Editor’s note: For a competing view, see Adil Haque, The Amnesty International Report on Genocide in Gaza, published simultaneously with this article.
All wars are terrible. Yet wars that feature long and extensive urban warfare are among the most terrible ones. The war in Gaza that followed the atrocities committed by Hamas in Israel on October 7, 2023 and the ensuing full-scale invasion of Gaza by Israel, clearly belongs to this latter category of wars and ranks among the bloodiest conflicts of the 21st century.
Israel invaded the Gaza Strip with the stated intention of toppling the Hamas regime, dismantling its military capabilities, and releasing the Israeli hostages held inside the Gaza Strip. Since then, an armed conflict has been taking place in the Gaza Strip and Israel, resulting in many thousands of Palestinian casualties (Hamas sources estimate that more than 44,000 Palestinians have died. No clear information exists on the number of militants among the casualties: Israel estimates that some 20,000 of those killed were militants; Amnesty International estimates in its recent report on Gaza that only 40% of the casualties were fighting age men, though not necessarily fighters) (report, p. 119). More than 1,600 Israelis were also killed (about half of them, IDF soldiers; this number includes civilian casualties from the initial Hamas attack and subsequent terror attacks inside Israel). In parallel to the war in Gaza, Israel also came under attack from Lebanon, Yemen and other fronts.
There are several possible explanations for the high death toll in the war in Gaza (listed in an order that does not necessarily represent their relative significance). First, Gaza is one of the most densely populated areas in the world, with an estimated population of over 2 million Palestinians living in an area of just over 360 Square KM (140 square miles). Large-scale military operations in such a dense area are likely to put many civilians at great risk, even if extensive precautions were applied. Second, Hamas conducts its military operations with disregard to the safety of Palestinian civilians – it fights while being fully, deeply and extensively embedded within the civilian population and civilian infrastructure and has even allegedly tried to prevent civilians from leaving dangerous areas. It also allegedly diverts humanitarian supplies from civilian to military uses. Third, contrary to many other armed conflicts around the world, Palestinians cannot leave en masse the fighting area to neighboring States given the reluctance of both Egypt and Israel to open their borders to them (Egypt did eventually allow some 100,000 Palestinians to cross the border, which is a small fraction of the number of those who sought to do so). This left many Palestinians with no safe place to go inside the Gaza Strip – an area becoming gradually less habitable and more dangerous. Fourth, many observers claim that Israel’s use of force in the Gaza Strip has violated international law and resulted in excessive harm to Palestinian civilians and to the physical infrastructure that supports their lives there. According to such claims – elaborated, inter alia, in Amnesty International’s recent report – Israel also failed to meet its constant care obligations when using military force, in general, and its obligations to ensure the provision of adequate humanitarian supplies. Some of these alleged legal breaches are being investigated in Israel; others are investigated by the International Criminal Court (ICC). Under both international humanitarian law (IHL) and international human rights law (IHRL), these potential violations – which likely made an already bad situation much worse – should all be investigated and, when appropriate, prosecuted and remedied.
All that said, Amnesty International has laid out another explanation for the dire situation in Gaza: According to its recent report, Palestinian civilians were killed as the result of a deliberate plan by Israel to commit genocide – i.e., to intentionally destroy the Palestinian population in the Gaza Strip.
As is well known, genocide charges are notoriously difficult to establish in international law due to high evidentiary standards associated with this particular offence. In this contribution, we explain why, in our view, Amnesty International has been unable to meet these high evidentiary standards; why its attempt to move the normative goalposts regarding these evidentiary standards undermines the utility of the report as a pronouncement on the application of lex lata (the law as it exists); and why even under the more relaxed standards that the report utilizes, some of its key conclusions are questionable.
