There is no clear intent to commit genocide in Gaza, top international law expert says

A growing number of top government officials, NGOs and academics in the West are ready to claim that Israel’s ongoing military operation in Gaza amounts to genocide.

But some law experts have raised alarms about the risks of using the term, which is perceived as "the crime of crimes", without a proper definition or legal proof.

They say there is so far no concrete evidence of Israel committing genocide as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, of which Israel is a signatory.

“Israel is committing the war crime of using hunger as a weapon of war, which is prohibited under international law,” said Stefan Talmon, a prominent international law professor at the University of Bonn.

“But there is a difference between war crime and the crime of genocide.”

No clear genocide intent so far

First coined by the Jewish-Polish lawyer Raphael Lemkin in 1944, the word “genocide” is defined under the 1948 Convention as a set of five crimes “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”

Those crimes include “Killing members of the group; causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group.”

The Israel-Hamas war in Gaza started after Hamas-led militants launched a surprise attack on 7 October 2023 in southern Israel, killing 1,200 people and taking hundreds hostage. Fifty hostages are still being held, although fewer than half of them are believed to be alive.

Since then, UN agencies have warned that Israel’s airstrikes on Gaza, along with a siege of the territory, have resulted in the deaths of more than 60,000 people, the forced displacement of tens of thousands and growing evidence of man-caused mass starvation.

In December 2023, South Africa started proceedings at the International Court of Justice (ICJ) against Israel for alleged violations of the 1948 Convention, arguing that “acts and omissions by Israel ... are genocidal in character, as they are committed with the requisite specific intent ... to destroy Palestinians in Gaza as a part of the broader Palestinian national, racial and ethnical group.”

A year later, Amnesty International became one of the first international NGOs to conclude in a report that “there is sufficient evidence to believe that Israel’s conduct in Gaza following 7 October 2023 amounts to genocide.”

More recently, B’Tselem, a prominent Israeli NGO also stated that Israel’s policy in the Gaza Strip “together with statements by senior Israeli politicians and military commanders about the goals of the attack,” led to the conclusion that “Israel is taking coordinated, deliberate action to destroy Palestinian society in the Gaza Strip.”

In a separate interview, genocide and Holocaust scholar Omer Bartov told Euronews that he had labelled Israel’s military campaign a genocide in May 2024, when the Israeli army decided to flatten Rafah after ordering its residents to evacuate the city in the southern tip of the Gaza Strip, and moving them to Mawasi – a coastal area with almost no shelter.

But for an international law expert and barrister like Talmon, there is no sufficient proof of a clear intent to commit genocide in Israel so far, and it will be “very difficult” for South Africa or any other country to prove that Israel is committing genocide.

“It's not just that you are killing people as such and you deliberately kill someone,” Talmon said. “You have to kill the person because you want to destroy the group he is a part of, in whole or in part.”

“That does not necessarily mean that you would have to kill the group in whole, or in part,” Talmon continued. “We have seen convictions of individuals for genocide where just one person has been killed … You don't need 6 million people dead like the Holocaust to have genocide.”

The proof is either “direct evidence,” he said, like a decision of the Israeli security cabinet which would “spell out that the cabinet wants to basically exterminate the Palestinian people.”

But the ICJ can also require indirect evidence by which “you may basically infer the intention to destroy in whole or in part from a certain pattern of action.” In addition, he said, there must be “no other inference than can be drawn from the fact than the intention to destroy.”  

The example of Srebrenica

Talmon pointed to the genocide in the eastern Bosnian town of Srebrenica in July 1995, which resulted in the systematic execution of more than 8,000 Bosniaks, mostly men and boys.

Despite a number of cases of genocide brought against Bosnian Serb military and political leadership for crimes in different parts of the country, the ICJ ruled that it was committed only in Srebrenica.

“The (Bosnian) Serbs separated women and children from men and started, within a short period of time, to kill (thousands of) men of all ages, from 16 to basically 65 or 75, irrespective of whether these were soldiers or whether these were civilians,” he said.

“Now in that situation, the International Court of Justice said: what other explanation can you give for that mass killing within these kind of two days other than to destroy in whole or in part, the Bosnian Muslims in that area and exterminate them?”

“We haven't had any such situation in the Gaza Strip,” Talmon added.

Crime against humanity versus genocide

Without indisputable, direct or indirect evidence of the intention to destroy, Israel could be prosecuted on charges of war crimes or crimes against humanity, Talmon said.

Under UN rules, the term “war crimes” refers to violations of international humanitarian law “committed against civilians or enemy combatants during an international or domestic armed conflict." A crime against humanity refers to a series of crimes “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."

“The Israeli action, of course, could also be explained in many other ways,” Talmon said. “Beginning from the fight against Hamas to rescuing the hostages, it could be by mere brutality, retaliation, vengeance, ethnic cleansing,” he explained.

There is a multitude of other explanations for Israeli actions, so it will be very difficult to say because the Israelis are using excessive force, they are driving Palestinians to the south of the Gaza Strip, they are confining them to very specific areas, they are basically reducing the available food and water and medical supplies to them," Talmon continued. "That may all be explained by other motives.”

Despite the absence of clear evidence or compliance with the high standards of genocide, Talmon concluded that such a verdict would carry devastating effects for the Israelis, many of whom are survivors or children of survivors of the Holocaust.

“If you find that Israel is committing genocide or that Germany committed genocide, It's not just the present government that will be seen as a génocidaire,” Talmon said, using the French word for perpetrator of genocide.

“It is the whole people," he stated. "The Israelis become perpetrators … The Germans have become perpetrators.”

Founded in 1945, the ICJ has issued genocide verdicts in a handful of cases against individuals, and is yet to rule against any country for genocide.

Genocide cases in front of international courts are an arduous endeavour, often taking over a decade to see through until a verdict is reached.

Israel has vehemently rejected all allegations of a genocidal campaign in Gaza, in turn stating that its actions are meant to disempower and destroy Hamas.

It has also repeatedly accused the militant group of intentionally endangering the lives of Palestinians by using them as human shields, while saying that it has done all in its power to prevent civilian losses.