Could Hamas be charged with a genocide of Gazans?

Question

Some have accused Hamas of committing the genocide of Palestinians. While this specific accusation is more a matter of political rhetoric, and coming from the quarters no less extreme than Hamas themselves, I wonder whether the actions of Hamas can be formally prosecuted as a genocide against Palestinian people (or another crime against humanity.)

Indeed, the Hamas leaders on many occasions stated their intention to cause numerous Palestinian deaths. The latest example is this statement by the Hamas representative in Lebanon:

"Hamas is a national liberation movement. National liberation movements do not keep count of martyrs, wounded people, or prisoners, on the path for liberation. If we, as a national liberation movement, or as the Palestinian people who strive to liberate our land, start calculating how many thousands of martyrs there are every time we go to war, we would not go to war and there would be no resistance. How did Algeria liberate its land? It sacrificed millions of martyrs. How did Vietnam liberate its land from America? Three millions Vietnamese were killed in the war for liberation. Even Russia in WWII sacrificed 20 million Russians in the war against the Nazis.

"If you want to liberate your land, you do not count the number of martyrs and victims, because you strive to liberate your land. We consider Palestine to be a sacred and blessed land. We are martyrdom-seekers. We have not seen any family member of the martyrs in Gaza complaining about the resistance. All the families of the martyrs say that this is a sacrifice for the resistance. One mother of a martyr said: 'I hope God gives me 12 more boys, so that they can be martyred while defending Palestine, Jerusalem, and the Al-Aqsa Mosque.

A statement by Israeli leaders calling to kill many Palestinians or deliberately targeting Palestinian civilians would be considered a call for a genocide (as well as similar statements by Hamas about Israelis, like their 1988 charter). Indeed, this is very much what the South Africa's case against Israel is based on - see, e.g., The question of intent: Discourse as evidence in the case against Israel).

Is Hamas immune from a similar charge merely because they call and act with intention of killing their own people?

Remarks

• Note that the question is not about war crimes like using human shields or preventing civilians to flee, which Hamas is routinely accused of, but which may not constitute a policy. The question is about the intent to commit a crime against the Palestinian people as a whole.
• E.g., the October 7 attacks had no military purpose, their only intent was to cause a high number of Israeli casualties and provoke Israeli military response. The high number of Palestinian casualties after such an attack is inevitable, even if Israel responds within the limits of the international law (the fact that Israeli actions are challenged in court, doesn't change it.)

Answer 1

It's not the first time Israeli politicians have said something like this, but I'm not aware of any court cases of "self-genocide" initiated somewhere.

In another context, the term has been levelled at the Khmer Rouge too, by the way. Wikipedia doesn't mention this "self-genocide" term in the relevant article though, but other neologisms like "classicide". OTOH, the Soviets have also been accused of "self-inflicted genocide" by at least one author.

Actually, I was not entirely correct about that lack of case law... Apparently some of Romanian communist dictator Ceausescu underlings were charged with "complicity to genocide", but e.g. regarding his interior minister:

Postelnicu was arrested during the 1989 Revolution, on the night of 22–23 December. Tried at the Bucharest Military Tribunal, he was sentenced in February 1990 to life imprisonment and confiscation of all his personal property, for complicity in genocide. The well-publicised proceedings have been described as a "show trial"; Postelnicu and three other prominent defendants pleaded guilty after delivering rehearsed, self-critical testimony that they later renounced. [...] In April 1993, upon a request by the state prosecutor, the Supreme Court of Justice annulled the earlier sentence, instead convicting him of complicity in aggravated manslaughter and attempted manslaughter, and reducing his sentence to seven years' imprisonment and eight years' deprivation of civic rights.

The dictator himself was charged with genocide and executed shortly after conviction, without allowing any appeals--Wikipedia also calls his trial a show/mockery trial. (TBH that article is of surprisingly poor quality; it's not clear to me from there if he was convicted on the count of genocide. Wikipedia also writes that "An accusation of genocide was never proven"--but I'm not sure if that refers to the quality of the trial, or the formal verdict.) According to NPR Ceausescu was convicted of genocide, so I guess that makes his a case law of "self-genocide" conviction, as flawed as his trial may have been. His wife was executed alongside him, after being found guilty of genocide too (says NPR).

Much later on (2013), a Romanian prison commander from the communist era was apparently also charged with genocide. I cannot find follow-up in English, but Romanian Wikipedia seems to say that he was convicted of crimes against humanity rather than genocide.

