The point of genocide claims is not only legal and strategic but—as with the Russian invasion of Ukraine and the Chinese treatment of Uyghur citizens—urgent and moral, concerned both with saving lives or stemming humanitarian disaster. As I write, Gaza is being destroyed by Israeli bombs and missiles, Palestinian civilian casualties are mounting by the hour—over 11,000, more than two-thirds women and children—hospitals have been targeted, and humanitarian workers and journalists are being killed. Over a million Palestinians have been displaced, and Israeli armed forces are invading. Meanwhile Israeli settlers and authorities have unleashed a wave of terror on West Bank Palestinians. “The day of revenge is coming,” declare masked men as they murder and expel Palestinians from their villages.
In addition to debates among legal experts, a global protest movement—the largest since the Second Gulf War—has emerged, decrying Israel’s actions as genocidal and demanding a ceasefire. This genocide claim expresses outrage and grief about the destruction of bare, less “grievable” life, seeks to generate political pressure to rein in Israeli ambitions, and hopes eventually to generate international legal accountability. It also seeks to incriminate Israeli military violence by placing it in the same frame as the Holocaust, the paradigm case of genocide. For that reason, a Palestinian academic in Gaza, Haidar Eid, wrote on October 10 that the conflict is “our Warsaw Uprising moment.” In response, Israeli commentators reversed the equation by comparing their country’s bombing of Gaza to the British destruction of Dresden during World War II. For them, Palestinians, not Israelis, are the Nazis in this fatal drama.
Yet the legal question helps to explain why this claim of genocide has not gained significant traction beyond the protest movement. International law sets a high standard for proving genocide charges, suggesting this “crime of crimes” is a rare act of “rogue” states. In reality, acts of collective punishment, deportation, and even destruction of peoples lie at the foundation of modern states. Some of the many cases that abound through history meet today’s definition of genocide, but most do not. In this respect, the genocide frame on the violence that has erupted both on and since October 7 is fundamentally limited by the concept’s legal parameters. Anyone concerned with civilian protection must consider the broader history of state violence and violent resistance, and their connections to Israel and Gaza today.
Mass state violence against civilians is not a glitch in the international system; it is baked into statehood itself. The natural right of self-defense plays a foundational role in the self-conception of Western states in particular, the formation of which is inseparable from imperial expansion. Since the Spanish conquest of the Americas starting in the sixteenth century, settlers justified their reprisals against indigenous resistance as defensive “self-preservation.” If they felt their survival was imperiled, colonizers engaged in massive retaliation against “native” peoples, including noncombatants. The “doctrine of double effect” assured them that killing innocents was permissible as a side effect of carrying out a moral end, like self-defense.
They understood their presence in far-off lands as legitimate, based on civilizational and racial hierarchies. “Native” resistance was framed as illegitimate and terroristic. The Spanish thought they had been mandated by God to spread the faith and were thus justified in annexing all territories not populated by Christians in order to convert the heathens. On this reading, the natives in the jungle, not the settlers, were the aggressors. By the nineteenth century, the Christianizing mission had been augmented by a civilizing one of the “savage” natives. More recently, this colonial ideology has manifested itself in the project of “bringing democracy to the Arab world,” with Israel designated as the “the only democracy in the Middle East,” the proverbial “villa in the jungle.”
The colonial wars that won Europe most of the globe by the early 1900s enabled the breakthrough of the European modern state. Without imperial possessions and the lucrative trade in sugar and other commodities predicated on the Atlantic slave trade, European states would not have generated the surpluses necessary to pay for their military establishments and the bureaucratic apparatuses required to sustain them. And while European powers and settlers in their colonies did not set out to exterminate the peoples they conquered, they killed any who resisted, claiming that their hands were forced.
