Words matter. No more so than in legal settings.

Genocide is the word most associated with Israel's more than one-month-long assault on Gaza.

In response to the October 7 Hamas attack against Israel, in which at least 1,200, mostly civilian, Israelis were killed.

A ball of fire and smoke rise from an explosion on a Palestinian apartment tower following an Israeli air strike in Gaza City, Saturday, Oct. 7, 2023. Photo: AP/Adel Hana

Genocide and Holocaust scholars, including those who believe that Israel has and is committing war crimes in its assault are divided about whether Israeli actions amount to genocide.

Even so, they warn that Israeli actions could lead to genocide, if it not already has.

What is certain is that optics streaming out of Gaza of the destruction and the plight of innocent Palestinian civilians, including large numbers of children and babies, explain the popular use of the term genocide when discussing the Israeli assault.

To get some proper definitions and put things in perspective. I am joined today by Professor Omar Bartov, a world-renowned genocide and Holocaust scholar at Brown University in Rhode Island.

Omer Bartov, welcome to the show, and thank you for taking the time.

Perhaps, we can start on a personal note. I'm curious about what got you interested in genocide studies.

Obviously, the ethics of the conduct of war are not purely theory to you. You were born in Israel and served in the Israeli military during the 1973 Middle East War, which caught, like October 7, Israel off guard.

Yes, you're right. I have a longstanding interest in this issue. It began really with my interest in war crimes as a teenager. I was very interested in military history and then as you said, I served in the army. I ended up being an officer, a company commander, and I kept also reading on war.

And what I became interested in was the tension between the kind of aura that the German military, the Wehrmacht had in World War II as an excellent fighting force and the crimes that it claimed had been committed in the rear behind the backs of the heroic soldiers of the Wehrmacht. And I became skeptical about that, particularly the war in the Soviet Union. And so, my first research was really to see whether the army, the German army of that time and the veterans and the generals who came out of that army were telling the truth about the fact that the crimes were committed by the SS, by the Gestapo, but never by the honorable German army.

And obviously that was not the case. So, I spent several years digging through German archives and discovered that the German army, A, participated heavily in war crimes, which is not surprising considering that close to 30 million Soviet soldiers and civilians were murdered during that war.

And B, that these soldiers were heavily indoctrinated. So, they were not participating in war crimes only because war is terrible, which it is, but also because they'd been indoctrinated into believing that they were fighting sub-humans.

So that was the beginning of my interest in this question.

It actually started, as I said, with war crimes, crimes against humanity and genocide because the German military was involved in the genocide of the Jews, not as the main organizer, but as the facilitator of mass murder of Jews.

And from there I started studying genocide more generally and ended up also studying the Holocaust more specifically.

Now of course, I grew up in Israel. In my childhood we were surrounded by Holocaust survivors. There were many people you could see with numbers tattooed on their forearms. There were many of my friends, whose parents were traumatized, who would scream at night from nightmares. I mean, this was part of the scene in which you grew up.

But as I realized later on, we also were growing up in a country I was born in the 50s that had just also ethnically cleansed the Palestinian population that had lived in the neighborhoods in which we were growing up.

And so that kind of realization of everything that had happened to members of my generation shortly before I was born, the Holocaust and the trauma of that and the creation of the state of Israel, much of it on the ruins of what had been Palestinian civilization, I think it formed much of my own interest since then until to this day.

I want to come back to some of the things you just said, but let's start off with trying to get some definitions. If I understand the law correctly, intent is a key factor in determining whether actions amount to genocide. I think it would be helpful if you could define what constitutes intent and what the legal differences are between genocide, ethnic cleansing, and crimes against humanity.

Right. So, it is important to make these distinctions. War crimes which are defined in the 1949 Geneva conventions and subsequent protocols as serious violations of the laws and customs of war in international armed conflict, which means war between states against both combattants and civilians.

So these are crimes that are committed within the context of war against soldiers and civilians, Crimes against humanity for which there's no direct convention are defined in the Rome statute, which then established the International Criminal Court.

The term (genocide) was already used of course in Nuremberg, the Nuremberg Tribunal of 1945. But the definition in the Rome statute defines crimes against humanity as extermination of or other mass crimes against any civilian population. And that does not have to be at a time of war and also does not call for direct intent. It's just mass killing of civilians.

