By Michael Berenbaum and Menachem Z. Rosensaft
Words Have Meaning
We are ardent Democrats who have spent the last half-century studying and teaching genocide and may have learned something about it in the process. We have also seen political expediency and ignorance become commonplace in the Democratic and Republican parties. We believe that those of us who consider ourselves mainstream liberals have the obligation to criticize such statements by political voices on our side of the political spectrum just as we expect our more conservative counterparts to criticize such views on the right.
Genocide is not an abstract, amorphous term subject to academic or philosophical debate. It is not a rhetorical football to be tossed around irresponsibly by politicians, especially by those who might want in the future to seek to be heard by the Israeli public. On the contrary, genocide has a specific legal definition, adopted by the United Nations General Assembly in December of 1948 and ratified by 153 countries, including the United States, however belatedly, in 1988.
What International Law Defines as Genocide
Under Article II of the Genocide Convention, genocide is defined as one or more of certain specified acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.”
These acts are:
“(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.”
As a matter of international law, only one or more of these listed acts can constitute genocide if, and only if, they are committed with the aforesaid “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
What was the Specific Intent?
Israel’s motivation – its intent, as it were – for waging war against Hamas in Gaza was not and is not to destroy the Palestinian presence there. Rather, its motivation – its intent – following the October 7, 2023 massacres was – and remains – to remove the terrorist Hamas organization as an existential threat to Israelis – to protect its citizens.
On October 7th, prior to the outbreak of the war, there were some two million Palestinians living in Gaza. Israeli leaders understood that, after the war, Gaza would remain home to approximately two million Palestinians. This does not diminish the war’s devastating human consequences or resolve every question about how it has been conducted. But it is fundamentally at odds with the claim that Israel acted with the specific intent to destroy Palestinians in Gaza as a people—the intent required to establish genocide.
Indeed, the International Court of Justice has ruled that:
“The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent.”
We are not arguing that this war has always been waged appropriately or that it has been waged proportionally. Nor do we suggest that Israel – or any other country involved in warfare – cannot be accused of or should not be held accountable for other alleged violations of international law, including crimes against humanity, war crimes, and even ethnic cleansing. We also join U.S. Ambassador Mike Huckabee in unequivocally condemning the violence perpetrated by extremist settlers against Palestinian civilians in the West Bank.
But those are separate questions from whether a genocide has been committed. And before the term is used by those seeking to be responsible leaders, they should know that unless such alleged violations of international law satisfy the statutory elements as defined in Article II of the Convention, including specific intent, they do not constitute genocide.
Hamas, October 7, and Palestinian Agency
Some refuse to engage in the requisite nuance by not holding Hamas and other Palestinian terrorist groups responsible in any way for the carnage. Hamas’ original charter explicitly called for the genocide of Jews living between the Jordan River and the Mediterranean – from the river to the sea, as it were, and on October 7th, Hamas set out to kill as many Jews – men, women and children, even infants -- as possible, knowing full well that their actions would trigger a harsh Israeli response.
The language used by certain far-right Israeli government officials could well be considered genocidal, but that was not and is not the policy of the government or the IDF.
The conduct of the war also provides evidence inconsistent with an intent to destroy the Palestinian population. The IDF issued advance warnings through phone calls, text messages, and leaflets and established evacuation corridors. Military experts who have studied the campaign, including urban-warfare scholar John Spencer, have also documented instances in which operations were delayed or canceled because of the risk to civilians. Israel also agreed to area-specific humanitarian pauses that enabled international health workers to vaccinate more than half a million children in Gaza against polio. None of these measures negates the immense suffering of Palestinian civilians, establishes that every Israeli operation was lawful or proportionate, or resolves serious questions about whether civilian protections and humanitarian assistance were adequate. But efforts to warn civilians, facilitate evacuations, and suspend military operations so Palestinian children could be vaccinated are difficult to reconcile with an intent to destroy Palestinians as a people.
Though we have held high positions within the Jewish community, we have a clear and consistent record of condemning such statements, and we unhesitatingly denounce and repudiate such sentiments, just as we categorically condemn as criminal and terrorist the violence perpetrated by fanatical Israeli Jewish settlers against Palestinian civilians in the West Bank. There is no doubt that elements of the Israeli government and the IDF have advocated a harshness and implemented actions that go beyond the intended effort to defeat Hamas, and here too, we have consistently criticized such acts and such behavior.
Accusing Israel of genocide makes the goal of a durable peace ever more distant and plays right into the hands of the most bellicose of Israeli and Palestinian leaders, the former because it further empowers Prime Minister Netanyahu and his supporters -- who decided more than a decade ago to cast their lot with the Republican Party and Christian Evangelicals and to try their hardest to wean American Jews away from their traditional support of the Democrats, and the latter because it strengthens the radicals who dream of eliminating Israel and who time and again have sabotaged efforts at moderation.
The Palestinians have agency and their fate cannot be considered apart from Hamas’s actions. Hamas deliberately embedded its military operations in and beneath civilian areas, including schools, mosques, and hospitals, greatly increasing the danger to Palestinian civilians. Spuriously charging Israel with genocide neither changes that reality nor brings Israelis and Palestinians closer to peace.
Those who hold or aspire to high office have a responsibility to speak with precision, particularly when passions are high and the consequences of their words are profound. Making the charge of genocide without evidence of the specific intent required under international law is irresponsible, reckless, and dangerous.
Michael Berenbaum is director of the Sigi Ziering Institute: Exploring the Ethical and Religious Implications of the Holocaust and a Distinguished Professor of Jewish Studies at American Jewish University in Los Angeles.
Menachem Z. Rosensaft teaches about the law of genocide at the law schools of Cornell and Columbia universities. He is general counsel emeritus of the World Jewish Congress and the author, most recently, of Burning Psalms: Confronting Adonai after Auschwitz (Ben Yehuda Press, 2025)
Well said
Thank you for this. I am so tired of hearing the people I generally agree with in the US talk about “genocide in Gaza“ as if it’s an established fact.