Gaza: why it’s difficult to reach a legal judgment of genocide against Israel

Israel recently closed its embassy in Ireland, blaming its decision on Ireland’s allegedly “extreme anti-Israel policies”. This followed the Irish government announcement that it would formally intervene in the South African case at the International Court of Justice (ICJ), in which South Africa alleges that Israel is engaged in genocide in Gaza.

Ireland’s foreign affairs minister, Micheál Martin, said that Ireland is concerned about previously narrow interpretations of genocide leading to a “culture of impunity”. This suggests that Ireland is concerned that difficulties lie ahead in the case, which the country may attempt to address. Such concerns are well founded.

Gaza health officials have stated that in the Israeli response to the October 7 2023 attack launched from Gaza more than 45,000 Gazan Palestinians have been killed. It is clear that the situation there is dire. Yet, killing even that many people is not necessarily classed as genocide as a matter of law.

It is important to understand that there is no international parliament that makes international law. Instead, international law is mainly comprised of agreements or treaties negotiated between states. The idea of genocide only came about after the second world war when, after a long campaign by the Polish-Jewish jurist Raphael Lemkin, a treaty to prevent and punish genocide was agreed: the 1948 genocide convention.

The treaty contains a definition of genocide, and permits disputes about its application or interpretation to be decided by the UN’s main judicial body: the ICJ. Every element of a treaty is the subject of intense debate, with different states pushing different agendas. The genocide convention is no different, so it contains several quirks as a result.

To be classed as genocide, the targeted group must be defined by nationality, ethnicity, race or religion. This excludes, for example, cultural groups or political groups. That exclusion is not a problem for the South African case because the Palestinians of Gaza are well within this parameter.

More difficult is the convention’s requirement that a genocidal act must be shown to have been committed with the “intent to destroy, in whole or in part”, a protected group. This is known as “special” or “specific” intent.

It is not enough to show that a particular alleged genocidal killing was carried out intentionally. For it to be genocide, the intentional killing of someone has to be because the victim belongs to a protected group that the perpetrator intends to destroy, in whole or in part.

The Nazis kept meticulous records. The defendants at the Nuremberg trials did not deny their participation in the “final solution”. It was quite clear that the Nazis had intended, not just to kill each victim that entered the gas chambers, but to wipe out the European Jews (and others). This explains why special intent became a crucial part of the genocide definition adopted in 1948. But it has become one of the biggest barriers both to holding individuals and states responsible for genocide.

Balkan war

Take the cases that Bosnia-Herzegovina and Croatia both brought against Serbia, alleging genocide by the Bosnian Serbs in the breakup of the former Yugoslavia. The ICJ ruled that in the absence of written proof or clear testimony, the special intent of the Bosnian Serb leadership would have to be the “only reasonable inference” to be drawn from the known facts.

Applying this very strict standard, it found that, for the vast majority of the atrocities carried out by the Bosnian Serb forces, the intent could have been to forcibly displace targeted communities rather than to “destroy” them. Genocide was only established in relation to the 1995 events in the town of Srebrenica, where 8,000 Bosnian Muslim men and boys were killed over a few days.

The ICJ also failed to hold Serbia itself responsible for the Bosnian Serb forces. In a very contentious ruling the ICJ held that Serbia, instead, had not put enough political pressure on the Bosnian Serbs to hold back from genocide. In his dissent to the 2007 judgement on the Bosnia v Serbia case, then ICJ vice-president, Awn Shawkat Al-Khasawneh, said that the ICJ had “achieved this extraordinary result in the face of vast and compelling evidence to the contrary”.

South Africa’s case

This is the problem with South Africa’s case. It is difficult to say that the “only” reasonable explanation for the Israeli conduct is to inflict genocide on the Palestinians of Gaza. There is very strong evidence of war crimes and crimes against humanity being committed by all parties to the conflict. But they are not covered by the genocide convention and cannot lead to a case at the ICJ in the same way.

The ICJ has issued an interim ruling confirming that the people of Gaza have a plausible right not to be the victim of genocide, so the case can go ahead. But that isn’t the same as ruling that the allegations of genocide by Israel are plausible. It will be several years until there is a final ruling in the case.

In the meantime, we can ponder whether international criminal justice may be an alternative means to address the situation. The International Criminal Court (ICC) is independent of both the UN and the ICJ and is the only court with jurisdiction to prosecute international war crimes including genocide. It has issued arrest warrants for Israeli prime minister Benjamin Netanyahu and former defence minister Yoav Gallant for alleged war crimes and crimes against humanity during the war between Israel and Hamas. It has also issued a similar warrant for Hamas leader, Mohammed Deif.

Deif is thought to have been killed. And whether Netanyahu or Gallant travel to any countries that are members of the ICC and whether those countries choose to execute the warrant remain to be seen. So the issue as to whether genocide is being committed in Gaza is likely to remain unresolved for the foreseeable future.

James Sweeney does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.