This article contains descriptions of significant violence that may be challenging to analyze due to the sensitive nature of the subject matter and each individual’s unique identities and experiences. Violence against any individual or group is unequivocally wrong, and nothing in this article should be construed as promoting or condoning such behavior.
The ongoing conflict in Gaza has deep roots spanning decades, tracing back to the Balfour Declaration of 1917.[1] In this declaration, the United Kingdom expressed its support for a Jewish homeland in Palestine, inevitably causing tensions to escalate as waves of Jewish immigration exacerbated conflicts with the Arab majority.[2] In 1947, the UN proposed dividing Palestine into separate Jewish and Arab states, but the plan never materialized.[3]
The failed UN plan culminated in violent conflict following Israel’s declaration of statehood in 1948, resulting in the displacement of hundreds of thousands of Palestinians in an event known as the Al Nakba (“The Catastrophe”).[4] Over decades, Israel expanded its control over territories, including the West Bank and East Jerusalem.[5] While Israel withdrew its forces from Gaza in 2005, it retained control over its borders, with the UN still considering Gaza as occupied territory.[6]
Recent reports from Amnesty International highlight Israeli policies and actions, including restrictions on Palestinian family unification, deportations, and arbitrary revocations of citizenship.[7] Documented human rights abuses include unlawful attacks and killings, settler violence, forced evictions, and administrative detention.[8] Israeli authorities have also imposed restrictions on freedom of movement, such as checkpoints and closures.[9] This article consequently argues that Israel’s conduct towards Palestinians, past and present, meets the legal definition of genocide.
Early Accusations of Genocide
Before Hamas’s attack on October 7, Israel had already faced accusations of incremental genocide.[10] Ilan Pappé, an Israeli historian and professor, defined the conflict as incremental genocide in his chapter of On Palestine.[11] In a 2014 interview, Michael Ratner, president emeritus of the Center for Constitutional Rights, described the Israeli occupation, including its targeting of housing, schools, hospitals, and even a UN shelter housing refugees, as genocide.[12]
Defining Genocide
The Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”[13] This comprises two elements: a mental element of “intent to destroy” and a physical element involving the commission of at least one of the five enumerated acts.[14] Historically, the mental element has been the most difficult to establish.[15] To find intent, case law requires the existence of a state or organizational plan or policy, even though the definition of genocide does not explicitly include such a requirement.[16]
Two now-defunct UN tribunals previously ruled on cases of genocide.[17] One such conflict was the Rwanda Genocide of 1994.[18] The International Criminal Tribunal for Rwanda (ICTR) was the first international court to enter a conviction of genocide.[19] Similarly, the Extraordinary Chambers in the Courts of Cambodia, a domestic Cambodian tribunal assisted by the UN, convicted two members of the Khmer Rouge of genocide for their brutal rule over Cambodia in the 1970s.[20]
Applying Definition to Conflict in Palestine
South African Ambassador to the Netherlands, Vusimuzi Madonsela, argued before the ICJ that “South Africa has recognized the ongoing Nakba of the Palestinian people through Israel’s colonization since 1948. . . . [South Africa’s case places] Israel’s genocidal acts and omissions within the broader context of Israel’s 75-year apartheid, 56-year occupation and 16-year siege imposed on the Gaza Strip.”[21] Former South African judge, Adila Hassim, similarly argued that Israel is guilty of genocide, having committed four of the five acts enumerated in Article II of the Genocide Convention, including killing members of the group, 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, and importing measures intended to prevent births within the group.[22]
There is overwhelming evidence to find that Israel has satisfied the physical element of genocide.[23] When South Africa’s first presented its case on January 11, 23,210 Palestinians had been killed by Israeli forces since October 7, 2023, with 70% of the victims being women and children, according to Hassim.[24] According to Gaza’s Ministry of Health, the death toll had surpassed 30,000 as of February 27.[25] However, some have questioned the ministry’s credibility in reporting casualties, including Israeli military spokesmen, and emphasized that Israel has also faced casualties, reported to include 1,400 civilians and soldiers.[26]