A number of lessons can be drawn from this history of expansion and mass violence. The first is that civilian destruction tends to be greatest when security retaliation reaches the level of what I have called “permanent security”—extreme responses by states to security threats, enacted in the name of self-defense. Permanent security actions target entire civilian populations under the logic of ensuring that terrorists and insurgents can never again represent a threat. It is a project, in other words, that seeks to avert future threats by anticipating them today. Such aspirations are evident in many ongoing humanitarian crises. Vladimir Putin reasons that Ukraine must be forcibly returned to the Russian orbit so it cannot serve as a launching site for NATO missiles decades from now. The Myanmarese military sought to squash separatism once and for all by expelling the Rohingya minority in 2017. And the leaders of the Communist Party of China seek to “pacify” and “reeducate” Uyghurs by mass incarceration to forestall independence strivings forever.
The second lesson is that particularly vicious reprisals occur when indigenous resistance involves attacks on the colonizer’s families—on women and children. The campaigns waged against the “Indian Mutiny” of 1857–1859, the Boxer Rebellion in China of 1900, and the Herero uprising in German Southwest Africa from 1904 to 1907 all evidence this. Adding to the bloodshed is the fact that this kind of unyielding, zero-sum demographic struggle is often exactly what is prescribed by the violent millenarian resistance movements that arise in the wake of social breakdown prompted by colonial rule. Such movements tend to view the colonizers as a single hostile entity, making settler families as targetable as military and police personnel. What some historians call “subaltern genocide,” genocide against the colonizers, has arisen in precisely these conditions of asymmetric power and violence.
As an analytical matter, it is clear that resistance is the consequence of enduring occupation or colonial rule. Observing as much does not at all justify attacks on civilians as a normative or legal matter. The historical record shows that, however terrible, violent anticolonial uprisings were invariably smashed with far greater violence than they unleashed. The violence of the “civilized” is far more effective than the violence of the “barbarians” and “savages.” The suppression of the Maji Maji uprising in German East Africa between 1905 and 1907, for example, caused at least 75,000 and perhaps 300,000 African fatalities. Throughout the five-hundred-year history of Western empires, the security of European colonizers has trumped the security and independence of the colonized.
What does all this mean in the case of Israel and Gaza today?
Many Hamas officials seem to have taken a millenarian position on violent resistance, even if the organization is now prepared to negotiate about hostages. In an interview on Arab television, former Hamas politburo chairman Khaled Mashal suggested that anticolonial struggles can last over a century and cost millions of lives. Admitting that Hamas had not consulted Palestinian Gazans about the October 7 attack, he insinuated that they must nonetheless pay the price of national liberation: “no nation is liberated without sacrifices.” When asked about the massacre of Israeli civilians, he replied that civilian casualties occur in war and that Hamas is “not responsible for them,” refusing to acknowledge the atrocities committed by Hamas forces.
As for Israel, its security analysts have long pursued a strategy of attrition to contain Palestinian resistance, a strategy they referred to as “mowing the grass”—targeted assassination and occasional bombing. The outlook is the contemporary expression of Vladimir Jabotinsky’s famous “Iron Wall” argument from 1923, in which the Revisionist Zionist leader argued that Palestinian resistance was understandable, inevitable—and anticolonial. Speaking of Palestinians, Jabotinsky wrote that “they feel at least the same instinctive jealous love of Palestine, as the old Aztecs felt for ancient Mexico, and their Sioux for their rolling Prairies.” Because Palestinians could not be bought off with material promises, Jabotinsky wanted the British Mandate authorities to enable Zionist colonization until Jews, then a tiny minority of Palestine, reached a majority. “Zionist colonisation must either stop, or else proceed regardless of the native population,” he concluded. “Which means that it can proceed and develop only under the protection of a power that is independent of the native population—behind an iron wall, which the native population cannot breach.”
Hamas breached the “iron wall” of the Gaza border on October 7. In response, we are now witnessing the crystallization of Israel’s attempt at a permanent security solution. Having failed to “manage the conflict,” and interpreting Hamas’s massacre as a Holocaust-like trauma, its leaders are now declaring that these Palestinian “Nazis” should never again pose a threat to Israel. With its air and ground assaults, the Israeli government seeks not only to destroy Hamas as a political and military entity—a security aim—but to corral much, if not the entire, Palestinian population to southern Gaza possibly in order to make a permanent buffer zone of the north and, eventually, to push Gazans across the border into Egypt.
