“The Term ‘Genocide’ Has Become a Burden for Lawyers”

Interview

Sabine Swoboda outlines in our interview the definition of genocide in accordance with international law and what this definition means for the situation in Gaza.

Discussions about the situation in the Gaza Strip often become emotionally charged. Terms such as genocide and war crimes get bandied about. Professor Sabine Swoboda lays out what these terms mean in the legal context, explains the significance of the arrest warrants issued for Hamas leaders and Israeli politicians and the degree to which humanity can actually be upheld within the framework of international humanitarian law. Swoboda heads the Chair of Criminal Law, Criminal Procedure Law and International Criminal Law at Ruhr University Bochum.

From a legal perspective, which criteria must be met so that an act constitutes genocide?
According to international law, the key factor is the intent on the part of the perpetrators. It must be possible to prove that a person or a state had the intention to physically destroy a certain group of people or parts of this group. This group of people must be characterized by ethnic, racial, religious or national criteria. Importantly, the intention to commit genocide must be the only plausible motive for the violence.

Does the number of victims not matter at all?
No, it doesn't. For an act of genocide it's not necessary for a single person to be killed. All that's required is that the intention to commit genocide can be proven - in addition to the physical criminal act, for example, the infliction of serious physical or mental harm or the deliberate infliction of conditions of life calculated to bring about the physical destruction of the persecuted group in whole or in part.

What does the legal definition mean for the situation in the Gaza Strip?
In my view, the criteria for genocide are not fulfilled, because the intention to commit genocide is not the only plausible motive for the use of violence. Israel justifies its attacks in the Gaza Strip with the right to self-defense and with the aim of freeing the hostages. This is permitted under international law, albeit perhaps within narrower limits than Israel is currently exercising.

Can both individuals and states be accused of genocide?
Yes, they can. However, the hurdles for proving genocide are extremely high, especially in the case of states. It's difficult enough to prove genocidal intent on the part of individuals; it's even harder to prove it for states.

There are many right-wing extremists in the Israeli government who express racist, destructive views; some of these statements verge on genocidal intent. But even among these people, other plausible motives for violence do exist, namely self-defense. Therefore, even for these individuals, it's not possible to assert that genocide is the only plausible intention for the violence in Gaza.

What then is the significance of the International Court of Justice imposing measures on Israel to prevent genocide in Gaza?
South Africa has brought a case against Israel before the International Court of Justice (ICJ), alleging that Israel is not complying with the Genocide Convention. However, this doesn't mean that the ICJ is convinced that the state of Israel is committing genocide. Under the Genocide Convention, states have a duty to prevent genocide, in addition to being prohibited from committing genocide. This obligation is invoked by the ICJ. In the orders on provisional measures, it doesn't say that the court believes that the state has committed genocide. Rather, it says that there's a plausible risk of individuals committing acts of violence with genocidal intent and that Israel has a duty to prevent such acts on its territory. This is why the ICJ has ordered Israel to allow humanitarian aid, for example.

When can we expect a ruling?
The ICJ will probably not rule on the matter for years. The reasons given by the court for the measures imposed so far are quite contradictory; but it's trying to somehow get a foot in the door in this conflict in order to prevent further human rights violations.

In addition to the International Court of Justice, the Prosecution Office of the International Criminal Court has also intervened. It has filed an application for warrants of arrest against Israeli Prime Minister Netanyahu and Defense Minister Galant as well as three Hamas leaders. The Prosecutor alleges that there are reasonable grounds to believe that war crimes and crimes against humanity have been committed.
It's very likely that war crimes and crimes against humanity were committed in Gaza. First of all, however, it must be noted that no arrest warrants have yet been issued by the court; they have only been applied for by the prosecution. This has primarily great symbolic value. It signals that it's not advisable to cooperate with this current Israeli government any more. We're already seeing a delegitimization effect: Minister Benny Gantz left the Israeli war cabinet in June 2024. None of the moderate politicians wants to work with Netanyahu anymore. Arrest warrants or applications for arrest warrants often politically isolate the people subject to them.

How likely is it that the applications will be successful? And what would that mean in practice?
It's highly unlikely that any of the intended criminal proceedings will be brought to a conclusion. The International Criminal Court (ICC) doesn't allow trials in absentia, which means that the accused must appear in court in order to be tried. It's unlikely that the Hamas leaders will ever be arrested or that Israel will surrender the requested individuals from its own government to the court. Although other ICC member states would have the obligation to arrest the requested persons and surrender them to the ICC, Netanyahu and Galant can simply refrain from traveling abroad so that other states don't find themselves in the position of having to hand these persons over to the ICC.

But in that case, these individuals would at least be severely restricted in their freedom of movement.
Yes and no. They simply wouldn't be able to travel to the 124 states that are members of the International Criminal Court. The USA and Russia, for example, are not among them.

How should the terms genocide, war crimes and crimes against humanity actually be weighted in legal terms?
The public often considers genocide to be the most serious crime. From a legal viewpoint, however, all core crimes are of equal gravity. War crimes and crimes against humanity occur more frequently and are easier to prove. In my opinion, the term genocide has now become a legal burden.

Why is that?
Because the term is politically charged and is sometimes misused for propaganda. In many cases, it's no longer about the actual cause. As soon as the accusation of genocide is made, diplomatic solutions become virtually impossible. Propaganda using the term genocide often only serves to incite violence. The idea of international law, however, is to introduce rules and order into a conflict in order to protect the civilian population.

Originally, the concept of genocide was a real legal achievement. Today, however, there are other aspects of international law that must be updated. Above all, the law of international conflict, which is outdated in many places, must be adapted to the current realities of conflict, and so must the law governing war crimes.

Which rules, for example?
I hope, for instance, that the International Criminal Court will investigate the manipulative tactics of Hamas. There's evidence that Hamas is grouping civilians - typically women and children - around central military locations. On the one hand, this can be read as Hamas hoping to protect its military assets. But on the other hand, the actions can also be interpreted as Hamas wanting to produce images of casualties in order to turn the world against Israel. Iran's Ayatollah Ali Khamenei has congratulated Hamas on its tactics of warfare and how they've delegitimized Israel. This delegitimization is facilitated by the fact that the Israeli government has moved further and further to the right in recent years and current members of the government hold racist views.

How might the International Criminal Court legally classify Hamas' actions?
Essentially, these actions constitute a form of hostage-taking, an abuse of one's own population as a shield. Legally, however, it's a complex issue. International law doesn't prohibit attacking military targets, even if civilians will die in the process. There just has to be a certain proportionality between the positive military outcome of the operation and the collateral damage to civilians. Hamas inflates the number of casualties among its own population when, for example, it places a command center under a hospital, knowing full well that Israel will still attack to put the command center out of action. This is why I describe it as a form of hostage-taking of their own people. But this is not yet prohibited by international humanitarian law, which traditionally only sets out rules on the protection of the population of the opposing side. However, this focus on humanity towards the enemy no longer does justice to the reality of modern conflicts.

In view of the suffering inflicted on the people of the region as a result of the Middle East conflict, it begs the question of how effective international law is in protecting human rights.
Despite its name, international humanitarian law quickly loses its humanity. It specifies which rules must be observed in an armed conflict. This has little to do with what we understand by human rights. In peacetime, we apply human rights law. In war, this is largely replaced by international humanitarian law. When that happens, humanity is actually already lost. At that point, only minimum humanitarian rules apply to warfare, which are intended to prevent it from becoming entirely inhumane. It is of course a good thing that we have international humanitarian law and these minimum rules. But these are a far cry from the individual protection offered by a constitutional respectively human rights system in peacetime.