Shannon Fyfe is an Assistant Professor of Philosophy at George Mason University, where she is also a Faculty Fellow in the Institute for Philosophy and Public Policy, and an Adjunct Professor at the Antonin Scalia Law School. She is an expert in international criminal law, and her work provides a philosophical framework for defending or criticizing practices of holding individuals accountable for their participation in mass violence. She is the co-author, with Larry May, of International Criminal Tribunals: A Normative Defense.
While the term "genocide" is often used to refer to a socio-legal phenomenon, it was crafted as a crime—a crime for which individuals could be held accountable under domestic or international criminal law. Many scholars, activists and legal practitioners have expressed outrage over the past three months that the Israeli government appears to be committing genocide against Palestinians in Gaza, given the Israeli military's siege, relentless bombing and forced displacement of civilians, and the genocidal rhetoric of many Israeli officials, since Hamas's attack on Oct. 7.
The government of South Africa took these concerns to the International Court of Justice in The Hague, alleging that Israel was failing to meet its obligations under the 1948 Genocide Convention and asking the court to grant provisional measures to protect the rights of Palestinians in Gaza. In its initial ruling last week, the ICJ issued some of the requested provisional measures, although it did not to demand an immediate cease-fire. The ICJ also concluded that the claim that acts of genocide might be occurring in Gaza was "plausible." A ruling on whether Israel has in fact committed genocide in Gaza will take years for the court to decide. As the case at the ICJ proceeds, there is the possibility of action by the International Criminal Court, the international institution with jurisdiction over core international crimes in Palestine. The ICC's chief prosecutor, Karim Khan, has been investigating the situation in Palestine since March 2021 and explicitly extended this investigation to the Oct. 7 attacks by Hamas in southern Israel and Israel's retaliation in Gaza.
International criminal law will not put a stop to what is currently happening in Gaza, even if the ICC or a domestic criminal legal system eventually, improbably, indicts and convicts Israeli leaders. On the other hand, the ICJ order, and other ongoing civil litigation strategies, might be more successful in changing the situation on the ground in Gaza. The charge of genocide may carry more weight at the moment as a political tool, rather than as a charge against a particular individual—especially if it forces the states supporting Israel's assault on Gaza, most of all the United States as its key ally and supplier of weapons, to reassess that support if it means potentially violating the Genocide Convention.
War crimes and crimes against humanity and genocide are distinct crimes because they have distinct elements.
- Shannon Fyfe
Yet international criminal law can still hold value. This goes beyond the retributive arguments about the law, especially given that so many individuals who commit mass atrocities will never be held to account (nor is this remotely possible given the limited resources of the ICC and domestic criminal legal systems). Nor do the arguments about deterrence hold much weight, as perpetrators who commit mass atrocities are unlikely to be compelled to act otherwise by the threat of punishment. Especially when that "threat" of punishment is so unlikely, given the limited resources of and political constraints on the ICC.
Instead, what is most compelling about international criminal law is the expressive value. The expressivist justification for international criminal law recognizes that social practices like punishment carry meanings and transmit messages apart from their consequences. And this justification of punishment under international criminal law ties in with the non-criminal legal purposes of identifying genocide. We punish people who commit genocide to express to the rest of the world—not just to them individually—that what they have done is wrong. Those speaking out about genocide in Gaza want the rest of the world to see what is happening there as wrong. More importantly, though, they want it to stop.
And international criminal law has little to do with making that happen.
There is already significant, in fact shockingly clear, evidence of genocidal intent on the part of certain Israeli leaders—particularly those tied to the "complete siege" of Gaza, which is arguably the strongest case for genocide. ("I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed," Israeli Defense Minister Yoav Gallant said on Oct. 9. "We are fighting human animals and we are acting accordingly.") There is no way to distinguish between non-combatants and combatants in the current iteration of the siege, nor does there seem to be any interest in doing so from Israeli leader. Instead, this seems—to cite the text of the Genocide Convention—like an "intent to destroy, in whole or in part," the national group of Palestinians in Gaza, "as such," by "deliberately inflicting… conditions of life calculated to bring about its physical destruction, in whole or in part." This is likely why one of the provisional measures issued by the ICJ in its initial ruling is that "Israel must take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip."