The crime of genocide is a particularly, somewhat bizarre convention, and it's important to understand exactly what it says.

So, the crime of genocide is defined and was defined in 1948 by the UN as the intent to destroy in whole or in part a national, ethical, racial, or religious group as such.

So, that means that in order to identify genocide, you need two elements.

One element is intent that you can identify the organization or the state carrying out genocide intent to do that. It's not just a byproduct of something else that it is doing such as war.

And secondly that the crime is committed against the group as such. And that's very important. That is that you're not killing people as only as individuals or doing anything else to them, such as depriving them of food or so forth, but that you are doing it with the intent of destroying the group that they belong to.

And your intention is to make that group disappear, be destroyed, whether by killing or by other means.

And often because genocide has been called the crime of crimes, it's supposed to be the worst crime that any state can perpetrate.

There is a tendency to use that word, which was coined in 1943/44, to use it against anything that we find abhorrent.

But in fact, in international law, it has a particular definition. And it doesn't mean that crimes against humanity are any better or worse than genocide. It just means that they're defined differently.

I just wanted drill down on one thing. Is there a legal definition of destroy?

Well, according to the UN resolution of 1948, the intent to destroy, there's a long list of how you go about doing that. But what it means is to destroy the group as such. Hypothetically that means that you don't necessarily have to kill anyone because if you, for instance, remove the children of that group from the group and you hand them over to be adopted by another group and you raise them as members of another ethnic national religious group and they have no idea of who they would've been otherwise, that could constitute genocide.

And that's actually how the term was used in the case of Australia and Canada where children were taking away from indigenous populations, it can also be depriving a group of the sources of its existence.

So, if you move it to another place, if you say do what happened in the genocide of the Herrero in German Southwest Africa in 1904. When the German military was called in by the white settlers, the German settlers, who said there's an uprising of the Herrero and the Nama people and the military comes in there and says to the population, “You have to go to the desert, you have to go to the Kalahari desert. We are not going to allow you to stay here anymore because you constitute the danger to our own people’.

And at the same time, the army also takes care to plug in all the watering holes in the desert. Then, although you may not be killing them, you're sending them to certain death and therefore you are destroying that group as such.

And it's important to understand that because you asked about the relationship between ethnic cleansing and genocide, and that's where we find that somewhat of a gray zone.

Ethnic cleansing as such is not defined in international law. It comes under crimes against humanity, under a list of potential crimes against humanity.

But what it actually is, is the removal of a group from a territory that you don't want them in because you want your own group to be there.

Whereas genocide of course is the attempt to destroy a group wherever it is. But in reality, as we could see in the genocide of the Herrero in 1904, the genocide of the Armenians in 1915, the genocide of the Jews, in fact as well, the original goal was to remove the population from an area where you did not want them to be it.

And then under particular circumstances, you either move them to an area where they would die or you decide, which the Nazis did well, ‘we have no place to move them to. So, the most humane policy,’ as some Nazis said, ‘is to kill them.’

Right. What I'd like to do is see how this applies to both Israel and Hamas and start off with Hamas. And there I really have two sets of questions.

One is early on, you said defined it spoke about wars of war crimes in terms of a war between two states. The question of course, is Hamas a state or is it a non-state actor, even though it does run a government in Gaza?

And the other question is the group's charter which is widely cited as evidence that it is a genocidal organization.

Hamas’ original charter adopted in 1988 called for the killing of Jews based on a saying attributed to Prophet Muhammad. Hamas adopted a new charter in 2017 that dropped the call to kill Jews. Even so the new charter calls for Israel to be replaced by a Palestinian state in all of historic Palestine, but allows for the creation of a Palestinian state alongside Israel as an interim step. Would that be enough to qualify amass as a genocidal organization?

I think by large, and I'm not a lawyer, I'm not an international lawyer, my impression is that by and large, because Hamas was elected to power in Gaza, because it is the hegemon in Gaza, it runs most of the institutes in fact.

Now, of course, there's a big mess there right now, but (Hamas) did run most of the institutions in Gaza, law enforcement schools, religious life and so forth, whether people liked it or not, and has also a large armed organization, it could be seen as something resembling a government of a state. And from that point of view, I think that whatever it does can be considered, let's say the October 7th attack, can be considered as something that it carried out. It took responsibility over that something carried out by a government of a particular entity, a kind of state.