To be clear, it is important and valuable that Amnesty International investigates potential violations of IHL, IHRL and international criminal law, which occurred in the Gaza Strip. As a leading human rights NGO, this is exactly what it is supposed to do. However, like some of Amnesty International’s own employees, we find it somewhat peculiar that Amnesty International has set out to write a “genocide report” – that is, a report focusing only on the alleged commission by Israel of the most serious violation known in international law – the crime of genocide. This is despite the possibility of establishing with greater ease and confidence allegations regarding the commission of other crimes (such as the crimes included in the ICC arrest warrants against Netanyahu and Gallant, where genocide was not included in the charges), and despite the fact that, unlike in the case of the South Africa International Court of Justice claim – where making the accusation of genocide was the only possible avenue for establishing the Court’s jurisdiction – Amnesty International did not have to contend with such a methodological constraint. It seems to us that, in taking on the ambitious task of establishing that genocide is taking place in Gaza and expressing its conclusions with absolute confidence, one main aim of the report was to maximize its public shaming effect (the same line of thinking arguably led Amnesty International to adopt in 2022 a controversial report also accusing Israel of applying, from its very establishment, a system of Apartheid throughout all the territories it controls). We would expect that such a dramatic accusation – which, not surprisingly, has opened Amnesty International to extreme counter-accusations of genocide inversion (accusing victims of a genocide of committing genocide) – be based on an iron-clad factual basis and solid legal analysis. Unfortunately, as we show below, parts of the report are based on rather shaky factual foundations, and – more importantly – on controversial legal analysis that raises the suspicion of it being tailored-made to fit the particular situation in Gaza.
Proving genocidal conduct
Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) defines the crime as “any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” In the Gaza context, Amnesty International focuses on the first three forms of conduct.
Killing and/or causing serious bodily or mental harm
The main research findings found in the report with respect to killing or maiming emanate from a detailed analysis of fifteen attacks in which Israel allegedly targeted civilians in violation of IHL (see pp. 107-122). Both as an evidentiary and a conceptual matter, one can assume that the terms “killing” and “causing serious bodily or mental harm” refer, in the context of a genocide committed during an armed conflict, only to killings and harms that are illegal under IHL (and not to the lawful targeting of enemy combatants or to lawful collateral damage). Furthermore, in the context of the Genocide Convention and its special intent requirement (see more below), we believe that such killing or maiming must be intentional in nature (Cf. Stakić, ICTY para. 515; Kayishema, ICTR, para. 150-151). This primarily involves violations of the prohibition against directing attacks against civilians (Additional Protocol I, Article 51(2)), but does not cover operational mistakes, including those caused by failure to apply adequate precautions. It is questionable, in our mind, whether disproportionate attacks – which involve expected harm that exceeds the military advantage anticipated– could be deemed as intentional killings for the purpose of the Genocide Convention, unless it can be clearly inferred from the circumstances that harming civilians was actually the object of the attack (Cf. Galic, ICTY para. 60).
We submit that the methodology used in Amnesty International’s report is unlikely to support a finding of intentional attacks on civilians. According to its report (see p. 43), Amnesty International had no employees on the ground in the Gaza Strip, and its analysis of the 15 case studies was based on remote interviews with 74 Palestinian witnesses, victims, relatives of victims, and survivors of the attacks, — who maintained that there were no military objects in any of the attacked buildings or facilities — as well as on pictures of weapon fragments, satellite images of the location of the attacks and official statements of the IDF, which addressed only two of the reviewed attacks in a general manner (see p. 110). The organization did not receive specific information from the Israeli authorities about the circumstances underlying these 15 attacks and about any follow-up investigatory measures.
We accept that Amnesty International based its report on the best available information; but we fail to see how, on the basis of such evidence, it was possible to conclusively prove that Israel intended to kill civilians. The fact that witnesses did not know or claimed not to have known about the existence of militants or military objectives in the targeted buildings or facilities or in their immediate vicinity does not prove that no such targets existed and, even more so, that Israel did not anticipate to hit such targets (i.e., that it had information – accurate or inaccurate – that there were militants or military assets hidden below, inside or next to the attacked building or facility). As indicated above, Hamas’s pattern of conduct of operating from civilian objects and co-locating military targets in proximity to civilian objects, which the report acknowledges (see p. 55), complicates the ability to draw firm conclusions with regard to the actual or anticipated military advantage of any specific attack and the expected harm to civilians, without having full access to the relevant information underlying the targeting decision, including pre-attack collateral damage assessments. Furthermore, Amnesty International could not conclusively show on the basis of the information it gathered, that the attacks were not misguided – that is, that specific strikes didn’t hit targets other than the ones intended. Such misguided attacks may violate IHL if insufficient precautions were taken, but do not amount to the intentional targeting of civilians. (A 2009 UN report featured a similar problem of drawing inferences about Israeli targeting operations in the 2008 Gaza conflict; after more information came to light, the lead author of the report retracted his support of the report’s findings on intentional attacks against civilians.)
