A Nonexistent Palestinian Genocide

Palestinian Authority President Mahmoud Abbas
addressing the United Nations General Assembly.
Picture from BBC News.

A few months ago Palestinian Authority President Mahmoud Abbas addressed the United Nations General Assembly and made the claim that Israel had committed a genocide during its latest military operation in the Gaza Strip.

Abbas stated “In this year, proclaimed by the United Nations General Assembly as the International Year of Solidarity with the Palestinian People, Israel has chosen to make it a year of a new war of genocide perpetrated against the Palestinian people.” Later he thanked the international community for its support saying “all of these manifestations of true solidarity constituted an important message to those who were facing genocide in Gaza.”

This is not the first time, nor will it be the last, that the Jewish state of Israel has been accused of committing genocide against the Palestinian population. From Asia to Europe people have taken to both print and digital publications offering opinion pieces alleging an Israeli genocide of the Palestinian people. But such uninformed accusations are not limited to random netizens and the random ignorant individual. President of the Center for Constitutional Rights and past Professor of Law at Yale and Columbia, Michael Ratner, is one of the most prominent people to subscribe to this theory. Even some Israeli Jews have accepted and propagated such an allegation.  

Accusations of a Palestinian genocide are of particular importance now considering Abbas’s attempts to gain admission to the International Criminal Court (ICC). As a super-national body the ICC has the jurisdiction to investigate and prosecute international crimes, including genocide, which occur in member states. If Palestine does gain admission to the ICC it will no doubt seek prosecution against Israel for genocide.

But all this begs the question, what is genocide?

Genocide is a crime and like all other crimes, both international and domestic, there is statutory language which legally defines it. Under the Convention for the Prevention and Punishment of the Crime of Genocide the international community formulated the definition of the crime as follows:

State representatives at the Genocide Convention. From
United Nations Audiovisual Library.

“Genocide means any of the following acts committed with intent to destroy in whole or in part, a national, ethnic, racial or religious group: a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) imposing measures intended to prevent births within the group; e) forcibly transferring children of the group to another group.”

The language of the Genocide Convention was adopted verbatim into the Rome Statute, the organizing treaty which established the International Criminal Court, reaffirming the definition’s acceptance and validity.

In order to meet the legal requirements of the statute two elements need to be established: 1) the victimized group is a protected group under the statute’s definition; and 2) the perpetrating party must commit one of the listed acts with the intent to destroy the victimized group in whole or in part.

Whether or not the Palestinians are a protected group under the Genocide Convention is not at issue. Over the last half century the Palestinian people have molded a unique national identity without an independent national state, one which has been recognized by every government including Israel (although Israeli policy disputes the scope of that identity). Therefore the Palestinian people are a protected group as defined by international law.

Therefore, the issue raised is not one of identity but rather identifying whether the crimes conform to meet the definition of genocide. When the provisions of the Genocide Convention were being drafted, the intent of the drafters was to define the crime of all crimes. In other words, genocide was to be considered the most severe crime ever established. Therefore the convention’s writers set a high threshold 

Moving to the second element, the criminal provision provides that the perpetrating party must have the necessary mens rea, or intent, and must commit the necessary actus reus, or act to fit within the provided definition. To meet the statutory requirements of genocide it is not enough that an actor commit the aforementioned acts without intending to destroy a group in whole or in part. Alternatively, it is not enough that the actor have just the intent to commit the crime but not engage in any of the unlawful actions.

Intent

We now move to an analysis of the Palestinian situation in light of the established legal definition of genocide.

Proponents of the genocide theory point to statements made by individual Israelis and members of the Israeli legislature, the Knesset, as proof.  An example of which was a plan articulated in a post on Facebook by the Deputy Speaker of the Knesset, Moshe Feiglin. Through his post Feiglin called for Israel to conquer the entire Gaza Strip and eliminate the Palestinian population in the area.

The fact that Mr. Feiglin published such a plan in a Facebook post implies in of itself that his scheme did not have the support of the Israeli government. Had Prime Minister Benjamin Netanyahu, and the rest of the Israeli cabinet supported such a plan there would have been no need for Feiglin to resort to Facebook to espouse his radical solution. Additionally, the fact that the Israeli government pursued a course of action contrary to Feiglin’s plan, e.g. by pulling IDF forces out of Gaza instead of reoccupying it, further shows the lack of support Feiglin’s idea had with Israeli policy makers.

