An independent international commission of inquiry appointed by the United Nations Human Rights Council has released a report saying that Israel is committing genocide in Gaza.

Daniel Meron, Israel’s ambassador to the UN in Geneva, immediately dismissed the report for “promot[ing] a narrative serving Hamas and its supporters in attempting to delegitimize and demonize the state of Israel.” The report, he said, “falsely accuses Israel of genocidal intent, an allegation it cannot substantiate.”

Let’s imagine that there was no such thing as the legal definition of the crime of genocide. What would be left of the report? A gruesome, horrifying, utterly damning catalogue of Israeli war crimes and crimes against humanity.

According to the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide:

“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; (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.”

The prohibition of genocide is what is known in public international law as a peremptory (jus cogens) norm, meaning that it allows for no exceptions. It is one of a handful of jus cogens norms that include prohibitions on slavery, torture, war crimes and crimes against humanity. These are the worst of the worst, legally speaking, none lesser or greater than another.

How genocide is distinct

The crime of genocide stands out from other jus cogens violations in two ways, however — one legal and one sociological.

The legal difference is that genocide is the only jus cogens violation that requires proof of intent (mens rea, “guilty mind”). All the rest require nothing more than proof of a deed (actus reus, “guilty act”).

The sociological difference is that public opinion has come to regard genocide as somehow particularly important. If a state commits atrocities, it is for some reason unsatisfying today to call them crimes against humanity. There is seemingly a palpable urge to label it genocide.

In addition, the public understanding of genocide is much less restrictive than the legal one. The public feels that intent can be presumed and need not be proven, and that members of almost any group can qualify as victims. Sexual and gender minorities are not a protected group under the 1948 convention, for example, and yet it is not unusual to hear about the “genocide of gay people.”

Inviting quibbles and deflection

The UN report will be welcomed by all who understand Israel as guilty of the sociological version of the crime of genocide, because it concludes that Israel is also guilty of the legal version.

But a careful reading of the report will show that it often leaps to conclusions about intentions, drawing from statements or actions that might actually have explanations other than genuinely genocidal intent.

Alternative possible explanations the report does not entertain include overly emotional language or rhetorical hyperbole by Israeli leaders in the immediate wake of Hamas’s attack on Oct. 7, 2023; actions undertaken in the fog of war; a misplaced sense of military necessity; or even callous or reckless indifference to Palestinian suffering.

Such explanations, if true, would not be excuses. But they are not the same as an intention to destroy the Palestinian people.

Does this mean that the report is wrong to conclude that Israel is guilty of the legal crime of genocide? Not necessarily. It means only that it left room to quibble and deflect attention from unquestionable crimes.

It also gave Meron an opportunity to try to change the channel and make the conversation about “a narrative serving Hamas” or an attempt to “delegitimize and demonize the state of Israel,” rather than children starving or being shot in the head.

A high bar

None of this would be the case if the crime of genocide had not been defined so narrowly in the first place.

To some extent, its narrowness was the result of its inspiration. The evidence of genocidal intent was clear and overwhelming in Nazi Germany. One reason why there have been so few convictions is that the specific case of the Holocaust both spurred the definition of the crime and set the evidentiary bar so high.

Read more: Why have so few atrocities ever been recognised as genocide?

However, its narrowness is also the result of political manoeuvring during the negotiation of the convention itself.

Was there any good reason why sexual orientation or gender identity were not included as protected categories? None whatsoever, unless you just so happened to be a state that wanted to be left in peace to persecute sexual and gender minorities.

Why was the convention silent on cultural genocide, or on forced relocations of Indigenous Peoples to reservations? Perhaps because certain powerful countries had embarrassing histories that they did not want to see criminalized.

Read more: Ignore debaters and denialists, Canada's treatment of Indigenous Peoples fits the definition of genocide

Conduct vs. intent

Perhaps the biggest error was insisting upon “intent to destroy.” Why not simply go with targeting, or disproportionately impacting, members of a particular group?

As the UN report demonstrates, it’s easy to show conduct (actus reus), but typically very difficult to prove intent (mens rea). Removing intent would have made genocide a subset of crimes against humanity rather than a separate crime. But so what?

Ultimately, none of this should matter. We should not need the word “genocide” to galvanize action to stop the horrors unfolding in Gaza. They are crimes enough in and of themselves — as were the horrors in Cambodia, Bosnia, Rwandaand so many other places — and they should be the sole focus of our attention.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: David Welch, University of Waterloo

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David Welch does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.