Several statements in the Amnesty report illustrate a de facto reversal of the burden of proof regarding intentional targeting of civilians. First, the report submits that “Amnesty did not find any evidence, in any of the cases, that there was any legitimate military target in or near the location attacked” (see p. 110). Lack of evidence in the scene of the attack does not afford, however, a sufficient basis to prove that an intended attack against civilians did take place (not to mention a genocidal attack against civilians). All this shows is that there are grounds to demand an investigation of the attack as a possible serious violations of international law, and to require Israel to provide further explanations and clarifications about the selected target. The report also notes that, to the best of the knowledge of its authors, no criminal investigation has been opened by Israel into these incidents (see p. 110). Yet, it is not clear from the report whether the authors have any information on whether the reviewed attacks fall among the hundreds of incidents investigated by the IDF’s fact-finding apparatus (which is designed to serve as a preliminary review mechanism before a formal criminal investigation is opened).
Second, Amnesty International notes that in one of the reviewed cases, Israel did give a prior warning before the attack, but maintains that the warning was ineffective, and that at other times no warnings were given even though, in at least one-third of the reviewed cases, the attacks occurred during night-time when the attacked budlings were fully populated (see pp. 110-111). While an ineffective warning could violate IHL (First Additional Protocol, art. 57(2)(c)), the fact that such a warning was given in one of the cases reviewed (and the fact that most attacks occurred in daytime and not nighttime) does not sit well with the claim of intent to directly target civilians. More generally, if Israel deliberately intended to kill civilians in its military attacks during the war, it is not clear why it did provide extensive warnings and other precautions, and issued repeated evacuation instructions before many of its attacks? This is a point we shall revisit below.
A related broad point which the report also does not adequately explain is as follows: If indeed Israel launched a military campaign intended to kill civilians indiscriminately without any military justification, why did it drop bombs that targeted specific buildings and not just bombed from the air entire neighborhoods or cities? In other words, the valid questions raised in the report concerning the legality of targeting specific buildings, which resulted in the tragic and potentially unlawful death and injury of many civilians, are of a nature suitable for an investigation specifically into IHL compliance; they do not seem to us appropriate for investigating a genocide, where presumably all members of the protected group would be equally or generally amenable to targeting by the perpetrator of such a crime.
Harsh Conditions of Life
A significant part of the Amnesty International report revolves around the harsh conditions of life in Gaza (see pp. 123-201). It is beyond dispute that conditions of life in Gaza during the war are terrible, in fact, unbearable. An enormous part of the Gaza Strip has been destroyed as a result of the fighting, millions were instructed to move from one place to another place – often, more than once – and there are, to put it mildly, very serious problems of access to humanitarian aid. These facts, however, are not enough to prove the legal conditions for establishing the crime of genocide. Specifically, it must be shown that: (i) the measures taken, which resulted in harsh conditions, violated international law; and (ii) that these measures were calculated to destroy the group, and not the result of another policy, legal or illegal in its contents. In other words, it is not enough to show that Israel violated its obligations under IHL by causing excessive harm to civilian objects including life-sustaining infrastructure, by conducting unlawful displacements, and by failing to ensure the provision of humanitarian aid. Even proving that Israel is engaged in the atrocity crime of “ethnic cleansing” is not enough to establish genocide (cf. Bosnia-Herzegovina v. Serbia, ICJ para. 190; Brđanin, ICTY para. 118). Rather it must be shown that the measures inflicting the harsh conditions were calculated to destroy the group, as such, in whole or in part.
