The Israel genocide debate thread

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This week, the International Association of Genocide Scholars announced that it had passed a resolution determining that Israel was guilty of genocide in Gaza, according to international law.

As part of its evidence, the association cited a slew of human rights groups that had come to the same conclusion — that the Jewish state had perpetrated the crime of crimes.

The statement did not note, however, that some of those conclusions were based on reinterpretations of the legal definition of genocide, and not the established reading of the law cited in the association’s resolution.

By including the findings of the outside groups in its attention-grabbing resolution, the association played into what critics say is a longstanding pattern of international groups reinterpreting international legal definitions in accusations leveled against Israel, including charges of alleged apartheid, and claims related to Palestinian statehood and the status of refugees.

“It’s completely eroding international law and standards. Words no longer matter, laws no longer matter. What’s the point of having laws on the books and definitions that you can change whenever you want?” said Mark Goldfeder of the National Jewish Advocacy Center legal group. “From a more sinister perspective, if you apply the law everywhere in one way, but differently when it comes to the Jewish state, there’s a word for that.”

Orde Kittrie, a former attorney at the US State Department who now teaches law at Arizona State University, said the effort to change definitions to fit Palestinians’ claims had long been promoted by Ramallah before the issue became supercharged by the Gaza war.

In 2011, Palestinian Authority President Mahmoud Abbas advocated for “the internationalization of the conflict as a legal matter.”

“Part of that is, if there’s a crime that you want to accuse Israel of and Israel doesn’t fit the definition, ‘I’ll change the definition,'” said Kittrie, who is also a senior fellow at the Foundation for Defense of Democracies.

The International Association of Genocide Scholars resolution declared Israel guilty as per the United Nations Convention for the Prevention and Punishment of the Crime of Genocide. But its decision cited reports by groups, including Amnesty International and B’Tselem, which argued that Israel was guilty of genocide even if its actions did not meet the “narrow” standard accepted by the UN.

Genocide in international law is determined by a strict legal definition, with a high threshold for proof, particularly when determining intent. The Genocide Convention, a 1948 UN agreement, defined genocide as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”

Prosecutors rarely need to prove a specific motive to prosecute a crime, although a suspect’s mental state plays a role in criminal proceedings. If a suspect is charged with robbing a bank, prosecutors do not need to prove his motive to convict him, only that he committed the crime. An exception is hate crimes, where prosecutors need to prove a perpetrator was motivated by bias against a protected group. Like genocide, the bias requirement for hate crimes is difficult for prosecutors to prove.

The UN’s International Court of Justice (ICJ) has said that, absent evidence of a genocidal plan, prosecutors must infer intent from the pattern of a state’s actions, and that genocidal intent must be “the only inference that could reasonably be drawn from the acts in question.” If a party in a conflict intends to defend itself, and also contributes to the destruction of a group, it does not constitute genocide.

On page 101 of the 296-page report, Amnesty said it considered the established definition of genocide “an overly cramped interpretation of international jurisprudence and one that would effectively preclude a finding of genocide in the context of an armed conflict.”

B’Tselem, in its report accusing Israel of genocide, complained that the “legal definition is narrow,” and that past cases of genocide “do not align with the stringent legal definition.”

“This report relies on the legal definition of genocide as outlined in the UN Convention, but adopts a broader analytical framework,” the report said.

Sara Brown, a member of the genocide scholars association who criticized its Gaza resolution, called the use of outside groups’ findings to underpin genocide determinations a form of “citation washing.”

“It’s so hard to trace those sources all the way back to their origins. It’s so muddled,” she said. “How many people are going to actually do the work to see the resolution, to ask about the process? No, they’re going to see that, ‘Genocide experts agree.’ Well, we don’t.”

A spokesperson for the association said its scholars based their work on the UN genocide convention, though most members abstained from voting on the resolution.

“In terms of the scholarly community, there is a relationship between each scholar and the way that they define genocide,” said spokesperson Emily Sample.

According to Brown, the association no longer requires members to be scholars or have credentials, allowing agenda-driven activists into the process.

High bar
Last year, the Irish government sought to reinterpret the definition when Ireland joined South Africa’s case, accusing Israel of genocide at the ICJ.

Then-Irish Minister of Foreign Affairs Micheál Martin said, “Ireland will be asking the ICJ to broaden its interpretation of what constitutes the commission of genocide by a state.”

In its submission to the ICJ, Ireland sought to broaden the definition of intent, arguing that a perpetrator of genocide need not have that “purpose” to be guilty, only to know that a “probable consequence” of their actions could contribute to the destruction of a group.

Supporters of the legal reinterpretations argue that the updated definitions are necessary to account for various ways the world has changed since World War II.

Philippe Sands, an international legal scholar who has appeared before the ICJ, argued in an interview last month with The New York Times that a broader definition for genocide was more in line with the meaning of the term as originally conceived.

“My own personal view is that definition is wrong. It sets the bar far too high,” Sands said of the language adopted by the ICJ. “To say that you’ve got to have only one intent makes it very, very difficult to prove.”

Looming large over the debate is the Holocaust, which formed the impetus for the establishment of the international legal system and the outlines for crimes against humanity. The term genocide was coined by the Polish Jewish attorney Raphael Lemkin in 1944 because no terminology in international law captured the enormity of the crime. The Nazi genocide remains the archetype of genocide and the model on which the Genocide Convention is based.

Both sides have pointed to the irony of using that legal system to accuse the Jewish state of genocide. Israel’s opponents accuse the state of becoming the perpetrator of genocide, while its defenders say a legal system established on the ashes of Jewish genocide victims is being weaponized against Jews.

