Since the current war between Israel and Hamas began on 7 October 2023, Israel has faced a plethora of allegations of genocide by various different States, organisations and individuals, for example in this public statement, signed by over 800 scholars, warning of the “potential genocide in Gaza”. These allegations have culminated in a case brought by South Africa against Israel at the International Court of Justice (the ‘Application’), in which South Africa alleges that Israel is committing genocide against the Palestinian population in the Gaza Strip and violating its obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’). Although a complete review of the arguments made in the Application is outside the scope of this post, in summary, South Africa claims that the high number of civilian casualties and the dire humanitarian conditions in Gaza brought about by Israel’s military operation, as well as the specific intent to commit genocide gleaned from statements made by members of the Israeli government, military and society in general, together constitute evidence of the commission of genocide, or in some cases, a failure to prevent the commission of genocide (see, in particular, paras. 101-106).
Despite having been firmly established in international law for three quarters of a century, the definition and requisite elements of the international crime of genocide appear to have been misunderstood or, in some cases, deliberately misapplied, seemingly by both scholars and laypersons. Many of the recent misunderstandings or deliberate misapplications to the current conflict between Israel and Hamas are exactly what the drafters of the Genocide Convention sought to avoid through their very specific choice of words in preparing the convention. Preparatory documents from 1946 and 1947 show the details of the discussions amongst government officials and non-governmental experts as they worked to formulate a prosecutable, international crime that would cover the most heinous, systematic acts aimed at eradicating entire groups of people, without overlapping with other possible violations of international law. In this regard, having recourse to the preparatory work of the Genocide Convention to reveal the intention of the drafters, pursuant to Article 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties, is particularly useful in this case, to resolve some of the ambiguities of the definition.
Although some appear to argue that Israel is committing genocide against the Palestinian population based purely on the high number of Palestinian casualties or the humanitarian conditions in the Gaza Strip, these arguments are entirely unfounded in the law. International law is clear on the need for “specific intent” to accompany any acts falling within the actus reus of the crime of genocide, that is the intent to destroy in whole or in part one of the protected groups, as such. Simply intending to kill or to otherwise harm individual members of that group would not be sufficient to reach this very high threshold of intent. For example, it was made clear by the drafters of the Genocide Convention in 1947 (UN Doc. A/AC.10/55, enclosing Secretariat Draft E/447, reproduced in Hirad Abtahi’s and Philippa Webb’s The Genocide Convention: The Travaux Préparatoires, p. 208) that:
The infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide. In modern war belligerents normally destroy factories, means of communication, public buildings, etc. and the civilian population inevitably suffers more or less severe losses. It would of course be desirable to limit such losses. Various measures might be taken to achieve this end, but this question belongs to the field of the regulation of the conditions of war and not to that of genocide.
They made similar clarifications with regard to the imposition of dire humanitarian conditions and with regard to mass displacements of populations, both of which may lead to the death of members of a protected group, but both of which would not constitute genocide without evidence of specific intent.
The Trial Chamber of the International Criminal Tribunal for Rwanda described the concept of specific intent in the Akayesu case as a “psychological relationship between the physical result and the mental state of the perpetrator” (para. 518) which “demands that the perpetrator clearly seeks to produce the act charged” (para. 498). This threshold is incredibly high. In the Karadžić case, the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) confirmed that when inferring specific intent on the basis of facts and circumstances, such inference must be the “only reasonable inference” based on the evidence (Karadžić Trial Judgment, para. 2592). On that basis, the ICTY proceeded, in all of its cases, to classify the crimes committed in the former Yugoslavia (except for those committed in Srebrenica, where it was the only reasonable inference) as war crimes and/or crimes against humanity, and not as genocide (see here for an analysis). The International Court of Justice adopted the same language in the Genocide Case between Croatia and Serbia (para. 417), where it held that the intent to destroy the national or ethnical group of Croatian Serbs had not been established (para. 428).
The remainder of this post will therefore examine the argument that the use of hateful and inflammatory language against Palestinians by various Israeli officials constitutes evidence of specific intent, and that this, taken together with the high number of casualties and the humanitarian conditions in Gaza, proves the commission of genocide.
The Application quotes a number of statements made by Israeli members of the government, military personnel including soldiers, non-cabinet members of parliament, former parliamentarians and news anchors to support the argument that specific intent to destroy the Palestinian population in the Gaza Strip as such is present (see paras. 101-106 of the Application). Others who argue that Israel is committing genocide have quoted similar examples. While some of these examples will be discussed below in more detail, it should be noted at the outset that excessive reliance on statements made by specific individuals to prove the commission of genocide by Israel is complicated where such statements: (i) contradict actual actions taken by Israel, (ii) have been condemned or dismissed by Israel, and (ii) contradict other statements to the contrary, often made by the same individual. While the delegates and experts involved in drafting the Genocide Convention in 1947 acknowledged that “hateful propaganda” often preceded the commission of genocide, they noted in their draft commentary that such propaganda would have to be carefully defined and clearly distinguished from bitter and violent criticism (UN Doc. A/AC.10/55, enclosing Secretariat Draft E/447, in Abtahi and Webb, p. 239).
Thus, in these three types of circumstances in particular, one should carefully consider whether certain inflammatory statements might merely constitute “unjust, impassioned and excessive criticism” (UN Doc. A/AC.10/55, enclosing Secretariat Draft E/447, in Abtahi and Webb, p. 239) as envisioned by the drafters to the Genocide Convention, rather than evidence of specific intent to commit genocide.