Arguably, in order to sustain a genocide charge under the harsh conditions heading, it also needs to be shown that the measures applied were likely to achieve their destructive aim (Eichmann, para. 243). According to existing jurisprudence, this means that the group – or a significant part thereof – was expected to cease to exist due to the “slow death” conditions imposed on it, either because of the sheer number of lives lost, or the fraying of the social bonds between the surviving members of the group due to the physical destruction of other members, up to a point resulting in the group’s disappearance (Kress, at p. 688; Berster, at pp. 123-124).
The report does not clearly establish that the harsh conditions in the Gaza Strip were the result of measures calculated to destroy – i.e., intended to result in the civilian population’s “slow death.” It notes – but downplays – Israel’s claims regarding efforts to increase humanitarian aid to the Gaza Strip (p. 166), and accepts that aid diversion and looting remain a serious problem (p. 162). It also notes – albeit with much suspicion – that Israel claims that the civilian evacuations were intended to protect the civilian population (p. 132), and that some of the damage to critical infrastructure in the Gaza Strip might have been caused by Palestinian armed groups or by lawful acts of war (pp. 124-125). In making the case for a finding of genocide, the report focuses on the actual condition of life in the Gaza Strip during the war (the report calls them “resulting conditions of life”) – which are clearly very harsh (pp. 187-198) – and claims that they were caused by measures taken by Israel (pp. 200-201) and that Israel “had multiple options available to it to improve conditions of life in Gaza, which it did not take״ )p. 201). In other words, the report collapses here causation (both by act and omission) and intent, failing to engage meaningfully with the possibility that the harshness of the situation has resulted in large part from lawful acts of war, from factors beyond Israel’s control, and even from highly problematic Israeli policies which, nonetheless, were not calculated to result in “slow death” of all or part of the population (such as refusing to allow internally displaced Palestinians to return to North Gaza before the end of the war).
Furthermore, in reaching its conclusions about mens rea, the report does not meaningfully engage with the legal significance of Israel’s own estimation of the humanitarian conditions in the Gaza Strip or its positions on its legal obligations to ensure access to aid as an occupying force (even if it can be shown that such estimates and positions are objectively inaccurate). Arguably, questions relating to causation and intent underlay the decision of the ICC Pre-Trial Chamber not to issue an arrest warrant for Netanyahu and Gallant with respect to the crime against humanity of extermination.
The Mental Element – Special Intent
Whereas genocide can theoretically also be committed by a lone person acting on his/her own, in reality, international jurisprudence has tended to deal with genocide as a crime carried out on the basis of part of a plan or policy (see Krstic, ICTY para. 685; But see Krstic, ICTY Appeals Chamber para. 225), or individual intent to destroy acted upon in the context of a manifest pattern of similar conduct against the protected group (see ICC Elements of Crime, pp. 2-4). In all events, the commission of the crime of genocide requires special intent or dolus specialis to “destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”
Intent to destroy
At the heart of genocidal intent is the notion of destruction, which in the context of the Genocide Convention implies physical or biological destruction (e.g., through killing, maiming, harsh conditions, prevention of births or forcible transfer of children). More abstract forms of destruction, such as social assimilation or loss of cultural identity, do not constitute genocide. (Cf. Krstic, ICTY AC para, 25). Therefore, the part in the Amnesty International report that discusses harm inflicted on cultural and religious institutions in the Gaza Strip (pp. 216-233) does not directly relate to any of the elements constituting the crime of genocide (Bosnia-Herzegovina v. Serbia, at para. 344), although it may provide a useful context to other parts of the report (the report acknowledges it is not an element of the crime (p. 216)). The same applies to the segment of the report dealing with the mistreatment of Palestinian prisoners held in Israel (pp. 233-235). While such practices – on which we have written before – are deplorable, they are not directly related to any of the elements constituting the crime of genocide.
