‘Slow Death’ as Genocide: The Convention Was Written for Gaza

[John Quigley is Professor Emeritus at Moritz College of Law, The Ohio State University]

The two Gaza genocide cases pending in the International Court of Justice bring into prominence a form of genocide that is not what constitutes the crime in the public mind, but that was very much on the minds of the drafters of the Genocide Convention. The outright killing of populations of people is one form of genocide, but populations can be destroyed as well by depriving them of the means of survival. The ICJ cases filed by South Africa against Israel, and by Nicaragua against Germany highlight both forms. South Africa charges genocide by Israel for killing Palestinians, but also for subjecting them to death by forced privation. Nicaragua, accusing Germany of complicity with Israel by providing armaments, similarly notes both acts of killing and acts of subjecting the population to conditions that will result in deaths. The Convention on the Prevention and Punishment of the Crime of Genocide recites, in Article II(a), that a population group can be destroyed by outright killing, but as well, in Article II(c), by “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”

Both forms of genocide figured prominently when the United Nations set about writing a treaty on the subject in 1948. Three lawyer consultants appointed by the UN Secretariat composed a Draft Convention on the Crime of Genocide, with a clause defining genocide to include “subjection to conditions of life which, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion, are likely to result in the debilitation or death of the individuals.” The three lawyers added a commentary to the clause, explaining, “This is what may be termed ‘slow death.’” So while genocide could be committed by acts that cause instant death, it could equally be committed by creating conditions that result in deaths over time.

This clause did not come out of nowhere. Raphael Lemkin, Henri Donnedieu de Vabres, and Vespasian Pella were criminal law experts who had just lived through the horrors of the war in Europe. Pella, as Romania’s ambassador in Switzerland, had saved Romanian Jews from deportation to death camps. Lemkin had studied Nazi practices as a consultant to the US Government, producing a tome titled Axis Rule in Occupied Europe. Donnedieu de Vabres had been a judge on the International Military Tribunal at Nuremberg, where he heard evidence about how Nazi officials had confined Jews in Warsaw to a ghetto in which thousands died of starvation and disease.

This draft was opened to governments for comment. The United States, among others, wrote in favor of a “conditions of life” clause, suggesting (at p. 35) that it read: “Subjection to conditions of life wherein, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion, the individuals are doomed to weaken or die.” No government suggested deleting the clause.

The United States took the lead at the next stage in the drafting, in what was called the Ad Hoc Committee on Genocide, set up by the UN Economic and Social Council on March 3, 1948. This was a committee of states. Members were China, France, Lebanon, Poland, USA, USSR, and Venezuela.. The US representative, John Maktos, an Assistant Secretary of State, became chair. 

The Ad Hoc Committee was lobbied by the World Jewish Congress, which applauded the inclusion of a “conditions of life” clause. “In view of the possibility of weakening or destroying human groups by economic and other measures short of the actual destruction of life,” the Congress plead (p. 8), “the Convention should prohibit any action likely to lead ultimately to the partial or total destruction of a human group.”

The USSR agreed, saying that the definition of genocide “must embrace not only cases of direct murder,” but also “the premeditated infliction” on a group “of conditions of life aimed at the destruction of the group in question.” The Soviet representative gave (p. 14) “an historical example, the ghetto, where Jews were confined in conditions which, either by starvation or by illness accompanied by the absence of medical care, led to their extinction.”

China floated a new text for a “conditions of life” clause that differed from the consultants’ clause by omitting a list of particular forms of deprivation. The Chinese text read: “Subjecting such group to such conditions or measures as will cause the destruction, in whole or in part, of the physical existence of such group.” Other Committee members proposed their own language, but in the same direction. Maktos suggested that the clause read “subjecting members of the group to such conditions or measures as will cause their deaths,” while the Soviet representative suggested “the premeditated infliction on these groups of such conditions or life as would be aimed at the total or partial destruction of their physical existence.” The Ad Hoc Committee sought in general to simplify the text of the draft convention. The Soviet representative explained that the omission of particular forms of deprivation would broaden the reach of the clause. “The new wording,” he said, “had the advantage of extending the provisions of the convention not only to the acts of genocide known at present but also to any method that might be evolved in the future with a view to destroying the physical existence of a group.”