Turning now to some of the specific examples provided in the Application (paras. 101-106), there is an argument to be made that at least some of them may have been misinterpreted as directed at the civilian population of Gaza, when in reality, they are more likely to have been directed at the terrorist organisations Hamas and Palestine Islamic Jihad (‘PIJ’), as a response to their heinous attacks on 7 October 2023, during which over 1,400 Israeli civilians were tortured, raped, mutilated, murdered and taken hostage. For example, the statement by Prime Minister Netanyahu on 13 October 2023 that Israel was “striking our enemies with unprecedented might”, on 15 October 2023 that Israeli soldiers stand ready to “defeat the bloodthirsty monsters who have risen against [Israel] to destroy [us]”, and the various statements in the days that followed describing the military operation as a struggle between “children of light” and “children of darkness” and between “humanity and the law of the jungle” could quite logically be interpreted as statements describing Israel’s views of the members of Hamas and PIJ that had carried out their atrocities a week prior. It is also logical to assume that what the Prime Minister referred to as the “extreme evil that threatens us and the entire world” and which would need to be “defeat[ed]”, and President Isaac Herzog’s statement on 15 October 2023 that Israel would “uproot evil so that there will be good for the entire region and the world” are references to the “evil” of Hamas and PIJ, as opposed to Palestinian civilians. The statement that Israel is “facing monsters, monsters who murdered children in front of their parents”, would also seem to have been directed at Hamas and PIJ, who indeed murdered children in front of their parents on 7 October 2023.
In other cases, some of the examples provided are more ambiguous, but nevertheless appear to have been taken out of context. For example, the full ‘Tweet’ by Israeli Minister of Energy and Infrastructure Israel Katz on 13 October 2023 reads:
We have to draw a line. We will Not tolerate murdering children and burning families. The line has been crossed. We will fight the terrorist organization Hamas and destroy it. All the civilian population in gaza [sic] is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.
In its Application, South Africa quotes only the second part of this Tweet, commencing with “All the civilian population…”. Reading it in full, however, makes the word “they” all the more ambiguous, particularly when one takes into account Israel’s official position that Hamas hijacks most of the humanitarian aid that enters the Gaza Strip (which has been documented, e.g. here and here). Bearing that position in mind, Minister Katz’s Tweet on 12 October 2023, that there should be no humanitarian aid to Gaza, could also be construed as evidencing a ‘specific intent’ to destroy Hamas, rather than the civilian population in Gaza, unlawful and negligent as it may be. Another ambiguous statement is that made by the Israeli Defence Minister Yoav Gallant on 9 October 2023 that Israel is fighting “human animals”. The full statement reads:
You saw what we are fighting against. We are fighting against human animals. This is the ISIS of Gaza. This is what we are fighting against. Gaza won’t return to what it was before. We will eliminate everything. It doesn’t take one day, it will take a week, it will take weeks, or even months, we will reach all places. There is no way that our brothers, our children, our parents will be killed and we won’t react because we are a state. So we understand that Hamas wanted to change the situation. It’ll change back 180 degrees and they’ll regret this moment. They will regret it.
While it has been argued that the Defence Minister was referring to Palestinians as “human animals”, the statement that “this is the ISIS of Gaza” seems to negate this point. While the reference to “eliminating everything” and “reaching all places” could be (and has been) interpreted as eliminating civilians and civilian infrastructure in Gaza, it could just as easily be interpreted as eliminating Hamas and Hamas infrastructure in Gaza. That “Gaza won’t return to what it was before” could mean a Gaza without Palestinians – or it could mean a Gaza without Hamas.
But even in cases where statements haven’t been misinterpreted, many of these statements, as mentioned above, directly contradict actual facts and actions taken by the government and military forces. For example, with respect to humanitarian aid, despite initial statements to the contrary, Israel later on allowed humanitarian aid to enter the Gaza Strip during its military operation, clarifying that its main concern after the 7 October 2023 attacks was that the aid would end up in the hands of Hamas. It has also taken steps to prevent harm to the civilian Palestinian population, including by: (i) encouraging civilians to move out of the line of fire through disseminating fliers, publishing information online, making thousands of individual phone calls, and communicating instructions and directions in Arabic via radio and other forms of media to guide Gazans to safer areas (see here); (ii) holding fire to enable Gazans to safely move through humanitarian corridors (see here); (iii) delivering incubators, baby food and medical supplies to Al-Shifa Hospital during a raid (see here); and (iv) carrying out assessments and verifications that any strikes are directed at military targets (see here). The efficiency and compliance with international law of some of these actions may be debated, but even so, they arguably negate the required specific intent to commit genocide, particularly in circumstances where Hamas is actively blocking evacuation routes and firing at Palestinian civilians using those evacuation routes (see here), and at Israeli troops assisting civilians with evacuations (see here).
Importantly, a lack of specific intent may also be gleaned from the numerous examples of statements to the contrary. For example, on 2 December 2023, Prime Minister Netanyahu told reporters:
We determine safe areas in coordination with international agencies and with our American friends, to where the population knows it can evacuate. We did it in the north and we will do it elsewhere and this is important because we have no desire to harm the population.
Similarly, on 6 December 2023, the Prime Minister made the following statement on X (formerly Twitter):
The Security Cabinet, this evening, approved the recommendation of the War Cabinet to allow a minimal supplement of fuel – necessary to prevent a humanitarian collapse and the outbreak of epidemics – into the southern Gaza Strip.