The definition of the group
It is undisputed that the Palestinian people are a national and/or ethnic group protected by the Genocide Convention, and that the Convention prohibits acts intended to destroy it as such, in whole or in part. It is also undisputed that in order to qualify as genocide, the genocidal intent needs to be directed against a substantial part of the protected group, whose destruction impacts the overall survival of the protected group (see e.g., Krstic, ICTY Appeals Chamber, para. 8-12). While Palestinians in Gaza are clearly a substantial part of the Palestinian people (See South Africa v. Israel, ICJ para. 45; Amnesty International report, p. 96), it is not clear to us whether the report actually alleges that it conclusively proved that Israel intends to destroy all Palestinians in Gaza (the report’s reference to Palestinians in Gaza as a “substantial part” of the Palestinian people in pp. 17-18, 122, 283 seems to imply this audacious and, in our view, completely unsubstantiated claim) or only a part thereof (the latter possibility would invite further evaluation of whether the ICTY conditions for “substantial part” were met).
Proving intent
Proving intent to commit genocide requires a showing that the goal of the perpetrators is to produce a result – group destruction (see e.g., Akayesu, ICTR para. 498). Intent can be established by explicit statements made by leaders, accused persons or other perpetrators, discreet statements and documents (such as adopted plans or policies), contextual evidence (e.g., modus operandi), and other evidentiary sources. As a theoretical matter, an intent to commit genocide could be harbored by an individual. However, as a practical matter, carrying out a genocide typically requires a collective plan or policy.
While there is undoubtedly plenty of evidence of discriminatory practices undertaken by Israel against Palestinians over the years (see e.g., OPT AO, ICJ para. 180-229) including open acts of racism against Palestinians, it seems to us difficult to maintain that before October 7, 2023, there were serious calls for the destruction of the Palestinian people in general, or of Palestinians living in the Gaza Strip in particular. Indeed, the Amnesty International report focuses on statements directed against the Palestinians in Gaza after the attack of October 7. 2023. We are not convinced, however, that these statements reveal a plan or policy to commit genocide, which was actually carried out.
Statements made after October 7, 2023
Most of the statements invoked by Amnesty International (as well as by South Africa in its ICJ submissions) were made in the immediate or almost-immediate aftermath of the October 7 attack. They could roughly be divided into three separate categories:
First, a few statements were made by senior political and military leaders who constituted part of the chain of command – Prime Minister Netanyahu, former Minister of Defense Gallant and General Alian, the head of COGAT (Coordination of Government Activities in the Territories);
Second, some statements were made by other politicians, who were at the periphery of the decision-making process, and whose influence on the military campaign ranged between marginal to non-existent; and
Third, there are statements made by low-ranking soldiers and celebrities who are not part of any strategic or formal decision-making forum.
In identifying whether these statements can serve as a basis for proving the existence of the special intent required for the commission of genocide, we believe that a clear line should be drawn to separate between statements by those who directly influenced the military campaign in Gaza and statements which – reprehensible and unlawful as they may be – were highly unlikely to have had such an effect. These distinctions have become a well understood part of the discussion over the Gaza conflict, and constituted a prominent line of defense used by Israel before the ICJ. Accordingly, the failure of Amnesty International to properly distinguish between the different types of statements reflects poorly on the quality of the analysis offered in the report.
In assessing the statements, the political situation in Israel after October 7, 2023, needs to be recalled. In a nutshell, the emergency government that was formed on October 11 included a three-member War Cabinet (Netanyahu, Gallant and – one opposition leader – Benny Ganz) and two observers (Ministers Ron Dermer from Netnayahu’s party and Minister Gadi Eisenkot from Ganz’s party). The War Cabinet was invested by the full government with powers to direct military operations during the war, and it operated as a supreme political decision-making body throughout most of the period surveyed in the report. This institutional configuration was created precisely because Ganz demanded, as a condition before joining the government, that the most extreme members of the ruling coalition would be sidelined from participating in the decision-making process in and around the war. Hence, when assessing the existence of a general genocidal plan, statements of politicians participating in the War Cabinet, or senior IDF officials located high in the chain of command, assume in our eyes particular importance. With regard to other statements, one cannot assume without further evidence that they have had any real influence on the general direction of the military campaign.
