The challenge of proving genocide

The International Court of Justice (ICJ) has to decide on whether Israel’s alleged crimes in Gaza amount to a genocide. Key to the ruling will be proving intent.

Because my father fled Nazi Germany in July 1938 as a 12-year-old boy, I grew up with a deep appreciation for the evil that governments can do. That is part of what led me to devote my life to defending the human rights standards that help to deter oppression. I took seriously the vow, “never again.”

But the determination to prevent such atrocities does not mean that anything goes. Rather, international human rights and humanitarian law requiresExternal link that, even in armed conflict, governments must take specified steps to protect civilians.

The Israeli public was understandably traumatised by Hamas’s attack of October 7, 2023. Killing and abducting civilians are blatant war crimes. But the law is also clear that war crimes by one side never justify war crimes by the other. The requirements of international humanitarian law are absoluteExternal link, not dependent on compliance by the other side.

Israel should have fought Hamas by attacking its fighters, with appropriate care to protect Palestinian civilians, but that is notExternal link how it has waged the war, given the extensive bombing and starving of Palestinian civilians. International law certainly does not permit genocide to be committed in the name of defending Israel. Yet that is exactly what the South African government, and many others, have accusedExternal link Israel of doing.

Some people colloquially equate the term genocide with any mass atrocity, but in fact it has a specific legal definition. The Genocide ConventionExternal link, a treaty embraced by 153External link states, defines genocide as certain acts committed with the intent to destroy a specified group “in whole or in part” as such. The proscribed acts of greatest relevance to Gaza are “killing” or “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”

The paradigmatic genocides were the Holocaust or the genocide in Rwanda. These were targeted at a group “in whole.” After a certain point, the Nazis in Germany and the Hutu extremists in Rwanda tried to kill as many Jews or Tutsis as they could get their hands on. Genocide was the primary purpose.

But what does it mean to target a group “in part”? That requirement might be met when the killing is not targeted at every member of a specified group but at enough of them to accomplish another illicit goal. For example, in 2017 the Myanmar military executed some 10,000External link Rohingya to send 730,000External link Rohingya fleeing for their lives to Bangladesh. Genocide in that case was a means to the end of forced deportation. That is a better way to understand what the Israeli government today is accused of doing in Gaza.

Yet proving genocide as a matter of law is difficult. The issue is less the acts involved. There is little doubt that Israel’s actions are sufficient to meet the requirements for genocidal conduct. More than 60,000External link Palestinians have been killed in Gaza since Hamas’s attack of October 7, 2023. A November 2024 study found that nearly 70External link percent of those killed at the time had been women and children, and clearly many male victims were not combatants either. The number of civilians killed thus far exceeds the 8,000External link killed by Bosnian Serb forces in Srebrenica in 1994, which an international tribunal found to constitute genocideExternal link.

Although many of the dead in Gaza were not deliberately killed, their deaths were the product of Israel’s apparent disregardExternal link for Palestinian civilian life – for example, by devastating Palestinian neighborhoods with enormous 2,000-pound bombsExternal link, accepting 20 dead civilians as the price for killing a lowly Hamas fighter, or repeatedly killingExternal link starving Palestinians as they seek food at Israeli-organized distribution points.

Meanwhile, Israel has imposed a punishing siege on civilians in Gaza, blockingExternal link access to food and other necessities for lengthy periods. In addition, at least 70% of the buildings have been leveledExternal link. It confines surviving Gazans to primitive campsExternal link that it regularly movesExternal link or attacksExternal link. And it has destroyed the civilian institutions needed to sustain life in the enclave, including hospitalsExternal link, schoolsExternal link, religious and cultural sitesExternal link, and entire neighbourhoodsExternal link. These conditions are believed to have contributed to indirect deaths External link that could be several times the official death toll.

When the ICJ considers the merits of South Africa’s genocide case against Israel, the key contested issue is likely to be whether Israel is taking these steps with the requisite genocidal intent – does it seek to eradicate Palestinian civilians in whole or in part as such? Some genocidal statements by senior Israeli officials have become notorious. Israeli president Isaac Herzog said about Hamas’s attack that “this rhetoric about civilians not aware, not involvedExternal link” is false because civilians “could have risen upExternal link” against Hamas (even though it is a brutal dictatorship). Former Israeli Defence Minister Yoav Gallant’s spoke of fighting “human animalsExternal link” – not, as some claim, referring to only Hamas, but in discussing the siege, which affects everyone in Gaza. Netanyahu himself invoked the Biblical nation of Amalek, in which God is said to have demandedExternal link the killing of all “men and women, children and infants.”

Yet other Israeli officials in their public utterances hew more closely to legal requirements to spare civilians. So the ICJ will likely also examine whether genocidal intent can be inferred from Israel’s conduct Gaza. That is where the court’s conservative jurisprudence introduces a complication.

In its 2015 decision in Croatia v. Serbia, the court ruled that genocidal intent could be inferred from conduct if it “is the onlyExternal link inference that can reasonably be drawn from the acts in question.” Because the killing in that case was also committed with the aim of forced displacement, the court ruled that it could not give rise to an inference of genocidal intent.

Ignoring the possibility of two parallel intents – one to commit genocide, another to advance ethnic cleansing – the court’s ruling suggests, anomalously, that the war crime of forced displacement could be a defence to a charge of genocide. That is a controversialExternal link view. The court might instead have ruled that the question should be whether a charge is proved conclusively, not whether it is the only criminal activity underway. But it didn’t, so the more conservative doctrine is the law of the moment.

The ICJ will have a chance to amend its jurisprudence in the Gambia v MyanmarExternal link case about the Myanmar military’s attacks on the Rohingya, which should be decided before the Israel case. If the court rules that forced mass deportation was a motive, but not a defence, for genocide, that would lay the groundwork for a similar ruling against Israel.

Why would the ICJ have adopted this rule in the first place? It never explained, so we can only speculate. But its rationale may have rested in part on the view that genocide should be about killing maximally – killing “in whole,” like the Holocaust and the Rwandan genocide – rather than killing or creating deadly conditions “in part,” as a means to an end. But that’s not what the Genocide Convention says, which is why the decision has faced criticism.

Even if the ICJ finds genocide, that would yield a legal judgment against only the state of Israel, not a criminal conviction of any alleged perpetrator because the ICJ is not a criminal tribunal. Rather, any prosecution of individuals accused of responsibility for a genocide would most likely have to be handled by the International Criminal Court. The ICC has already chargedExternal link Netanyahu and Gallant with the war crime of starving and depriving Palestinian civilians in Gaza, but it has not filed a charge of genocide, and there has been no public indication that it is considering the charge. A conclusive determination of whether the Israeli government is indeed committing the crime of genocide will probably have to await a ruling by one of these two tribunals.

The views expressed by the author do not necessarily reflect the views of Swissinfo.

Edited by Virginie Mangin/livm