18 October 2024
Definition of Genocide in International Law
Genocide is defined in Article II of the Genocide Convention of 1948 as committing various acts with intent to destroy a national, ethnic, racial or religious group as such, in whole or in part. The specified acts are:
- killing or causing serious bodily or mental harm to members of the group,
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
- imposing measures intended to prevent births within the group
- forcibly transferring children of the group to another group
The same definition is used in Article 6 of the Rome Statute of the International Criminal Court.
Intent to destroy a national, ethnic, racial or religious group as such in whole or in part is the characterising element of the crime. Killing a large number of people without this intent is not genocide according to this definition.
Moreover, Israel’s war aim of destroying Hamas as a military and governing organisation does not constitute an intent to destroy a national, ethnic, racial or religious group as such. Hamas is not a national, ethnic, racial or religious group. It is a terrorist organisation.
South Africa’s case against Israel under the Genocide Convention
South Africa brought proceedings against Israel in the International Court of Justice (ICJ) in December 2023, alleging that Israel is committing genocide against Palestinians in the Gaza Strip (the group). The case mainly centres around the first two acts specified in the definition:
- killing or causing serious bodily or mental harm to members of the group
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
This note considers first the specified acts, and then whether Israel has committed these acts with the required genocidal intent to destroy the group, in whole or in part. The last section of this briefing considers what the ICJ has so far found and corrects misinterpretations of these findings.
Casualties in the Gaza Strip
While genocide can occur with only a few victims, most recognised cases of genocide have involved a large number of victims, and many have pointed to the high casualty figures in the context of Israel’s military operation in the Gaza Strip as supposedly supporting the claim that Israel is committing genocidal acts.
However, the infliction of heavy losses on the civilian population in the course of military operations was not intended to fall within the scope of the Genocide Convention. The drafters of the Convention made clear that, while it would of course be “desirable to limit such losses … this question belongs to the field of the regulation of the conditions of war and not to that of genocide.”
Furthermore, the cited Palestinian casualty figures are produced by the Gaza Ministry of Health and the Government Media Office in Gaza, both of which are run by Hamas. The UN Office for the Coordination of Humanitarian Affairs (UNOCHA) acknowledges that it obtains its casualty figures from these sources and has not yet verified them.
Hamas has a clear incentive to manipulate these figures to put international pressure on Israel and increase global sympathy and support for Hamas and its cause. Casualty figures provided exclusively by one party to the conflict, which is also a terrorist organisation, should not be regarded as reliable.
The Hamas Ministry figures have major deficiencies:
- They do not distinguish between combatant and non-combatant casualties. The Israel Defence Forces (“IDF”) estimated that at least 17,000 Palestinian terrorists had been killed since the start of the current war by 5 September 2024. If so, even if one accepts the Gaza Ministry of Health total of at least 40,878 Palestinian fatalities in total by that date (despite the evidence of falsification and manipulation, discussed below) as well as the IDF estimate of Palestinian combatants killed, the ratio of civilian casualties to combatant casualties was 1.4:1.
While every civilian casualty is a tragedy, this ratio is much lower than the average ratio of civilian to combatant casualties in armed conflict in urban areas worldwide in 2021, which was more than 8:1 according to a report of the UN Secretary-General to the UN Security Council. In the battle for Mosul in 2016-2017 the ratio of civilians to ISIS terrorists killed was around 2.5:1.
The comparatively low ratio of civilians to combatants killed in the Gaza war is indicative of extraordinary care taken by the IDF to avoid civilian casualties, despite the exceptional difficulties faced by the IDF in fighting terrorists deeply embedded within, around and underneath residential and other civilian buildings in densely populated urban areas.
- The Hamas Ministry figures include Palestinian civilian casualties of Palestinian fire, explosive devices and rockets that have fallen short, such as (for example) the rocket that caused an explosion outside Al-Ahli hospital on 17 October 2023, allegedly killing 471 people according to the Gaza Ministry of Health. Over 14% of rockets fired by Palestinians between 7 October 2023 and 3 February 2024 fell short in the Gaza Strip.