Statements made by leaders in the chain of command
The Amnesty report focuses on several statements made by the Netanyahu, Gallant and Alian immediately after the October 7 attacks (e.g., pp. 239-241). It pays particular attention to Netanyahu’s statement of October 28, 2023, where he said “[r]emember what Amalek has done to you; we were commanded.” This was interpreted by some observers, including by the authors of the report, as implicitly calling for the full destruction of the Gaza Strip (see pp. 257-261). As we have noted before, we have serious doubts whether this statement carries the meaning allegedly attached to it. Without delving too deep into Jewish theology, it can be noted that Netanyahu referred to the command to remember the deeds of Amalek (which in Jewish culture symbolizes ultimate evil) and not to another biblical command to destroy the people of Amalek. More significantly, the report ignores another segment in the same speech by Netanyahu: “The IDF is doing everything possible to avoid harming those not involved. And again, I call on the civilian population to evacuate to a safe area in the southern part of the [Gaza] Strip.” Netanyahu made in the following weeks additional statements underscoring the need to differentiate between combatants and civilians and to respect the laws of war (see e.g., a televised statement at the opening of a cabinet meetings on November 12 and a televised statement on November 18).
In the same vein, Gallant has been criticized for some overly aggressive statements, especially one in which he said to soldiers, “We are fighting human animals” (report, p. 148). While this statement, like Netanyahu’s Amalek statement, is most regrettable, it appears that Gallant was referring to Hamas fighters, not to Palestinian civilians. Indeed, on October 29 Gallant stated, “[w]e are not fighting the Palestinian multitude and the Palestinian people in Gaza,” and on November 7, in the context of the Israeli calls for the evacuation of Gaza City, he said, “I call on all citizens and residents of Gaza City – move towards the sea and head south. Move south, move towards a safer place… Go to the southern part of the Gaza Strip so that you won’t be harmed. We will destroy Hamas. We have no interest in harming civilians.” Similar clarifications can be found in later statements issued by General Ghassan Alian (see e.g., here).
To be clear, we have no strong interest in defending intemperate and dehumanizing choice of words by senior Israeli political or military leaders. However, to draw from such aggressive – yet ambiguous – statements a genocidal intent, while ignoring other statements, which are much clearer and patently point in the opposite direction, appears to us to be highly tendentious and ultimately unpersuasive. Significantly, a review of official IDF statements – including of Lt. General Herzi Halevi, the IDF Chief of Staff (who holds the supreme command level in the Israeli military) – suggests a clear commitment to adhering to the principle of distinction (see e.g., here, here, here, here and here). Such statements do not prove, of course, that international law violations did not occur during the war. Their importance lies in that they contradict the assertion made in the report that Israel’s political and military leadership formed and communicated to the rest of the military an intent to commit genocide. As long as the IDF maintains its chain of command, the claim implicitly made by Amnesty International that politicians – including the prime minister – could give in a press conference direct orders to IDF service members to operate contrary to military orders, and thereby shaped the entire military campaign in ways that are genocidal, seems untenable.
Other potential genocidal statements
Other statements made by ministers Israel Katz, Itamar Ben Gvir, and Bezalel Smotrich, public celebrities and low ranking soldiers are highly problematic, and some of them may amount – as we wrote before – to incitement to genocide. Still, as we explained before, in the decision-making structure that was created immediately after the war started, ministers not serving in the War Cabinet were marginalized and did not exercise any direct authority over the armed forces. To be clear, statements by public figures are not insignificant – and they might have led some individual soldiers to violate international law (see e.g., here). Yet, they cannot, we submit, and contrary to what is implied in the report, prove the existence of a general plan or policy to commit genocide, which the military then acted upon.