I cannot find much substantive discussion in some [English-language] law journal about the Ceausescu [self-]genocide charges, but more generally speaking it's been noted that it's been contentious how much of a group one needs to kill, or intend to kill before it's considered genocide:

The difficulty of defining or measuring "in part", and establishing how many deaths equal genocide.

The Japanese also encouraged suicidal attacks in last part of WW2, but although the allies had ample opportunity to judge them [after the war], I cannot find any hint that suicidal attacks might have been considered partial [self-]genocide in some of those trials.

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A few additional points:

• crimes against humanity is much broader concept. One can uncontroversially do those against a subset of "own people", e.g. by torturing a bunch of political opponents. Many contemporary mass murderers, including Saddam Hussein, were only convicted of this. (He was charged with genociding the Kurds rather than Iraqis in general, but he was convicted of crimes against humanity against a group of 140 Shia, and executed for that, before the genocide trial could finish.) And some Syrian or Iranian prison officials (as well as some from former Yugoslavia) were charged in courtes in the West with crimes against humanity for mass torture.

• Generally speaking, such charges apply to individuals, not to organizations. Nuremberg however invented the notion of a "criminal organization":

The Nuremberg Tribunal was empowered to declare that indicted group or organization was criminal, which meant that in subsequent proceedings the criminal nature of the group or organization could not be challenged, and on this basis, an individual could be prosecuted for the crime of the ‘membership’ therein.

(It's worth noting that the Nazi party as a whole was never declared that. Only the SS, SD and the leadership of the party were.)

But Hamas has already been declared a terrorist organization by Israel and many Western countries. And membership to something like that is criminally liable in most of those jurisdictions. (The link between terrorism and criminal organizations was made as early as a [Free] French Ordinance of 24 August 1944.) So for all practical purposes, Hamas [as an organization] has already been sentenced in the West on something functionally equivalent.

Answer 2

No, they cannot. Article II of the Genocide Convention defines genocide as:

... 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.

Parts (a), (b), (d), (e) clearly do not apply to Hamas vis-a-vis the Palestinian people. I cannot even imagine a plausible argument. One could make an (awful, but somewhat plausible) argument that (c) might hold arguing as follows. Hamas had reasonable knowledge that October 7th would result in a genocidal Israeli response, and so by having launched the October 7th attack it deliberately imposed on the Palestinian people a "condition" which would entail its destruction in whole or part. However, this obviously would be tossed by any sensible judge, as it shifts the blame onto another party and denies Israeli agency. It is similar logic to trying to argue that a woman being raped by a man she knew beforehand was psychopathic was at fault for flirting with him.

Hamas does on occasion encourage its people to be "martyrs." However, it is not unusual for states to laud and venerate their dead, or to expect their citizens to pay the ultimate price in service of victory. Quoting Winston Churchill during The Blitz:

We ask no favours of the enemy. We seek from them no compunction. On the contrary, if to-night the people of London were asked to cast their vote whether a convention should be entered into to stop the bombing of all cities, the overwhelming majority would cry, "No, we will mete out to the Germans the measure, and more than the measure, that they have meted out to us." The people of London with one voice would say to Hitler: "You have committed every crime under the sun. Where you have been the least resisted there you have been the most brutal. It was you who began the indiscriminate bombing. We remember Warsaw in the very first few days of the war. We remember Rotterdam. We have been newly reminded of your habits by the hideous massacre of Belgrade. We know too well the bestial assault yon are making upon the Russian people, to whom our hearts go out in their valiant struggle. We will have no truce or parley with you, or the grisly gang who work your wicked will. You do your worst and we will do our best." Perhaps it may be our turn soon; perhaps it may be our turn now.

Answer 3

The intention of Hamas isn't to kill off the Palestinians collectively, but to spend individual lives to liberate the collective. That's not genocide, that's ordinary war.

The Gazan population has increased handsomely over time, better than Israel's, and human communities have a biological reproductive capacity that is far higher than the capacity which is routinely in use during peacetime, so there is no sign of physical die-off in Gaza - at least not directly from the actions of Hamas.

Almost all of the Gaza adult population is of prime physical fighting and reproducing age - they are probably one of the most optimised-for-war populations in the world in this regard.

So in that sense the question is misconceived.

But moreover, what exactly would be the function of declaring Hamas to be genocidal? Would it be to allow Israel to kill even more Gazan civilians in the name of destroying the genocidal Hamas? Or would it be to allow other nations to weigh in and kill even more Gazan civilians in the name of destroying the genocidal Hamas?

