The International Association of Genocide Scholars (“IAGS”) recently announced that 86 percent of their members had concluded that Israel was committing genocide in Gaza. This was extremely misleading. First of all, only around 28 percent of their members voted on the resolution and a mere twenty percent of total members approved it. And this was not the only problem with the resolution. It also misrepresented the crime of genocide.

Genocide is an act undertaken with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such. If you cannot establish a specific intent to commit this crime (such an intent is known in legal parlance as dolus specialis), you cannot establish genocide.

The IAGS resolution did not even attempt to establish such an intent, relying instead on statements made by other entities and by extrapolating from what the organisation B’Tselem has described as a “broader analytical framework.” However, legally, genocide requires a fully conclusive finding, meaning that no other explanation exists for the event or events in question other than the intent to commit the crime of genocide. This does not apply here, as there are alternative explanations for the casualties in Gaza that the IAGS fails to recognise.

Indeed, the resolution contains a number of glaring omissions of material factors that must be taken into consideration in conducting a legal analysis of this kind—most importantly the behaviour of Hamas. It is undisputable that Hamas has utilised civilian and humanitarian infrastructure for the purpose of waging war. This conduct deliberately places Palestinian civilians directly in harm’s way, in contravention of the Fourth Geneva Convention (GCIV) and the Additional Protocols I to the Geneva Conventions (API). For example, under GCIV art. 18–20, when a combatant party to an armed conflict uses a hospital as a base from which to conduct military operations, the hospital loses the protections that would otherwise be afforded to it. After issuing a prior warning to the hospital in question, that hospital can become a valid military target. Further, GCIV art. 28 and API art. 51(7) explicitly state that military forces can legitimately attack a combatant party even if civilians are present. There is a prohibition against using human shields, but if combatants choose to take refuge behind their civilians, it is still legal to strike them in those places.

Holocaust Historians, the Genocide Charge, and Gaza

The accusation is wrong on the facts and objectively serves to support the intent of Hamas to murder Jews with impunity.

QuilletteNorman J.W. Goda

Experts in the field of genocide should be familiar with these aspects of international law, yet the IAGS chose to exclude them from consideration. They also chose not to include many of the facts that we know about the situation in Gaza. To make a determination of genocide, it is critical to understand the conduct of each party to this conflict and how that informs the conduct of the opposite party. No one should want civilians to be harmed in a war; however, to ascertain who is to blame for that harm requires making an objective evaluation of the relevant facts.

The IAGS resolution included a paragraph claiming that the International Court of Justice (ICJ) has made the determination that Israel is committing a plausible genocide in Gaza. However, this is false. The ICJ found only that Palestinians have plausible rights that may be infringed, and that the conflict involves a dispute between two states who are both parties to the Genocide Convention. The reason for this is that Palestinians are a distinct national group, and national groups are protected under the Genocide Convention. The ICJ therefore made the correct determination: but what the Court stated is that Palestinians must be protected from genocide and plausible rights exist to that effect, not that Israel is committing a genocide against them.

So how did a resolution by a group that claims to be a preeminent scholarly organisation of genocide specialists miss the mark so much substantively?

Prior to the resolution, the IAGS promised to hold a town hall for their members, to give dissenting voices a chance to be heard. That town hall was never held. Despite the serious nature of the issue, people were not given an opportunity to discuss the resolution before it was publicly announced. This reeks of political activism, rather than serious scholarly work. In any serious scholarly endeavour, it is normal to invite critique so that fellow experts can ensure the accuracy of any claims being made. The IAGS failed to do this.

In addition, the IAGS membership includes plenty of non-experts, including artists, students, and other people who simply take an interest in the topic, all of whom have a right to vote on any IAGS resolution, according to their bylaws. The vote on genocide was anonymous—so we have no way of knowing who actually supported it and whether they had the expertise required to make such a determination. (I myself became a fully paid-up member of the IAGS following the resolution but the organisation quickly deactivated my membership without explanation.)

In response to the IAGS resolution, I have been working on an open letter by a group called “Scholars for Truth about Genocide” that addresses our serious concerns about the legal analysis employed by the IAGS. That letter has been signed by over 500 individuals, including the former Justice Minister and Attorney General of Canada, Irwin Cotler; a plethora of former United States Department of Justice war crimes prosecutors; members of IAGS; and legal scholars and experts from around the world. We all hold that the IAGS resolution fails the sniff test and distorts the law in order to weaponise the Genocide Convention for ideological gain.

One can reasonably hate the war in Gaza and want it to end. It is reasonable to believe that too many Palestinian civilians have been killed over the course of this war. It is also reasonable for individuals to decry Israeli war efforts that they find morally repugnant. But it should be possible to do all this without degrading the strict legal parameters that define genocide. In doing so, we may cause even more harm to innocent people because these legal parameters exist to protect people and shenanigans like that of the IAGS only serve to weaken them.

The IAGS’s behaviour in this affair has been morally reprehensible. To claim to be experts on the subject and then to misstate the law is inexcusable. To acknowledge that Israel is not committing genocide in Gaza is not to deny that real innocent people are being hurt and killed. They are. We can be honest about this without misleading people as to what the law says.

Disturbingly, many people seem to want there to be a genocide in Gaza, as it provides them with a means of demonising Israeli Jews or Jews in general. But that is the last thing that anyone should desire. No one should want Palestinians to be the victims of genocide. Israel’s intent to destroy Hamas, a political terrorist organisation, is not genocidal in the slightest. Hamas members are not a protected group and cannot be said to be victims of genocide. Meanwhile, the failure to discuss the harm to which Hamas exposes Palestinian civilians, through their conduct of the war, only helps perpetuate further harm against Palestinians. It grants Hamas a free pass to continue to embed themselves among civilians and employ human shields because declarations like that of the IAGS suggest that such cynical tactics are working. If people truly care about Palestinians, they must decry the conduct of Hamas—and that also means being honest about Israeli conduct.

The leadership of the International Association of Genocide Scholars have a moral duty to retract their biased resolution and make amends to their members for the damage they have caused to the credibility of their organisation.