Written by Roupika Goundla
Research Intern, Jindal Centre for the Global South, O.P. Jindal Global University, India
B.B.A. LLB (Hons) (2022-2027), Jindal Global Law School, O.P. Jindal Global University
Email- 22jgls-rgoundla@jgu.edu.in
History of War
In 1882, European nationalism and anti-Semitism were rising, which set the stage for a movement where the Jewish community sought to establish an ethno-nation, rooted in racial purity. It began with the emergence of Zionism, an ideological movement that utilized Judaism to encourage the world’s Jewry to return to the land of Zion (Nijim, 2022). By answering the calls of Zionism, jews migrated to Palestine to execute the ethno-nation model with a Jewish-only society. The process of de-Arabization, called toponomycide, was initiated as stated by Palestinian historian Nur Masalha (Nijim, 2022). The ideology of Zionism in the supremacy of one group formed the basis for the logic of elimination of Arabs, as stated by Zionist leaders such as Theodor Herzl, who said, ‘If I wish to substitute a new building for an old one, I must demolish before I construct’ (Nijim, 2022).
In 2007, Hamas took control of Gaza, leading to an Israeli-imposed blockade that remains in place (Ihl Annual Report, 2024). Thereafter, Israel continued its military operations in Gaza till 2021, which led to periodic escalations. A major escalation took place on October 7, 2023, when Hamas and other Palestinian armed groups launched attacks on Israel, resulting in the deaths of millions of Israel’s citizens, which prompted the ongoing Israeli military retaliations.
The Israeli government counterattacked with extensive air strikes on the civilian population, resulting in the deaths of around a million people in Gaza. They continuously bombarded Gaza with massive rockets and mortars onto villages, towns and cities, which turned Gaza into an “open-air prison” for the Palestinians (Nijim, 2022). This extensive utilization of explosions on the civilian population sparked an exhaustive debate regarding the disproportionate means of warfare. Though initially there was no such question of genocide, after the later turn of events, states started to deliberate on whether Israel is committing genocide under the guise of self-defense. Viewed through a settler-colonial lens rooted in a consistent ethno-nationalist framework, Israel’s actions though framed as legitimate self-defense against armed group, reveals patterns of disproportionate force and the systematic destruction of Palestinian life and infrastructure. These actions align more closely with the elements of genocide under international law, thereby raising questions of accountability, state responsibility, and the effectiveness of international institutions.
Defining Genocide
In 1946, the United Nations General Assembly recognized genocide as a crime under international crime and was codified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. It is defined under Article II of Genocide Convention and Article 6 of Rome Statute which were considered to be reflecting customary international law by International Court of Justice in case of Bosnia v Serbia (William, 2016). It is defined as “intent to destroy a national, ethnic, racial, or religious group involving physical acts like killing, harming, or imposing harsh life conditions or forcibly preventing births or moving children are part of it” (UN, n.d.). The crime of genocide is stated as different from other crimes under Rome Statue due to the requirement of specific intent to destroy or dolus specialis. It is necessary to establish the genocidal intent, that there must be a specific or double intent to annihilate a specific group.
In Prosecutor v. Krstić case, the International Criminal Tribunal for the former Yugoslavia, (ICTY) asserted that genocidal intent could be inferred from the circumstances surrounding the Srebrenica massacre, where over 7,000 – 8000 Bosnian Muslim men and boys were systematically killed (Southwick, 2005). Also, their findings established that the scale and systematic nature of the crimes indicate an intent to destroy the group, demonstrating how contextual evidence can be used to prove intent (Mansfield, 2024). Generally, a state policy or genocidal plan is interpreted as necessary to establish the crime of genocide. However, the ICTY Appeals Chamber in the Jelisic case asserted that state policy or genocidal plan is not a legal ingredient of crime, but it holds substantial evidentiary value to establish the crime of genocide (Mansfield, 2024). There’s an ongoing debate on the issue of whether state policy is a requirement for proving genocide. However, many scholars, such as Dr. Paola Gaeta and the ICJ, have taken a flexible approach to proving the crime of genocide (Mansfield, 2024).
