JUSTICE - No. 71

25 Spring 2024 Appendix: Hamas and Genocide* Robbie Sabel t is not disputed that Hamas has been committing grave war crimes. A question, however, is whether their actions amount to an attempt at Genocide. Prior to October 7, 2023, they were firing thousands of rockets aimed deliberately at Israeli civilian towns and villages. On that day, Hamas blatantly ignored every norm of morality and international law, deliberately killing civilians, raping, maiming, and taking hostages. The Hamas attack included the slaughter in cold blood of over 1,200 Israelis and foreign citizens at a music festival and in kibbutz settlements and the wounding of over 5,500 persons. There were widespread acts of torture and maiming, burning alive, beheading, rape and sexual assault, and mutilation of corpses. One of their beheadings was done using an agricultural hoe which they found in the victim’s house. The sexual attacks were confirmed by the report of Ms. Pramila Patten, Special Representative of the UN SecretaryGeneral on Sexual Violence in Conflict. Hamas abducted at least 247 hostages from 25 different countries. They included infants, the elderly, entire families, persons with disabilities, and Holocaust survivors. The murderers proudly filmed their own horrific acts. The films provide us with forensic evidence of their crimes. The crimes have also brought tragedy to innocent Palestinians, caught and killed in the crossfire deliberately started by Hamas as Israel conducted military operation against these terrorists. The question remains whether Hamas actions were “only” horrific war crimes or an attempt to commit Genocide? Israel has been involved in military conflict since its independence in 1948. At various times, we have had violent clashes with the armies of Jordan, Syria, Iraq, and Egypt. In these conflicts, we suffered heavy casualties to which our military cemeteries bear sad witness. Nevertheless, we did not characterize these conflicts as Genocide. The crime of Genocide requires both evil acts and evil intent. Article II of the 1948 Genocide Convention reads: 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; And Article III of the Convention continues: The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; An attempt at Genocide requires both genocidal acts and genocidal intent. The Jewish people are well aware of what constitutes Genocide. We suffered perhaps the most horrific Genocide in human history when Nazi Germany killed six million Jews in a stated and deliberate attempt to obliterate the Jewish people. They nearly succeeded. This Holocaust provided the impetus for the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. What happened on October 7, 2023, was a calculated and heinous attempt to kill Jews just because they were Jews. It was carried out by the Hamas terrorist group as a manifestation of their ideology and stated goal of eradicating Israel. Hamas’s charter, even the softened version of 2017, is directed at eliminating Israel and is openly and blatantly antisemitic. It is difficult to comprehend that decades after the Holocaust, such a document could be adopted. The Charter of Hamas was adopted in 1988. It was later supplemented by a 2017 sanitized version; however, the 2017 version did not replace the 1988 version, but as Hamas reassured its members, it only added or supplemented it. The 1988 Charter reads: The Islamic Resistance Movement strives to raise the banner of Allah over every inch of Palestine. (Article 6) I * Side Event of the Jerusalem Institute of Justice, at the UN Human Rights Council, Geneva, March 21, 2024.