemed a private “familial affair.” Countless other examples have arisen in the lower courts since Bruen , with judges creating new rights to scratch the serial number off guns and own firearms while using illegal substances .

Roberts attempted to put a stop to this chaos on Friday. His Rahimi opinion cut back Bruen at every turn. “Some courts,” the chief justice wrote, “have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber.” Rather than hunt for perfect historical analogs, courts should ask “whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” If old laws regulated guns to “address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.” Today’s regulations should generally avoid imposing restrictions “beyond what was done at the founding,” but the modern law need not “precisely match its historical precursors.” Roberts’ test significantly broadens (or perhaps loosens) the constitutional inquiry beyond what Bruen allowed. It instructs courts to look at principles , at a fairly high level of generality, rather than demanding a near-perfect match from centuries past.

The difference between Rahimi and Bruen is perfectly captured by Roberts’ majority opinion and the lone dissent written by Bruen ’s own author, Thomas. The chief justice asserted, “The government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” He breezily walked through a smattering of history allowing for the seizure of arms to preserve “public order.” For proof, Roberts cited surety laws, legislation that required an individual “suspected of future misbehavior” to post a bond, which he would forfeit if he engaged in misconduct. Domestic abusers could, in theory, be subject to the surety system, as could individuals who misused firearms—and that was good enough for Roberts. To him, this evidence established a historical practice of “preventing individuals who threaten physical harm to others from misusing firearms.” And disarming abusers “fits comfortably within this tradition.”

To Thomas, by contrast, surety laws “are worlds—not degrees—apart” from the law in question, because they were civil (not criminal) measures that did not actually disarm people but merely threatened them with a fine. These laws “did not alter an individual’s right to keep and bear arms,” Thomas protested, and they therefore failed to establish a relevant “history and tradition.” Indeed, “the government does not identify even a single regulation with an analogous burden and justification,” he complained in dissent. In 1791 a man like Zackey Rahimi could be disarmed only after a conviction for a violent crime. And so, Thomas wrote, that must remain the rule today.

Bruen was a 6–3 decision. Yet every justice who joined Thomas’ opinion in Bruen in 2022 signed on to Roberts’ walk back of Bruen on Friday. What happened? Aside from Justice Samuel Alito, every remaining member of the court expressed their views by writing or joining separate concurrences in Rahimi . Justice Brett Kavanaugh tried to defend his beloved “history and tradition” test, as opposed to “a balancing test that churns out the judge’s own policy beliefs,” while creating more room for “precedent” (or “the accumulated wisdom of jurists”). Justice Amy Coney Barrett wrote that Bruen “demands a wider lens” than the 5 th Circuit deployed, explaining that “historical regulations reveal a principle, not a mold,” and do not forever lock us into “late-18 th -century policy choices.” Justice Neil Gorsuch tried to split the difference, marshaling a defense of Bruen while subtly reworking it to limit sweeping legal attacks on gun regulations.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, celebrated the majority’s focus on “principles” instead of perfect analogs. “History has a role to play in Second Amendment analysis,” she wrote, “but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy.” Justice Ketanji Brown Jackson, who joined the court soon after Bruen came down, warned that Rahimi will not end the “increasingly erratic and unprincipled body of law” that Bruen inspired. “The blame” for the lower courts’ struggles “may lie with us,” she noted, “not with them.” All three liberals sound ready and willing to overturn Bruen altogether if they get the chance—but will, for now, settle for Rahimi ’s compromise.

What next? The Supreme Court will have to vacate a spate of lower court decisions that used Bruen to strike down seemingly sensible gun safety laws, ordering a do-over in light of Rahimi . Some courts will gladly accept the message. Others, like the lawless 5 th Circuit , will probably interpret Thomas’ dissent on Friday as the law and refuse to change their tune. Such defiance will test the majority’s commitment to a more workable and balanced Second Amendment jurisprudence—and likely fracture the court once more. By replacing Thomas’ hard-line views with a more malleable standard, SCOTUS has ended one battle over guns. But by remaining in this area, where it has no right to be in the first place, the court has invited a thousand more.

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Thou Shalt Not Post the Ten Commandments in the Classroom

By David French

Opinion Columnist

There is a certain irony in the bravado about the Ten Commandments from Gov. Jeff Landry of Louisiana. On Saturday he told attendees at a Republican fund-raiser, “I can’t wait to be sued.” Clearly, he knows that the Supreme Court previously ruled against mandatory displays of the Ten Commandments in the classroom. In a 1980 case, Stone v. Graham , the Supreme Court struck down a Kentucky law that required the posting of the Ten Commandments, purchased through private donations, in every public school classroom in the state.

A Louisiana law requiring the display of the Ten Commandments in every public classroom in the state defies this precedent, so, yes, the state will be sued .

But Landry’s comments didn’t stop with bravado. He also said something else. “If you want to respect the rule of law,” he told the guests, “you’ve got to start from the original lawgiver, which was Moses.” To teach respect for the rule of law, he’s defying the Supreme Court? That’s an interesting message to send to students.

It’s consistent with an emerging Republican approach to constitutional law. Just as many Republicans view their constituency as composed of the “real” Americans, they tend to believe their interpretation of the Constitution represents the “real” Constitution. So we’re seeing a flurry of culture-war-motivated state laws , many of them aimed at the First Amendment, that confront precedent.

The Dobbs decision gave some Republicans hope for radical change, but reversing Roe has not signaled open season on the court’s rulings. Republicans’ challenges to the Voting Rights Act failed , the independent state legislature theory foundered , and efforts to expand the standing doctrine to limit access to the abortion pill faltered. Even so, it’s premature to declare that the Supreme Court is frustrating the MAGA right.

Altering constitutional law is not the only motivation here; a version of Christian mysticism is also in play. There is a real belief that the Ten Commandments have a form of spiritual power over the hearts and minds of students and that posting the displays can change their lives.

I’m an evangelical Christian who believes in God and the divine inspiration of Scripture, but I do not believe that documents radiate powers of personal virtue. I happened to grow up in Kentucky and went to classes before the Ten Commandments were ordered removed, and I can testify that the displays had no impact on our lives. My classmates and I were not better people because of the faded posters on the walls.

David French is an Opinion columnist, writing about law, culture, religion and armed conflict. He is a veteran of Operation Iraqi Freedom and a former constitutional litigator. His most recent book is “Divided We Fall: America’s Secession Threat and How to Restore Our Nation .” You can follow him on Threads ( @davidfrenchjag ).