It is difficult to predict at this stage the impact of South Africa’s application to the International Court of Justice (ICJ) charging Israel with genocide over its response to Hamas’s October 7 attack and massacre.
The Court will use the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (UNCG) definition of genocide as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” which lists a range of violent acts that may qualify as genocidal: killings; causing serious bodily or mental harm; inflicting conditions of life calculated to bring about the group’s physical destruction in whole or in part; preventing births within the group; and, forcibly transferring children of the group to another group.
The key for proving genocide is to show that the perpetrators specifically intend, through their actions, to bring about the complete or partial destruction of the civilian group “as such.” Specific intent sets a high bar; it is not enough simply to establish that the actions resulted in partial or complete group destruction. It is not surprising, therefore, that genocide is harder to prove than crimes against humanity or war crimes, which do not require the same standard of intentionality.
Nevertheless, South Africa makes a compelling case. It presents a range of Israeli actions that can be genocidal in conformity with the UNCG definition, and it cites numerous statements by Israeli political and military leaders that can be plausibly interpreted as showing genocidal intent (paras. 101-106). Indeed, it is notable how much of the language by Israeli leaders collapses the distinc-tion between Hamas fighters and Gazan civilians, effectively treating the two as interchangeable and both as “legitimate” targets.
Israel says it has notified Gazans before some attacks and lets in some aid, which implies it is not intentionally seeking Gazans’ destruction. This is unpersuasive, however, given that Israel has attacked designated safe zones, employs massive unguided bombs in civilian areas, and has laid a siege driving Gazans to starvation, an obscene collective punishment. Israel’s pattern of conduct suggests its campaign is intentionally directed toward at least partial group destruction.
Nevertheless, everything pivots on how the ICJ interprets intentionality. The ICJ’s judgment in Bosnia vs. Serbia, states that “for a pattern of conduct to be accepted as evidence [of genocidal intent], it would have to be such that it could only point to the existence of such intent” (para. 373; see also Croatia vs. Serbia, paras. 146-148). That is, the only reasonable interpretation of conduct must point toward genocidal intent, not other aims. Israel argues that it is fighting to establish its own security, not exterminate Gazan civilians. But this argument wrongly assumes that a military response to a security threat and committing genocide are logically exclusive. Counterinsurgency campaigns have been found to have genocidal phases when the civilian group itself is treated as the security threat, as in Guatemala in the early 1980s. We must distinguish between motive and intent: there may be many motives, or reasons, behind a military campaign – security, retribution, controlling land, etc. – but what is legally dispositive is whether the perpetrator intends to annihilate the targeted civilian population in whole or in part, regardless of the reasons given for doing so. Even if Israel had a right to self-defense to fight in Gaza, it does not have the right to commit genocide. The same is true respecting the rules governing the conduct of force – international humanitarian law – which governs all parties to a conflict, those resorting to force lawfully or unlawfully. If targeting a legitimate military objective is done with the intent to destroy a people in whole or in part, it is unlawful genocidal conduct.
Proving genocidal intent, however, in resort to or conduct of armed force is difficult under the narrow legal understanding. The narrow understanding is one reason why many genocide scholars, including me, are critical of the Convention. It does not accurately reflect how genocide unfolds. Genocide is rarely preceded by a detailed plan with explicit extermination orders. Rather, intentionality emerges over time, as previous strategies are deemed insufficient to achieve particular (extremist) goals, and leaders settle on a policy of total or partial civilian annihilation to secure their aims.
Moreover, the treatment of international law by states is having a detrimental effect. States assemble a sophisticated legal interpretive apparatus to justify mass violence and gut the law of its primary purpose to protect civilians. This kind of bad faith legal reasoning has become especially pronounced since 9/11, as governments have reframed national interest through appeals to anti-terrorism laws and self-serving interpretations of international humanitarian law at the expense of human rights.
The debate among genocide scholars has not been side-tracked by these deficits in the substance and institutions of international law. As South Africa argued its case on January 11 and Israel pushed back on January 12, genocide scholars were focused on Israel’s military campaign and the question whether Israel was on the brink of committing genocide or was already doing so well before.
Several points follow for policymakers: 1) given the challenges of assessing genocidal intentionality in “real time,” focus instead on ending large-scale harms against civilians, rather than waiting for a legal genocide determination; 2) invest in building a regional atrocity prevention architecture directed at root causes and structural violence, not just preventing mass killings and displacement; and 3) publicly assert that an ICJ ruling in favor of Israel is not an endorsement of Israel’s conduct. In short, while the court case brings needed attention to this ongoing crisis, a focus on the Convention should not come at the expense of a more comprehensive strategy for peace and accountability.
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Written by Ernesto Verdeja, associate professor of peace studies and global politics at the University of Notre Dame.
