Israel: From Self-Defence to Genocide

It’s hard to articulate the frustration, and frankly, the rage that many of us in the human rights field have been experiencing over the past year as we have watched Israel retaliate for the Hamas attack through wholly disproportionate means that have killed more than 41,000 Palestinians, destroyed families and cities, and traumatised a generation, while continually affirming its right to self defence. But what happens when self defence shifts to outright aggression and then pushes even further to genocide? In the case of Israel, we have seen not only bombing and invasion of Gaza, but also killing, property destruction, and gross violations of human rights in the West Bank, and now bombing and invasion of the sovereign state of Lebanon. 

Israel has ratified all the core human rights treaties - International Covenant on Civil and Political Rights, International Convention on the Elimination of All Forms of Racial Discrimination, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Covenant on Economic, Social and Cultural Rights, Convention on the Rights of the Child, and the Convention on the Prevention and Punishment of the Crime of Genocide, yet it apparently feels unrestrained by the international law obligations that it voluntarily undertook.  Nevertheless, the International Court of Justice (ICJ) and the International Criminal Court (ICC) have been examining Israel's conduct against a backdrop of well documented and credible allegations of genocide, crimes against humanity, and war crimes.

While the ICJ released an advisory opinion in July 2024 that found Israel’s continued presence in the Occupied Palestinian Territory to be unlawful (along with other damning related findings), it still considers the case brought by South Africa alleging that Israel has breached the Genocide Convention. South Africa requested, and the Court granted, provisional measures in order to “protect against further, severe and irreparable harm to the rights of the Palestinian people under the Genocide Convention” and “to ensure Israel’s compliance with its obligations under the Genocide Convention not to engage in genocide, and to prevent and to punish genocide”. 

Israel’s refusal to abide by the Court’s order while the US and other Western supporters castigate the ruling and assert that it is baseless (“We don’t have any evidence of genocide being [committed]” by Israel in Gaza, US Defense Secretary Lloyd Austin), has shaken the international community to its core. We have not expected the US to lead on human rights for decades, but the shock of seeing the US not only turn a blind eye but actually continue to support Israeli aggression  - with money, weapons, and support at the UN Security Council - has made us all question the strength and relevance of our international justice institutions and rules.

But what about the definition of genocide has everyone confused? A plain reading of the Genocide Convention would seem to indicate that Israel is indeed perpetrating a genocide, and some would even argue that the genocide has been a slow-moving project for decades rooted in apartheid, unchecked violence against Palestinians, and Israel’s complete abandonement of its obligations as an occupying power of the Palestinian Territories to administer the territory for benefit of local population.  

Article II of the Genocide Convention defines genocide as “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”.

Most rational observers would agree that Israel has engaged in all or most of these above mentioned acts. We see Israeli forces killing, causing serious bodily or mental harm, and inflicting on the group conditions of life calculated to bring about its physical destruction every day in the news and in videos shared by survivors. We also know that the miscarriage rate has increased by 300% since 7 October 2023, 5000 embryos were lost due to an Israeli attack on an IVF clinic, few hospitals remain open and able to provide maternity services, and women have been forced to deliver via c-section without anesthesia. Women, infants, and children remain malnourished with many at high risk of malnutrition.  These all indicate measures intended to prevent births within the group.

So why are some legal experts still hesitating to call this a genocide? It’s about intent. Courts, including the ICJ, have been reluctant to find intent in perpetrators’ action absent the most obvious and explicit articulations of plans to destroy a national, ethnical, racial or religious group, such as were found in countless Nazi documents that planned the Holocaust. “The Holocaust is viewed both as the awful standard against which all modern atrocities must be measured and as a supposedly unrepeatable catastrophe to which they must never be compared. The Genocide Convention effectively enshrined this paradoxical understanding .. and established a nearly impossible bar for genocidal intent based on its example”.  

Even when there was overwhelming evidence that mass killings were committed by Serbian forces throughout Bosnia and Herzegovina during the conflict, the ICJ was not convinced that these were accompanied by “the specific intent on the part of the perpetrators to destroy, in whole or in part, the group of Bosnian Muslims”, although they may amount to war crimes and crimes against humanity. Only in regard to the specific massacre at Srebrenica, did the ICJ find “the necessary specific intent to destroy in part the group of Bosnian Muslims (specifically the Bosnian Muslims of Srebrenica)” and therefore deem it to be genocide.

So the evidentiary bar is high, but hasn’t Israel surpassed that bar with numerous statements publicly made over the past year? Law for Palestine has collected and published hundreds of statements indicating genocidal intent made by top government officials, IDF forces, journalists, Israeli settlers, and citizens of Israel. They include the following:

“I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed”. “We are fighting human animals and we are acting accordingly". - Yoav Gallant, Minister of Defence

“Those are animals, they have no right to exist. I'm not arguing on how it should be done, but they need to be exterminated”. - Yoav Kisch, Minister of Education

"Erase Gaza. Nothing else will satisfy us. It is not acceptable that we maintain a terrorist authority next to Israel. Don't leave a child there expel everyone". -  Nissim Vaturi, Deputy Speaker of Knesset (Likud)

“We’re facing monsters, monsters who murdered children in front of their parents . . . This is a battle not only of Israel against these barbarians, it’s a battle of civilization against barbarism” - Benjamin Netanyahu, Prime Minister

One of the many accountability problems - alongside the lack of political will to confront Israel and to risk angering the US - is that Israel’s propaganda machine has effectively weaponised its security concerns about Hamas to muddy the waters on its intent. Although few informed and rational observers would agree that Israel’s murderous actions are justified, there may be just the narrowest sliver of doubt among some as to whether or not the mass killing and destruction are, in fact, accompanied by genocidal intent. Many casual observers who do not understand the context well simply cannot imagine that the country where descendants of the worst genocide in history live is now perpetrating a genocide - or at least prolonged acts sufficient to provoke allegations of genocide - against the population it displaced. This willing suspension of disbelief has provided Israel with room to maneuver and deflect, especially with its biggest supporter permanently part of the UN Security Council.