The purpose of declaring a particular group to be genocidal, is essentially as part of the moral justification for the stronger nations of the world to destroy that genocidal group with overwhelming military force, so as to protect their victim.

From that perspective, the concept of self-genocide, and the idea of blowing up and killing the self-perpetrator in order to protect them from killing themselves, is an absurdity.

The Palestinian problem is a typical one of pacification, in the context of a civilian population being regularly brutalised by a violent neighbour with sectarian politics, and of the geopolitical conflict between the West and the Middle East for which Israel-Palestine is a proxy war.

Answer 4

Some have accused Hamas of committing the genocide of Palestinians. ... Indeed, the Hamas leaders on many occasions stated their intention to cause numerous Palestinian deaths.

...

"If you want to liberate your land, you do not count the number of martyrs and victims, because you strive to liberate your land."

...

The question is about the intent to commit a crime against the Palestinian people as a whole. E.g., the October 7 attacks had no military purpose,their only intent was to cause a high number of Israeli casualties and provoke Israeli military response. The high number of Palestinian casualties after such an attack is inevitable, even if Israel responds within the limits of the international law ...

Certainly not. First of all, their attack and putting their people in such a great risk is not genocide if they don't have a measure of how sever would be the Israeli's military response back. For example do they have ever guessed that Israel will bomb hospitals, schools, mosques and churches, shoot at media reporters and commit any immoral act that one can imagine against their civil people in response? If the answer is no, and for example they only expected a military respond targeting military targets, then they knew nothing about what war crimes may stand awaiting for them if they do attack Israel at October 7. But if they already knew or could have imagine, then from where such an imagination was possible for them? Does it have evidences before? Maybe yes. Some of what has happened now, has had happened earlier in previous wars or even everyday routine of life in a smaller scale (cf. for example intentional shooting at Shireen Abu Akleh, the Palestinian-American journalist, or intentional killing of the American 23-year old peace activist Rachel Corrie, or better cf the Israel's war crime extract of wikipedia for older examples of war crimes against Palestinians and others).

The latter possibility can both accuse Hamas leaders for genocide, and their exoneration at the same time for what they did was not an attack at the first place, but a natural respond to years of crimes against them and their people. Killing a person who broke into our house might not be crime, while killing someone in his own house may be crime, two killings are not always equal.

Beside that, becoming martyr in Muslim's language does not mean simply imply diying, but far from it. According to Quran "And do not say about those who are killed in the way of Allah, 'They are dead.' Rather, they are alive, but you perceive [it] not" [2:154], and so even when Hamas says "We are martyrdom-seekers" it doesn't imply we are death-seeker or suiciders! Even Muslims believe Martyrs will come back to their flesh when its time will come, as everyone will eventually die according to Quran and the Martyr have not been died, even while have been killed. You should interpret their statements based on their and their people's understanding of the words. Meanwhile, the Palestinians' life was never normal (with our understanding of what is "normal", see e.g. here), people being killed and confronting humiliation regularly may eventually reach a state to prefer "death with honor" over "life with humiliation", and this cannot be considered self-genocide. Hamas is somewhat close to Iran, and once Imam Khomeini (the former leader of Iran's Islamic revolution) stated that people believing in martyrdom will not be captive (ملتی که شهادت دارد اسارت ندارد), as they will fight up to the last droplet of blood in their veins. This idea has its root historically in Imam Hussain PBUH uprising, who despite his small number of followers and lack of troops did not entertain in himself the idea of compromising with the oppressor, who fixed Karbala as the slaughterhouse for himself, children and few followers and who conveyed to the truth-seeker his cry of "Never will we submit to abjectness and humiliation". This later statement is so famous among Shia Muslims, and so much used when e.g. US government warns Iran by saying something like "all options are on the table" and that the final option is the "military component". If you seen Yemenis are also going the same way, so you see no sign of fear in them even if US and UK directly open a war on them. All in all, Hamas leaders are not following a line to confront their people simply with death, nor their people have had a great life-style before October 7 for them to disturb it. All that have happened after October 7, is increased rate and severity of what has used to happen regularly, as the cited references remark to some extent.

Answer 5

If intentional and consistent using of humans and hospitals as human shields, children soldiers firing rockets as well as other ways of intentionally seeking to maximize the casualties with the goal to get moral support worldwide need be investigated, I see no reason why not.

It might obviously be concluded after investigation that these claims are groundless. Even more, why not? Jew genocide has been carried outside the boundaries of Nazi Germany, but if this would be done for Jews inside the country only, should it be seen as "not a problem" just on that basis?