The strategic logic is presumably that the pressure of the ensuing humanitarian disaster will force the UN and especially the Arab world to resettle Palestinians—a permanent security aim. A think tank close to the government, the Misgav Institute for National Security and Zionist Strategy, has already formulated a grand plan to this end. A far-right Israeli minister even advocates recolonizing Gaza with Jewish settlers. In other words, to ensure that Palestinian militants can never again attack Israel, its armed forces are subjecting two million Palestinians to serial war crimes and mass expulsion. “Our goal is victory,” Israeli prime minister Benjamin Netanyahu declared on October 16, “a crushing victory over Hamas, toppling its regime and removing its threat to the State of Israel once and for all.” The Minister of Defense, Benny Gantz, echoed this notion: “Israel cannot accept such an active threat on its borders.” Already on October 14, the United Nations Special Rapporteur on the situation of human rights in the occupied Palestinian Territories warned of a new Nakba. Israeli leaders have embraced this language themselves. Avi Dichter, agricultural minister and a member of the security cabinet, spoke this week of “rolling out the Gaza Nakba.” Before him, Knesset member Ariel Kallner wrote on social media, “Right now, one goal: Nakba! A Nakba that will overshadow the Nakba of 48. Nakba in Gaza and Nakba to anyone who dares to join!”
If Western states support this solution for Israeli permanent security—as the United States appears to be with its budgeting of refugee support in neighboring countries under the guise of a “humanitarian” gesture—they will be continuing a venerable tradition. During, between, and after both twentieth-century world wars, large-scale population transfers and exchanges took place across the Eurasian continent to radically homogenize empires and nations. Millions of people fled or were expelled or transferred from Turkey, Greece, Austria, Italy, India, Palestine, Central and Eastern Europe. Progressive Europeans reasoned then that long-term peace would be secured if troublesome minorities were removed. This ideology—which the governments of Russia, China, Turkey, India, and Sri Lanka share today—maintains that indigenous and minority populations must submit to their subordination and, if they resist, face subjugation, deportation, or destruction. Antiterrorism operations that kill thousands of civilians are taken to be acceptable responses to terrorist operations that kill far fewer civilians.
Indigenous and occupied peoples, then, are placed in an impossible position. If they resist with violence, they are violently put down. If they do not, states will overlook the lower-intensity but unrelenting violence to which they are subject. Right now, Western and even many Arab states are prepared to indefinitely tolerate the unbearable conditions in Gaza and the West Bank while attempting to broker a lasting peace in the Middle East without resolving the Palestinian struggle for liberation, whatever form that might take. “There is violence in this insistence on nonviolence by the international community,” Abdaljawad Omar, a graduate student at Birzeit University in Ramallah, wrote on November 9, “because it is effectively an invitation for Palestinians to lie down and die.”
Indeed, nonviolent resistance to this state of affairs is ignored, demonized, and brutally suppressed. Many U.S. states and Germany virtually criminalize the Boycott, Divestment and Sanctions movement as anti-Semitic, for example. The March of Return in Gaza from 2018 to 2019 was met with Israeli sniper fire that killed 233 and injured and maimed nearly 6,000 Palestinians. Local Palestinian leaders who advocate nonviolent protection of their communities from settlers, like Issa Amro in Hebron, are harassed by Israeli authorities. As Middle East analyst Helena Cobban has observed in these pages, Hamas thus reasons that Palestinians have nothing to gain by conforming to a U.S.-led “rules-based international order” that has forgotten about them.
The totality of these considerations suggests some of the limitations of the ongoing genocide debate. While the concept of genocide is used by scholars in a broader explanatory sense, it is also being invoked today as a legal category to accuse Israel of the gravest international crime. While actions can be condemned as genocidal for political mobilization, legally speaking a genocide cannot be unilaterally declared. Rather, courts prosecute individuals for acts of genocide, usually along with war crimes and crimes against humanity. That time may well come. Karim Khan, the International Criminal Court’s prosecutor, has declared that the court has jurisdiction over the territory on which the conflict is taking place and that he is observing the conflict closely. But so far, he is talking generally about war crimes, not genocide.
