Raphael Lemkin, a Polish lawyer of Jewish descent, lost 49 members of his family in the Nazi holocaust. Lemkin, who coined the word "genocide" in 1943 and worked tirelessly to ban war crimes, authored a draft resolution for a Genocide Convention treaty that ultimately resulted in the "Convention on the Prevention and Punishment of the Crime of Genocide, Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948".
Lemkin viewed the prevention function as essential and central to the legislation. "By declaring genocide a crime under international law and by making it a problem of international concern, the right of intervention on behalf of minorities slated for destruction has been established. … The usefulness of a future international treaty on genocide lies in facilitating the prevention and punishment of the crime and apprehension of criminals," wrote Lemkin in "Genocide as a Crime under International Law", American Journal of International Law (1947) Volume 41(1):145-151.
The Convention on Genocide makes no mention of numbers or percentages in its definition of the crime, which is found in Article II: "In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (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." There we find but two elements, intent, and a list of acts – no numbers, no percentages.
So, why do Israel's defenders deny that genocide occurred in Gaza and insist on making the definition of genocide a numbers game? Some lobby for a definition of genocide that takes the focus off the element of intent in order to protect the Zionist program of land theft, ethnic cleansing, and mass murder in Palestine and Israeli political, military, and religious leaders who have given voice to their genocidal intentions.
In Feb. 2008, Matan Vilnai, Israel's deputy defense minister, publicly warned that Palestinians risked "bringing an even bigger Shoah" upon themselves if they continued to fire rockets into Israel. The word "Shoah" is rarely used in Israel outside discussions of the Nazi holocaust of Jews because many Israelis, like ardent Zionists in other countries, do not countenance its use to describe other events.
In March 2008, Rabbi Yisrael Rosen, director of the Tsomet Institute, a religious school attended by students and soldiers in the Israeli settlements of the West Bank, issued a religious opinion that appeared to authorize the killing of all Palestinians. Rosen was widely quoted as having written, "All of the Palestinians must be killed; men, women, infants, and even their beasts." Rosen's ruling garnered support among leading Israeli rabbis authorized to issue Jewish religious opinions.
Recent news reports indicate that Israeli military rabbis urged IDF soldiers to kill indiscriminately in Gaza. In a widely available article titled "Black Flag" published on January 31 on the Gush Shalom web site, Uri Avnery wrote, "In the last decades, the state-financed religious educational system … indoctrinates its pupils with a violent tribal cult, totally ethnocentric, which sees in the whole of world history nothing but an endless story of Jewish victimhood. This is a religion of a Chosen People, indifferent to others, a religion without compassion for anyone who is not Jewish, which glorifies the God-decreed genocide described in the Biblical book of Joshua.
"The products of this education are now the 'rabbis' who instruct the religious youths. With their encouragement, a systematic effort has been made to take over the Israeli army from within. … The most outstanding example is the 'Chief Army Rabbi', Colonel Avichai Ronsky, who has declared that his job is to reinforce the 'fighting spirit' of the soldiers. He is a man of the extreme right, not far from the spirit of the late Rabbi Meir Kahane, whose party was outlawed in Israel for its fascist ideology. Under the auspices of the army rabbinate, religious-fascist brochures of the ultra-right 'rabbis' were distributed to the soldiers.
"This material includes political incitement, such as the statement that the Jewish religion prohibits 'giving up even one millimeter of Eretz Israel', that the Palestinians, like the Biblical Philistines (from whom the name Palestine derives), are a foreign people who invaded the country, and that any compromise (such as indicated in the official government program) is a mortal sin. The distribution of political propaganda violates, of course, army law," wrote Avnery.
Avnery calls on Israeli courts to intervene and hold accountable those who have already committed war crimes, and he expresses regret that they are unlikely to do so. Apparently he, at least, understands and fears the potential consequences of inaction. Avnery's analysis is that of a seasoned and well-informed observer. There is no reason to doubt it.
This reporter contacted Professor Francis A. Boyle of the University of Illinois College of Law for an expert opinion on the question of genocide in Gaza. A scholar in the areas of international law and human rights, Professor Boyle received a J.D. degree magna cum laude and A.M. and Ph.D. degrees in political science from Harvard University. Prior to joining the faculty at U of I College of Law, he was a teaching fellow at Harvard and an associate at its Center for International Affairs.
"As long ago as October 19, 2000, the then United Nations Human Rights Commission (now Council) condemned Israel for inflicting 'war crimes' and 'crimes against humanity' upon the Palestinian people, most of whom are Muslims," said Boyle.
"But I want to focus for a moment on Israel's 'crimes against humanity' against the Palestinian people – as determined by the U.N. Human Rights Commission itself, set up pursuant to the requirements of the U.N. Charter. What are 'crimes against humanity'? This concept goes all the way back to the Nuremberg Charter of 1945 for the trial of the major Nazi war criminals in Europe. In the Nuremberg Charter of 1945, drafted by the United States Government, there was created and inserted a new type of international crime specifically intended to deal with the Nazi persecution of the Jewish people: Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
"The paradigmatic example of 'crimes against humanity' is what Hitler and the Nazis did to the Jewish people. This is where the concept of 'crimes against humanity' came from. And this is what the U.N. Human Rights Commission determined that Israel is currently doing to the Palestinian people: crimes against humanity. Expressed in legal terms, this is just like what Hitler and the Nazis did to the Jews. That is the significance of the formal determination by the U.N. Human Rights Commission that Israel has inflicted 'crimes against humanity' upon the Palestinian people. The Commission chose this well-known and long-standing legal term of art quite carefully and deliberately based upon the evidence it had compiled.
"Furthermore, the Nuremberg 'crimes against humanity' are the historical and legal precursor to the international crime of genocide as defined by the 1948 Genocide Convention. The theory here was that what Hitler and the Nazis did to the Jewish people was so horrific that it required a special international treaty that would codify and universalize the Nuremberg concept of 'crimes against humanity.' And that treaty ultimately became the 1948 Genocide Convention," Boyle told this reporter.
"As documented by Israeli historian Ilan Pappe in his seminal book The Ethnic Cleansing of Palestine (2006), Israel's genocidal policy against the Palestinians has been unremitting, extending from before the very foundation of the State of Israel in 1948, and is ongoing and even intensifying against the 1.5 million Palestinians living in Gaza. Zionism's 'final solution' to Israel's much touted 'demographic threat' allegedly posed by the very existence of the Palestinians has always been genocide," said Boyle.