Spokespersons for the Israel Defence Forces have made similar remarks:
Our war is against Hamas, not against the people of Gaza. It’s hard to remain indifferent to the loss of innocent lives – Israeli or Palestinian. But while Hamas sees every innocent death as a strategy; we see every innocent death as a tragedy… We are continuously refining our operations to minimize harm to uninvolved civilians. While we take extensive measures to minimize civilian casualties, Hamas makes every effort to maximize them… Our war is against Hamas, not against the people of Gaza. But – actions speak louder than words. Which is why yesterday, we also opened the Kerem Shalom terminal for inspection – to increase the flow of humanitarian aid into Gaza. This joins our existing efforts, which have already seen over 4,000 trucks of aid – carrying 70,000 tonnes of food, water, medicine, medical gear and shelters entering Gaza since the start of this war.
Other statements include those of President Isaac Herzog in an interview on 19 December 2023 that Israel wants to [enable] “Palestinians and the Israelis [to] live in peace in the future” and that:
[U]nfortunately, in such a dense area, there could be [ ] damages that are very tragic. We know it. But we do—according to international law, we alert people very cautiously… One thing is clear: The people of Gaza are not our enemy. The enemy is only Hamas. And we’re fighting Hamas and its partners.
He also stated in the same interview:
No, I don’t shy away from the fact that every Palestinian who was hurt—it aches and hurts me and it’s very painful for me, believe me. And I say it as the head of state of Israel, where our enemies come from there. But even in the last few days, missiles were fired from the safe zone area by Hamas on our families, on our homes, OK? Even in the safe zone. Even from UN zones they are firing missiles from the parameters of those zones. So we are trying—and we make a special effort not to hurt civilians as much as we can. And we are notifying them well in advance. And to mitigate any consequential damage because it hurts us and it’s the right thing to do.
Similarly, Defense Minister Yoav Gallant stated on 18 December 2023:
On October 7th we fought back and immediately set the goals of this war, the destruction of Hamas and the return of the hostages home, with no exception… And our war against Hamas, the Hamas terrorist organization, is a war — it’s not a war against the people of Gaza. We are fighting a brutal enemy that hides behind civilians. Billions of dollars have been invested in Gaza, money that should have gone to civilian infrastructure and instead was used to build a network of tunnels hundreds of kilometers long, equipped by military facilities.
Moreover, in regard to a video that surfaced on the web of Israeli soldiers vandalising Palestinian property in Gaza, Spokesperson for the Israel Defense Forces, Daniel Hagari, stated:
IDF troops operate according to the IDF’s values and spirit. Troops on the battlefield are required to act with professionalism and with morals. We will not compromise on this…soldiers who participate in any incidents which violate the IDF’s values will be reprimanded or punished.
There may be some merit to the argument that Israel needs to effectively investigate and prosecute the authors of certain statements in order to abide by its obligations to prevent and punish e.g. direct and public incitement to genocide, particularly as regards some of the more extreme statements made by members of general Israeli society that are not attributable to the State. But there is still a real danger in mischaracterising Israel’s entire military operation against Hamas as genocidal. As stated by Judge Bennouna in his Declaration in the Provisional Measures proceedings between Russia and Ukraine before the International Court of Justice:
I am aware that this concept of genocide has been overused and indiscriminately employed by propagandists of all persuasions. This is neither in the interest of the human groups under serious threat of destruction, nor in the interest of the credibility and efficiency of the 1948 Convention, which has enjoyed massive support from States and their consent to the jurisdiction of the International Court of Justice for the settlement of disputes relating to the Convention.
Labelling Israel’s military operation against Hamas as an act of genocide may threaten to undo 75 years of work to prevent and punish the commission of genocide, by diluting and diminishing the effect of the Genocide Convention.
Rebutting Allegations of Genocide Against Israel
Written by Olivia FlaschSince the current war between Israel and Hamas began on 7 October 2023, Israel has faced a plethora of allegations of genocide by various different States, organisations and individuals, for example in this public statement, signed by over 800 scholars, warning of the “potential genocide in Gaza”. These allegations have culminated in a case brought by South Africa against Israel at the International Court of Justice (the ‘Application’), in which South Africa alleges that Israel is committing genocide against the Palestinian population in the Gaza Strip and violating its obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’). Although a complete review of the arguments made in the Application is outside the scope of this post, in summary, South Africa claims that the high number of civilian casualties and the dire humanitarian conditions in Gaza brought about by Israel’s military operation, as well as the specific intent to commit genocide gleaned from statements made by members of the Israeli government, military and society in general, together constitute evidence of the commission of genocide, or in some cases, a failure to prevent the commission of genocide (see, in particular, paras. 101-106).
Despite having been firmly established in international law for three quarters of a century, the definition and requisite elements of the international crime of genocide appear to have been misunderstood or, in some cases, deliberately misapplied, seemingly by both scholars and laypersons. Many of the recent misunderstandings or deliberate misapplications to the current conflict between Israel and Hamas are exactly what the drafters of the Genocide Convention sought to avoid through their very specific choice of words in preparing the convention. Preparatory documents from 1946 and 1947 show the details of the discussions amongst government officials and non-governmental experts as they worked to formulate a prosecutable, international crime that would cover the most heinous, systematic acts aimed at eradicating entire groups of people, without overlapping with other possible violations of international law. In this regard, having recourse to the preparatory work of the Genocide Convention to reveal the intention of the drafters, pursuant to Article 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties, is particularly useful in this case, to resolve some of the ambiguities of the definition.
