Mark Oppenheimer: Why the genocide label still fails

Key topics:Genocide requires intent to destroy a group, not just suffering or conflict.Lemkin Institute’s broad use of “genocide” weakens legal precision.Israel-Gaza war lacks evidence of intent to destroy Palestinians as a group..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..By Mark Oppenheimer*.My article, Why Israel’s war in Gaza did not meet the legal definition of genocide, was met with a response from Hassen Lorgat. He urges readers to abandon what he calls a narrow legal framing of genocide. But genocide is not a moral metaphor. It is a crime defined by the 1948 Genocide Convention. Its defining feature is specific intent, known in law as dolus specialis, to destroy a protected group as such.The disagreement between us is not about whether Palestinians have suffered. They have. Nor is it about whether Israel’s conduct must be scrutinised under international humanitarian law. It must. The dispute is about whether the evidence establishes the specific intent required to prove genocide.That element cannot be replaced by outrage, analogy, or institutional endorsement.The Lemkin Institute and the Elastic Definition of GenocideLorgat leans heavily on statements by the Lemkin Institute for Genocide Prevention. It is therefore worth examining the Institute’s own conceptual approach to genocide.In November 2022, the Lemkin Institute issued a statement declaring that the gender critical movement constitutes a genocidal social force because it opposes children undergoing sex changes and trans athletes competing against women. The Institute described gender critical feminism as engaging in genocidal aggressions, likened it to Nazi racial politics, and framed legal restrictions on gender transition for children as part of a genocidal structure aimed at eradicating transgender identity..Read more:.Why Israel’s war in Gaza did not meet the legal definition of genocide: Mark Oppenheimer.One may agree or disagree with the politics of that debate. That is not the point. The point is that the Institute applies the label genocide not merely to mass killing, ethnic cleansing, or extermination campaigns, but to ideological movements and contested cultural disputes within liberal democracies.If genocide includes political advocacy around gender policy, the term has expanded far beyond its original legal architecture.Raphael Lemkin coined the word to describe the physical destruction of groups, most prominently the destruction of European Jewry. The Genocide Convention prohibits specific acts committed with intent to destroy a protected group. It does not criminalise ideological hostility, discrimination, or social marginalisation. When an institution applies the genocide label to an overly wide array of phenomena, it weakens the force of its invocation in other contexts.The Question of Authority and the Lemkin NameThe authority of the Lemkin Institute is also contested by Raphael Lemkin’s own family. Members of the Lemkin family, assisted by the European Jewish Association, have formally objected to the Institute’s use of his name.They argue that the Institute’s positions, particularly in relation to Israel, are anathema to Lemkin’s belief system and contrary to his legacy. They have questioned whether the Institute has any authorisation to rely on his name and have described its use of that name as deceptive.This dispute does not resolve the genocide question. But it underscores a broader point. The invocation of Lemkin’s name is no substitute for rigorous legal analysis. Genocide law is interpreted by courts applying evidentiary standards, not by advocacy organisations, however sincerely motivated.October 7 and the Institute’s Own Red FlagsWhile there are serious concerns about the bona fides of the Lemkin Institute it is worth noting that on October 13, 2023, less than a week after the Hamas attacks, it identified red flags for genocidal intent in Hamas’ conduct. They stated the following:“As details of Hamas’ attack become available, the Lemkin Institute has identified several atrocities committed by Hamas militants that raise red flags for genocidal intent. Such atrocities include: the targeted massacre of symbols of group life, such as the murder of 260 young people at the Supernova music festival near Kibbutz Re’im in southern Israel (within kilometres of the Gazan border); inversion rituals, such as the killing of children in front of their family members; and desecration rituals, such as the massacre of entire families, the setting fire to homes with families still inside them, and the desecration of dead bodies. One survivor of the Supernova festival massacre testified hearing Hamas militants shout “Kill all the Jews!” and “Rape all their women!” A particularly harrowing and potentially genocidal crime can be viewed in a video posted on social media that shows Hamas militants parading the almost naked, still body of 22-year-old German citizen Shani Louk, a hostage from the Supernova festival, through the streets of Gaza. (It is unclear what happened to Louk after the video was taken, though her mother believes she is alive and in critical condition at a Gaza hospital). Hamas’ repeated use of social media to post videos of their crimes to terrorize external audiences is reminiscent of a terror tactic employed by Turkish soldiers against Kurds in eastern Turkey, Azerbaijani soldiers against Armenians in Nagorno-Karabakh, and ISIS militants against Yezidi and Christian communities in northern Iraq. Further crimes committed during Hamas’ attack include the seizure of at least 130 hostages and the killing of disarmed soldiers.”Occupation and the Legal ThresholdLorgat argues that Israel’s status as an occupying power must frame the genocide analysis. That argument obscures several essential facts.Israel withdrew its settlements and permanent military presence from Gaza in 2005, completing disengagement in 2006. There have been no Israeli settlements inside Gaza since that withdrawal. Gaza has since been governed by Hamas, while the West Bank is administered by the Palestinian Authority under Fatah leadership. These two entities are politically and militarily hostile to each other. When Hamas seized control of Gaza in 2006, it violently expelled Fatah, including the execution of Fatah members by throwing them from buildings. Gaza and the West Bank are not governed as a unified political entity.Any advisory findings by the International Court of Justice concerning occupation and settlement activity in the West Bank and East Jerusalem are legally distinct from the question of genocidal intent in Gaza. Even if one adopts the strongest possible critique of Israel’s policies in the West Bank, that does not establish that Israel entered the Gaza war with the intent to destroy Palestinians as such.Occupation, lawful or unlawful, is not synonymous with genocide. International law distinguishes between unlawful annexation, apartheid, war crimes, crimes against humanity, and genocide. They are separate categories with distinct elements. The Genocide Convention does not criminalise occupation. It criminalises the intent to destroy a protected group.Rhetoric and State PolicyInflammatory rhetoric by Israeli officials, including statements made in the immediate aftermath of October 7, is morally troubling. But tribunals do not infer genocidal intent from isolated statements made in moments of justified rage. They assess sustained policy, operational directives, and consistent patterns of destruction directed at a group as such.If Israel’s objective were the destruction of Palestinians as a people, its military conduct would likely reflect that aim in relentless and unrestrained fashion. Instead, the record shows fluctuating operations, negotiated pauses, hostage exchanges, and periodic ceasefires. Those features may not absolve Israel of other violations. But they are inconsistent with a coordinated policy of extermination. The Discipline of LawThe danger in expanding genocide into a capacious moral category is not merely semantic. It erodes the architecture of international law. If every prolonged conflict, occupation, or ideological struggle becomes genocide, the term loses its distinct legal meaning..Read more:.Gaza genocide debate sparks controversy in South Africa after Albanese visit: Marika Sboros.The suffering in Gaza is real. It demands accountability where international humanitarian law has been breached. But genocide remains the crime of crimes. It requires proof that the destruction of a protected group was the objective itself.The available evidence still supports a different and more plausible explanation: a devastating war against an armed group that initiated hostilities with a mass civilian massacre..*Mark Oppenheimer is practicing advocate and member of the Johannesburg Bar.

Mark Oppenheimer: Why the genocide label still fails

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