Statements such as Feiglin’s don’t equate to government policy, but instead serve as an individual’s own opinion. Minus such assertions no evidence exists which points to the specific intent of the Israeli government to commit genocide. There has been no evidence to date which shows that the Israeli government has the specific intent to engage in any of the statutorily illegal acts with the objective of destroying the Palestinian people in whole or in part.

Admittedly it is difficult to ascertain an actor's true intent. Rarely will actors outwardly flaunt the fact that they intend on committing an international crime. When presented with this conundrum during the prosecution of Jean-Paul Akayesu, the International Criminal Tribunal for Rwanda (ICTR) found that intent could be surmised through an analysis of the final results of the conflict considering factors such as a party's overall capability to commit the crime and the final casualty count. Which brings us to the numbers.

The Numbers

Even if we were to accept the claims that the Israeli government intended to destroy in whole or in part the Palestinian people, the claim still fails the second part of the test regarding the actual act of destruction.

Neither the literature of the Genocide Convention or the Rome Statute clearly defines what constitutes destruction in whole or in part. While it is reasonable to infer that destruction in whole would be the extermination of the entire population of a protected group, the term destruction in part is much more ambiguous. With little guidance we are left to discern a quantifiable qualification from what we have historically found to be genocide.

During the Holocaust, the Nazis were responsible for an estimated 5.9 million Jewish deaths. According to estimates by Lucy Dawidowicz and the Jewish virtual library, the worldwide Jewish population in 1939 was about 16.7 million and the total number of Jews living in Europe was 8.8 million. The deaths of over 5.9 million Jews represented 35% of the entire worldwide Jewish population and 67% of the Jewish population of Europe.

Past the immediate effects of the Holocaust on the Jewish population, the destructive nature of Nazi public policy is still being felt today. Whereas the total worldwide Jewish population was about 16.7 million in 1939, the worldwide Jewish population as of 2012 is estimated at 13.7 million, 82.2% of the population prior to the occurrence of the Holocaust. Furthermore the Jewish population of Europe as of 2012 is 1.4 million, a 16% remnant of European Jewry prior to World War 2.

While the breadth of the immediate destruction of the worldwide and European Jewish populations is evidence of the Nazi’s intent to destroy a protected group, the inability of the Jewish population to fully recover in the 70 years since the Holocaust speak to its long term effectiveness.  

Killing fields during the Khmer Rouge. Images from
the documentary "Killing Fields."

Further genocides accorded during the Khmer Rouge, the Cambodian government was responsible for the deaths of over 2 million people, approximately 25% of the entire country’s population according to estimates by Craig Etchenson. And in 1994 of the 1.1 million Tutsis residing in Rwanda the Rwandan Government estimates that approximately 795,000 Tutsis, representing 72.6% of the entire Rwandan Tutsi population, were killed during the country’s genocide.

As previously stated, Palestinian Authority President Mahmoud Abbas claimed that Israel had conducted a genocide in the Gaza Strip through the recently concluded Operation Protective Edge (OPE). To ascertain the validity of that statement it is necessary to look at the population breakdown of the Palestinian people. As of 2012 the Palestinian Central Bureau of Statistics lists 11.6 million Palestinians worldwide, 4.8 million living in the Gaza Strip, West Bank and East Jerusalem, and 1.7 million living in the Gaza strip alone. 

According to Islamic Jihad, a militant group located in the Gaza Strip which is affiliated with Hamas, 2,143 (the number includes both militants and civilians) Palestinians were killed during the almost two month operation. The 2,143 killed represent 0.018% of the entire worldwide population of Palestinians, 0.045% of Palestinians living in the Gaza Strip, West Bank and East Jerusalem, and 0.13% of Palestinians in Gaza.

Even if we were to limit the protected group to Palestinians living in Gaza, rather than the entire world population of Palestinians or just the Palestinians living in the “Occupied Territories” including the West Bank, Gaza Strip, and East Jerusalem, the 0.13% casualty ratio pales in comparison to the 72.6% of Tutsis killed in the Rwandan Genocide, 35% of Jews killed during the Holocaust, and 25% of Cambodians killed during the Khmer Rouge. Additionally the Palestinian casualties include both civilians and combatants, while the numbers from Rwanda, the Holocaust, and Khmer Rouge represent only civilian deaths.