Although some appear to argue that Israel is committing genocide against the Palestinian population based purely on the high number of Palestinian casualties or the humanitarian conditions in the Gaza Strip, these arguments are entirely unfounded in the law. International law is clear on the need for “specific intent” to accompany any acts falling within the actus reus of the crime of genocide, that is the intent to destroy in whole or in part one of the protected groups, as such. Simply intending to kill or to otherwise harm individual members of that group would not be sufficient to reach this very high threshold of intent. For example, it was made clear by the drafters of the Genocide Convention in 1947 (UN Doc. A/AC.10/55, enclosing Secretariat Draft E/447, reproduced in Hirad Abtahi’s and Philippa Webb’s The Genocide Convention: The Travaux Préparatoires, p. 208) that:
They made similar clarifications with regard to the imposition of dire humanitarian conditions and with regard to mass displacements of populations, both of which may lead to the death of members of a protected group, but both of which would not constitute genocide without evidence of specific intent.
The Trial Chamber of the International Criminal Tribunal for Rwanda described the concept of specific intent in the Akayesu case as a “psychological relationship between the physical result and the mental state of the perpetrator” (para. 518) which “demands that the perpetrator clearly seeks to produce the act charged” (para. 498). This threshold is incredibly high. In the Karadžić case, the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) confirmed that when inferring specific intent on the basis of facts and circumstances, such inference must be the “only reasonable inference” based on the evidence (Karadžić Trial Judgment, para. 2592). On that basis, the ICTY proceeded, in all of its cases, to classify the crimes committed in the former Yugoslavia (except for those committed in Srebrenica, where it was the only reasonable inference) as war crimes and/or crimes against humanity, and not as genocide (see here for an analysis). The International Court of Justice adopted the same language in the Genocide Case between Croatia and Serbia (para. 417), where it held that the intent to destroy the national or ethnical group of Croatian Serbs had not been established (para. 428).
The remainder of this post will therefore examine the argument that the use of hateful and inflammatory language against Palestinians by various Israeli officials constitutes evidence of specific intent, and that this, taken together with the high number of casualties and the humanitarian conditions in Gaza, proves the commission of genocide.
The Application quotes a number of statements made by Israeli members of the government, military personnel including soldiers, non-cabinet members of parliament, former parliamentarians and news anchors to support the argument that specific intent to destroy the Palestinian population in the Gaza Strip as such is present (see paras. 101-106 of the Application). Others who argue that Israel is committing genocide have quoted similar examples. While some of these examples will be discussed below in more detail, it should be noted at the outset that excessive reliance on statements made by specific individuals to prove the commission of genocide by Israel is complicated where such statements: (i) contradict actual actions taken by Israel, (ii) have been condemned or dismissed by Israel, and (ii) contradict other statements to the contrary, often made by the same individual. While the delegates and experts involved in drafting the Genocide Convention in 1947 acknowledged that “hateful propaganda” often preceded the commission of genocide, they noted in their draft commentary that such propaganda would have to be carefully defined and clearly distinguished from bitter and violent criticism (UN Doc. A/AC.10/55, enclosing Secretariat Draft E/447, in Abtahi and Webb, p. 239).
Thus, in these three types of circumstances in particular, one should carefully consider whether certain inflammatory statements might merely constitute “unjust, impassioned and excessive criticism” (UN Doc. A/AC.10/55, enclosing Secretariat Draft E/447, in Abtahi and Webb, p. 239) as envisioned by the drafters to the Genocide Convention, rather than evidence of specific intent to commit genocide.
Turning now to some of the specific examples provided in the Application (paras. 101-106), there is an argument to be made that at least some of them may have been misinterpreted as directed at the civilian population of Gaza, when in reality, they are more likely to have been directed at the terrorist organisations Hamas and Palestine Islamic Jihad (‘PIJ’), as a response to their heinous attacks on 7 October 2023, during which over 1,400 Israeli civilians were tortured, raped, mutilated, murdered and taken hostage. For example, the statement by Prime Minister Netanyahu on 13 October 2023 that Israel was “striking our enemies with unprecedented might”, on 15 October 2023 that Israeli soldiers stand ready to “defeat the bloodthirsty monsters who have risen against [Israel] to destroy [us]”, and the various statements in the days that followed describing the military operation as a struggle between “children of light” and “children of darkness” and between “humanity and the law of the jungle” could quite logically be interpreted as statements describing Israel’s views of the members of Hamas and PIJ that had carried out their atrocities a week prior. It is also logical to assume that what the Prime Minister referred to as the “extreme evil that threatens us and the entire world” and which would need to be “defeat[ed]”, and President Isaac Herzog’s statement on 15 October 2023 that Israel would “uproot evil so that there will be good for the entire region and the world” are references to the “evil” of Hamas and PIJ, as opposed to Palestinian civilians. The statement that Israel is “facing monsters, monsters who murdered children in front of their parents”, would also seem to have been directed at Hamas and PIJ, who indeed murdered children in front of their parents on 7 October 2023.
In other cases, some of the examples provided are more ambiguous, but nevertheless appear to have been taken out of context. For example, the full ‘Tweet’ by Israeli Minister of Energy and Infrastructure Israel Katz on 13 October 2023 reads:
In its Application, South Africa quotes only the second part of this Tweet, commencing with “All the civilian population…”. Reading it in full, however, makes the word “they” all the more ambiguous, particularly when one takes into account Israel’s official position that Hamas hijacks most of the humanitarian aid that enters the Gaza Strip (which has been documented, e.g. here and here). Bearing that position in mind, Minister Katz’s Tweet on 12 October 2023, that there should be no humanitarian aid to Gaza, could also be construed as evidencing a ‘specific intent’ to destroy Hamas, rather than the civilian population in Gaza, unlawful and negligent as it may be. Another ambiguous statement is that made by the Israeli Defence Minister Yoav Gallant on 9 October 2023 that Israel is fighting “human animals”. The full statement reads:
While it has been argued that the Defence Minister was referring to Palestinians as “human animals”, the statement that “this is the ISIS of Gaza” seems to negate this point. While the reference to “eliminating everything” and “reaching all places” could be (and has been) interpreted as eliminating civilians and civilian infrastructure in Gaza, it could just as easily be interpreted as eliminating Hamas and Hamas infrastructure in Gaza. That “Gaza won’t return to what it was before” could mean a Gaza without Palestinians – or it could mean a Gaza without Hamas.
