Last updated on January 6th, 2025

Genocide in Gaza

Allegations of Genocide Made Against Israel at the International Court of Justice (‘ICJ’)

On Dec 29, 2023, South Africa commenced International Court of Justice (‘ICJ’) proceedings alleging that Israel is violating its obligations under the Genocide Convention in relation to Palestinians in the Gaza Strip. The IJC issued a press release about the proceedings.

What is Genocide and When was the Genocide Convention Adopted?

A Polish-Jewish lawyer, Raphael Lemkin, is credited with being the person to coin the term “genocide” – in 1944. He used the term to describe Nazi policies in Europe, and also about the Armenian genocide. In his writings, Lemkin also linked colonialism with genocide.

Lemkin campaigned for genocide to be recognized as a crime under international law and in 1946 a UN General Assembly resolution recognized genocide as an international crime. This was followed on 9 December 1948 by the UN General Assembly unanimously adopting the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”). It was the first legal instrument to codify the crime of genocide.

Article II of the Convention defines Genocide as follows:

Article II

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. Killing members of the group;
  2. Causing serious bodily or mental harm to members of the group;
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group;
  5. Forcibly transferring children of the group to another group.

Like all crimes, there is both an action component and a mental component to the crime of Genocide. The action component or actus reus for Genocide is any of the five actions listed in paragraphs (a) to (e) of Article II. The mental component or mens rea for Genocide has two aspects. In addition to intending one or more of the listed actions, the prosecutor must prove the action was done “with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

Has the ICJ concluded that Israel is guilty of Genocide?

No, it has not yet made that determination as the full trial has not yet taken place.

However, the South Africa application did request a “provisional measures” order from the ICJ. The hearing on that request was heard on 11 & 12 January 2024 with an order for provisional measures made by the ICJ on 26 January 2024. It did not order that Israel suspend its military operations in Gaza, but it did order Israel to take all measures within its power to prevent the commission of acts within the Genocide Code.

Later the ICJ twice added additional provisional measures to its order:

  1. On 28 March 2024, the IJC ordered Israel to take effective measures to ensure the unhindered provision of urgently needed basic services and humanitarian assistance, including food, water, electricity, fuel, shelter, clothing hygiene and sanitation, as well as medical supplies and medical care to Palestinians throughout Gaza;
  2. On 24 May 2024, the ICJ ordered Israel to Immediately halt its military offensive, and any other action in the Rafah Governorate.

What Others Say about Israel's Genocide

While the ICJ has not yet had its trial to decide whether Israel is committing Genocide in Gaza, ICJ decisions in other proceedings provide guidance as to how its requirements are to be applied.

Respected organizations and observers have used this guidance to assess whether Israel is committing genocide.

Amnesty International

On Dec 5, 2024, Amnesty International (‘AI’) issued a 296-page report entitled ‘You Feel Like You Are Subhuman’: Israel’s Genocide Against Palestinians in Gaza’ . It reviews Israel policies and actions in Gaza, with a particular focus on the 9-month period from 7 October 2023 to early July 2024.

Amnesty International has also produced a 6-minute video briefly explaining the findings of its report and some actions it is calling on governments to take to help end the genocide. 

There is also a helpful 4-page summary of the longer report in a question and answer format.

United Nations Special Rapporteur Albanese’s Reports

Since March 2022, international lawyer and academic Francesca Albanese has been the United Nations Human Rights Council appointed Special Rapporteur on the human rights situation in the Palestinian territories occupied since 1967.

In 2024, Ms. Albanese issued two reports looking at whether Israel is committing genocide in Gaza. The first, issued on March 25th and entitled Anatomy of a Genocide, looks at Israel’s military operations in Gaza during the first five months after 7 October 2023. The second, issued on October 1st and entitled Genocide as Colonial Erasure, covers a longer period and recognizes that the violence has spread beyond Gaza to the West Bank, including East Jerusalem.

Amnesty International Report in more detail

On 5 December 2024, Amnesty International (‘AI’) issued a 296-page report entitled ‘You Feel Like You Are Subhuman’: Israel’s Genocide Against Palestinians in Gaza’ . It reviews Israel’s policies and actions in Gaza, with a particular focus on the 9-month period from 7 October 2023 to early July 2024.

