Editor’s note: For a competing view, see Amichai Cohen and Yuval Shany, A “Cramped Interpretation of International Jurisprudence”? Some Critical Observations on the Amnesty International Genocide Report on Gaza, published simultaneously with this article.
On December 5, 2024, Amnesty International released a lengthy and detailed report finding that Israel is committing genocide against Palestinians in Gaza. The report is based on a year of independent investigation and legal analysis. The evidence assembled includes eyewitness testimony, satellite imagery, video footage, audio recordings, and authenticated photographs. The report documents actions by Israeli soldiers as well as statements by Israeli officials. The report describes intentional and indiscriminate attacks against civilians, destruction of objects indispensable to civilian survival, denial and obstruction of humanitarian aid, mass forced displacement, wanton destruction, and torture. At minimum, these acts are serious violations of international humanitarian law. Several underly the arrest warrants issued by the International Criminal Court (ICC) against senior Israeli officials for war crimes – including starvation and attacking civilians – as well as crimes against humanity – including murder, persecution, and other inhumane acts.
Based on Amnesty’s extensive factual findings, the report concludes that Israel’s conduct in Gaza falls within the definition of genocide under the 1949 Genocide Convention. Israel is killing Palestinians, causing serious bodily and mental harm to Palestinians, and deliberately inflicting on the Palestinian national group conditions of life calculated to bring about its physical destruction in whole or in part. The report finds that Israel is committing these acts with the specific intent to destroy the Palestinians of Gaza – a substantial part of the Palestinian national group – as such.
The report explains that Israel is pursuing group destruction alongside its military goals and, in part, as a means to achieve its military goals. Israel’s conduct in Gaza cannot be fully explained as an unfortunate byproduct of a military campaign to destroy Hamas, or as the result of reckless indifference. The report finds that Israel’s conduct in Gaza can only be fully explained as at least partly intended to destroy the Palestinians of Gaza.
This essay examines Amnesty’s interpretation and application of the Genocide Convention as well as relevant decisions of international courts. In my view, Amnesty correctly applies existing law. Amnesty’s legal conclusions can only be fully assessed in light of its extensive factual findings, which readers should carefully examine for themselves. I will limit myself to explaining Amnesty’s core arguments as I understand them.
Amnesty International shared an advance copy of the report with me two days before its public release and invited me to speak on a panel discussing the report in The Hague. This essay expands on my remarks at that panel.
Elements of Genocide
Amnesty’s report is legally conservative. The report applies the legal definition of genocide set out in the 1949 Genocide Convention. The report interprets this legal definition in line with the jurisprudence of the International Court of Justice (ICJ) and the International Criminal Tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY). The report accepts the law as it is, though it applies existing law in a nuanced and sophisticated way.
Under the Genocide Convention, genocide involves specific acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. These acts include 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. States are legally responsible for acts of genocide committed by their officials, armed forces, and others under their control.
The report accepts that genocide is narrowly defined. Under international law, genocide requires more than the mass killing of group members (the crime against humanity of extermination). It requires more than the discriminatory targeting of individuals because of their group membership (the crime against humanity of persecution). Genocide requires the specific intent or purpose to destroy the group, in whole or in part, as such. This specific intent distinguishes genocide from war crimes and crimes against humanity.
But while the definition of genocide is narrow, it is not empty. As the report explains, genocidal intent can and often will coexist with other intentions, especially during armed conflict. A State may intend both to destroy a group and to defeat a military adversary (what the report calls “dual intent”). Or a State may intend to destroy a part of the group as a means of defeating a military adversary, such that group destruction will continue until victory is achieved (what the report calls “instrumental intent”). The intent to destroy a group may also be constrained by the intent to maintain alliances or the intent to avoid sanctions (what one might call “constrained intent”). Yet the intent to destroy may persist and continue to operate within such external constraints.
Amnesty’s legal position is consistent with the terms of the Genocide Convention, which say that an act of genocide must be committed with intent to destroy a group, but which do not say that group destruction must be an act’s sole, only, or exclusive intent. Inserting such a restriction would undermine the Convention’s object and purpose, namely to protect human groups in time of peace and in time of war. The intent to destroy a group will seldom, if ever, exist in isolation from a perpetrator’s political or military aims.