Should Khan go looking for evidence to support the claim of genocide that has been advanced against Israel, it might seem that he does not need to look very far. Israeli politicians and military personnel have made numerous statements with genocidal connotations, asserting the depravity (“human animals”) and collective guilt of Palestinians in Gaza for Hamas’s mass murder of Israelis on October 7. On October 28 Netanyahu compared Hamas to Israel’s Biblical enemy Amalek. “Now go and smite Amalek,” reads the Biblical passage, “and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.” It is sometimes forgotten that the United Nations Convention on the Punishment and Prevention of Genocide (UNGC) of 1948 prohibits “direct and public incitement to commit genocide.” A former IDF intelligence officer observed that “just as Hamas removed all red lines in targeting civilians, so too will Israel retaliate.”
Even so, proving that individual Israelis have committed acts of genocide is extraordinarily difficult given the parameters set by international law. That is no accident. When state parties to the UNGC negotiated in 1947 and 1948, they distinguished genocidal intent from military necessity, so that states could wage the kind of wars that Russia and Israel are conducting today and avoid prosecution for genocide. The high legal standard stems from the restrictive UNGC definition of genocide, which was modeled on the Holocaust and requires that a perpetrator intend to “destroy, in whole or in part, a national, ethnical, racial or religious group, as such” (the dolus specialis) in at least one of five prescribed ways (the actus reus). The words “as such” are widely regarded as imposing a stringent intent requirement: an act counts as genocide only if individuals are targeted solely by virtue of their group membership—like Jews during World War II—and not for strategic reasons like suppressing an insurgency. Despite many assertions of Palestinian collective guilt by Israeli leaders, they also insist that the IDF targets Hamas as a security threat, and not Palestinians “as such.” If the Holocaust is unique, as commonly asserted, how are other cases of mass violence against civilians supposed to measure up? The point is that it is very difficult to do so.
In other words, states would not permit the UNGC to inhibit their right to pursue permanent security, whether against internal or external enemies. The staggering scale of postwar violence perpetrated with impunity testifies to their success. It is true that states agreed on other instruments, like the Geneva Conventions, as a “restraint in war,” but they have also done their best to avoid such restraints. Together, the United States and Russia have killed many millions of civilians in their respective imperial wars in Korea, Vietnam, and Chechnya; so have postcolonial states like Nigeria and Pakistan in fighting secessions. Genocide allegations were leveled in some of these cases in global campaigns like the one we see now, but none stuck, and they are largely forgotten in the annals of mass violence against civilians. That prospect faces Palestine advocates today, because successful analogies with the Holocaust are virtually impossible to make—especially by Palestinians against Israel, for which the Holocaust memory is a state project.
Adding to the difficulty of establishing genocidal intent is the uncertainty in international humanitarian law about the legality of civilians killed “incidentally” in the course of attacking legitimate military targets. While the majority of international lawyers agree that civilian deaths are acceptable so long as they are not disproportionate in relation to the military advantage sought, others argue that bombing crowded marketplaces and hospitals regardless of military objective is necessarily indiscriminate and thus illegal.
Needless to say, Israeli officials insist that they abide by international law by targeting only Hamas and issuing warnings to civilians. Their order for Palestinians to move to the south of Gaza has also been defended as an attempt to separate the civilian population from Hamas fighters. Most Western states—including the United States—accept this reasoning, finding that Hamas’s use of “human shields” to be the relevant cause of civilian casualties and thereby justifying Israel’s indiscriminate attacks. They go far in excusing all Israeli conduct in the name of its legitimate self-defense; the US even seems to have demurred on whether the Geneva Conventions are applicable to Palestinian territories. It is thus unsurprising that they have not pressed the Israeli government to explain how cutting off water, food, and power to Gaza—a “war of starvation” as the Euro-Med Human Rights Monitor put it—is a legitimate military tactic, one not covered by the UNGC, which declares one genocidal predicate act to be “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” But if so-called humanitarian pauses are occurring to allow in a little, if grossly inadequate, aid, and the “total siege” is lifted after the military defeat of Hamas (should it happen), it will be difficult to argue in a legal context that Israel’s strangling of Gaza was a genocidal act.