- There is extensive evidence of fabrication, manipulation and inaccuracy, exaggerating both the total figures and the proportions of women and children, as discussed in detail in our separate Briefing Note on Palestinian Casualty Figures.
- The Hamas Ministry figures may include people who died of natural causes and would have died even if there had been no conflict.
Allegations of starvation and famine
It is also alleged that Israel is deliberately starving the population in the Gaza Strip, thus “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction”.
These allegations refer to a series of reports regarding the food situation in the Gaza Strip since 7 October 2023 compiled by the Famine Review Committee (FRC) and the Famine Early Warning Systems Network (FEWS NET) using the Integrated Food Security Phase Classification (IPC).
Reports published in March 2024 projected an imminent famine in the northern part of the Gaza Strip, but these were based on incomplete information, and the feared famine did not occur. Subsequent reports identified significant omissions in the food sources that were counted in the March reports and concluded that the assessments in March were not plausible. However, even the subsequent reports expressed conclusions that were significantly more pessimistic than justified by the data. The reports are discussed in detail in our separate Review of Gaza Famine Reports.
The Prosecutor of the International Criminal Court (ICC) has not alleged genocide on the part of Israel but is alleging that Israel has used starvation as a method of warfare. His allegations (and similar allegations made by South Africa in the ICJ) are based on inaccurate and incomplete information, as demonstrated in UKLFI Ltd’s letter to the Prosecutor.
Intent to destroy a group as such, in whole or in part
South Africa claims that various statements made by Israeli officials are evidence of genocidal intent. However, it is not correct to glean genocidal intent purely from statements made in the immediate aftermath of the appalling atrocities of 7 October 2023. While the drafters of the Genocide Convention acknowledged that hateful propaganda often preceded genocide, they also noted that such propaganda would have to be carefully defined and clearly distinguished from bitter and violent criticism:
“Political and social life is, in fact, composed of antagonisms and oppositions which often involve bitter and violent criticism, controversies and discussions. The various human groups of which society is composed often regard each other as rivals, antagonists, adversaries, or even enemies, and treat each other as such. There can be no question of prohibiting all criticism directed against a social group, even if this criticism is unjust, impassioned and excessive. The prohibition of genocide must not provide a pretext for any infringement of the freedom of opinion nor be used as a means of preventing abuse of polemical campaigns. During elections, for instance, opponents often use exaggerated language which, taken literally, might at times be interpreted as reflecting intentions of genocide, whereas the violence really only lies in the language.”
In any case, the statements invoked by South Africa have been quoted out of context and misleadingly abridged, in particular so as to imply falsely that Israel intends to destroy the Palestinians or the Palestinians of Gaza as a national, ethnic, racial or religious group.
Benjamin Netanyahu
South Africa quoted statements by Israel’s Prime Minister promising to “operate forcefully everywhere”, confirming that “[w]e are striking our enemies with unprecedented might”, that Israeli soldiers “understand the scope of the mission” and stand ready “to defeat the bloodthirsty monsters who have risen against [Israel] to destroy us”, describing the situation as “a struggle between the children of light and the children of darkness, between humanity and the law of the jungle”, that “[t]his is the war between the sons of light and the sons of darkness. We will not let up on our mission until the light overcomes the darkness – the good will defeat the extreme evil that threatens us and the entire world” and “we’re facing monsters, monsters who murdered children in front of their parents … This is a battle not only of Israel against these barbarians, it’s a battle of civilization against barbarism”.
These statements must be understood in the context of the truly barbaric atrocities committed by Israel’s enemies on 7 October 2023 and Israel’s determination to defeat those enemies. None of them evince an intention on the part of Israel to destroy a national, ethnic, racial or religious group as such.