But even in cases where statements haven’t been misinterpreted, many of these statements, as mentioned above, directly contradict actual facts and actions taken by the government and military forces. For example, with respect to humanitarian aid, despite initial statements to the contrary, Israel later on allowed humanitarian aid to enter the Gaza Strip during its military operation, clarifying that its main concern after the 7 October 2023 attacks was that the aid would end up in the hands of Hamas. It has also taken steps to prevent harm to the civilian Palestinian population, including by: (i) encouraging civilians to move out of the line of fire through disseminating fliers, publishing information online, making thousands of individual phone calls, and communicating instructions and directions in Arabic via radio and other forms of media to guide Gazans to safer areas (see here); (ii) holding fire to enable Gazans to safely move through humanitarian corridors (see here); (iii) delivering incubators, baby food and medical supplies to Al-Shifa Hospital during a raid (see here); and (iv) carrying out assessments and verifications that any strikes are directed at military targets (see here). The efficiency and compliance with international law of some of these actions may be debated, but even so, they arguably negate the required specific intent to commit genocide, particularly in circumstances where Hamas is actively blocking evacuation routes and firing at Palestinian civilians using those evacuation routes (see here), and at Israeli troops assisting civilians with evacuations (see here).
Importantly, a lack of specific intent may also be gleaned from the numerous examples of statements to the contrary. For example, on 2 December 2023, Prime Minister Netanyahu told reporters:
Similarly, on 6 December 2023, the Prime Minister made the following statement on X (formerly Twitter):
Spokespersons for the Israel Defence Forces have made similar remarks:
Other statements include those of President Isaac Herzog in an interview on 19 December 2023 that Israel wants to [enable] “Palestinians and the Israelis [to] live in peace in the future” and that:
He also stated in the same interview:
Similarly, Defense Minister Yoav Gallant stated on 18 December 2023:
Moreover, in regard to a video that surfaced on the web of Israeli soldiers vandalising Palestinian property in Gaza, Spokesperson for the Israel Defense Forces, Daniel Hagari, stated:
There may be some merit to the argument that Israel needs to effectively investigate and prosecute the authors of certain statements in order to abide by its obligations to prevent and punish e.g. direct and public incitement to genocide, particularly as regards some of the more extreme statements made by members of general Israeli society that are not attributable to the State. But there is still a real danger in mischaracterising Israel’s entire military operation against Hamas as genocidal. As stated by Judge Bennouna in his Declaration in the Provisional Measures proceedings between Russia and Ukraine before the International Court of Justice:
Labelling Israel’s military operation against Hamas as an act of genocide may threaten to undo 75 years of work to prevent and punish the commission of genocide, by diluting and diminishing the effect of the Genocide Convention.
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Brian L. Cox says
January 10, 2024
Thank you for this comprehensive and deeply insightful analysis. It is unfortunate that the meaning of genocide, as a term of art and as a representation of the most heinous crime imaginable against humankind, has been so thoroughly diluted in the decades since adoption of the Convention.
Requiring the specific intent to destroy in whole or in part a group based on specific protected categories was deliberately meant to create an incredibly high bar for a finding that the worst crime of all international crimes has been committed. The pending application by SA to the ICJ is, quite unfortunately, but one (rather high profile) example of the gradual dilution of the impact of the term genocide - as you suggest in your closing lines.
There is no doubt that the government of Israel has developed the specific intent to destroy a group in whole - but that group is Hamas, and the intent is reflected in the dual strategic objectives of dismantling Hamas to put an end to the security threat the group continues to pose (as evinced by the Oct 7 terrorist attacks) and freeing hostages being held by the group. Carefully selecting a collection of policy-level messages and taking them out of their original context to create the appearance of a serious risk of genocide is, at the very best, disingenuous.
Returning this messaging into its original context and applying it to the actual conduct of Israel in the ongoing hostilities, as you do above, is the proper antidote to vexatious claims such as those reflected in the SA application. I suspect that the outcome of the case pending before the ICJ will resemble fairly closely the above analysis.
Thank you again. I cannot commend this analysis strongly enough, and of course time will tell regarding the outcome at the ICJ. Momentous days/weeks ahead at the Peace Palace, no doubt.
Nicolas Boeglin says
January 10, 2024
Dear Professor Flasch
Many thanks for this post. It seems to me - but I´m maybe wrong - that your post is a little bit oriented in order to justify Israel official´s position tomorrow at ICJ during the public hearings.
I (in fact, we all) already observed yesterday Israelian representative at UNGA quoting articles in favour of Israel´s position at the tribune during its intervention in New York.
May I just refer you (and our dear colleagues of EJIL- Talk) to what we read today in Israel:
"Israel’s legal defense would be engaged in “an uphill struggle” in which it would have to convince the court that the prime minister and other cabinet ministers did not mean what they said and that their words do not reflect what has actually happened on the ground in Gaza".
