A recent survey of Middle East scholars found that most regard Israel’s actions in Gaza since October 2023 either as “genocide” (34 percent) or as “major war crimes akin to genocide” (41 percent). The survey’s authors note that the respondents in the survey are long-time followers of the Israeli-Palestinian conflict and that they have networks of contacts among Palestinians and Israelis who provide them with information not available to the general public.
There have been objections to this characterization and insistence that Israel is acting within the bounds of international legality. Palestinians of Gaza, to be sure, are not being shoved into gas chambers or killed in mass firing squads. What fuels the view among the Middle East scholars in all probability is the growing realization that the people of Gaza are dying not only from direct killing in military operations, but from lack of means of sustenance and absence of medical care, exacerbated by successive evacuation orders by the Israeli Army. On July 9, a group of special rapporteurs and independent experts—who are part of what is known as the Special Procedures of the Human Rights Council—issued a statement in which they said “that Israel’s intentional and targeted starvation campaign against the Palestinian people is a form of genocidal violence.”
What the Genocide Convention Says
Death caused by conditions was expressly included in the Genocide Convention’s Article II. The drafters were concerned that a population can be destroyed (that is the term they used) not only by acts of killing, but also by acts of subjecting members of a group to conditions that result in death over time. The drafters included both forms of “destruction”; one clause reads “killing members of the group,” and another reads, “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”
An early draft of the Genocide Convention gave examples of the “conditions” that might qualify as genocide. It read: “subjection to conditions of life which, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion, are likely to result in the debilitation or death of the individuals.” The drafters explained what they had in mind, in a comment immediately following that phrase, stating “This is what may be termed ‘slow death’” Continuing, they gave as an example a situation in which “members of a group of human beings are placed in concentration camps where the annual death rate is thirty to forty percent.” The drafters said that such a situation would “obviously” bespeak the intent for genocide, though they made clear that they were not setting thirty percent as a required death rate, given each case’s unique circumstances.
In the final version of the “conditions of life” provision, the mention of “housing, clothing, food, hygiene and medical care, or excessive work or physical exertion” was removed, evidently because the drafters did not want “conditions of life” to be limited to those specific deprivations. They likely wanted “conditions of life” to apply to any conditions likely to bring death.
The concentration camp example, however, reflected the World War II circumstances that were behind the Genocide Convention. There were the camps like Auschwitz and Treblinka, where many were killed outright, but where many others succumbed to the conditions. There was also the corralling of the Jews of Warsaw into a ghetto, where restrictions on food and medical care caused death. It was conditions like these that the drafters characterized as infliction of “slow death.” In the Warsaw ghetto, during the three years it was maintained, 1940 to 1943, thousands died of starvation, or of typhus and other infectious diseases. The drafters were close temporally to the events of the war. One was Raphael Lemkin, who had recently produced a detailed study of Nazi practices in a book titled Axis Rule in Occupied Europe. To be sure, Lemkin and his colleagues must have known that a population can effectively be “destroyed” by deaths that occur over time as individuals succumb out of public view.
Gaza Death Figures
A study about Gaza published in early July in the British medical journal The Lancet shows an uncanny similarity to what the drafters of the Genocide Convention described. The authors—Rasha Khatib, Martin McKee, and Salim Yusuf—estimate around 186,000 deaths in Gaza attributable to Israeli action since October 2023, and most of these were not caused by bombardment or execution.
The Lancet authors derived a figure for total deaths by including a conservative estimate of four “indirect deaths” to one death caused by military action. They explained that
“Armed conflicts have indirect health implications beyond the direct harm from violence. Even if the conflict ends immediately, there will continue to be many indirect deaths in the coming months and years from causes such as reproductive, communicable, and non-communicable diseases. The total death toll is expected to be large given the intensity of this conflict; destroyed health-care infrastructure; severe shortages of food, water, and shelter; the population’s inability to flee to safe places; and the loss of funding to UNRWA, one of the very few humanitarian organisations still active in the Gaza Strip.”
They authors arrived at their conservative estimate by using figures of “indirect deaths” from other situations of armed conflict and those of “direct deaths” reported by the Gaza Health Ministry. “In recent conflicts,” they wrote, “such indirect deaths range from three to 15 times the number of direct deaths. Applying a conservative estimate of four indirect deaths per one direct death to the 37 396 [sic] deaths reported [at the time of publication], it is not implausible to estimate that up to 186 000 [sic] or even more deaths could be attributable to the current conflict in Gaza.”
As can readily be seen, the methodology used in the Lancet study did not arrive at a precise figure for Gaza’s deaths for at least two reasons. The first is the number of deaths reported by the Gaza Health Ministry which by virtue of the difficulties on the ground may be undercounted. The other is the use of the number “four” as the multiplier, which comes from a Geneva Declaration Secretariat determination in 2008 about direct vs indirect deaths in armed conflict. On the other hand, the accuracy of the Lancet’s number of 186,000 is not what is important. The point is that large numbers of deaths are produced by conditions outside of mere military operations. For months now, doctors working at the few remaining medical facilities in Gaza have reported that most of the deaths they see come not from bombardment but from the “conditions of life,” to use the terminology of the Genocide Convention. Babies and children in general dying of malnutrition account for some of the deaths. Lack of medical facilities and medical supplies count for more. A Texas-based doctor who did a stint in a Gaza hospital told National Public Radio, “Seeing these types of deaths that are preventable in America is heartbreaking because you put your efforts into saving someone’s life and sincerely believe that you would save his life or her life, but it’s like a shock when they die because you have nothing to help them with.”
Deaths by direct infliction are, to be sure, a significant element in Gaza. Bombardment of civilian areas continues on a daily basis. In its case against Israel in the International Court of Justice, South Africa is charging both types of deaths. South Africa highlights those that qualify under each of the two key clauses of the Genocide Convention, the one on killing, and the other on “conditions of life.” Both types will be highlighted as well in the same court by Nicaragua in its case against Germany for provision of military equipment to Israel. Nicaragua will seek to prove that Israel commits genocide.
In each of the two cases in the UN court, authoritative decisions will be entered. But it is not only in the court that decisions remain to be made. Under the UN Charter, the Security Council is to deal with wars, and when it fails to do so, the General Assembly is to step in and do so itself under the Uniting for Peace procedure adopted during the Korean War. The Security Council is required by the Charter to enforce decisions of the court, which has already ruled that South Africa has made a plausible case of genocide. The Genocide Convention itself provides that when genocide is committed anywhere in the world, the states that subscribe to the Convention have an obligation to prevent or stop it. UN member states that advocate serious sanctions against Israel, like a cutoff of trade or diplomatic relations, can make a stronger case if they focus on indirect deaths.
“Genocide” is a loaded word. It is especially loaded when charged against Israel, a state whose rationale for existing is to prevent genocide against the Jews of the world. The meaning of the term, however, is clouded by its association in the public mind only with “direct deaths,” like those inflicted in the charnel houses of central Europe by functionaries of the Third Reich. The drafters of the Genocide Convention understood that extermination can be carried out not only by outright killing, but also by imposing conditions that lead to death. In Gaza, it is the “slow deaths” that most clearly demonstrate the commission of genocide.
The views expressed in this publication are the author’s own and do not necessarily reflect the position of Arab Center Washington DC, its staff, or its Board of Directors.
Featured image: Shutterstock/Anas Mohammed