An explosion from an Israeli air strike on the Gaza Strip
during Operation Protective Edge. Photo from Reuters.

To lump the Palestinian deaths during Operation Protective Edge into the categorization of Genocide would in essence undermine the atrocity as a crime by devaluing the level and scope of the necessary elements. Lowering the legal standard would also open the door to including military operations within the meaning of the genocide convention.

The Palestinian death rate during Operation Protective Edge closely resembles the Iraqi death rate during the 2003 American led coalition invasion and subsequent occupation of Iraq. The Iraqi Central Organization for Statistics estimates that 37,344 Iraqis were killed during the invasion and occupation. In a country with a population estimated at 31.6 million people the number of deaths represent 0.12% of the population, only a hundredth of a percentage point lower than the 0.13% ratio during Operation Protective Edge.

Under a more expansive definition of genocide, the American led Operation Iraqi Freedom would fit within the elements of the crime of genocide. Such an expansive view undermines the purpose for codification of genocide as a crime as well as the intent of the convention’s drafters. The travaux preparatoires, the documents compiling the drafting history of the convention, show that the drafters of the Genocide Convention did not intend to extend the crime of genocide to include casualties of a protected group’s population resulting from military operations. It further establishes that the convention’s writers were focused on defining and establishing a crime of crimes, unquestionably implying that a high standard be set to meet the convention’s definition of destruction.

Considering the language of the Genocide Convention, the travaux preparatoires, and the casualty numbers from the recent Operation Protective Edge compared to those during internationally recognized genocides, in a light most beneficial to Mr. Abbas’s argument, the results show that the Palestinian deaths during Operation Protective Edge do not meet the statutory standards for the crime of genocide.  In fact it doesn’t even come close.

Abbas’s logic further fails when we consider his allegations of Israeli war crimes. In the past Abbas has accused the Israeli military of specifically targeting Palestinian civilians. Accepting his argument, such allegations imply and require an Israeli military which is highly efficient and effective. It follows that such an efficient and effective military, with complete military superiority over the combat zone, would have the capability to effectuate an assault which would yield a death toll high enough to meet the threshold requirements of the genocide convention. Yet the death toll from Israeli operation fails to meet that threshold.

Returning to the element of intent, under Abbas’s own assertions considering the military prowess of Israel, if Israel wanted to it could effectuate a genocide of the Palestinian population with little effort. The lack thereof serves as proof that Israel does not have the mens rea to commit genocide. In this case the evidence of the actor’s actions does not support the finding of intent. 

Ilan Pappe appearing on BBC News.

Abbas’s comments alleging a genocide perpetrated by Israel were not the first. In fact many have suggested that since its establishment Israel has engaged in a systemic policy to eradicate the Palestinian population. Ilan Pappe, an Israeli scholar, has alleged that Israel has been engaging in an “incremental genocide” against the Palestinian people. Such an allegation suggests that the Israeli government, since its inception in 1948, has slowly and systematically engaged in a policy to destroy the  Again we must look at the numbers.

According to the Palestinian Central Bureau of Statistics in 1948 there were 1.37 million Palestinians worldwide. As of 2012 that population has increased to 11.6 million, an overall increase close to eight times the population before the establishment of the state of Israel. This includes 1.4 million Palestinians within the 1949 Armistice Line (Israel proper), 2.7 million living in the West Bank (an estimated additional 400,000 in East Jerusalem), and 1.7 million living in the Gaza Strip. Looking just at Israel proper the Palestinian population within the Jewish state has exceeded the number of Palestinians worldwide prior to 1948. This evidence supports the very antithesis to Pappe’s argument. 

Instead of exhibiting any sign of destruction the Palestinian population has grown at an exponential rate in all relevant geographical categories. 

If we were to accept Pappe's argument there must be some evidence of the destruction of the protected group. That evidence would be a contracting population. However, as previously shown, the Palestinian population is not contracting but rather expanding. Even if we were to narrow the scope of our search to smaller increments of time Pappe's argument would require a dip in the Palestinian population similar to those seen in the Jewish, Tutsi and Cambodian populations. However, according the the Palestinian Central Bureau of Statistics, the Palestinian population has increased in every decade since 1948. 