To sum up, in substantiating its conclusion that Israel harbored a special intent to commit genocide, Amnesty International has put vague statements by political and military leaders in the worst possible light, relied heavily on statements made by politicians lacking authority over the IDF, and ignored or gave very little weight to countervailing evidence containing clear pronouncements of official policy running against the assumption of intent to commit genocide (including legal warnings issued by the IDF Military Advocate General reminding soldier of their duty to comply with the laws of war and declassified cabinet records where the IDF was instructed to increase humanitarian aid to Gaza). Key aspects of the military operation, like providing extensive advance warnings and opening new border crossings for humanitarian aid to pass, are also inconsistent with the view that the IDF acted upon a genocidal policy or plan. We believe that such contrary indicators render it extremely difficult for Amnesty International to establish by conclusive evidence the special intent to commit genocide (Cf. Bosnia-Herzegovina v. Serbia, ICJ para. 277).
The Alternative route – deducing intent from a pattern of conduct
Recognizing the difficulty in proving an explicit plan or policy to destroy on the basis of open statements (p. 204), the Amnesty International report turns to a complementary evidentiary route – proving genocidal intent from a pattern of conduct. To recall, in its 2007 judgment in Bosnia-Herzegovina v. Serbia (2007), the ICJ accepted the possibility of inferring special genocidal intent from a pattern of conduct, but insisted that: “for a pattern of conduct to be accepted as evidence of its existence, it would have to be such that it could only point to the existence of such intent” (para. 373; emphasis added). In other words, and as the Court reiterated in Croatia v Serbia, for the Court to infer the existence of genocidal intent from a pattern of conduct, it must be “the only inference that could reasonably be drawn from the acts in question.” The question at hand is therefore whether the Israeli pattern of conduct could satisfy the standard set out by the Court on how to prove the existence of genocidal intent on the basis of circumstantial evidence. It is important to emphasize in this regard that the mere fact that civilians from a protected group have died in large numbers in an armed conflict or have been made subject to harsh living conditions is not sufficient to infer genocidal intent (cf. Genocide Convention travaux préparatoires, pp. 119-120 (New Zealand)), even if it is shown these harms were caused through illegal action. Had that not been the case, genocidal intent could have been automatically inferred in almost all cases where widespread war crimes or crimes against humanity were committed (including in many other international and internal conflicts, as bloody – in not more bloody – than the conflict in Gaza).
To be clear, Amnesty International is correct in suggesting (report, p. 103) that the ICJ did not require genocidal intent to be the only intent actually motivating the perpetrator. If it can be shown, for example, that a plan or policy to commit genocide does exist, the existence or prospect of other concurrent intentions that motivate the perpetrators does not absolve them of genocide charges. Yet, for the purposes of inferring intent from circumstantial evidence – a pattern of conduct – the Court insisted that genocidal intent would be the only reasonable inference, and if the evidence reasonably points to alternative possible intentions, the standard simply cannot be met. This is because the pattern itself will not show that it was clearly the intent to commit genocide – acted alone or jointly with other intentions – and not the other intentions that really motivated the conduct in question. It is precisely this understanding of the evidentiary standard that the report criticizes as “overly cramped” (p. 101). Still, given that this is the standard representing the existing jurisprudence of the ICJ on the basis of which determinations of genocide are made in authoritative legal contexts, the conclusion of the report’s authors that there is “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” (p. 283) must be seriously doubted. Arguably, such a conclusion can stand, if at all, only if existing international (lex lata) on how genocide is proven changes. (See in this regard the recent notice of intervention in the ICJ proceedings by Ireland which underscores a similar point regarding the need to change lex lata in order to establish genocide).
We believe that under existing jurisprudence, inferring special intent to commit genocide as the only reasonable explanation of Israel’s activities in Gaza, is going to be extremely difficult. Among the factors we note below – and which the Amnesty International report does not satisfactorily address – are the following elements:
(a) Israel has taken a host of measures intended to mitigate civilian casualties (e.g., opening new humanitarian supply routes, providing early warnings of military attack and facilitating vaccination drives). It is possible that these were insufficient as the report suggests (see e.g., p. 216), inaccurate in respect of targeting operations, and even misguided as regards protecting humanitarian interests. However, the question is not whether Israel violated its obligations under IHL, which it might have, but rather whether it is possible to infer from its pattern of conduct genocidal intent. It seems to us that Israel’s mitigation efforts at least cast doubt over the possibility of making such an inference. A genocidal intent – that is, an intent to destroy a group – is inconsistent with the measures Israel appears to have tried to take during the war to protect members of the group.