Israel has displaced 85% of Palestinians in Gaza.[27] In South Africa’s case against Israel, Hassim cites even the first evacuation order issued to the one million inhabitants of northern Gaza on October 13th as genocidal because the order “required immediate movement, taking only what could be carried, while no humanitarian assistance was permitted, and fuel, water and food and other necessities of life had deliberately been cut off.”[28] 93% of the population in Gaza is facing crisis levels of hunger.[29] Palestinians have been deprived of basic necessities, including water, shelter, clothes, and sanitation items.[30] Additionally, according to Hassim, the ongoing assault on the healthcare infrastructure in Gaza “renders life unsustainable.”[31] Finally, Hassim argues that by blocking medical supplies necessary for childbirth, Israel prevents births by Palestinians.[32] This pattern of conduct, Hassim argues, indicates a genocidal intent.[33]
Several ICTR cases offer guidance for establishing the mental element of genocide.[34] In the 2004 Gacumbitsi case, the ICTR Trial Chamber held that genocidal intent can be inferred from “the physical targeting of the group or their property; the use of derogatory language towards members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, [and] the systemic manner of killing.”[35] In the subsequent 2008 Seromba case, the ICTR Appeals Chamber held that genocidal intent may be proven through inference from the facts and circumstances of a case, including the systematic perpetration of culpable acts against a particular group, the scale and nature of atrocities committed, deliberate targeting of victims based on their group membership, repetition of discriminatory acts, and violation of the fundamental identity of the group by the perpetrators.[36]
The genocidal intent of Israel may be inferred from the weapons employed against the largely unarmed Palestinian people, the resulting incredible extent of bodily injury, and the overall scale of the displacement, starvation, and killing of Palestinians.[37] However, South Africa largely cites to the official statements made by top Israel officials to establish intent.[38] In arguing the case, they were able to draw on a new and comprehensive database, compiled by Law for Palestine, which meticulously documents and collates 500 statements that embody the Israeli state’s intention to commit genocide and incitement to genocide since October 7, 2023.[39] On October 9, 2023, Defense Minister Yoav Gallant announced “a complete siege on the Gaza strip. There will be no electricity, no food, no fuel, everything is closed.”[40] He added, “We are fighting human animals and we are acting accordingly.”[41] On October 10, 2023, Major General Ghassan Alian, the head of the officer of Coordinator of Government Activities in the Territories, said “Human animals are dealt with accordingly,” “Israel has imposed a total blockade on Gaza, no electricity, no water, just damage. You wanted hell, you will get hell.”[42] The statements by people with command authority—state leaders, war cabinet ministers, and senior army officers—and by other politicians, army officers, journalists, and public figures reveal the widespread commitment in Israel to the genocidal destruction of Gaza.[43] South Africa argues that genocidal rhetoric in Israel is explicit, consistent, and comes not from the margins but from the people who make state and military policy.[44]
Israeli officials immediately protested that South Africa misconstrued what they said in their statements.[45] Israel defends itself that its intent is only to defeat Hamas with no intention to target Palestinian civilians.[46] However, the extreme scale of the destruction and killings, coupled with the targeting of areas explicitly labeled safe by Israel to civilian refugees, the withholding of necessary utilities, and the blockade against humanitarian aid, suggests otherwise.[47]
Call to Action
Defining the ongoing conflict in Palestine as genocide is critical to ending the violence. Under Article VIII of the Genocide Convention—to which Israel, Palestine, and numerous other involved and surrounding states are party—any contracting party may call upon the UN to take action as appropriate to prevent and suppress acts of genocide.[48] This obligation aside, UN member states should provide immediate aid to Palestine, including providing for safe evacuation for those wishing to leave the occupied territory and urgent humanitarian aid for those choosing to remain.[49] Finally, the words of Arab poet Fadwa Tuqan may express the importance of a permanent ceasefire and the importance of Palestine to its people: “Enough for me to die on her earth / be buried in her / to melt and vanish into her soil / then sprout forth as a flower / played with by a child from my country.”[50]
For more information on the ongoing conflict in Palestine and ways to provide assistance, please visit the United Nations Relief and Works Agency website. For University of Denver students needing support, assistance is available through the Counseling Center at 303-871-2205. Additionally, support resources are accessible to all readers through dialing 988.
