In the Israel-Hamas war, accusations of an Israeli “genocide” against the people of Gaza have created fierce debate and, consequently, warrant a reappraisal of the meaning of the term. Far from the historical and legal definition of the word, accusations of genocide against Israel have transformed the very essence of the word. This is lexical warfare. In the age of social media, it has proven effective.

A Brief History of Genocide

Polish lawyer Raphael Lemkin first coined the term genocide (‘race-killing’) in his 1944 book Axis Rule in Occupied Europe. Lemkin’s notable one-man campaign provided the conceptual framework for a particular kind of mass killing with no prior unique mechanism of legal redress.

The term genocide was first incorporated on Lemkin’s suggestion into the post-WW2 indictment of the German Major War Criminals.

On December 9, 1948, the crime of genocide was established by the UN General Assembly’s adoption of the Convention on the Prevention and Punishment of the Crime of Genocide. In it, genocide is defined as acts causing severe physical and mental harm with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.  Under the treaty, signatories are compelled to prevent and punish acts of genocide. Notably, the establishment of intent is central to prosecuting the crime of genocide.

Intent in Nazi Germany

In the context in which the term was first established, intent was easy to prove. In 1935, the German Nazi Party passed the Nuremberg Race Laws. In the aggregate, these laws provided legal cover and policy justification for discrimination against Jews. Over the course of the next several years, a series of additional policies were enacted, ultimately leading to the concept of Judenrein — the cleansing of the Jewish people. The Nuremberg Laws and ensuing policy clearly established the intent of the Nazis to destroy the Jewish people.

The Nuremberg Laws emerged in the aftermath of the war amid international efforts to make sense of the state-sanctioned killings of six million Jewish people. As a prominent example, the Hart-Fuller debate of 1958 centered on the fundamental nature of law and its relationship to morality. Using Nazi Germany as a prime example, H.L.A. Hart argued from a legal positivist perspective that law and morality are separate. In contrast, Lon Fuller — representing a natural law perspective — contended that law inherently contains moral elements. This debate is relevant here because it grappled with the legal and moral implications of the Nazi regime’s actions, including the Nuremberg Laws. It raised critical questions about whether unjust laws can still be considered valid and how legal systems should respond to state-sanctioned atrocities like those committed under Nazi rule.

The schism between legal positivism and natural law is nowhere more apparent than how morally abhorrent legal systems are treated. Nazi law is considered an example of legal positivism. But even the positivist Hart ultimately conceded that some laws are too evil to be obeyed. The international crime of genocide is an example of natural law.

Understood this way, genocide conveys a kind of crime placed at the apex of criminality. It was meant to be the sort of crime barely imaginable that, once observed, would shock the consciousness of humanity. It was meant to describe the worst man-made action possible. It provided a ceiling of human depravity, and as a bounded concept, the law would create the kind of punishment that would fit the crime.

Diluting Genocide

Over time, the meaning of genocide has been diluted by overuse, as poignantly illustrated by Russian President Vladimir Putin’s invocation of “genocide” as justification to invade Ukraine.

Since the Hamas attacks of October 7, genocide has come to be treated as a derogatory epithet against Israel as it tries to navigate the near-impossible battle space of Gaza.

In this context, it is important to remember the central role of intent in the crime of genocide. And genocidal intent is famously difficult to prove. We are witnessing this phenomenon unfold in real-time before the International Criminal Justice (ICJ), where South Africa has brought a genocide case against Israel on behalf of the people of Gaza. In January, the ICJ ordered Israel to take preventative measures to prevent genocide in Gaza. In a dissenting opinion, ICJ Vice President Judge Julia Sebutinde pointed to what she saw as the failure to establish intent to a degree sufficient to invoke the Genocide Convention. She wrote:

South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel, and of which the Applicant complains, were committed with the necessary genocidal intent and that, as a result, they are capable of falling within the scope of the Genocide Convention.

Sebutinde’s message was clear: the problem is not with the meaning of genocide; the problem is with the false assumption that evidence of combat killing is sufficient to prove the requisite intent.

The more a term is used, the more meaningless it becomes, and as a result, the term genocide risks simply being worn out and needs to be replaced.

Israel, Hamas, and the Laws of War

The principles of a just war are commonly held to be a just cause, right intent, net benefit, being declared by a proper authority, being a last resort, being proportional to the means used, and proper conduct.

Proportionality does not mean an equal death count; it means the use of minimally sufficient force to win. The asymmetric death count between Israel and Hamas has, for some, been the basis of a claim that Israel is fighting disproportionately. Israel counters that the complex battle space and the mixing of Hamas members within the civilian population makes target discrimination particularly difficult.

If Israel chose to adopt a policy of genocidal killing, it would look much different than what has transpired. The war between Hamas and Israel is bloody and protracted; it is not genocide. Israel is at war with Hamas; not with the Palestinian people.

Rethinking Genocide

As a modern replacement for genocide, consider the new term that will translate to “extinction killing” — exaleipsicide –— from Greek and Latin.  Extinction is the elimination of a distinct group of people for all time. The international crime of exaleipsicide will be the intentional elimination of an entire group for all time vis-à-vis the act of murder. To be guilty of extinction killing, a person or persons must seek to extinguish a whole group in person, artifact, and ultimately memory as if the group never existed.

Exaleipsicide would thus replace genocide as the apex of criminal depravity and would regain the strength the concept of genocide appears to have lost. Like genocide, exaleipsicide would require proof of intent, and in both cases, such proof may be exceedingly difficult to establish.

What distinguished Nazi atrocities was the enormous and easy-to-follow paper trail of intent. In the period since the establishment of the crime of genocide, the centrality of intent and the standard of proof have seemingly been eroded. Mass killings are terrible, but genocide was meant to describe something much more fundamentally evil. It was the last word in evil action. Suppose we are satisfied that genocide can also describe killing with questionable intent or actions, not at the apex of evil. In that case, we need something even stronger than the crime of genocide. Exaleipsicide will need its own UN convention and a new international tribunal to establish how this will be proven and punished.

Since October 7, groups like Hamas have sought the extinction of Israel and the diaspora Jewish community. This may be an example of exaleipsicide and the legal remedy for a person or person convicted is the permanent inability to commit such a crime.

Israel is not seeking the genocide of Palestinians. After the murder of the six hostages, including American Israeli Hersh Goldberg-Polin, Hamas appears to have changed its tactic. Hamas aims to break the resolve of Israel by killing hostages but pretending they won’t. If the main Hamas objective is to kill the hostages, negotiations will backfire as Hamas will perceive this as a weakness on the part of Israel.

Though decimated, Hamas appears to believe it can win. In the West, Hamas supporters chant, “there’s only one solution: intifada revolution.” From Hamas’s current perspective, anything short of total victory is a total failure.

From the current Israeli perspective, such an implacable enemy can only be dispatched by its destruction, but this result bears no resemblance to genocide.

In the biblical story of the binding of Isaac, an angel sent by God stays the hand of Abraham before he can kill Isaac. In Islamic tradition, Abraham is a prophet; many Muslims believe that in this story, it was Ishmael rather than Isaac. Whether Ishmael or Isaac, the message of this story is clear – God does not want any more human sacrifices.