(b) The existence of genocidal intent also requires ruling out tactical or strategic reasons for the existing pattern of conduct, other than an intent to destroy the Palestinian people. In the context of the Gaza war, such measures appear to include military necessity, force protection or restoring deterrence, which have been put in place in response to Hamas’s fighting tactics and the strategic threat it poses for Israel and for Israeli civilians. To be sure, Israel could be rightfully criticized for applying measures that go beyond what is reasonable and/or legitimate by such policies (See e.g., here, here and here). It may even be suggested – as the report acknowledges (pp. 280-281) – that in employing military measures, Israel has shown reckless disregard for Palestinian lives. Still, affording excessive weight to certain strategic considerations and attributing too limited weight to countervailing humanitarian and other strategic considerations does not show, in and of itself, a special intent to destroy. In particular, contrary to the suggestion found in the report that recklessness can serve as evidence of specific genocidal intent (p. 281), a mens rea of recklessness actually negates the possibility to exclusively infer an intent to destroy (although mens rea of recklessness may support other allegations of international crimes). In the same vein, the suggestion in the report that Israel knew that the measures that it was adopting were both unlawful and harmful (p. 281) does not point necessarily to a specific intent to destroy, since even if such knowledge can be established, it does not negate intentions other than genocidal ones.
(c) Israel is clearly capable of inflicting much more harm on the civilian population of Gaza than the significant harm that it has already inflicted. An inference of an intent to destroy from Israel’s conduct needs also to take into account the fact that it refrained from taking additional acts that could have further advanced its alleged intent.
Without dealing with these factors, it is difficult for us to see how genocide can be inferred as the only reasonable conclusion under the pattern of conduct test. This indeed appears to have been the position undertaken by Judge Georg Nolte in the first decision on provisional measures in the South Africa v. Israel case (para. 13-14), where he noted that South Africa had not sufficiently engaged with the implications of factors incompatible with genocidal intent. The Amnesty International report does not do, in our view, a better job in this regard. Of course, any counterfactual assertion made in this regard – e.g., that Israel’s harm mitigation measures are merely designed to mask its “true intentions” – need also be supported by conclusive evidence.
In sum, we do not disagree with the position expressed in the report that genocidal intent can coexist with other intentions, and certainly not with the proposition that genocide can occur during an armed conflict (note that the one case in which the ICJ found genocide to have occurred – the Srebrenica massacre – took place during an armed conflict). But this does not mean the opposite – that is, that genocide can be simply inferred from not much more than the fact that multiple violations of IHL are alleged to have taken place, resulting in significant harm to members of a protected group. The ways to establish special intent in such circumstances have been set out by the ICJ in the cases dealing with allegations of genocide during an armed conflict, and although Amnesty International is apparently of the view that the dominant interpretation of the ICJ’s jurisprudence is too narrow, the evidentiary test it applies in its report cannot be said to represent the current state of international law.
Conclusions
It is notoriously difficult to establish genocide under international law, and thus it is not surprising that the Amnesty International report on the Gaza War, which set out to do precisely this, has not succeeded, in our view. The report includes much valuable information on patterns of behavior by Israel that raise serious concerns regarding their legality. Such acts and omissions must be investigated and, if requisite findings are made, prosecuted and remedied. Still, taking the extra step of claiming based on that available factual record that a genocide has occurred requires a higher standard of proof than the report contains, both with regard to the actus reus and the mens rea. The attempt to partly resolve this difficulty by changing the normative goalposts regarding how to prove genocide under international law can be considered as a proposal for lex ferenda, but it cannot support a conclusive determination of genocide on the basis of lex lata.