What is the relationship between genocide and self-defence? How can it be that everyone seems to agree, that there can be no defence to genocide? How can one understand Israel’s claim that they are not committing genocide but instead they are acting in self-defence? Why is it that Israel argues that its conduct is in self-defence, and therefore, not genocide?
It is helpful to refer to the theory of domestic criminal law. In the theory of domestic criminal law, a defence justifies conduct and turns it from being unlawful to being lawful. It is transformed from being wrong to being the right thing to do. On an ordinary application to say, a charge of murder, an accused who kills another human being within the bounds of self-defence, does so lawfully. So, on an ordinary application of principles, self-defence would transform unlawful genocide, to lawful genocide. This seems good in theory, but there is something built into the crime of genocide that makes it incompatible with a defence that could make the conduct in question, lawful. Genocide is aimed at the destruction of the whole or part of a group of people. It is defined in Article 2 of the Genocide Convention as follows:
In the present Convention, genocide means any of the following acts committed with the 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.
Article II, Convention on the Prevention and Punishment of the Crime of Genocide
While one may act in domestic and international law in self-defence in response to an attack or imminent attack, the force in response must be directed at the attacker (or threatened attacker), the force must be necessary to end the attack or threat and must be proportionate to the interests attacked or threatened, or, at least, it must be reasonable. In international law the requirement that one may only direct the force in response against the attacker (or threatened attacker) is augmented by the principle of distinction – that one must distinguish between civilians (who are innocent) and combatants – and one may only target combatants.
Critically, genocide relates to “… acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group…”
This makes the aims of what is permitted in self-defence incompatible with the aims of genocide. Self-defence must be aimed at the attacker – the target is defined by reference to whether s/he is a combatant who has committed or threatens to commit an attack. An attacker cannot be defined with reference to nationality, ethnicity, race or religion. These considerations cannot define an attacker. They are irrelevant at best, a distraction at worst.
It is at this point that the two concepts are distinct. The moment a state defines its target with reference to these irrelevant considerations, it commits genocide. Again, critically, the moment a state is shown to be targeting a group of people based on these considerations irrelevant to self-defence, it cannot claim to be acting in self-defence – no matter how egregious, horrendous, outrageous or otherwise evil, the act or threatened act in respect of which it claims to be responding, might be.
There can be no question that the acts of 7/10 were just that: egregious, horrendous, outrageous and otherwise plain evil. But even if one adds to what happened on 7/10 other attacks that have taken place against Israel or which are threatened, if Israel defines its response against a group of people by reference to nationality, ethnicity, race or religion, it crosses a very bright line and commits genocide.
It follows then that references to what was done on 7/10 – however egregious – are, at best, irrelevant. At worst, they are a distraction.
Thus, it will be the primary task of the ICJ to decide not whether Israel was subjected to an egregious attack on 7/10 and otherwise, and it continues to be under threat. Instead, its task will be to set all those considerations aside and determine whether, on the face of it (at this provisional stage), Israel has targeted part of a group based on their nationality, ethnicity, race or religion.