The Israeli human rights group Breaking the Silence has observed the operation less of genocide than of a particularly brutal form of deterrence: the “Dahiya Doctrine,” which, they argue, dictates “disproportionate attacks, including against *civilian* structures and infrastructure.” This is clearly illegal. Making a similar point, American journalist Thomas Friedman wrote in an op-ed that Israel’s conduct was designed to signal to its enemies that none could “outcrazy” it. To specify what he meant, he coined the term “Hama rules,” referring to Syrian president Hafez al-Assad’s ruthless killing of 20,000 Islamist rebels in the town of Hama in 1982. On this counting, Israel is well on the way to reaching that terrible total. Excessive reprisals, we should recall, are a staple of colonial warfare and state consolidation.
Regardless of any legal question of genocide, Israel’s supporters find themselves tacitly condoning the ongoing slaughter of thousands of Palestinian civilians. A considerable portion of their publics understandably reject this outrageous state of affairs. They are unimpressed by legal hairsplitting about the UNGC’s requirement that people are killed “as such,” meaning solely on the grounds of their identity—the genocidal intent of destroying the enemy—rather than by the military logic of defeating them. For the fact is that whether Israel is committing genocide or erecting a new “iron wall” of defense, masses of Palestinians are being killed and possibly expelled. It is a distinction without a difference for the victims.
Seen in this light, the protest movement’s allegation of genocide can be understood as a symptom of the “utter failure of international law in responding to war crimes and crimes against humanity (including apartheid),” as legal scholar Itamar Mann has observed. The claim also reflects the “truth” of the victim’s perspective. Since genocide is a synonym for the destruction of peoples, whether the killing and suppression of their culture is motivated by destruction “as such” or by deterrence, the experience is the same: a destructive attack on a people, and not just random civilians. But the UNGC does not reflect the victim’s perspective. It protects the perpetrators: states that seek permanent security.
So far, most Western states have done the same, closing ranks in support of Israel. Hamas is solely responsible for the current conflict, they say. Missing from this view has been a recognition of any of the history that led to it. For instance, most Palestinians in Gaza are not Gazans but refugees from the Zionist cleansing of their villages in 1948. Those who want to go back to them, now destroyed, recall the UN General Assembly Resolution 194 (III) of December 11, 1948, which reads that Palestinian “refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date.” Neither have most states in the Global South forgotten the Palestinian right of self-determination. They ask not only whether Israel has a right to exist—which is the usual question in the West—but whether Palestine does as well. For this reason, while they deplore Hamas’s murder of Israeli civilians, they do not regard the attack as “unprovoked,” like most Western states. Of course, Hamas’s atrocious attacks make the prospect of living peaceably with Israeli neighbors impossible for the moment.
The Jewish historian of nationalism Hans Kohn observed a similar state of affairs when he left Palestine after the 1929 massacre of Jews in Hebron. Like Jabotinsky, he understood the violence as a colonial uprising. Unlike Jabotinsky, he thought Zionist colonization behind the iron wall of the British military was untenable, because it was erected against the majority Arab population and would provoke endless colonial warfare. The terrible events since October 7—and indeed since the Zionist project of demographically restructuring Mandate Palestine via mass immigration beginning in the 1920s—testify to his prescience.
Kohn’s vision of a binational state in Palestine was dashed by the “iron wall” logic of other Zionists. Today the Palestinian political theorist Bashir Bashir talks of “egalitarian binationalism” as a workable arrangement that respects the independent nationalities of Palestinians and Israelis while binding them in an equitable polity. Maybe the ghost of Kohn could return one day. In the meantime, we must recognize that the law of genocide does not exhaust the morally abhorrent operations of permanent security. Unless the conditions of permanent insecurity are confronted, permanent security aspirations and practices will haunt Palestinians and Israelis.
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