Amnesty’s legal position is also consistent with the case law of the ICTY and the ICJ. Both courts found that the 1995 massacre at Srebrenica was an act of genocide, committed with the intent to destroy a substantial part of the Bosnian Muslim group. The perpetrators had additional intentions, including the intent to eliminate potential military threats, the intent to expel the Bosnian Muslim population, and the intent to control a strategic location. The ICTY “rejected the Defence’s argument that the killing of these men was motivated solely by the desire to eliminate them as a potential military threat” and found that “the extermination of these men was not driven solely by a military rationale.” Instead, the ICTY found that “their extermination was motivated by a genocidal intent” without suggesting that other intentions suddenly disappeared. Indeed, the ICTY found that the killings may have been intended as a means of permanently securing a strategic location. Genocidal intent coexisted with these other intentions, and genocide was committed in parallel with and as a means of pursuing other aims.
The perpetrators of the Srebrenica massacre did not kill most of the Bosnian Muslims of Srebrenica. They murdered more than 7,000 men and teenage boys, while forcing 25,000 women, older men, and young children onto buses for expulsion. As the ICTY recognized, international pressure may prevent the perpetrator of a “genocidal plan from putting it into action in the most direct and efficient way,” and compel it instead to adopt “the method which would allow them to implement the genocidal design while minimizing the risk of retribution.” These external constraints may require “leaving the destruction [of the group] incomplete.” But genocidal intent may continue to operate within those constraints.
In Bosnia v. Serbia, the ICJ affirmed the ICTY’s finding that the Srebrenica massacre was committed with genocidal intent, rejecting Serbia’s argument that “the military action taken by the Bosnian Serbs was in revenge and part of a war for territory,” and responded to “attacks carried out by the Bosnian army from within Srebrenica [which] was never demilitarized.” The Bosnian Serb operation may have begun with an intent to punish, defeat, expel, and control. But at some point an additional intent was formed and fused with the others: the intent to destroy the Bosnian Muslims of Srebrenica.
In Croatia v. Serbia, the ICJ understood the ICTY to have found that the killings of thousands of Croats living in specific regions “were not committed with intent to destroy the Croats, but rather with that of forcing them to leave the regions concerned so that an ethnically homogeneous Serb State could be created.” In other words, the ICJ found that the acts were committed exclusively with the illegal but non-genocidal intent to forcibly displace the Croat group, and not at all with the intent to destroy the group as such. The Court did not change its legal interpretation and did not require that acts must be exclusively intended to destroy a group in order to constitute genocide.
Finally, Amnesty’s understanding of existing law is shared by States. The Democratic Republic of Congo’s recent declaration of intervention in The Gambia v. Myanmar (another case brought before the ICJ under the Genocide Convention) argues that “[t]he Convention does not require that genocidal intent be the sole or even the main intent pursued,” noting that “the perpetrators of genocide may pursue a plurality of objectives and genocidal intent must be neither exclusive nor even primary” (my translation). Similarly, Chile’s declaration of intervention in South Africa v. Israel emphasizes that “it is essential to note that the Genocide Convention does not require that the intent to destroy a group (in whole or in part) be the sole or primary purpose of the perpetrator…. Therefore, evidence of further motives —personal, political, or linked to military advantage— will not preclude a finding of genocide if such special intent is otherwise established.”
Genocide in Gaza
Amnesty’s report argues that Israel’s intent to destroy the Palestinians of Gaza is clearly demonstrated by the relentless repetition of illegal conduct: killing, maiming, starving, and displacing thousands of civilians for over one year, despite repeated warnings of the impact of its actions by humanitarian agencies and despite diplomatic pressure from the United States and other allies. According to the report, the continuation of this conduct permits only one reasonable inference: an intent to bring about the known result. This inference is reinforced by dozens of statements by senior Israeli officials as well as Israeli soldiers, highlighted in Amnesty’s report, indicating an intent to destroy the Palestinians of Gaza.
The report acknowledges that Israel’s intent to destroy the Palestinians of Gaza coexists with its intent to destroy Hamas. In some cases, these intentions run in parallel. For instance, some airstrikes precisely targeted Hamas fighters, while other airstrikes exclusively killed civilians. The report documents 15 strikes which killed 334 civilians, including 141 children, while killing no fighters and destroying no military objectives.
In other cases, these intentions merge. Bombing of homes, hospitals, and schools full of civilians has caused “casualties and damage far in excess of what was justified by military necessity,” which the ICJ considers one of the “most important” factors to establish the existence of a pattern of conduct revealing a genocidal intent in the context of an armed conflict. Israel’s restrictions on humanitarian aid; repeated forced displacement; and destruction of food, water, and medical systems; is inflicting a slow death on the civilian population of Gaza, in part as an end in itself and in part as a means to compel Hamas to surrender.