“The Nazis began by changing the law to make antisemitism lawful and corrupting the judiciary to apply those discriminatory laws. History is repeating itself. UN ‘investigations’ are defined to find the Jewish state guilty,” said Anne Bayefsky, president of the Human Rights Voices nonprofit and director of the Touro Institute on Human Rights and the Holocaust. “All of it does enormous lasting damage to the rule of law for everyone.”

But Prof. A. Dirk Moses, a genocide scholar at the City College of New York, said the law was continually evolving based on interpretations employed by the ICJ.

“ICJ jurisprudence develops with each case; it’s not set in stone, in particular because the ICJ is not bound by previous judgments,” Moses told The Times of Israel.

Incestuous cycle’
Human rights monitors like Amnesty and Human Rights Watch do not have formal legal authority, but their reports garner widespread media coverage that drives public discourse. The allegations are picked up by politicians and protesters and used to demonize Israel, with no attention paid to the fact that they employ changed definitions.

Their conclusions are also used by the UN and to build cases in international courts, which could result in the formal codification of their changes.

Prof. Shannon Fyfe, a scholar of legal philosophy, ethics and international conflict at the Washington and Lee University School of Law in Virginia, said reinterpretations of genocide like Ireland’s were not counter to the wording of the law, though, only to previous interpretations.

“This is an area where there is minimal jurisprudence, and none of the precedent in these international courts is legally binding on future decisions,” Fyfe said. “They are arguing for a different interpretation, likely due to the fact that the current standard for establishing genocidal intent is hard to meet.”

To formally change the definitions of international crimes, the treaties establishing those definitions would need to be amended, a difficult process that has not happened, Kittrie said.

“These redefinitions, they’re not taking advantage of, shall we say, ambiguity in the wording of the treaty. They’re really doing violence to the language of the treaty,” Kittrie said. “They’re not trying to change the wording of the treaties. Instead, they are saying, ‘Well, black means white. Yeah, the treaty says this, but the real definition is this other thing.'”

According to Fyfe, the legal authorities have not yet formally adopted the expanded definitions. The ICJ has not adopted the changed definition or found Israel guilty of genocide and the case will likely take years to resolve.

While a finding of genocide against Israel would not automatically redefine the crime in the Hague, due to the court not being bound by precedent, the same cannot be said for the court of world opinion, where the meaning of humanity’s most heinous atrocity may already be undergoing revision to Israel’s detriment.

“I have not seen legal institutions doing this reinterpreting,” Fyfe said, “but the legal institutions and what they are saying is such a narrow slice of what we see in the news.”

The family of Raphael Lemkin, the Polish-born Jewish jurist who coined the term “genocide” and helped draft the 1948 Genocide Convention, has filed a formal complaint with Pennsylvania authorities demanding that a US nonprofit stop using his name.

The letter, submitted with the support of the European Jewish Association, was addressed to Governor Josh Shapiro and to the state’s Bureau of Corporations and Charitable Organizations. It claims that the Lemkin Institute for Genocide Prevention, founded in 2021 and based in Pennsylvania, misuses the name in ways that mislead the public and undermine Lemkin’s legacy.

According to the complaint, the Institute “represents itself as an embodiment of Mr. Lemkin’s ideology,” while its “policies, positions, activities and publications are anathema to Mr. Lemkin’s belief system.”

The family’s lawyers cited possible violations of state and federal law, including unauthorized use of a name, false endorsement, and cybersquatting. They stressed that the family never gave permission for the institute to use the Lemkin name.

A political agenda disconnected from legacy
Joseph Lemkin, a relative who has spoken on behalf of the family, told The Algemeiner that the relatives first wrote to the institute requesting a voluntary name change and are still waiting for a response. “We are determined to stop this misuse,” he said. “If necessary, we will take the matter to court.”

The dispute has sharpened because of the Institute’s repeated accusations against Israel. Just days after Hamas’s October 7 massacre, the group accused Israel of committing “genocide,” and more recently it welcomed a UN Commission of Inquiry report making the same allegation.
Critics argue that these statements, combined with the use of Lemkin’s name, serve to advance a political agenda disconnected from his original legacy.
Jewish leaders and scholars have strongly criticized the institute, saying that such claims distort the meaning of the very term Lemkin created to describe the destruction of European Jewry during the Holocaust. They argue that labeling Israel’s actions as “genocide” damages the credibility of the concept itself and desecrates Lemkin’s memory.

According to a copy of the complaint reviewed by The Jerusalem Post, the Institute has also issued statements condemning Israel for “terrorism” against Hezbollah, describing Hamas as a response to European imperialism, and accusing the United States of complicity in genocide.

The family and the European Jewish Association argue that such positions, made under the Lemkin name, mislead the public, contradict the jurist’s legacy, and may constitute violations of laws concerning misappropriation of name and false advertising.

Responding briefly to the complaint, Institute director Elisa von Joeden-Forgey said the name was chosen in 2021 “to bring his name back into public discourse,” and noted that the organization had asked for clarification on the legal basis of the claims.

Protecting Lemkin's legacy
Family representatives emphasize that this is not about silencing criticism of Israeli policy but about protecting the integrity of Raphael Lemkin’s legacy. “Any organization has the right to criticize Israel,” their counsel told eJewishPhilanthropy, “but they shouldn’t do it in the name of somebody for whom that would be contrary to his legacy.”

The filing marks the first formal complaint by the Lemkin family to state authorities in Pennsylvania. Relatives say it reflects their determination to protect the name and moral authority of the man who gave the world the concept of genocide.

The matter now awaits responses from the governor’s office and the bureau that oversees charities, placing the dispute firmly in the public