The Amnesty report first explains why Palestinians in Gaza constitute part of a protected group under the Genocide Convention. It then lays out evidence supporting the contention that Israel is committing three of the five Genocide Convention prohibited acts, namely: “killing members of the group”; “causing serious bodily or mental harm to members of the group”; and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”. Finally, it examines whether these acts were committed with the specific “intent to destroy, in whole or in part, [the] group, as such”.

On page 283 of its report, AI expresses its conclusion on whether Israel is committing genocide. Specifically, it states that:

“… the evidence it has gathered provides a sufficient basis to conclude that Israel, through its policies, actions and omissions against Palestinians in Gaza following 7 October 2023, committed and is committing genocide.”

The report ends with recommendations intended to urgently help end prohibited acts under the Genocide Convention. It first lists recommendations directed to the Israeli authorities, followed by those directed to third states, the UN and regional organizations, the Office of the Prosecutor of the International Criminal Court, and the Palestinian authorities.

Francesca Albanese Reports

Since March 2022, international lawyer and academic Francesca Albanese has been the United Nations Human Rights Council appointed Special Rapporteur on the human rights situation in the Palestinian territories occupied since 1967.

In 2024, Ms. Albanese issued two reports looking at whether Israel is committing genocide in Gaza. The first, issued on March 25th and entitled Anatomy of a Genocide, looks at Israel’s military operations in Gaza during the first five months after 7 October 2023. The second, issued on October 1st and entitled Genocide as Colonial Erasure, covers a longer period and recognizes that the violence has spread beyond Gaza to the West Bank, including East Jerusalem.

Like Amnesty International, Ms. Albanese reviews factual evidence of events in Gaza during the noted period and concludes that there is substantial evidence of three of the acts set out in the Genocide Convention definition of Genocide. The important legal question then is whether those acts were

“committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.

She refers to legal decisions establishing that genocidal intent can be inferred from the words of state authorities, including dehumanizing language, when combined with actions. She then shows that in the latest Gaza assault,

“direct evidence of genocidal intent is uniquely present”.

Ms. Albanese describes how Israel uses, or perhaps more accurately abuses, international humanitarian law (‘IHL’) terminology to camouflage the illegality of its lethal violence against Palestinian civilians. She points to Israel’s misapplication of IHL concepts such as human shields, collateral damage, safe zones, evacuations and medical protection as having subverted their protective purpose. Through this misapplication, everything and everyone in Gaza is

“transformed into either a target or collateral damage, hence killable or destroyable.”

A conclusion of Ms. Albanese’s March 2024 report is that there were reasonable grounds to believe that Israel had committed acts of genocide in Gaza.

Genocidal intent is again the focus of Ms. Albanese’s October 1st report. Its analysis extends beyond what is happening in Gaza to include what is happening in the West Bank, Including East Jerusalem. Ms. Albanese states that two important legal developments inform her report are: (1) the ICJ July 2024 Advisory Opinion which ordered Israel to dismantle and evacuate the colonies stating that Israel’s prolonged presence in the occupied Palestinian territory is unlawful and aimed at annexation; and (2) the order of provisional measures in the case of South Africa v. Israel – first in January 2024 and modified in March and May.

Ms. Albanese notes that Israeli violence has spread beyond Gaza, with Israeli forces and violent settlers effecting patterns of ethnic cleansing and apartheid in the West Bank, including East Jerusalem.

Ms. Albanese states that the genocidal conduct of Israel must be viewed more broadly than what Israel describes as a war of “self defence”. The broader context suggested by Ms. Albanese is

“numerous actions (totality of conduct) jointly targeting the Palestinians as such (totality of a people) across the entire territory where they reside (totality of the land), in furtherance of the political ambitions of Israel for sovereignty over the whole of former Mandatory Palestine.”

In that context she states that the genocide of the Palestinians appears to be a means to an end, namely the eradication of the Palestinians from the land.  With its conduct viewed in its entirety, Israel’s genocidal intent to destroy the people could not be more evident.