Source: https://www.timesofisrael.com/we-should-be-worried-israel-faces-peril-at-the-hague-in-gaza-genocide-case/
Yours sincerely
Nicolas Boeglin
Olivia Flasch says
January 10, 2024
Brian,
Thank you very much for your very kind comments regarding my analysis! Momentous days ahead, indeed.
Olivia Flasch says
January 10, 2024
Dear Professor Boeglin,
Thank you very much for your comment.
I don't see anything inherently contradictory between the quote from Times of Israel you have referred to and my post. It will indeed be an uphill struggle for Israel's defence team to convince the court. However, in my view, there are some convincing arguments they could use that showcase the lack of genocidal intent, and this post seeks to highlight those types of arguments.
Adrian Stork says
January 10, 2024
The article appears less analytical and more like a blatant defense of Israel, consistently interpreting every statement and action in the most favorable light possible. It mainly leans towards justifying or excusing Israeli actions, and overlooking or downplaying the severity and impact of these actions on the Palestinian population.
Zara Cooper says
January 10, 2024
This article is misleading and contains false information. The author's claim that "...over 1,400 Israeli civilians were tortured, raped, mutilated, murdered and taken hostage" is not factual. The Israeli government lowered the estimated death toll to 1,139, only 695 of whom were civilians, and the IDF has admitted that they actually killed their own citizens on 7th October 2023. They also killed Israeli hostages and have put them at continued risk by indiscriminately bombing Gaza, which is where they are located. The Israeli government has also reportedly refused offers to accept the release of hostages – women and children.
[Sources:
https://www.france24.com/en/live-news/20231215-israel-social-security-data-reveals-true-picture-of-oct-7-deaths
https://new.thecradle.co/articles-id/13111
https://www.timesofisrael.com/liveblog_entry/hamas-says-israel-rejected-offer-for-7-more-women-and-children-bodies-of-3-israelis/]
In addition, Israel has failed to produce any evidence that anyone was raped or sexually assaulted by Hamas on 7th October 2023, and the testimonies that do exist are sparse and from unreliable sources: "Specifically, Israel's case relies on video testimony from a single eyewitness at the music festival, witness testimonies from body collectors of the Zaka organisation... "...advertised as Israel's foremost non-governmental organisation in this field... "...[Zaka] is the same organisation that propagated a fabricated story about babies being beheaded by Hamas. Yossi Landau, the head of operations at Zaka, claimed to have seen bodies of beheaded babies, a statement that has been refuted even by Israeli newspapers. "Furthermore, Zaka has become entangled in a web of scandals, with its leaders facing charges of sexual assault, rape, and child exploitation."
[Sources:
https://new.thecradle.co/articles/israeli-police-unable-to-verify-hamas-rape-stories
https://www.trtworld.com/magazine/analysing-the-missing-pieces-in-israels-rape-allegations-16318994]
Moreover, the released hostages have openly stated that they were treated humanely, kept safe, clean, fed well and given water, to the extent that recorded footage shows released hostages hugging and shaking hands with Hamas members, and wishing them well. Released hostage Yocheved Lifshitz stated in an interview that Hamas 'were “very kind” and “took care of all of our needs”'.
[Sources:
https://www.instagram.com/reel/C0QdKRcrQCU/]
https://www.democracynow.org/2023/10/24/headlines/freed_israeli_hostage_yocheved_lifshitz_says_she_was_treated_well_by_hamas_captors]
The author has also missed an important element of context which is that hostages were taken to negotiate the release of thousands of Palestinian prisoners – many of whom are women and children who have been beaten, tortured, starved, denied medical treatment and subjected to solitary confinement after being detained without charge and/or evidence, in some cases for decades.
[Sources:
https://novaramedia.com/2023/12/01/freed-palestinians-say-they-were-tortured-beaten-and-starved-in-israeli-prisons/
https://www.aljazeera.com/features/2023/12/13/badly-burned-but-free-israa-jaabis-on-her-release-from-israeli-prison#:~:text=Too%20scared%20to%20go%20to,afraid%20to%20go%20to%20hospital.&text=%E2%80%9CTo%20get%20treatment%20now%2C%20I,like%20I'm%20being%20chased
https://www.amnesty.org/en/latest/news/2023/09/israel-opt-after-nearly-2-years-in-solitary-confinement-ahmad-manasra-too-ill-to-attend-his-hearing/]
The statements made by Israel officials were unequivocally directed at all Palestinians, and they are numerous and well documented. The Israeli President himself, Isaac Herzog, stated that "there are no innocent civilians in Gaza" on 14th October 2023. This sentiment was echoed by Knesset member Meirav Ben-Ari when she openly declared that "the children of Gaza have brought this upon themselves”. Further statements of genocidal intent have come from Amichai Eliyahu, Israeli Minister of Heritage, who stated: "One of the options is to drop an atomic bomb on Gaza". In a similar vein, Revital Gottlieb, a member of the Israeli Knesset, said "Bring down buildings!! Bomb without distinction!! Stop with this impotence. You have ability. There is worldwide legitimacy! Flatten Gaza. Without mercy! This time, there is no room for mercy!" And on the ground, IDF soldiers are sending bombs to Gaza with genocidal messages as blatant as "God willing, it will hit innocent people" written on them.
Israeli Prime Minister Benjamin Netanyahu chose to incite genocide through biblical references, stating that "you must remember what Amalek has done to you". "Amalek" refers to "an ancient arch-enemy of the Israelites whose extermination was commanded by God to Saul via the prophet Samuel". The Old Testament states "Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass," in 1 Samuel 15:3." British religious scholar Hamza Andreas Tzortzis has pointed out that "if it was not obvious from the carpet bombing, use of white phosphorus, and indiscriminate killing that the Zionist government of Israel [has] clear genocidal intentions, then the... reference to Palestinians as Amalek in Netanyahu's speech describing his plans for Gaza should be enough to convince you".
