Stop Israel's Genocide in Gaza
![handle is hein.journals/guild80 and id is 33 raw text is: Stop Israel's Genocide in Gaza
Stop Israel's Genocide in Gaza
David Gespass
&
Alan W. Clarke'
Philosopher of law, David Luban, calls the word 'genocide' a legal false friend, a word that means one
thing to ordinary people, and quite another to lawyers.2 People typically use the word without regard to its legal
definition. Ordinarily, this causes few problems. Our cocktail party chit chat, heated discussions at the coffee
shop, or even in the rarefied halls of a college classroom, are of little consequence. However, there are risks in
loosening the definition. It may diminish, thereby cheapening, what is among the most serious of crimes in inter-
national law. Governmental policies need to be based upon, and compliant with, international law. To effectively
argue that the U.S. must cease its complicity with Israeli genocide, one must be able to persuasively demonstrate
that genocide, in its strictest legal sense, is being committed and that U.S. complicity with, and failure to prevent,
genocide violates international law. This essay will sketch out a path towards effectively making that case.
It is critical, in the context of international relations generally and Gaza in particular, to start with the legal
definition of genocide and apply it to the facts. We do this to determine whether Israel has violated its state obliga-
tions under international law, and whether any of its leaders are guilty of the crime of genocide. Assuming Israeli
violations of international law, and specifically genocide, are established, we can turn to U.S. complicity , and
its duty under the Convention to prevent genocide. Only by doing so, can we effectively argue that U.S. policy
towards Israel and the Gaza genocide must change. The starting point in the analysis then, is the Convention on
the Prevention and Punishment of the Crime of Genocide.3
Article One of the Convention emphasizes that genocide is a crime whether committed in peace time or in
time of war or armed conflict.4 While many would dispute that Israel is formally engaged in a war in Gaza, that is
immaterial to whether it is committing genocide.
Article Two first requires that actions taken must be with intent to destroy, in whole or in part, a nation-
al, ethnical, racial or religious group (emphasis added). That means it is not enough to carry out the objective
acts that might constitute genocide, but that the subjective intent of doing them is to destroy a protected group.
However, the intended destruction need not be complete obliteration., So, for example, destroying the Palestinian
population in Gaza may not mean the complete destruction of the Palestinian people writ large, but it is more than
sufficient to meet the Convention's definition.
1 David Gespass is a past president of the National Lawyers Guild, past editor-in-chief of this journal and a semi-retired civil rights
and civil liberties lawyer. Alan W. Clarke, is a Guild member, Professor Emeritus at Utah Valley University, and Adjunct Professor of
Political Science at Memorial University of Newfoundland.
2 David Luban, Calling Genocide by Its Rightful Name: Lemkin's Word, Darfur, and the UN Report, 7 CHI. J. INT'L L. 303 (2006).
3 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 9, 1948, 78 U.N.T.S. 277,
(entered into force Jan. 12, 1951, U.S. ratification Nov. 11, 1988), https://treaties.un.org/doc/Treaties/1951/01/19510112%2008-12%20
PM/ ChIVlp.pdf [hereinafter Genocide Convention or Convention].
4 While the Genocide Convention uses the word war the Rome Statute of the International Criminal Court (ICC) uses the phrase
armed conflict. The latter is a broader term that circumvents the problem of determining whether or not a state of war exists as a
matter of international law. We will continue to use the word war for such phrases as war crimes and will use the phrase armed
conflict when referring to Israel's attacks on Gaza or the West Bank. Rome Statute, 2187 U.N.T.S. 90 (passim.)
5 The International Court of Justice has observed that genocide can be committed within a geographically limited area and 'it is
not necessary to intend to achieve the complete annihilation of a group from every corner of the globe. The area of the perpetrator's
activity and control are to be considered.' Thus, it is not necessary for the perpetrator of genocide to intend to destroy all of a group
wherever it may be found. The specific intent to destroy a substantial part of a protected group combined with at least some prohibited
acts suffices, even though the protected group is not in fact destroyed in whole or in substantial part. LAURELYN WHITT & ALAN
CLARKE, NORTH AMERICAN GENOCIDES: INDIGENOUS NATIONS, SETTLER COLONIALISM, AND INTERNATIONAL LAw, 80 (2019) (citations
omitted).
2024
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Stop Israel's Genocide in Gaza
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