Israel’s intent to destroy the Palestinians of Gaza is constrained, to some extent, by its intent to maintain U.S. support and to avoid international sanctions. Following the ICJ’s second order of provisional measures on March 28, 2024, as well as global outrage over Israeli airstrikes on a World Central Kitchen aid convoy on April 1, 2024, Israel “finally committed to opening a crossing into the north of Gaza, making the port of Ashdod available to deliveries, and ensuring that existing crossings were open for more hours.” In May 2024, U.S. Secretary of State Antony Blinken certified that Israel was not “currently” prohibiting or restricting U.S. humanitarian assistance and should continue to receive U.S. arms, over the objections of subject matter experts within the U.S. Agency for International Development and the State Department’s Bureau of Population, Refugees and Migration. Israeli restrictions on aid soon snapped back into place. The amount of aid entering Gaza dropped in May and reached its lowest point in October 2024. The report concludes that Israel’s intent to starve civilians was temporarily constrained but never abandoned.
If Israel was merely indifferent to Palestinian suffering, not caring one way or the other, then sustained pressure from key allies; multiple provisional measures orders from the ICJ; the application for arrest warrants by the ICC Office of the Prosecutor; and widespread condemnation from across the international community would have caused a drastic change in behavior. But it did not. It would have cost Israel little or nothing to allow food and medicine to reach civilians in need, or to refrain from mass casualty bombings. The report concludes that Israel’s persistence in the face of warnings, pressure, and censure convincingly demonstrates a firm and durable intent to starve and kill the Palestinians of Gaza.
The Standard of Proof
Amnesty’s report adopts the high standard of proof required to establish genocide at the ICJ. The Court must be fully convinced that a State acted with genocidal intent. Absent the announcement or discovery of a “general plan” to destroy a group, the existence of genocidal intent must be “convincingly shown by reference to particular circumstances.” For the Court to infer genocidal intent from a pattern of conduct, the “intent to destroy the group, in whole or in part, must be the only reasonable inference which can be drawn from the pattern of conduct.” At the same time, the report explains that:
the state can have additional goals and purposes, as long as it is clear, and is the only reasonable inference, that the state also has the intent to destroy the group, in whole or in part. To construe the law otherwise would make the prohibition of genocide meaningless in armed conflicts, where there will almost always be military goals at play as well.
If the only reasonable inference which can be drawn from the pattern of conduct is that the acts were committed with both the specific intent to destroy the group and military aims, then the ICJ’s standard of proof is satisfied. Conversely, if the evidence permits a reasonable inference that the acts were committed exclusively with military aims (or exclusively with any other non-genocidal aims), then the standard of proof is not satisfied. Put another way, if the pattern of conduct can be fully explained by a non-genocidal intent, then the standard of proof is not satisfied. But if the pattern of conduct can be fully explained only by a combination of genocidal intent and non-genocidal intent, then the standard of proof is satisfied.
Again, Amnesty’s legal position is consistent with the ICTY and ICJ’s decisions regarding the Srebrenica massacre. The intent to eliminate the threat posed by Bosnian Muslim fighters might explain (though not justify) their execution, but that intent could not fully explain the indiscriminate killing of civilian men and boys, the elderly and the disabled. The intent to expel the group and control the territory might explain the forcible displacement of women and children, but that intent could not fully explain the combination of mass murder and forcible displacement. The pattern of conduct as a whole could only be fully explained by the combination of the intent to destroy the group with these other intentions, and this combination of intentions was the only reasonable inference that could be drawn. In contrast, the ICJ understood the ICTY to have found that the killing of thousands of Croats could be fully explained by the unlawful but non-genocidal intent to forcibly displace the group without destroying them.
The report’s conclusion is unequivocal and unmistakable:
The evidence presented in the report clearly shows that the destruction of the Palestinians in Gaza, as such, was Israel’s intent, either in addition to, or as a means to achieve, its military aims. There is only one reasonable inference that can be drawn from the evidence presented: genocidal intent has been part and parcel of Israel’s conduct in Gaza since 7 October 2023, including its military campaign.
The ICJ’s standard of proof is high. While South Africa must meet the ICJ’s standard in its case against Israel, Amnesty International could have taken a different approach. Amnesty could have applied the lower standards of proof commonly applied by international fact-finding missions and commissions of inquiry, such as “reasonable grounds” or “balance of probabilities.” The report more than satisfies these standards.
