Chapter 5: GENOCIDE UNDER INTERNATIONAL LAW (pp. 85-105)

This chapter lays out the legal definition and elements of the crime of genocide as the framework for the report’s analysis of Israel’s actions in Gaza.

5.1 PROHIBITION (pp. 85-87)

  • Definition and Origin (p. 85): The term “genocide” was coined by Raphael Lemkin to describe the destruction of a nation or ethnic group. The UN General Assembly affirmed it as a crime under international law in 1946. The 1948 Genocide Convention was the first treaty to explicitly define and criminalize genocide.
  • Core Principles (p. 85): Genocide is a crime under international law whether committed in peace or armed conflict. The Genocide Convention and the Rome Statute (establishing the ICC) are the principal treaties. The principles of the Genocide Convention, including its definition, are recognized as customary international law. The prohibition of genocide is a peremptory norm (jus cogens), meaning no derogation is permitted.
  • Responsibility (pp. 86-87): Genocide entails both individual criminal responsibility (for those who commit, conspire, incite, attempt, or are complicit) and state responsibility (when a state organ or attributable person/group commits genocide). States have a duty to prevent and punish genocide. The Rome Statute includes genocide as a crime within the ICC’s jurisdiction. Palestine is a party to the Rome Statute, accepting ICC jurisdiction over alleged crimes in the OPT since 2014.

5.2 DEFINITION (p. 88)

The report quotes Article II of the Genocide Convention, which defines genocide as: “…any of the following acts committed with 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.”

The key distinguishing feature of genocide is the specific intent (dolus specialis) to destroy the protected group, in whole or in part, “as such.” This must be present in addition to the general intent required for each individual underlying act.

5.3 GENOCIDAL ACTS (pp. 89-92)

This section details the actus reus (criminal conduct) elements of genocide, focusing on the three acts most relevant to the report’s analysis of Israel’s actions:

  • (a) Killing members of the group (p. 89): This refers to deliberate or intentional killing. In armed conflict, it can include causing civilian deaths through direct attacks or indiscriminate attacks deliberately directed at the civilian population alongside military objectives. The ICJ has found that an indiscriminate attack not confined to military objectives and also directed at a civilian population constitutes “killings.”
  • (b) Causing serious bodily or mental harm to members of the group (pp. 89-90): The harm must be serious enough to threaten or contribute to the group’s physical or biological destruction. It doesn’t need to be permanent but must cause “grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.” Examples include torture, inhumane treatment, sexual violence, and deportation combined with beatings or threats of death. A lower threshold for “serious bodily or mental harm” has been argued for children.
  • (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part (pp. 91-92): This refers to methods of destruction that are not immediate killing but lead to physical or biological destruction over time. Examples include: subjecting the group to a subsistence diet, reducing essential medical services, systematically expelling them from homes, and creating conditions leading to a “slow death” (e.g., lack of food, water, shelter, sanitation, or excessive physical exertion). Proof of actual destruction is not required, but the “objective probability” of these conditions leading to destruction can be considered. Factors include the actual nature of the conditions, the duration, and the group’s characteristics (e.g., vulnerability of children). Forced displacement, if carried out in circumstances calculated to bring about physical destruction, can fall under this act.

5.4 PALESTINIANS AS A PROTECTED GROUP (pp. 93-96)

  • Protected Groups (p. 93): The Genocide Convention protects “national, ethnical, racial or religious” groups. This list is exhaustive. The definition is based on both objective and subjective criteria, considered case-by-case in its particular context.
  • Palestinians as a Group (pp. 93, 95): The report argues that Palestinians constitute a distinct “national, ethnical, and racial group” under the Convention. They share a common language, similar customs, cultural practices, and deep political, ethnic, social, and cultural ties, regardless of their specific location (Gaza, West Bank, Israel) or legal status (citizen, refugee). The ICJ made a preliminary finding that Palestinians “appear to constitute a distinct ‘national, ethnical, racial or religious group’” (p. 95).
  • “In Part” (pp. 95-96): The intent to destroy a group “in part” is sufficient. International jurisprudence requires the targeted part to be “substantial” – significant enough to impact the group as a whole. A specific numeric threshold isn’t required. Palestinians in Gaza are considered a “substantial part” of the whole Palestinian group (approximately 40% of Palestinians in the OPT in 2023).

5.5 SPECIFIC INTENT (pp. 97-105)

This is the mens rea (mental element) of genocide.

  • 5.5.1 Individual Criminal Responsibility (pp. 98-100): Specific intent requires more than general awareness of consequences; the perpetrator must consciously desire or seek the destruction of the targeted group. This intent is volitional/goal-based. The “destruction” refers to physical or biological destruction, not cultural. Actual destruction is not a prerequisite; the intent is key. The perpetrator doesn’t need to select the most efficient method.
    • Inferring Specific Intent (pp. 99-100): Direct evidence of genocidal intent is rare. Intent can be inferred from facts and circumstances, including: the general context, systematic targeting, scale of atrocities, number of victims, targeting without distinction of age/gender, concealment of evidence, repetition of destructive acts, use of derogatory language, and a general political doctrine. Destruction of cultural/religious property can also be evidence of intent to physically destroy the group.
  • 5.5.2 State Intent (pp. 101-103): Jurisprudence is more limited. The ICJ accepts that state intent can be inferred. However, its rulings on inferring intent (e.g., the “only reasonable inference” test) can be read narrowly.
    • ICJ’s Threshold (p. 102): The ICJ has stated that for a pattern of conduct to evidence genocidal intent, it must be such that it “could only point to the existence of such intent.” This standard has been criticized as too high.
    • State Intent in Armed Conflict (p. 103): Amnesty International argues that the ICJ’s “only reasonable inference” test should be applied to drawing intent from a pattern of conduct only and not when other methods of inference (e.g., scope/severity of conduct) are present. Genocidal intent can coexist with other motives, especially in armed conflict where military objectives are pursued. Genocide can be a means to achieve military objectives.
  • 5.5.3 Approaching Israel’s Intent in Gaza (pp. 104-105): Amnesty International’s approach to assessing Israel’s intent will be:
    • Holistic: Evidence must be approached and considered holistically, based on direct, contextual, and circumstantial evidence, alongside a pattern of conduct.
    • Contextual: The unlawful military occupation, the apartheid system, and the immediate circumstances post-7 October 2023 are crucial context. Hamas’s control and Gaza’s high population density are also relevant.
    • Coexistence with Military Goals: Genocidal intent can coexist with military goals. If military goals automatically preclude genocide, the prohibition would be meaningless in armed conflict.
    • Motive vs. Intent: Various motives (political, personal hatred) do not negate genocidal intent if the intent to destroy the group is clear.
    • Broader Picture: Individual violations, viewed in isolation, might be war crimes or IHRL violations. However, approached holistically and cumulatively, considering the entire offensive and repeated warnings, a “different and much more disturbing picture emerges” which must be analyzed for a determination on genocide.

In summary, this chapter defines genocide, focusing on the prohibited acts (killing, serious harm, inflicting destructive conditions of life) and the specific intent to destroy a protected group (Palestinians in Gaza) “as such,” in whole or in part. It explains how this intent can be inferred, especially in the context of state responsibility and armed conflict, setting the stage for the report’s subsequent analysis of Israel’s actions and intent.