And under that you, I think, would not have much trouble defining that as a war crime attack on large numbers of civilians.

You could also define it likely as crimes against humanity because of the large numbers and the nature of the killing, which was particularly atrocious.

And then you come to the second question. The second question is, is Hamas an organization that actually wants to destroy the state of Israel?

And you are right that the original charter actually lifts whole parts out of the protocols of the elders of Zion, which is a fabrication originally carried out by the Russian secret police before World War I or the turn of the 19th century, and is kind of antisemitic canard.

And then it also cites from the Quran, the most sort of anti-Jewish elements there, and is both an antisemitic document, I mean just hair-raising document, and talks about the destruction of the state. The revised version 2017 as far as I know, does not say that it replaces the previous charter.

It's an adaptation of the charter to political conditions that existed at the time.

And it has removed the antisemitic elements there, and it actually speaks about the fact that it is not against Jews, it is against Israel quite explicitly, and it also agrees, as you say, for to an interim solution of two states.

And it does it in large part so as to be in conformity with the Palestinian Authority. This is part of the political game there, but at the core, I think Hamas actually wants to destroy the state of Israel.

And what we have seen since October 7th is that a number of leaders of Hamas have said publicly on television that the October 7th attack will be repeated again and again, that they will do that because that's the only way to deal with the Zionist entity, destroy the state of Israel.

So, does that make them a genocidal organization? I think one can make the case for that.

It's a little bit of a stretch, but I think what could make the case, and if that is true, then one could say, as I would understand it, the attack of October 7th was at least a genocidal attack.

So, obviously it did not aim at killing all Jews in Israel because it was not capable of doing that, but done under the general heading of the Hamas conception of what Hamas wants to do to create an Islamic Palestinian state in all of Palestine.

Perhaps it takes you into particularly difficult words though, if you expand that to all kinds of ideologies that exist now on the other side, that is in Israel, and we can talk about that and that's why I'm a little cautious applying that category to Hamas.

Indeed. That's my next question was going to be, which is to look at the case of Israel, where to the best of my knowledge, there is no official document laying out an adopted government policy that would qualify as evidence of intent to commit genocide.

There are however numerous statements by senior officials and military officers that could qualify as signaling intent. Would that constitute evidence? And more generally what qualifies as evidence?

So, as I said before, when you try to see whether genocide is taking place or may be in the offering, you need two things.

By and large, you need statements of intent, and then you need to show that that intent is being implemented, that there is an implementation of policy.

Israeli leaders, political leaders, including the Prime Minister, the Minister of Defense, and other cabinet ministers have made statements that show an intent to destroy, approved, flatten, remove Hamas, but they often slide from speaking about Hamas to speaking about Gaza.

And we have to remember that the vast majority of the population of Gaza actually are refugees or descendants of refugees from what was mandatory Palestine, often from communities that are just or used to be just across the fence from where the Gaza Strip is.

So, statements of intent have been made. One has to add to that, that there have been other statements and those other statements coming largely from military leaders insisting that what they're doing is trying to dismantle Hamas as a military organization.

They're taking great care not to harm the civilian population, but because Hamas is in highly congested areas and has allegedly place its headquarters under hospitals, it's missiles, it's schools or kindergartens and so forth, it has no choice but to also harm civilians. And it says that that's the responsibility of Hamas. So, you have two different types of statements.

If you look more closely still at the implementation of policy, I would say you have two elements here.

One is you have a clear, I would say, and I'm not the only one who's saying it, disproportionality between the military goals as they are articulated by the Israeli military and the number of civilians that are being killed. We have now well over 12,000. That's the estimate of civilians killed. There may be more, I mean, some people of course argue that we can't trust Hamas figures, but on the other hand, there are probably hundreds if not thousands of people buried under the debris, and many of them are children.

The population of Gaza is about 50 per cent of the population under 18.

So, first of all, you have vast disproportionality. It's not clear that Israel has really managed to dismantle Hamas as a fighting organization. Maybe it did it in the city of Gaza, but certainly not in the entire Strip. And the numbers of losses are huge.

Israeli and Palestinian war crimes? Yes. Genocide? Maybe. A conversation with Omer Bartov

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