Alternatively, Amnesty could have limited itself to finding that there is a serious risk that Israel is committing genocide. Such a serious risk triggers the legal obligation of all States Parties to the Genocide Convention to prevent genocide in Gaza (which the report also urges). The report more than satisfies this standard. The legal duty of all States to prevent genocide in Gaza is clearly engaged.
Instead, Amnesty chose to hold itself to the highest standard of proof known to public international law. This choice likely reflects Amnesty’s confidence in its evidence and legal analysis, as well as its understanding of the gravity of its accusation.
Criticisms
Unsurprisingly, the report has received criticism from a variety of sources. One line of criticism alleges that the report applies “an alternative test not based on the established jurisprudence of the ICJ.” This criticism reflects a misunderstanding. As explained above, Amnesty’s report applies settled law. In one passage, the report cautions against an “overly cramped” reading of ICJ case law that “that would potentially preclude a state from having genocidal intent alongside one or more additional motives or goals in relation to the conduct of its military operations.” The report then explains why the case law does not support such a reading. Indeed, the Court’s finding that the Srebrenica massacre was an act of genocide definitively excludes such a reading. We must interpret the Court’s general statements of law in light of its specific conclusions. If the evidence permits only one reasonable inference, namely that a State acted with genocidal intent, then it is no defense that the State also acted with other intentions.
A second line of criticism has more legal substance. Amnesty argues that Israel’s pattern of conduct in Gaza cannot be explained by an intent to destroy Hamas combined with reckless indifference toward the consequences for Palestinian civilians. This pattern of conduct clearly demonstrates an intent to kill, maim, and starve Palestinians. However, some suggest that the evidence permits a reasonable inference of war crimes and crimes against humanity short of genocide, including collective punishment, “ethnic cleansing” (forcible displacement), and the targeted killing of civilians. Each discrete act may be intended to kill and harm individuals, often in large numbers and on the basis of their national identity, in violation of international law. But, according to this line of argument, these acts are not linked together by an overarching intent to destroy the group, and so do not satisfy the legal definition of genocide.
Perhaps anticipating this line of criticism, the report argues that these acts must be viewed “together and cumulatively, taking into account their recurrence and their simultaneous occurrence time and time again, compounding each other’s harmful impact,” considering “the scale and severity of the casualties and destruction repeated over time.” The recurrence of these acts indicates that they were either ordered or allowed to continue by senior officials with the intent to bring about their known results. The compounding effect of these acts – most notably, denial and obstruction of humanitarian aid combined with widespread destruction of medical and food systems – indicates that these acts were integrated components of an overarching plan. The scale and severity of the death and destruction indicates that there is no internal, self-imposed limit to Israel’s intent to destroy. It appears there is no number of civilians which Israeli leaders are not prepared to kill, maim, and starve; no point at which they would say that “enough is enough,” and stop short of the destruction of the group, in whole or in part, as such. This, I believe, is what Amnesty means when it says that the totality of the evidence it has gathered, viewed comprehensively and holistically, excludes any reasonable inference except one: an intent to destroy the Palestinians of Gaza, as such.
Conclusion
Under international law, there is no hierarchy of international crimes. In principle, war crimes or crimes against humanity may be as serious, or even more serious, than an act of genocide. Their relative gravity will depend primarily on the number of victims and the magnitude of harm. Amnesty’s report documents serious violations of international humanitarian law, including intentional attacks against civilians, indiscriminate and clearly disproportionate attacks, arbitrary denials of humanitarian access, the use of starvation as a method of warfare, forcible displacement, wanton destruction, and torture.
Why, then, is it important to establish whether or not Israel’s manifestly unlawful conduct in Gaza is performed with a specific intent – the intent to destroy a group, in whole or in part? This specific intent does not determine the legality of this conduct, let alone its moral permissibility. But the intent with which illegal and immoral conduct is performed can affect its meaning. Intent can affect how victims understand, and how we collectively explain, that conduct. Intent determines the names that the law gives to that conduct. And one of those names is genocide.
Every State Party to the Genocide Convention has a legal obligation to prevent genocide. As the ICJ explains, this legal obligation arises
at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.
At a minimum, Amnesty’s report demonstrates a serious risk that Israel is committing genocide in Gaza, which every State Party has a legal obligation to prevent. At the same time, the basic rules of international humanitarian law; the prohibition of crimes against humanity; and the prohibition of genocide are all peremptory norms of general international law (jus cogens). All States have a legal obligation to cooperate to bring serious breaches of these peremptory norms to an end. They must do so now.