Elements of the Genocide Convention
(i) Article II(a): Brutal Aerial Assault
Israel’s military relentlessly bombed the Palestinians in Gaza. They had no place left to hide themselves from the continuous shelling. They were killed in their homes, in places where they seek shelter, in hospitals, in schools, in mosques, in churches and as they try to find food and water for their families (South Africa v. Israel, 2025). As the UN Secretary-General explained, the level of Israel’s killing is so extensive that “nowhere is safe in Gaza” (South Africa v. Israel, 2025). Even the designated ‘safe routes’ were subjected to nonstop aerial attacks. The dead bodies of civilians were left stranded on the road. Israel killed millions of civilians with complete knowledge of the same.
Article II(a) of the Genocide Convention categorizes “Killing members of the group” as acts of genocide. The above acts committed by Israel firmly fall under the category of Article II(a). It is evident violation as they turned the land of Gaza as a ‘graveyard for Palestinians’.
(ii) Article II(b): Mental and Bodily Harm
The ‘snuff films’ uploaded by Israel’s soldiers undoubtedly demonstrate the bodily injury caused to Palestinian civilians (South Africa v. Israel, 2025). Everyone, including children, was made to undress with blindfolds and were loaded as cattle in trucks to unleash further damage to them (South Africa v. Israel, 2025). All these horrendous acts can be categorized as genocide acts under Article II(b).
(iii) Article II (c): Systematic Displacement and Forced Starvation
Israel passed an order for the Palestinian civilians to evacuate from north to south in 24 hours, which can itself be considered as genocidal (South Africa v. Israel, 2025). It required immediate movement, taking only what could be carried, while no humanitarian assistance was permitted, and fuel, water, food and other necessities of life had been deliberately cut off. It was clearly calculated to bring about the destruction of the population (South Africa v. Israel, 2025). It is explicit from Israel’s conduct that they left no home for these civilians to ever come back, and everything built was razed to the ground, leading to forced displacement.
Israel persistently rejected humanitarian assistance and destroyed all the infrastructure for effective delivery of food, clothes or medicines. They impeded any attempts to deliver humanitarian assistance by constant bombardment and obstruction. This also prompted the WHO to say: “We are on our knees asking for sustained, scaled up, protected humanitarian operations”, appealing “to all those in a situation to make a decision or influence decision makers, to give us the humanitarian space to address this human catastrophe” (UN News, 2023). But still, Israel deliberately denied any assistance and let them starve to death under extreme temperatures. They disregarded the plight of these civilians for adequate shelter, clothes or sanitation. For days, there were acute shortages of clothes, bedding and critical non-food items. These actions of forced displacement and causing “humanitarian catastrophe-tsunami” in Gaza can be acknowledged as ‘slow genocidal policies’ employed by Israel (Sahara, 2024).
(iv) Article II(d): Women and Children as Targets
The United Nations Special Rapporteur on violence against women and girls has pointed to acts committed by Israel that would fall under the fourth category of genocidal acts of the Convention (South Africa v. Israel, 2025). They inflicted harm primarily on children and women which can be categorized as reproductive violence. They blocked the delivery of life-saving aid, including essential medical kits for delivering babies. They denied any medical assistance for pregnant women and left them to die while giving birth. This infliction of reproductive violence emphasises the intention of Israel to commit genocide by eradicating any future generations of Palestinians (South Africa v. Israel, 2025).
Rhetoric of Israel’s officials
Mr. Benjamin Netanyahu, prime minister of Israel, in a letter to the Israeli armed forces addressed that “remember what Amalek has done to you”, which refers to biblical command by God to Saul for the retaliatory destruction of an entire group of people known as the Amalekites: “Put to death men and women, children and infants, cattle and sheep, camels and donkeys” (South Africa v. Israel, 2025). The Israel’s leaders and military officials repeatedly employed statements such as “Hamas are the new Nazis”, “The residents of Gaza are celebrating Hamas. Human animals must be treated as such. You wanted hell, you will get hell” and “Gaza will never return to what it was” (South Africa v. Israel, 2025). These remarks point towards the genocidal intent of them to cause unparalleled and unprecedented injury to Palestinians and makes evident the systematic dehumanization.
This conviction intensified when Israeli President, Isaac Herzog asserted that, “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 (South Africa v. Israel, 2025)”. These statements establish the intent of Israel to create conditions of death for the Palestinians by not distinguishing between militants and civilians in Gaza. The speech of these leaders in describing Palestinians as ‘human animals’, ‘enemy’, ‘nazis’ and equating Hamas with the civilian population makes it clearly evident the genocidal invocation to eradicate the entire population in Gaza. They suggest that the Israeli leadership had conceived the idea to impose inhumane conditions on the entire population in Gaza (Sahara, 2024).