In the Ad Hoc Committee, contention was sharp on a number of issues relating to the definition of genocide, but no one spoke against a “conditions of life” clause. In its final report, the Committee wrote the clause to read “inflicting on members of the group measures or conditions of life aimed at causing their deaths.” No mention of intent was included in the clause, because an “intent to destroy” was required in an introductory sentence applicable to all the “act” clauses.

The drafting next moved to the UN General Assembly, where it was taken up by the Assembly’s Sixth (Legal) Committee, made up of the entire UN membership. In the Sixth Committee, the need for a “conditions of life” clause was not questioned. Only minor changes were introduced. The words “aimed at” in the Ad Hoc Committee version were questioned, and suggestions were made to replace them. A revised “conditions of life” clause was proposed: “The deliberate infliction of such conditions of life for such groups as are calculated to bring about its physical destruction in whole or in part.” This text was provisionally adopted The addition of the word “deliberate” made clear that the conditions would not suffice if inflicted inadvertently. The addition of the phrase “in whole or in part” expanded the coverage of the clause by making clear that the conditions constitute genocide even if they impact only a “part” of the group. The word “calculated” showed that an assessment of the conditions was to be an objective process, to determine whether the conditions are such as to bring about physical destruction. That word also emphasizes that genocide is committed by setting the stage for eventual deaths, but without the need for any present deaths.

A drafting committee formed within the Sixth Committee put the treaty into final form, with the “conditions of life” clause reading, “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” The General Assembly adopted the text of the entire treaty, and it was opened for states to adhere.

In July 2024, ten United Nations human rights rapporteurs said “that Israel’s intentional and targeted starvation campaign against the Palestinian people is a form of genocidal violence.” In May 2024, the Prosecutor of the International Criminal Court charged starvation of civilians against Israeli leaders. A study posted in the British medical journal Lancet in July 2024 showed that in situations of armed conflict, deaths caused “indirectly” typically exceed those caused directly. Counting the Dead in Gaza; difficult but essential. “Armed conflicts,” the study’s authors explained, “have indirect health implications beyond the direct harm from violence.” As for Gaza, the authors wrote, “Even if the conflict ends immediately, there will continue to be many indirect deaths in the coming months and years from causes such as reproductive, communicable, and non-communicable diseases. The total death toll is expected to be large given the intensity of this conflict; destroyed health-care infrastructure; severe shortages of food, water, and shelter; the population’s inability to flee to safe places; and the loss of funding to UNRWA [UN Relief and Works Agency for Palestine], one of the very few humanitarian organisations still active in the Gaza Strip.”

As it was completing its work in 1948, the Ad Hoc Committee on Genocide explained the types of situation they had in mind for the “conditions of life” clause. “The text covers two cases of great practical importance,” the Committee wrote. “The first is the case of individuals herded in ghettos, interned in concentration camps, imprisoned, subjected to forced labour and exposed to conditions of life – for example, inadequate food, lack of sanitation and excessive work – which condemned them to a slow death. The second case is that in which, while individuals are left at liberty, they are deprived of the means of existence enjoyed by other inhabitants. They are, for example, refused housing, access to provisions, or the right to work.”

The population of Gaza is confined to a small territory, comparable to a ghetto. They lack hygiene services, medical services, housing, namely, “the means of existence.” They lack access to food and, given frequent evacuation orders, are unable to provide food for themselves, for example, by farming or fishing. The Gaza population is suffering the “slow death” identified by the drafters of the Genocide Convention. The Secretariat’s consultants, the Ad Hoc Committee, and the General Assembly described the “conditions of life” clause in ways that fit the situation in Gaza. The documentation recording these three stages of drafting provides essential moorings for the ICJ as it assesses Israel’s actions under the Genocide Convention.