POLITICO (“Elizabeth Warren says she believes Israel’s war in Gaza will legally be considered a genocide“):
Sen. Elizabeth Warren believes international officials could find that Israel’s assault on Gaza legally constitutes a genocide, she said during an event at a local mosque last week.
“If you want to do it as an application of law, I believe that they’ll find that it is genocide, and they have ample evidence to do so,” Warren (D-Mass.) said Friday while taking audience questions during an event at the Islamic Center of Boston in Wayland, Massachusetts. A video of Warren’s comments posted on X by a GBH News reporter began circulating Monday. Warren’s office confirmed the senator’s remarks to POLITICO.
The video is embedded here:
Warren was asked about a ruling from the International Court of Justice that found it was “plausible” Israel has committed acts of genocide in Gaza, and about her own opinion on the matter. A spokesperson for Warren said in a statement to POLITICO Monday that the senator “commented on the ongoing legal process at the International Court of Justice, not sharing her views on whether genocide is occurring in Gaza.”
Warren has faced pressure from her left flank since the start of the crisis in Gaza. The progressive senator initially voiced full-throated support for Israel in the wake of Hamas’ Oct. 7 attack. But as international criticism built over Israel’s military response, far-left groups began protesting outside of her offices and Cambridge home, calling on her to advocate for a lasting cease-fire in Gaza and to stop further U.S. military aid to Israel.
Warren has grown increasingly vocal in her criticism of Israeli Prime Minister Benjamin Netanyahu’s administration in recent months. In January, she floated the idea of imposing restrictions on military aid to Israel, saying on X that the U.S. “cannot write a blank check for a right-wing government that’s demonstrated an appalling disregard for Palestinian lives.” In the wake of the Israeli drone strikes that killed seven aid workers last week, including a U.S.-Canadian dual citizen, Warren told CNN that Congress “has a responsibility to act,” and “cannot approve the sale of arms to a country that is in violation” of U.S. laws, including laws surrounding access to humanitarian relief.
At the mosque, Warren said the focus on the war in Gaza should go beyond a “labels argument.”
“For me, it is far more important to say what Israel is doing is wrong. And it is wrong,” she said. “It is wrong to starve children within a civilian population in order to try to bend to your will. It is wrong to drop 2000-pound bombs, in densely populated civilian areas.”
Times of Israel (“US Sen. Warren: World Court has ‘ample evidence’ to find Israel guilty of genocide“) adds:
United States Sen. Elizabeth Warren believes Israel will be found guilty of genocide in the International Court of Justice, according to comments she made at a Boston mosque last week.
“If you want to do it as an application of law, I believe that they’ll find that it is genocide, and they have ample evidence to do so,” the Democratic senator could be seen saying in a video her staff posted to social media on Monday, in response to a question from the audience on whether she thinks “Israel is committing a genocide.”
[…]
Proceedings are ongoing in the ICJ, in The Hague, the Netherlands, to examine South Africa’s claim that Israel’s aerial and ground offensive in Gaza, launched after Hamas’s October 7 massacre, is aimed at bringing about “the destruction of the population” in the Palestinian enclave.
Israel rejects the accusations as false and libelous, saying it respects international law and has a right to defend itself after some 3,000 Hamas-led terrorists burst across the border into Israel on October 7, killing some 1,200 people and seizing 253 hostages amid wholesale acts of brutality and sexual assault.
Warren is a first-rate legal scholar, although one who specializes in bankruptcy law, not international humanitarian law. While I have substantial training in the latter, I’m by no means an expert and there’s frankly rather little precedent against which to judge this case.
The UN Office on Genocide Prevention provides this background:
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.
Israel is, in any case, a signatory to the convention (since March 1950), as is essentially every developed country on the planet save (for reasons I don’t know) Japan.
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.
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.
They go on to emphasize that
The popular understanding of what constitutes genocide tends to be broader than the content of the norm under international law. [emphasis mine] 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
- A physical element, which includes the following five acts, enumerated exhaustively:
- 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.”
The definition is incredibly unhelpful. It is impossible to wage a war and not “destroy, in whole or in part,” the adversary. It is inherent in the exercise. Hell, even if Israel were magically able to kill only Hamas fighters, leaving not a scratch—or even inflicting serious mental harm—on any other Palestinian, they would still be destroying part of a national group.
And, indeed, the Application from South Africa seems to demand that there be no killing at all.
. . . must cease forthwith any acts and measures in breach of those obligations, including such acts or measures which would be capable of killing or continuing to kill Palestinians, or causing or continuing to cause serious bodily or mental harm to Palestinians or deliberately inflicting on their group, or continuing to inflict on their group, conditions of life calculated to bring about its physical destruction in whole or in part . . .
This is sheer lunacy. While Israel has quite possibly committed war crimes by insufficiently protecting Palestinian noncombatants—and in cutting off electricity, food, and fuel to the civilian population–there is simply no question that it has the right to use military force against Hamas fighters in the wake of the October 7 massacre. None.
Conducting a war in a densely populated urban setting has, predictably, led to a humanitarian disaster. The ICJ has summarized the extent of the horrors ably.
While it’s quite arguable that Israel could and should have taken additional steps to mitigate said disaster, it’s simply indisputable that, if it had the intent to wipe out the entire Palestinian population in Gaza, it could easily have done so long before now. They have reportedly killed some 30,000 people, some significant number of whom were Hamas fighters and thus legitimate military targets. There are some 600,000 people in Gaza. That’s a humanitarian nightmare and, again, quite possibly a basis for war crimes charges. Genocide, however, is an absurd claim.
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Author: James Joyner
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