[Sources:
https://www.trtworld.com/middle-east/database-exposes-500-instances-of-israeli-incitement-to-genocide-in-gaza-16537146
https://www.commondreams.org/news/netanyahu-genocide].
According to the Founder and President of Genocide Watch, Professor Gregory Stanton, denying food and water to a victimised group is a predictable part of the process of genocide, a tactic of persecution used "to slowly destroy them". Is it merely a coincidence, then, that Israel has not allowed food, water, medical supplies, electricity, fuel or internet/telecommunications to enter or operate in Gaza since 7th October 2023? Gazans are literally starving to death and dying of thirst. Since there are no medical supplies left, doctors have resorted to using vinegar in place of antiseptic whilst pregnant women are undergoing C-section and injured children are being amputated without anaesthetic. Not only is this evidence of genocide, it has also been described by British Foreign Secretary David Cameron as a breach of Israel's responsibility as an occupying power under international humanitarian law.
[Sources:
https://www.hrw.org/news/2023/12/18/israel-starvation-used-weapon-war-gaza
https://www.theguardian.com/world/2023/oct/24/gaza-hospitals-ceasing-to-function-as-water-and-fuel-run-out
http://genocidewatch.net/genocide-2/8-stages-of-genocide/
https://www.theguardian.com/world/2024/jan/09/uk-government-accepts-israel-has-legal-duty-to-provide-basic-supplies-to-gaza].
Satellite imagery shows that so far, Israel has also destroyed up to two-thirds of Gaza's civilian infrastructure: intentionally bombing hospitals, mosques, churches, universities as well as civilian homes. It has murdered 109 journalists at time of writing, not to mention deliberating targeting the family and home of veteran Al-Jazeera journalist Wael al-Dahdouh.
[Sources:
https://www.theguardian.com/world/2024/jan/08/the-numbers-that-reveal-the-extent-of-the-destruction-in-gaza#:~:text=Analysis%20of%20satellite%20data%20cited,of%20buildings%20have%20been%20destroyed.
https://cpj.org/2024/01/journalist-casualties-in-the-israel-gaza-conflict/
https://www.wsws.org/en/articles/2024/01/08/keda-j08.html]
The Genocide Convention 1948 defines genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group". Thanks to Israel's indiscriminate bombing of the Gaza Strip, the death toll stands at least 23,357 civilians at time of writing, most of whom are women and children. On top of the innocent lives lost, 59,410 people have been injured, many of whom are children and now amputees who will live the rest of their lives disabled. In other words, Israel has killed more than 1% and injured almost 3% of Gaza's entire civilian population in the space of just two months – a faster rate of killing than in any other modern conflict, and described by experts as "exceptionally high". It is absolutely clear that Israel both intends to and is committing genocide in Gaza.
Shira Sabbagh says
January 11, 2024
One is almost tempted to suggest Israel bring a case against South Africa for its hosting of indicted Darfur war criminals - or perhaps its chummy relations with China (Turkestan) and Russia (Crimea). After all, practically every state on earth is in breach of its Convention obligations by the standard Pretoria proposes.
If the court doesn't wish to have another one of its rulings duly filed away to gather dust - an optimistic assumption, I know - it will nip this transparent electoral stunt by the ANC kleptocracy in the bud.
On a positive note, it is telling of the progress in the Arab world that none of its regimes cared to trot out this old "Jews are the real genocidaires" line, familiar to any student of east European Nazi collaborationist apologia.
Michal Lipták says
January 11, 2024
The statements, as a whole, which SA lists, are most easily interpreted as genocidal. Each one can, of course, be deconstructed. E.g. when Netanyahu says "Remember what Amalek did to you", and the Bible orders Israelites to "utterly destroy all they have, spare them not, but kill men and women, children and sucklings", one can say that, well, it's in the heat of the moment, or that references to Amalek as stand-in for evil are common on Netanyahu's part - and that the fact that IDF does actually kill women and children in unprecedented amounts and at unprecedented pace, and that it did utterly destroy Gaza, all while its soldiers are singing "we will wipe off the seed of Amalek / our motto is: no innocent civilians", is somehow unrelated to this. But it's really an uphill struggle.
But the totality of these statements gives away genocidal intent.
This is all the same when the actual plans that were seriously pushed forward by Israeli regime are taken into account, such as expelling Gazan population (with Syria and Ukraine being listed as positive examples) and then dispersing them around the world so they cease to exist as a group:
https://www.972mag.com/intelligence-ministry-gaza-population-transfer/
Forcing them to "voluntary immigrate" by unprecedented brutality, killing, maiming, traumatizing, by diseases, famine and destruction:
https://www.wsj.com/articles/the-west-should-welcome-gaza-refugees-asylum-seekers-hamas-terrorism-displacement-5d2b5890
Trying to cleanse them to Congo:
https://www.timesofisrael.com/israel-in-talks-with-congo-and-other-countries-on-gaza-voluntary-migration-plan/
Or - as Netanyahu put it - "thinning out the Gazan population to the minimum possible level":
https://twitter.com/jonathan_shamir/status/1730525453830516821
All this is, of course, in line with long-term Likud and the other far-right parties' ideology, in which "Between river and the sea, there will be only Israeli sovereigny", and Palestinians should ideally just leave, to Jordan or Egypt, because - so they say - they are Arabs and they have many states, and there's nothing like Palestinian nation anyway, and so on.
