The current Israeli war on Gaza has given rise to questions about whether it is possible to invoke the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) to prosecute Israel. A number of experts and United Nations Special Rapporteurs have used this term before the October 7 events, but seven such rapporteurs have issued a statement on November 16 criticizing Israel’s actions as constituting grave violations, pointing to the danger of genocide, and calling on governments to act to prevent it.
The International Court of Justice at the Hague (ICJ) may offer a better forum for adjudicating Israel’s war crimes during the current war on Gaza than the International Criminal Court (ICC). This is particularly true with respect to the crime of genocide which is a specific, well-defined crime under international law. The ICJ is a well-established court that has exercised jurisdiction over disputes between states on a wide variety of subjects over many years and is not under the same political restrictions as the ICC appears to be.
The Trouble with the ICC
While the crime of genocide itself falls under the ICC’s jurisdiction, Palestinians have been very disappointed at the behavior of the current court Special Prosecutor, Karim Khan, and have complained that he has been very reluctant and slow to use the ICC against Israel. Several observers have complained that while the ICC has in fact investigated war crimes by several states, it has usually focused on African and developing countries and has avoided prosecuting others like the United States and Israel. Palestinian civil society and human rights organizations lobbied the Palestinian Authority to join the ICC, which it did in 2015 over the objections of Israel. In 2021, Palestinian civil society organizations provided the ICC Prosecutor Fatou Bensouda with detailed files on specific Israeli commanders and politicians who have been directly involved in war crimes and crimes against humanity. Before leaving office in 2021, Bensouda actually began an investigation into the alleged crimes.
In 2021, Palestinian civil society organizations provided the ICC Prosecutor Fatou Bensouda with detailed files on specific Israeli commanders and politicians who have been directly involved in war crimes and crimes against humanity. Before leaving office in 2021, Bensouda actually began an investigation into the alleged crimes.
The response of the Trump administration and of Israel to the complaints to the ICC was swift and pointed. The Trump administration announced that the ICC did not have jurisdiction over Israel or the United States and imposed sanctions on ICC officials, including Bensouda. The sanctions included the cancellation of all visas to ICC staff and the freezing of their bank assets. It further threatened to take punitive action against the judges and prosecutors of the ICC if they acted against Israel or the United States, for its alleged crimes in Iraq and Afghanistan. In April 2021, the Biden administration lifted the previous administration’s sanctions, although it continues to refuse to abide by ICC decisions.
While stating that he would try to supposedly restore the credibility of the ICC, Special Rapporteur Khan has been reluctant to move the ongoing investigation against Israel, claiming lack of adequate resources. In fact, he recently announced that he is only going to prioritize complaints referred to him by the UN Security Council. This was in marked contrast to his behavior in the case of the Ukraine, where he promptly assigned over 40 investigators, and issued an arrest warrant for Russian President Vladimir Putin for the war crime of transferring Ukrainian children out of the Ukraine. Five states, as well as civil society organizations have officially referred to the ICC Prosecutor complaints against the state of Israel alleging crimes including apartheid and genocide, but he has yet to take any action on these complaints or to give any indication of the timeline required for such actions.
By contrast, the Genocide Convention does not rest with the discretion of any one official. It carries with it the possibility that where there is a conflict over the interpretation of the Convention or its applicability, reference will be made to the International Court of Justice at the Hague. The Convention has the additional advantage in that it can be invoked by any single signatory state, which can be a useful instrument to consider for adjudicating this matter.
The Genocide Convention
The convention defines Genocide very clearly. It includes any of the “following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” by
“(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.”
Article III of the Convention prohibits and punishes “genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, [and] complicity in genocide.”
The relevant word in the definition of geocide is the requirement that there be intent to commit the crime. Usually, the element of intent is rather difficult to prove, and often has to be deduced from the behavior of the suspected party.
The relevant word in the definition of geocide is the requirement that there be intent to commit the crime. Usually, the element of intent is rather difficult to prove, and often has to be deduced from the behavior of the suspected party. In this case, however, the intent to commit genocide is an easy element to prove in light of the public and repeated statements of Israeli officials who are in a position to carry out the crime.
Officials’ Statements Dehumanizing Gazans
One of the indicators of genocidal intent is the use of language that dehumanizes the target population. During the Rwandan genocide, the Hutus referred to the Tutsis as “cockroaches” while radio broadcasters were openly inciting attacks. The resulting massacres over a period of three months killed an estimated 800,000 people. Similar wording was used by Israeli officials describing Palestinians in Gaza.
- Israeli President Isaac Herzog blamed all Palestinians in Gaza for the Hamas attack on October 7, saying “It is not true this rhetoric about civilians not being aware, not involved. It’s absolutely not true. They could have risen up. They could have fought against that evil regime which took over Gaza in a coup d’etat.”
- Prime Minister Benjamin Netanyahu went back to the Second World War to use an example of a bombing by Allied troops that killed children to justify the killing of civilians in Gaza.
- With the approval of the Israeli cabinet, headed by Netanyahu, Defense Minister Yoav Gallant called Palestinians “human animals” who will be treated “accordingly,” and ordered “a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed.” Chief-of-Staff of the Israeli Army, Lieutenant General Herzi Halevi, almost repeated the same wording, saying that Hamas is “fighting like animals.”