South Africa went on to refer to Netanyahu’s invocation of the Biblical story of the Amalekites, quoting him stating “you must remember what Amalek has done to you, says our Holy Bible. And we do remember” and referring again to Amalek in a letter to Israeli soldiers and officers. As South Africa observed, in the Bible the ancient Israelites were commanded to destroy Amalek.
However, on both occasions to which South Africa referred, Netanyahu made it clear that he was equating Hamas with Amalek, and not the Palestinians generally. In the first, he stated (translated from Hebrew):“The goals of this war are very clear: to completely eliminate the military capability of Hamas and to bring back the captives home”. He also emphasised that “the IDF is doing everything it can to prevent harming those who are uninvolved”.
In the second he wrote (translated from Hebrew, emphasis added):
“Since time immemorial we have struggled against bitter enemies who rose up against us … The current fight against the Hamas murderers is another chapter in the story of national resistance for generations.
‘Remember what Amalek did to you’.
We constantly remember the sights of the horrific massacre on Shabbat Simchat Torah, October 7, 2023. Before our eyes stand our brothers and sisters who were murdered, wounded, abducted, the fallen of the IDF and the security forces. In their name and for their sake we embarked on a campaign, the purpose of which is the destruction of the cruel and murderous enemy Hamas-ISIS, the return of our abductees and restoring security to our country, our citizens and our children.
This is the war between the sons of light and the sons of darkness. We will not let up on our mission until the light overcomes the darkness – the good will defeat the extreme evil that threatens us and the entire world.”
Hamas is not a national, ethnic, racial or religious group. The intent to destroy Hamas is not genocidal.
President Isaac Herzog
South Africa claimed that President Herzog made it clear in a press conference on 12 October 2023 that Israel was not distinguishing between militants and civilians in Gaza by saying: “It’s an entire nation out there that is responsible. It’s not true this rhetoric about civilians not aware not involved. It’s absolutely not true. … and we will fight until we break their backbone.”
However, it is reported that when asked at the press conference to clarify whether he meant to say that this “makes them, by implication, legitimate targets”, Herzog responded: “No, I didn’t say that.” He is also reported to have said at the same press conference: “We are working, operating militarily in terms according to rules of international law, period. Unequivocally” and “I agree there are many innocent Palestinians who don’t agree with this , but if you have a missile in your goddamn kitchen and you want to shoot it at me, am I allowed to defend myself? We have to defend ourselves, we have the full right to do so.”
It is clear from this that President Herzog was not expressing an intent to destroy a national, ethnic, racial or religious group as such in whole or in part.
South Africa followed the above misleading commentary and quotation of Herzog taken out of context by quoting the Israeli President as saying on 15 October 2023 “we will uproot evil so that there will be good for the entire region and the world” – implying that he regarded all Palestinians in Gaza as an evil that must be uprooted.
In fact, he said on this occasion: “We are faced with an extremely cruel, inhumane enemy, which we have to uproot, with no mercy”. He then referred to instructions found on the body of one of the terrorists to carry out atrocities and continued: “Therefore the story is not Israel versus Palestinians or Judaism versus Islam, God forbid. The story is about humans, humanity. Are we with the good or are we with evil? That’s where humanity should stand and the battle we are carrying out now, as a nation rising up as a lion, is against evil, and we will uproot evil so that there will be good for the entire region and the world.”
Thus President Herzog made it very clear that the evil to be uprooted was the terrorists and not Palestinians generally, the opposite of South Africa’s misleading submission.
In any case, President Herzog does not have command authority, so has not been in a position to participate in the alleged genocide.
General Yoav Gallant
South Africa alleged that General Gallant, Israel’s Defence Minister, said on 9 October 2023 that Israel was “imposing a complete siege on Gaza. No electricity, no food, no water, no fuel. Everything is closed. We are fighting human animals and we are acting accordingly”.
In fact, he said (translated from Hebrew, emphasis added): “We are imposing a complete siege on the City of Gaza …”. While the City of Gaza is the largest town in the Gaza Strip, it is not the whole of the Gaza Strip, and it is not adjacent to any of the borders or border crossings of the Gaza Strip.