Of course, this all is diluted - mainly for foreign consumption in English (the genocidal statements are mostly in Hebrew for domestic consumption) - by contradictory statements paying lip-service to IHL.
But here it's useful to understand the predicament the current far-right Israeli regime finds itself in. What they want, absolutely unambiguously, is genocide - at least in form of ethnic cleansing. They want the Palestinian nation to cease to exist. But at the same time, they are reliant on support of democratic Western countries which are adverse to the idea of genocide. Simultaneously, they want to maintain a figment of being democratic country themselves. So what can be done?
Actually, exactly what they're doing. Throw around enough genocidal dogwhistles for domestic public, but also enough contradictory statements for foreign partners so there's always a degree of plausible deniability. Attack Gaza with indiscriminate ferocity, brutalize Gazan population as much as possible, without meting out outright extermination. The point is that if this far right regime went with all-in genocide, its Western backers might have flinched and stopped it. It wouldn't be strategic. They might have not gone through with genocide. It's more strategic to realize all this in relatively slower pace (although, as compared to other modern wars, still killing and expelling civilians with unprecedented haste).
The model was actually established by Assadist regime in Syria. It has besieged Hama, Homs, Ghouta, Daraya, Madayya, Aleppo, and so on and so on. It has starved them, bombed them with dumb bombs, brutalized them. Always claiming "just fighting jihadis" (while, objectively speaking, many of the groups it was fighing, such as Nour al-Din al-Zenki or Jabhat al-Nusra, were ideologically even more hideous and intransigent, as Hamas). Slogans such as "Assad or we burn the country", intended for domestic consumption, were tempered by anti-terrorist rethoric for the foreign consumption. And when the situation became unbearable, green buses came and the population was transferred. Ethnic cleansing, genocide, was sold as "humanitarian evacuation". This approach was ultimately genocidal - millions of Syrians, maybe half of the population, left their homes - mostly Sunni, rebellious population. The remainder was so frightened by all this that they ceased to rebel and accepted submission - at least for now.
Israeli far right regime was watching all this, intently, and learning. In 2014, Ayelet Shaked has listed the massacre of Grozny by Putin's regime as a good model for Gaza. But Assadist brutalization of Syria proved even better inspiration. And so this is what they are trying to pull off in Gaza. And again, they *literally listed Syria as desired model* at least in one document - one they actually tried to push through EU (wisely choosing Czechia for this, which in my mind is a good choice, since we have history of ethnic cleansing/genocide ourselves - in expulsions of Sudeten Germans - which, as Benny Morris has for example claimed, is just what would be good for Israel, too):
https://www.ft.com/content/75971d8b-e2fd-4275-8747-0bd443673483
SA's application is well founded and well argued. There is genocidal intent on the part of Israeli far right regime, and it is trying to realize it. In any case, the *risk* is absolutely beyond any doubt. ICJ should definitely issue preliminary injunction to stop it.
José Alves says
January 11, 2024
Funny to see the repeated reference to the "intention of the drafters" as a valid consideration for interpreting a treaty-based provision, as well as certain genocide scholars' fixation with genocide as a crime reserved only for "special occasions", when it is in fact one of many atrocity crimes - which need to be prevented and punished equally.
CYRUS safdari says
January 11, 2024
Many of these arguments are countered by the British, Danish, German, Canadian Dutch joint declaration for intervention filed Aug 2022 before the ICJ in the Gambia v Myanmar case where for example they argued that given declarations of intent to commit genocide are rare, the court’s test should not solely be explicit statements or numbers killed, but reasonable inference drawn from a pattern of conduct and factual evidence
Yahya Mohamed Mahayni says
January 14, 2024
Thanks for the insightful post and perspective. It gives food for thought. Ultimately, the "intent to destroy" language must be interpreted in good faith. For the sake of argument, if a State dropped an atomic bomb on another group of people without previously declaring any intent to destroy, would this allow the element of intent to be inferred? If yes, then I personally believe there is scope for inferring intent if the State effectively destroys that group of people through other - arguably more insidious - means.
David Schutz says
January 14, 2024
Israel has not, will not, and cannot contest that the statements referenced by South Africa are genocidal. They are. Israel can only maintain (in some cases) that those who made the statements lacked operational control on the battlefield and/or lacked the ability to influence policy and/or have since made other mitigating statements. However, even if it would be acceptable to the court that this type of defense absolve Israel of genocidal intent (irrespective of Israel's actions in Gaza), the conceptual link remains between Israel's actions on the ground and these statements because Israeli soldiers are obviously influenced by them. Therefore, the question remains why Israel has chosen not to prosecute these statements under its domestic law, and whether this itself constitutes a genocidal intent toward the Palestinian people in Gaza.
Nicolas Boeglin says
January 20, 2024
Dear Professor Flash
May I add to muy previous comment what we read in last OCHA report (to January 19):
"Between the afternoons of 18 and 19 January, according to the Ministry of Health (MoH) in Gaza, 142 Palestinians were killed, and another 278 people were injured.
Between 7 October 2023 and 12:00 on 19 January 2024, at least 24,762 Palestinians were killed in Gaza and 62,108 Palestinians were injured, according to the MoH.
Between 17 January and 18 January, no Israeli soldiers were reportedly killed in Gaza. Since the start of the ground operation and as of 18 January, 191 soldiers have been killed, and 1,178 soldiers have been injured in Gaza, according to the Israeli military".
Source:
https://www.ochaopt.org/content/hostilities-gaza-strip-and-israel-flash-update-97
Yours sincerely
Nicolas Boeglin