Gaza, Forced Displacement, and Genocide

Written by

International courts and commissions of enquiry have been reluctant to find that forced displacement constitutes genocide. Forced displacement, in its various forms, is a war crime (Rome Statute, Article 8(2)(a)(vii)) and a crime against humanity (Rome Statute, Article 7 (1)(d)), but not genocide. Indeed, the Genocide Convention omits forced transfer as a genocidal act. Still, in Croatia v. Serbia (2015), while the International Court of Justice (ICJ) found that there was no evidence to conclude that the forced displacement of Croatians was carried out with genocidal intent (Croatia v. Serbia, Judgment, para. 428), and the forced displacement was a consequence of other actions capable of being viewed as acts of genocide (para. 376), it nevertheless affirmed that it could, when taking place in circumstances calculated to bring about the physical destruction of the group, also constitute genocide (para. 163). With the mass forced displacement, starvation, and the inability to flee to safety in Gaza, this article considers the standards set by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICJ to the forced displacement in Gaza, that may be considered at a later stage by the ICJ in South Africa v Israel. While the ICTY and ICJ are two separate courts, the former prosecuting individual criminal responsibility and the latter state liability, the ICJ has referred to the jurisprudence of the ICTY in its cases (see for example, Bosnia v Serbia, Judgment, 2007, paras. 190, 195, 198, 199 and others). The ICJ is, of course, not obligated to follow the jurisprudence of the ICTY, but given its previous practice, it may refer to some of the latter’s precedents.

The Genocide Convention and Forced Displacement

Raphael Lemkin’s conception of genocide was much broader than the definition eventually adopted in the 1948 Genocide Convention, and included cultural genocide. Lemkin, the lawyer who campaigned for the establishment of an international convention criminalizing genocide, considered that genocide had two phases: the destruction of the national pattern of the group and then imposition of the national pattern of the oppressor. He stated that, “This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after removal of the population and the colonization of the area by the oppressor’s own nationals.” (Lemkin, 1944, p. 79, emphasis added) The only reference to transfer in the Convention can be found in Article II (e), which prohibits “forcibly transferring children of the group to another group.”

An initial draft of Article II of the Genocide Convention included forced exile within the meaning of genocide (see W. Schabas, Genocide in International Law, 2nd Edition, 2009, 656). In discussing the definition at the time of drafting, the Syrian delegate proposed to include within the actus reus of genocide measures directed towards forcing members of a group to abandon their homes. This was rejected by the Sixth Committee, in large part due to the Soviet Union’s argument that abandoning one’s home was a consequence and not an element of genocide (Lippman, 2002).

Recent cases have affirmed this. As the court stated in Krstić, “…forcible transfer does not constitute in and of itself a genocidal act.” (ICTY, Prosecutor v Krstić, 2004, para. 33). The ICJ concurred in 2007, stating:

… deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. (Bosnia v Serbia, Judgment, 2007, para. 190)

Coupled with the high bar set by courts requiring that that the only reasonable inference from  acts constituting genocide is the intent to destroy, in whole or in part, the members of the group, few recent atrocities have been seen to amount to genocide. Indeed, many of the atrocities committed in Bosnia and Croatia were not considered to be genocide because the genocidal intent was purportedly unclear, and that their aim was transfer and not destruction of the group (Croatia v Serbia, para. 426). Nevertheless, the ICTY and the ICJ have both affirmed that forced displacement may amount to genocide under certain conditions.

A high (but not impossible) bar

In Krstić, the court saw that forcible transfer could be used as evidence of genocidal intent (para. 33). The Court also held that “forcible transfer could be an additional means by which to ensure the physical destruction of the Bosnian Muslim community in Srebrenica,” (para. 31). Depending on the context, it may form part of the acts falling under Article II (b) Causing serious bodily or mental harm to members of the group and (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, if committed with a view to the destruction of the group (see Bosnia v Serbia, para. 190).