A further flaw in Pappe's logic concerns a lack of correlation between the Palestinian growth rate and the growth rate of both the worldwide and Israeli Jewish population over the same period of time. Logically if a group was perpetrating the destruction of another protected group, it would follow that the perpetrating group's population would grow at a faster rate than the victimized group's population during the time of commission. 

Over the last 70 years the Jewish population has been unable to fully recover from the effects of the Holocaust, and has only reached 82.2% of the population, even though the atrocities of the Holocaust had ceased after 1945. Further the worldwide Jewish population in 1950 was 11,297,000 compared to 13,746,100 an increase of 21.7%.  Over the same period of time, the Palestinian population has grown from 1.37 million to 11.6 million an increase of 746.7% . Were a protracted campaign of genocide occurring the victimized group's population growth should not outpace the population growth of the perpetrating group as it has in this case. 

The continued existence of a Palestinian population in Gaza and elsewhere dismisses the possibility that Israel has attempted to destroy the whole of the protected group. Similarly, the growth and lack of contraction of the Palestinian population even in areas of Israeli sovereignty are irrefutable evidence that an Israeli policy seeking to destroy the Palestinian population in part does not exist. 

Considering Israel's sovereignty over areas with a Palestinian population of 6.2 million people, and its military effectiveness, the Israeli government has had the opportunity and the capability to commit a campaign of genocide. But when we include the actual numbers in the equation, the fact remains that there is no evidence that a genocide has taken place even in light of Israel's ability to do so. The existence of the Palestinian population in Gaza and elsewhere shows that there has not been a genocide 

In light of the evidence, acceptance of Mr. Abbas and Mr. Peppe's argument would mean that the highly efficient and effective Israeli military has carried out the least effective and least efficient genocide in human history. The numbers just don't add up. 

Why It Matters

A few months ago Al Jazeera posted an article on its English language website alleging that Jaffa, a predominantely Palestinian neighborhood in Tel Aviv, was undergoing an ethnic cleansing. The gist of the argument was that the current gentrification of the neighborhood was leading to higher housing prices which the economically poorer Palestinian population could not afford, leading them to leave the neighborhood. 

I responded by articulating the international legal standards for the crime of ethnic cleansing, and showed how the allegation that such a crime occurred in Jaffa in light of those standards was not only unsubstantiated but were frivolous and served no purpose other than to evoke irrational and emotional anti-Israeli sentiment. 

Genocide, like ethnic cleansing and apartheid, are terms which the world immediately equates with evil, even though the majority of people don't truly understand their definitions. These terms garner an emotional response and convey a wave of hatred towards the accused, usually lacking in any real objectivity. 

It's easy to just dismiss such comments like Abbas's as over dramatic and mere pandering. But it needs to be emphasized that genocide and ethnic cleansing are actual crimes, the performance of which can lead to prosecution and punishment. The danger over the use of these terms doesn't necessarily come from the partisan unsubstantiated accusation, but rather the wide and growing blind acceptance of them. 

It further explains Israel's reluctance to join or work with international organizations such as the International Criminal Court and United Nation task forces. With esteemed professionals like Michael Ratner disregarding the statutory language of the criminal provisions for a penumbra of justice, it stands to reason that were Israel to submit itself to international scrutiny it would not receive a fair and impartial critique of its actions. 

Unreasonable assertions of criminal activity only further isolate Israel from the rest of the international community by creating a double standard from which it will be judged. Instead of engaging the Israeli government regarding Palestinian issues the miss-use of these terms only serves to further entrench Israeli public opinion to the point where it has become intractable. 

This isn't to say that Israel is absolved of any and all wrong doing, as a proper investigation might reveal,  but regardless of the alleged crime the Jewish state deserves to be judged within the eyes of established international law not reactionary biased double standards. 

But all things considered the greatest injustice perpetrated by Mr. Abbas's unsubstantiated claim is the fact that this false allegation of genocide is being aimed at a people who have actually been victims of genocide, and a country created in the wake of that crime.