In January, the International Court of Justice, the United Nations’ highest court, found it “plausible” that Israel is committing genocide in Gaza, but is Israel in fact responsible for this heinous crime? A positive case can be made, but that doesn’t mean the court with its conservative jurisprudence will accept it.
Plausibility sets a deliberately low bar. If genocide might be underway, the court wants to be able to impose “provisional measures” to stop it, such as its orders that Israel stop the incitement of genocide toward Palestinians and enable the provision of humanitarian aid. A final determination of genocide, down the road, rightly demands a higher evidentiary standard.
Preliminarily, though, while genocide has special resonance — and provides easier access to the International Court of Justice than most other crimes — it is wrong to discount other crimes. There is substantial evidence that Israel has been committing war crimes in Gaza, such as indiscriminately bombing populated areas, causing disproportionate harm to civilians, and obstructing access to humanitarian aid. The debate over genocide should not obscure the seriousness of these other crimes.
Still, a finding of genocide can be deeply stigmatizing, especially for Israel, which was founded in response to the Holocaust. The Convention on the Prevention and Punishment of the Crime of Genocide, which has been ratified by 153 nations including Israel and the United States, defines genocide as acts including “killing” a targeted group as well as “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or part,” committed with the intent “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”
South Africa’s case against Israel is likely to meet the “act” element of a crime. According to Gaza’s health ministry, Israeli forces have killed more than 34,000 Palestinians since the Oct. 7, 2023, Hamas attack on Israel, roughly two-thirds women and children. Even a conservative estimate of 20,000 civilian dead would significantly surpass the 7,000 to 8,000 Bosnian men and boys from Srebrenica killed in 1995 in what the International Criminal Tribunal for the former Yugoslavia found to be genocide.
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South Africa also highlighted Israel’s decimation of Gaza. Some 1.9 million of Gaza’s 2.2 million residents have been forced from their homes since Oct. 7. Some 35 percent of the buildings have been damaged or destroyed.
With the already-blockaded economy in shambles, Palestinians in Gaza are utterly dependent on international humanitarian aid to survive, but the Israeli government has allowed only enough food into the enclave to avoid large-scale death by starvation, not enough to avoid pervasive hunger and imminent — if not actual — famine. Though the Israeli government denies it is using a starvation strategy, evidence that the denial of food is deliberate can be seen in how Prime Minister Benjamin Netanyahu’s government has calibrated deliveries depending on international pressure, especially from President Biden.
Israel’s destruction of Gaza’s medical system — less than one-third of the territory’s 36 hospitals are even “somewhat functional” — has left the civilian population largely without health care, whether for acute injuries from Israeli bombardment or more routine matters such as dialysis, cancer treatment, or maternity care.
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The tougher question for the court is whether these acts were committed with genocidal intent. South Africa pointed to statements by Israel’s most senior officials, including President Isaac Herzog’s Oct. 12 pronouncement that “this rhetoric about civilians not aware, not involved” is false because civilians “could have risen up” against Hamas (a brutal dictatorship) and Defense Minister Yoav Gallant’s Oct. 9 comment about fighting “human animals,” not, as some claim, referring to only Hamas but in discussing the siege, which affects everyone in Gaza.
Contesting genocidal intent, Israel’s lawyers cited the warnings given to civilians to evacuate, but Israeli forces then often bombed the evacuation routes and the supposed “safe” zones where civilians fled, and then deprived them of adequate food, water, and medical care.
Israeli lawyers blamed Hamas for using “human shields” and building tunnels in populated areas, but that didn’t explain Israeli forces’ response — repeated use of massive 2,000-pound bombs, a weapon that kills, injures, and destroys over a wide radius and is wholly inappropriate for a heavily populated area like Gaza. Nor does it explain the low regard for civilian life reflected, for example, in rules of engagement that would permit the killing of seven World Central Kitchen food workers leaving a known food warehouse and traveling in three separate cars because an Israeli soldier thought (wrongly) that one person with a gun might be aboard one of the cars.
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The biggest obstacle to finding genocidal intent may be the International Court of Justice’s prior ruling in the case of Croatia v. Serbia that when the intent is not stated explicitly, it can be inferred from conduct if it “is the only 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 it could not give rise to an inference of genocidal intent.
That ruling is controversial as a matter of evidentiary proof, because it should be sufficient to make a persuasive case of genocidal intent, not the only possible case. It also arguably misreads the Genocide Convention. The court seemed to have in mind the “final solution,” in which, after a certain point, the Nazis killed every Jew they could find. But the convention also defines genocide as an intent to destroy a group “in part.”
In the case of Gambia v. Myanmar, the court found a plausible case of genocide being used as a means to another end. Rohingya Muslims were killed in sufficient numbers — an estimated 7,800 — to send 730,000 fleeing to Bangladesh. But the court made its ruling in the context of the lower evidentiary requirements of an application for precautionary measures; it has not yet made a judgment on the merits.
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The far-right ministers in Netanyahu’s government, Bezalel Smotrich and Itamar Ben-Gvir, seek precisely such mass forced (though they say “voluntary”) deportation of the Palestinian civilian population of Gaza. That aim would be a blatant war crime, but the court’s jurisprudence suggests that it might, perversely, provide a defense to genocide.
The court would be wise to reconsider its earlier ruling. Outrage at the Israeli government for having largely ignored the provisional measures that the court has twice ordered for Gaza could encourage the court to take that step. But until it does, those who assume that a finding of genocidal intent will follow from Israel’s devastating conduct in Gaza may be disappointed.
Kenneth Roth, former executive director of Human Rights Watch, is a visiting professor at Princeton’s School of Public and International Affairs and a senior fellow at the Carr Center for Human Rights Policy at Harvard’s Kennedy School.