- In another speech, Prime Minister Netanyahu, who is not particularly religious, used the Biblical term “amalek” to refer to Gazans. He quoted the Biblical story in the Old Testament (I Samuel Ch. 15:3), where King Saul was commanded by God to utterly destroy the tribe of Amalek, including men, women, children, and even animals. The failure of King Saul to kill all Amalekites, as he spared some of them, was considered a sin eliciting divine punishment. This Mitzvat Hashmadat Am (Commandment of Genocide) has been repudiated by Jewish theologians throughout history as being no longer operative, “since we do not know who is Amalek today.” However, a number of radical rabbis in Israel have attempted to resurrect this commandment, claiming that Palestinians are the modern day Amalekites who needed to be destroyed, and Netanyahu specifically used this reference with respect to the campaign he was waging in Gaza. Quoting the Bible, he said“You must remember what Amalek has done to you,” in effect declaring holy war on Hamas.
- The calls for “utter destruction” and elimination reflected a general sentiment in Israel, and while its apologists may argue that it only refers to Hamas and not to all the population of Gaza, the reality both of the actions and statements of the officials points elsewhere. One Israeli minister, Amihai Eliahu, even suggested dropping a nuclear bomb on Gaza, and was rebuked by Netanyahu only because Israel had not publicly acknowledged it owns such weapons. The language and actions of the leaders showed clearly that they were seeking revenge for the humiliation the army and security services felt, and the need to punish Gaza for the actions of October 7. The spokesperson for the Israeli army stated that the bombing of Gaza was focused on destruction, instead of accuracy, and causing maximum damage.
Attacking Civilians
The massive amount of destruction used in the Israeli campaign is also indicative of genocidal intent. While refusing to allow water, food, medicine, fuel, and humanitarian supplies, the Israeli army dropped an unprecedented amount of explosives on a narrow heavily populated area, sparing no targets and indicating that there is no safe place in the entire enclave. The army also ordered the evacuation of all hospitals, and other institutions as well as all the civilian population of the northern half of the Gaza strip, while it heavily bombed and destroyed over half of all standing buildings, rendering the entire area uninhabitable.
Israeli forces have dropped tens of thousands of bombs on Gaza over the last two months, much of which were supplied by the United States. A recent report by the (US) Office of the Director of National Intelligence estimated that about 45 percent of air-to-ground munitions used by Israel have not been “smart” bombs, indicating that the intent is shear destruction not the killing of only Hamas fighters. More than 18,000 Palestinians have been killed in military operations, while 1.9 million others (85 percent of the population) have been displaced. Of the dead, at least 7,000 are children, while the United Nations describes Gaza as a “graveyard for children.”
A recent report by the (US) Office of the Director of National Intelligence estimated that about 45 percent of air-to-ground munitions used by Israel have not been “smart” bombs, indicating that the intent is shear destruction not the killing of only Hamas fighters.
A recent article in The Guardian revealed that Israel uses a new AI methodology to create a large “bank of targets” in Gaza. While Israel used to locate 50 such targets a year, the new AI technology—labelled “The Gospel” (Habsora in Hebrew)—provides 100 targets per day, based on surveillance, intelligence reports, social media posts, electronic intercepts, and observations of all data relating even to lowly Hamas functionaries. Israel can locate their phones, homes, places of work, or any location where they may be suspected to be, and then direct massive bombing against these targets.
Additionally, on October 13, the Israeli army ordered 1.1 million Gazans to evacuate the northern half of the Gaza Strip. The army claimed that it was trying to spare human life, but in reality it kept bombing the areas to which it ordered the relocation. It indeed was forced expulsion of more than half the population of Gaza. During the humanitarian pause declared between November 24 and December 1, displaced Gazans were prevented from visiting their homes in the north.
The fact that there was no safe place for Gazans to go and that mosques, churches, schools, and UN facilities where people sought shelter were also bombed indicates further the genocidal intent behind the orders to “move south.” Leaving the entire population of Gaza without food, water, shelter, and healthcare is a clear indication of a policy of genocide or attempted genocide.
Mechanisms of Invoking the Convention
Article VIII of the Convention states that “Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocides or any of the other acts enumerated in article III.” Article IX states that “Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
If Israel, or the United States, disputes the claim that genocide is taking place, then the disagreement over applicability or interpretation of the Convention as it relates to the allegation of genocide in Gaza can be brought before the ICJ.
That means that if any one of the 149 states that signed the statute appeals to the Convention, and if Israel, or the United States, disputes the claim that genocide is taking place, then the disagreement over applicability or interpretation of the Convention as it relates to the allegation of genocide in Gaza can be brought before the ICJ. Both Israel and the Palestinian Authority are signatories to the Convention.
ICJ Versus ICC
The International Court of Justice, unlike the ICC is not subject to the discretion of the Prosecutor and has in the past addressed controversies relating to Palestine/Israel. In 2004, at the request of the General Assembly, the ICJ ruled 14-1 that the barrier Israel built along its border with the occupied Palestinian territories was illegal and a violation of international law. While Israel rejected the decision, the case still proved that the ICJ can be a court of next resort if the ICC does not adjudicate in international disputes.
Israel’s remaining plans after its ground operation in the Gaza Strip remain undeclared. But its behavior and its public statements and stated goals appear to show a prima facia case of genocide and attempted genocide. There is enough evidence to invoke the Genocide Convention which was deliberately drafted to prevent this crime and not only to punish after a genocide is carried out. If one country signatory to the Genocide Convention makes such a referral, it is clear that Israel (and perhaps the United States as well) will reject this claim, and this opens the road, under the International Court of Justice, to resolve the legal issue.
The views expressed in this publication are the author’s own and do not necessarily reflect the position of Arab Center Washington DC, its staff, or its Board of Directors.