[1] U.N. Comm. on the Exercise of the Inalienable Rts. of the Palestinian People, History of the Question of Palestine, ¶ 1, https://www.un.org/unispal/history/ (last visited Apr. 23, 2024) [hereinafter Question of Palestine].
[2] Id.
[3] Id. at ¶ 2.
[4] U.N. Comm. on the Exercise of the Inalienable Rts. of the Palestinian People, About the Nakba, https://www.un.org/unispal/about-the-nakba/ (last visited Apr. 23, 2024). [hereinafter About the Nakba].
[5] Question of Palestine, supra note 1, at ¶ 2.
[6] Question of Palestine, supra note 1, at ¶ 5; U.N. Off. for the Coordination of Human. Aff., Occupied Palestinians Territories, https://www.unocha.org/occupied-palestinian-territory (last visited Apr 22, 2024).
[7] Amnesty Int’l, Amnesty International Report 2022/23, at 206-11, AI Index POL 10/5670/2023 (2023).
[8] Id.
[9] Id.
[10] See Illan Pappé, A Brief History of Israel’s Incremental Genocide, in On Palestine 139, 139-46 (2015); Michael Ratner, UN’s Investigation of Israel Should Go Beyond War Crimes to Genocide, The Real News Network (July 27, 2014), https://therealnews.com/mratner0725report.
[11] Pappé, supra note 10.
[12] Ratner, supra note 10.
[13] Convention on the Prevention and Punishment of the Crime of Genocide art. II, Dec. 11, 1948, 78 U.N.T.S. 277.
[14] U.N. Off. on Genocide Prevention and the Responsibility to Protect, Genocide, ¶ 7, https://www.un.org/en/genocideprevention/genocide.shtml (last visited Apr. 21, 2024).
[15] Id. at ¶ 8.
[16] Id.
[17] See Int’l Crim. Trib. for Rwanda, The ICTR in Brief, https://unictr.irmct.org/en/genocide (last visited Apr. 21, 2024); Extraordinary Chambers in the Cts. of Cambodia, About ECCC, https://www.eccc.gov.kh/en/about-eccc (last visited Apr. 18, 2024).
[18]Rwandan Genocide, History, https://www.history.com/topics/africa/rwandan-genocide (May 19, 2023).
[19] Int’l Crim. Trib. for Rwanda, supra note 17.
[20] Extraordinary Chambers in the Cts. of Cambodia, supra note 17; Sopheng Cheang & Grant Peck, Khmer Rouge Tribunal Ends Work After 16 Years, 3 Judgments, Associated Press (Sept. 22, 2022, 4:24 AM) https://apnews.com/article/crime-war-crimes-cambodia-khieu-samphan-government-and-politics-84728829003ab97b6ebe40c8d171bd45?utm_source=copy&utm_medium=share.
[21] Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, Advisory Opinion, Verbatim Record, at 17, ¶¶ 3, 5 (Jan. 11, 2024, 10:00 a.m.), https://www.icj-cij.org/index.php/node/203417.
[22] Id. at 23-29, ¶¶ 9-35.
[23] See id. at 17- 73; Amnesty Int’l, supra note 7.
[24] Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, supra note 21, at 26, ¶ 22.
[25] Aya Batrawy, Gaza’s Death Toll Now Exceeds 30,000. Here’s Why It’s an Incomplete Count, National Public Radio (Feb. 29, 2024, 5:18 AM), https://www.npr.org/2024/02/29/1234159514/gaza-death-toll-30000-palestinians-israel-hamas-war#:~:text=Gaza’s%20health%20ministry%20said%20Thursday,the%20most%20reliable%20one%20available.
[26] Isabel Debre, What is Gaza’s Ministry of Health and How Does It Calculate the War’s Death Toll?, Associated Press (Nov. 6, 2023, 4:14 PM), https://apnews.com/article/israel-hamas-war-gaza-health-ministry-health-death-toll-59470820308b31f1faf73c703400b033.
[27] Press Release, Security Council, As Israel’s Aerial Bombardments Intensify, ‘There Is No Safe Place in Gaza’, Humanitarian Affairs Chief Warns Security Council, U.N. Press Release SC/15564 (Jan. 12, 2024).