More interestingly, in Prosecutor v. Blagojevic and Jokic (ICTY, 2005), after recounting the trauma suffered by the Bosnian Muslims who were displaced from their homes, the Trial Chamber found that:

… there is sufficient evidence to establish beyond reasonable doubt that in the circumstances of this case forcible transfer constituted ‘serious mental harm’… The Trial Chamber also finds that the perpetrators intended that the forcible transfer, and the way it was carried out, would cause serious mental harm to the victims. (para. 654)

The Trial Chamber also found that “the term ‘destroy’ in the genocide definition can encompass the forcible transfer of a population,” (para. 665). It further stated that “the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself,” (para. 666)

Regarding intent, the Trial Chamber stated that,

The forcible transfer of the women, children and elderly is a manifestation of the specific intent to rid the Srebrenica enclave of its Bosnian Muslim population. The manner in which the transfer was carried out … clearly indicates that it was a means to eradicate the Bosnian Muslim population from the territory where they had lived. (para 675, emphasis added)

Gaza

As of the time of writing, the situation in Gaza has reached catastrophic proportions. Over 32,000 have been killed, more than 75,000 injured, and an estimated 1.7 million out of 2.2 million have been displaced. Over 70% of homes and more than half of all Gaza’s buildings have been damaged or destroyed. Several UN Rapporteurs issued a statement in early March, after the ‘flour massacre’ where least 112 people gathered to collect flour in Gaza were killed by Israeli forces, stating that:

Israel has been intentionally starving the Palestinian people in Gaza since 8 October. Now it is targeting civilians seeking humanitarian aid and humanitarian convoys… Israel must end its campaign of starvation and targeting of civilians.

UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Francesca Albanese, concluded in her March 2024 report that “there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met.”

Beginning in mid-October, Israel began issuing evacuation orders from the north to the south, and then from the south even further south, ostensibly to remove civilians from areas of fighting. The impossibility of the safe evacuation of over a million people was condemned by human rights organizations. While Israel is nonetheless bound by the principles of distinction, it warned that those unable or unwilling to evacuate may be considered as “accomplice[s] in a terrorist organization.” Yet even those who fled were not able to escape death. Civilians have been attacked in so-called safe zones in the south, with several NGOs detailing the killing of civilians in Rafah. Paula Gaviria Betancur, UN Special Rapporteur on the human rights of internally displaced persons, also warned that “Israel is seeking to permanently alter the composition of Gaza’s population with ever-expanding evacuation orders and widespread and systematic attacks on civilians and civilian infrastructure in southern areas of the besieged enclave.” With famine in Gaza already setting in, reports show that Israel is deliberately preventing aid from entering Gaza, with the most recent killing of humanitarian aid workers distributing food from World Central Kitchen. There is nowhere to flee in Gaza or outside of Gaza, given the closure of the crossings.

It is worth quoting the relevant part of the paragraph in the Blagojevic and Jokic case for comparison’s sake:

The forced displacement began with the Bosnian Muslim population fleeing from the enclave after a five-day military offensive, while being shot at as they moved from Srebrenica town to Potočari in search of refuge from the fighting. Leaving their homes and possessions, the Bosnian Muslims did so after determining that it was simply impossible to remain safe in Srebrenica town. Upon arrival in Potočari, the Bosnian Muslim population did not find the refuge they were seeking: rather they found UNPROFOR unable to provide the assistance they needed: DutchBat was woefully unprepared for the mass influx of people to its base. After months of having its supply convoys searched or blocked, it did not have adequate supplies of food, medicine or even water for the thousands of Bosnian Muslims who arrived. Furthermore, it did not have adequate space in which to keep 25,000-30,000 people protected from the heat, let alone a place to rest or to sleep.  (para 650)

In this case, the court found that all the acts were committed for the purpose of committing genocide against Bosnian Muslims, and that the “forcible transfer was an integral part of this operation, which also included killings and destruction of properties,” (para. 674). The conditions in Gaza are even more severe, as Gazans have nowhere safe to flee to, and are killed even in those so-called safe zones. As Albanese stated in her report:

