Genocide, War and International Humanitarian Law

Abstract This article considers the general relationships between genocide and war from a historical-sociological point of view, in order to illuminate the relationships between international humanitarian law (‘IHL’) and the international law prohibition of genocide. It argues for legal thinking to take greater account of Raphael Lemkin’s foundational work on genocide and more generally of sociological understandings. In this light, genocide is presented both as a distinct type of war and as affecting war in general; it is also argued that genocide can only be constituted by social rather than physical destruction. The article indicates possible roots of the problematic legal relationship between IHL and genocide in the separate development of these bodies of law in the 1940s, and suggests that Lemkin’s formulation, in which genocide is seen as including war crimes and crimes against humanity, offered a more satisfactory framework. The article then examines the war/genocide relationship both in the Second World War, drawing on Lemkin’s analysis, and in twenty-first century wars, focusing particularly on Israel’s campaign in Gaza since 2023. In this context, it argues that the conception of genocide as inclusive of IHL violations is more satisfactory than treating the two regimes as separate, which might imply that genocide could even be committed through IHL-compliant acts. Ultimately, the paper concludes, the salience of genocide leads back to the question of the viability of ‘war’ itself.