[28] Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, supra note 21, at 23, ¶ 22.
[29] Lethal Combination of Hunger and Disease to Lead to More Deaths in Gaza, World Health Organization [WHO] (Dec. 21, 2023) https://www.who.int/news/item/21-12-2023-lethal-combination-of-hunger-and-disease-to-lead-to-more-deaths-in-gaza#:~:text=An%20unprecedented%2093%25%20of%20the,and%20high%20levels%20of%20malnutrition; see IPC Global, Special Brief: The Gaza Strip (Mar. 18, 2024), https://www.ipcinfo.org/fileadmin/user_upload/ipcinfo/docs/IPC_Gaza_Strip_Acute_Food_Insecurity_Feb_July2024_Special_Brief.pdf.
[30] See Lethal Combination of Hunger and Disease to Lead to More Deaths in Gaza, supra note 29; Security Council, supra note 27.
[31] Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, supra note 21, at 29, ¶¶ 31-32.
[32] Id. at 29, ¶¶ 33-35.
[33] Id. at 30, ¶¶ 36-37.
[34] Françoise Bouchet-Saulnier et al., The Practical Guide to Humanitarian Law 172 (3d ed. 2013).
[35] Prosecutor v. Gacumbitsi, Case No. ICTR-01-64, Judgment, ¶ 253 (June 17, 2004).
[36] Prosecutor v. Seromba, Case No. ICTR-01-66, Appeals Judgment, ¶¶ 175-76 (Mar. 12, 2008).
[37] See Amnesty Int’l, supra note 7; Michael Crowley & Edward Wong, Gaza War Turns Spotlight on Long Pipeline of U.S. Weapons to Israel, The New York Times (Apr. 7, 2024), https://www.nytimes.com/2024/04/06/us/politics/israel-us-weapons.html#:~:text=Israel%20has%20purchased%20much%20of,have%20been%20dropped%20in%20Gaza; U.N. Off. for the Coordination of Human. Aff., Data on Casualties, https://www.ochaopt.org/data/casualties (last visited Apr. 19, 2024).
[38] Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, supra note 21, at 31-42, ¶¶ 1-38.
[39] Law for Palestine, Database of Israeli Incitement t Genocide (Jan. 15, 2024), https://law4palestine.org/wp-content/uploads/2024/02/Database-of-Israeli-Incitement-to-Genocide-including-after-ICJ-order-27th-February-2024-.pdf.
[40] Id. at 2.
[41] Id.
[42] Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, supra note 21, at 34-35, ¶ 15.
[43] Law for Palestine, supra note 39.
[44] Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, supra note 21, at 41-42, ¶¶ 36-38.
[45] Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, supra note 21, at 41, ¶ 36; Tia Goldenberg, Harsh Israeli Rhetoric Against Palestinians Becomes Central to South Africa’s Genocide Case, Associated Press (Jan. 18, 2024, 3:55 AM), https://apnews.com/article/israel-palestinians-south-africa-genocide-hate-speech-97a9e4a84a3a6bebeddfb80f8a030724.
[46] Goldenberg, supra note 45.
[47] Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, supra note 21, at 39-41, ¶¶ 32-25.; see Amnesty Int’l, supra note 7, Crowley & Wong, supra note 37; U.N. Off. for the Coordination of Human. Aff., supra note 37.
[48] Convention on the Prevention and Punishment of the Crime of Genocide, supra note 13, at art. VIII;
[49] See Rachel Wilson et al., How Much Aid Gaza Needs to Survive: A Visual Guide, Cable News Network (Jan. 22, 2024, 4:39 PM), https://www.cnn.com/2024/01/22/middleeast/gaza-foreign-aid-dg/index.html; Khalid Mohammed, Desperate to Escape Gaza Carnage, Palestinians Are Forced to Pay Exorbitant Fees to Enter Egypt, Intercept (Mar. 7, 2024, 12:35 PM), https://theintercept.com/2024/03/07/gaza-palestinians-border-crossing-egypt/.
[50] Fadwa Tuqun, Enough for Me, in The Struggle for Sovereignty 230 (Joel Beinin & Rebecca Stein eds., 2006).