The total siege and near-constant carpet-bombing, along with draconian evacuation orders and ever-shifting ‘safe zones’, have created an unparalleled humanitarian catastrophe. Over 1.7 million Palestinians were displaced and forced into overcrowded UNRWA shelters and cramped quarters in southern Gaza, systematically targeted by the Israeli army, and later into makeshift shelters. (para. 37)

While there is not enough space here to consider genocidal intent, there is ample evidence to establish the actus reus, namely that the forced displacement in Gaza amounts to serious bodily and mental harm, and inflicts conditions calculated to bring about the destruction of the group. The ICJ may refer to these cases when examining acts constituting genocide in the Gaza case.

Print Friendly, PDF & Email

Leave a Comment

Your comment will be revised by the site if needed.

Comments

Johannes Rehkuh says

April 9, 2024

I believe drawing the comparison, is fair overall. I just want to point out a few things that bothered me.

As far as I know there is no proof that the "112 people gathered to collect flour in Gaza were killed by Israeli forces", which in this piece, is stated as fact. 112 people did die, but were they killed or did they die in the ensueing chaos? You could argue that the chaos occured due to actions of Israel, and that they are to blame for the deaths in this way, but the phrasing is implying that Israeli troops shot 112 people (or killed them deliberately), which afaik is not what happened.

Similarily you could have a discussion on the whether the 4 strikes in Rafah the Amnesty link considers invalid military targets, were truly invalid.

I would find a discussion about this a lot more interesting to be honest.

What bothers me about this article is that these crucial aspects, relevant to interpreting the conflict are not being addressed at all, and instead reduced to "112 people [...] killed by Israeli forces" and "Civilians have been attacked in so-called safe zones in the south" without nuance. Considering the relevance of intent when considering genocide, the nuances matter a lot however. This is what the discussion should have focussed on instead. The fact that it specifically didnt, whilst mentioning them makes me wonder if this was written in bad faith.

Mischa Gureghian Hall says

April 14, 2024

While I agree with the central argument that the forcible displacement of Palestinians is an integral component of genocide in Gaza, I think reference to the Blagojevic and Jokic case must be qualified insofar as it is something of an outlier in ICTY jurisprudence regarding genocide vis-á-vis displacement. Additionally, the Trial Chamber's findings in this regard were not thoroughly scrutinized on appeal (in contrast, e.g., to the Tolimir case) due to what appeared to have been the defendants' failure to raise the issue on appeal.

I think an argument that could contribute to strengthening the post's thesis is that of the distinction between intent and motive. Intent must be genocidal; motive is irrelevant. If the motive of Israeli state officials is to rid Gaza of Palestinians (which, of course, could be accomplished by only displacing, rather than destroying the Palestinian group), this is nonetheless genocidal if the means by which they go about doing so are genocide (which I believe is argued compellingly in the post).

My main point of comment would thus be explicitly noting the distinction between motive and intent and, perhaps, that many of Israel's defenses to the charge of genocide appear to be trying to disprove genocidal motivation rather than intent.

Jinan Bastaki says

April 21, 2024

Thank you for the comments.

Mischa Gureghian Hall - comments are well-taken. Unfortunately, the length of blog posts are limited, but I am working on a wider piece on this. Thank you for the suggestions.

Johannes Rehkuh - I used the UN Special Rapporteurs' statement (linked in article), which explicitly states "Israeli troops fired on crowds of Palestinians gathered to collect flour in the south-west of Gaza City on 29 February, killing at least 112 people and injuring some 760." Regarding safe zones, several human rights reports have detailed killing of civilians in safe zones. The purpose of the article was not to discuss intent, since as I mentioned at the end of the article, there is not enough space to do so in a blog article. Rather it was to consider forced displacement within the actus reus of genocide. Thank you nonetheless for engaging with the article.