But as Dirk Moses notes, at least some of the genocidal statements by Israeli leaders will be interpreted as referencing "permissible" acts of war, and the civilian costs as merely "regrettable." Under the so-called doctrine of double effect, an impermissible end can be considered permissible if it is a necessary but "unintentional" side effect of a permissible end. Israel's claim is that its "intent" is not to destroy the Palestinian people, as such, but rather to destroy Hamas, or to achieve another permissible military objective in Gaza.
This key phrase "as such" arguably excludes military objectives from consideration as genocide. Motive, or the reasons for committing a crime, is distinct from intent, or the willingness to do a particular thing, and in the case of specific intent, to achieve a particular result. Intent nearly always matters in criminal law, but motive almost never matters. While there was significant debate during the drafting of the Genocide Convention about whether motive should matter with respect to genocide, the compromise, if it can be called that, was the addition of this phrase: "as such." And no one really knows what it means?
Potential war crimes and crimes against humanity shouldn't be ignored just because they don't carry the same expressive weight as genocide.
- Shannon Fyfe
There is, somewhere, a difference between seeking to destroy a particular national group for purely military reasons and seeking to destroy a particular group out of national hatred. The distinction might be made, as it has been made in other historical examples, by claiming that if Israel could destroy Hamas another way, it would do so. But this is "the only way," therefore the destruction of a significant portion of the Palestinian population is arguably intentional, but may not satisfy the "as such" requirement (even though it is not supposed to be a motive requirement).
The judgment on appeal by the International Criminal Tribunal for the Former Yugoslavia's in the Jelisic case—Goran Jelisic was a Bosnian Serb former prison guard convicted of committing war crimes and crimes against humanity, but not of committing genocide—clarifies this difference between specific intent and motive. "The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power," it noted. "The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide."
Looking at the phrase "as such," the best way to understand it is that it requires an intent to destroy the group because of who they are. If there is no genocidal intent, then if there were an easier way to destroy Hamas, or bring back the hostages from Gaza, or obtain Palestinian land, or whatever other endgame on the part of the Israeli government, then that option would be chosen. It should be chosen. Given the Israeli military's tactics and choices evident in Gaza, Israel might meet the "as such" requirement. There seem to exist alternatives for each of these endgames, and certainly much better alternatives for bringing the hostages home—which does not, in fact, appear to be a priority of the Israeli government, given how its assault on Gaza has unfolded.
Whether the ICJ will eventually conclude that Israel has violated the Genocide Convention is one question. Whether it could be proved in a court like the ICC that an individual has committed genocide is another question. And whether the ICC's chief prosecutor would bring a charge of genocide against an individual with respect to the situation in Palestine is perhaps the thorniest question of all. The Office of the Prosecutor has extremely limited resources to carry out investigations and pursue individual cases. Karim Khan is tasked with prioritizing those limited resources to be used in the gravest situations.
But even if Gaza is deemed worthy of those resources, the Office of the Prosecutor will also consider political features of the situations. Khan has indicated that he will pursue cases with a "realistic chance of conviction" rather than a "reasonable chance of conviction," which is the language in the Rome Statute establishing the ICC. He has "deprioritized" investigating U.S. crimes in Afghanistan due to the unlikelihood of cooperation by the U.S.—and likely due to a desire to avoid alienating Washington. With respect to Israel, Khan could decline to prosecute Israeli officials altogether, instead focusing his efforts on Hamas. Whomever he chooses to prosecute, the expressive force of the word "genocide" may make him extremely unlikely to charge anyone with this crime.
If there is a value to international criminal law, and prosecutions serve a purpose, the law shouldn't be thought of as a hierarchy. War crimes and crimes against humanity and genocide are distinct crimes because they have distinct elements. By all means, evidence of genocidal intent by Israeli officials should be collected and presented in court—there is plenty of it. But potential war crimes and crimes against humanity shouldn't be ignored just because they don't carry the same expressive weight as genocide. Accountability for war crimes or crimes against humanity shouldn't be seen as somehow "lesser."
Genocide is about an attack on human beings taken collectively. Crimes against humanity are based on respect for individual human dignity. War crimes are about failures to prevent unnecessary suffering and collateral damage to non-combatants. Elements of each of these crimes can be met based on Israel's actions in Gaza, and some will be easier, and less politically fraught, than others. The expressive value of prosecutions for all these crimes should not be forgotten, if we care about groups and individual suffering alike.
