Israel's killing of innocent civilians in Gaza may not have been intended — but it was foreseeable
In war, children are killed; people starve or suffer from malnutrition; injured civilians have their limbs amputated without anaesthetics; people are displaced and lose everything. Picture: AP /Fatima Shbair
Can genocide be unintentional?
According to international law it can’t be.
In fact, the very notion of an ‘unintentional genocide’ is an oxymoron. According to the Genocide Convention, adopted by the United Nations General Assembly in 1948, genocide is defined in Art.2 as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group”.
Intentionality is at the very heart of this definition, therefore, to prove genocide requires having empirical evidence of the intention to commit genocide.
The emphasis on specific intent is one of the things that distinguishes genocide from other war crimes, such as crimes against humanity.
When it comes to establishing genocide, the bar is set very high, understandably so, although it sometimes feels impossibly high. So high, in fact, there was opposition to using that word even during the Nuremberg Trials of 1945-46.
The brainchild of Polish jurist Rafael Lemkin, the concept of genocide was only sporadically used by some attorneys to accuse those responsible for the Nazi Holocaust, and there was no mention of genocide in the final judgment delivered by the judges in the Nuremberg Trials against Nazi perpetrators. They were instead charged with crimes against humanity.
Intentionality is an important concept, in law and moral philosophy, forming the necessary link between agency and action. Intentionality implies reason.
To say that an agent acted intentionally is to say an agent performed a given action because the agent had a reason for doing it. To have an intention is roughly equivalent to having a purpose, aim or end one wants to fulfil through one’s action.
Intentionality is essential when it comes to establishing responsibility for one’s actions, nevertheless defining genocide in terms of intentionality has serious drawbacks.
One of the problems with intentionality is that this speaks to a state of mind, which is difficult to establish. Furthermore, in relation to acts of violence, the emphasis on intentionality means that the violence is defined from the point of view of the perpetrator, not the survivor or the victim.
From a legal perspective, this may be necessary since the law is concerned with establishing culpability, but from the point of view of the survivors or victims of violence, issues of intentionality become less urgent.
In fact, the problem with emphasising the intentionality of violence is that a great deal of murderous violence risks becoming merely accidental, and therefore potentially blameless.
This seems to be the gist of Benjamin Netanyahu’s statement in the aftermath of the murder of seven people working for the aid charity World Central Kitchen: “Our forces unintentionally harmed non-combatants in the Gaza Strip. This happens in war.”
In other words: sorry, it was an accident, get over it.
What else happens in war? This is what happens: children are killed; people starve or suffer from malnutrition; injured civilians have their limbs amputated without anaesthetics; people are displaced and lose everything.
And yet we are told that all those things are accidents of war, never intended. This doesn’t make any sense, not for the victims or survivors of this violence.
Instead of intentionality, we should set the bar of genocide on a different level, determined by another concept: foreseeability. Something is foreseeable if a person knows, or ought reasonably to have known, that their actions would have certain consequences.
If I light a fire in my living room by burning turf, my intention is to enjoy the warmth emanating from the fireplace, but I also know the foreseeable, unintended consequence of my action is to contribute to global warming and air pollution due to the carbon being released into the atmosphere.
The declared intentions of Netanyahu is to stop Hamas from carrying out terrorist actions like the ones on October 7, 2023.
But the foreseeable, unintended consequences of bombing crowded civilian areas and hospitals, of blocking humanitarian aid operations for Gaza, of killing scores of journalists and charity workers, is that many thousands of people will die.
And, many thousands more will suffer famine-like conditions, and many thousands of babies will die after being born, and many thousands of children, women and men will suffer amputations, and many thousands will mourn the death of a loved one, and many thousands will be traumatised for the rest of their lives.
All these things may not have been intended, strictly speaking, but were entirely foreseeable. If Israel carries out a ground offensive in the southern Gaza city of Rafah, as Netanyahu has repeatedly pledged, the inevitable carnage that will result from it is also predictably foreseeable, even if unintentional, perhaps.
There is one more thing that is also unintended but foreseeable: the maiming of bodies and the killing of innocent people as a consequence of giving military aid to Israel, in the current climate.
The war between Israel and Hamas is now entering its seventh month. In recent times, many have accused Israel of war crimes and crimes against humanity. Some have even accused Israel of genocide. The question is not whether genocide was intended, but whether it was foreseeable.
- Dr Vittorio Bufacchi is senior lecturer in philosophy at University College Cork. He is the author of ‘Why Cicero Matters’ (Bloomsbury 2023)
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