In any case, no “complete siege” was imposed on Gaza City or the Gaza Strip. Electricity, food, water and fuel continued to be available. For details, see UKLFI Ltd’s letter to the ICC Prosecutor and our Briefing Note on Siege, Humanitarian Supplies and Evacuations.
Similar points apply to a statement on 9 October 2023 by Major General Ghassan Alian, the IDF’s Coordinator of Government Activities in the Territories (COGAT).
South Africa further claimed that Gallant said on 10 October 2024 (translated from Hebrew): “I have released all restraints. We are fighting human animals and we are acting accordingly. Gaza won’t return to what it was before. We will eliminate everything. If it doesn’t take one day it will take a week”.
However, what he actually said (translated from Hebrew, emphasis added) was: “I have released all restraints … We are activating everything. We are taking off the gloves. We will kill anyone who fights against us. You saw what we are fighting against. We are fighting human beasts. This is the ISIS of Gaza. This is what we are fighting against… Gaza won’t return to what it was before. There will be no Hamas. We will eliminate all of it. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.”
Thus, statements which referred to eliminating Hamas were misleadingly presented by South Africa as referring to eliminating the whole of Gaza.
Others
South Africa also referred to statements by a number of other Israeli Ministers and Members of Parliament, but these politicians do not have command authority and have not been in a position to participate in any alleged genocide. Commentaries by various retired IDF personnel cited by South Africa are similarly irrelevant. There are also further cases of quotations misleadingly taken out of context and/or abridged.
South Africa’s “informal translation” of a Tweet by Lieutenant Colonel Gilad Kinan gives a misleading impression. Bearing in mind the common metaphoric uses of the word יד (hand) in Hebrew, this would be understood as referring to the goal of destroying all Hamas infrastructure, not literally everything that had been touched by the hand of a Hamas member.
Misinterpretation of the ICJ’s decisions
Some media reports stated that the ICJ held in its Provisional Measures Order of 26 January 2024 that there was a “plausible risk of genocide in Gaza” or that Israel had “plausibly committed” genocide. These misinterpret the ICJ’s decision and the purpose and function of Provisional Measures Orders of the ICJ.
The Court’s ability to issue a Provisional Measures Order depends on a finding that the rights asserted by the party seeking the order are at least plausible. It is plausible that Palestinians in the Gaza Strip have rights to be protected from acts of genocide and the ICJ held, consistently with its previous decisions, that South Africa has a right to raise these rights in the ICJ, despite not being the victim of any alleged violation of them. Thus, it is the rights of the Palestinians in the Gaza Strip to be protected and of South Africa to raise them that were determined to be plausible, and not the alleged commission of genocide against the Palestinians.
The Court confirmed in the same Order that it was not called upon “to establish the existence of breaches of obligations under the Genocide Convention” and that it could not make any definitive findings of fact at this stage.
UKLFI Ltd explained the above points in open letters to the UK government, responding to lawyers who had invoked incorrect interpretations of the Court’s order in demanding the UK government to take various steps against Israel. Judge Joan Donoghue, who had been President of the ICJ when it made the above Provisional Measures Order, subsequently confirmed in a BBC interview that the ICJ did not find there was a plausible risk of genocide in Gaza, or that Israel had plausibly committed genocide in Gaza.
The ICJ made a further Provisional Measures Order on 24 May 2024. Again, the Court did not make any findings that Israel had committed genocide. The Court ordered that Israel shall “[i]mmediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.” [emphasis added]
Despite the emphasised qualification indicated above, this was also misinterpreted in media reports as prohibiting Israel from conducting any military operation in Rafah. The correct interpretation of this Order is discussed in further detail in this post.
Israel responded to the Order, affirming that it “has not and will not conduct military action in the Rafah area which may inflict on the Palestinian civilian population in Gaza conditions of life that could bring about its physical destruction in whole or in part.” The IDF continued its operation in Rafah in compliance with the Order and with the Genocide Convention.