As justification, Mr. Netanyahu has adopted a rhetoric of self-defense by stating that Israel is the ‘most moral army in the world’ and Hamas as ‘absolute evil’. He attempted to justify such a sophism by employing moral infusing discourses such as “We defend the right of Israel existing, of defending itself and its security for its people” (Sahara, 2024). He has emphasized that Israel’s actions are not reprisals but legitimate measures of self-defense, framing them as essential for safeguarding the state’s right to exist and ensuring the security of its people. However, this justification invites critical examination. Can the infliction of disproportionate harm on a civilian population, including individuals with no direct ties to Hamas, be reconciled with the legal and ethical boundaries of self-defense? More broadly, to what extent can an entire population be held collectively accountable for the actions of an armed group?
Conduct of Israel’s Soldiers
The actions of Israel’s soldiers during their attack in Gaza is utterly appalling. They were witnessed dancing, chanting and making ‘snuff videos’ of destructions caused by them. It became a trend among the soldiers to film themselves committing atrocities against civilians in Gaza, in a form of “snuff” video (South Africa v. Israel, 2025). They uploaded videos of themselves disrupting houses, humiliating women by wearing their clothes, which were also trending on social media. Even the civilians of Israel started posting videos ridiculing the suffering of Palestinians. They were singing songs, “May their village burn; may Gaza be erased.” Some soldiers recorded themselves singing: “We will destroy all of Khan Younes and this house”; “we will blow it up for you and for everything you do for us” (South Africa v. Israel, 2025). Such behavior was also well-received by the commanders of the army as they were of similar mind. Mr. Ezra Yachin, a veteran of the Deir Yassin massacre against the Palestinians gushed out “Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live…. Let them drop bombs on them and erase them” (South Africa v. Israel, 2025).
This kind of behaviour, which was acceptable as the theme of Israel’s State policy, was the destruction of human animals (Palestinians). As it can be seen, it is historic first, that soldiers of a nation’s army are recording themselves committing crimes against humanity. Such acceptance of violations of international law was non-existent even in the infamous Nama or Bosnian genocides. Here, it is pertinent to question the integrity of these soldiers and the moral discourses of their commanders.
Conclusion
The legal framework defining genocide is such that it creates the difficulty of establishing genocide. The legal necessity of proving specific intent is problematic due to its subjective nature. A more flexible as adopted by ICJ is required to categorize acts under Genocide Convention. The Israeli – Palestinian issue is a matter that extends beyond military conflicts and territorial claims, possessing deep social, cultural, and psychological dynamics (Arı, 2024). Though it is claimed that it is not a genocide, it firmly evident from above that it is a ‘incremental genocide’ and violation of principle of distinction, forming core concept of International Humanitarian law. Resolving the Israeli – Palestinian conflict is not only a political issue but also one that awaits resolution of deep social and psychological dynamics (Arı, 2024).
References
Andrew Scott Mansfield. (2024). Genocide: Definitional Challenges and the Duality of Responsibility | Further Thoughts on Hague Academy Course by Dr. Paola Gaeta. Retrieved from https://www.linkedin.com/pulse/genocide-definitional-challenges-duality-further-hague-mansfield-8peuf/.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), International Criminal Court of Justice, https://www.icj-cij.org/sites/default/files/case-related/192/192-20240111-ora-01-00-bi.pdf , 23 – 39.
(n.d.). Definitions of Genocide and Related Crimes. Retrieved from United Nations https://www.un.org/en/genocide-prevention/definition#:~:text=Genocide%20is%20defined%20in%20the%20same%20terms,statutes%20of%20other%20international%20and%20hybrid%20jurisdictions.&text=To%20constitute%20genocide%2C%20there%20must%20be%20a,a%20national%2C%20ethnical%2C%20racial%20or%20religious%20group.
(2023). Ihl In Focus: Annual Report, Assessing Compliance In Contemporary Armed Conflicts (July 2023 – June 2024) https://www.geneva-academy.ch/joomlatools-files/docman-files/IHL%20in%20Focus%20Annual%20Report%2023-24.pdf.
(2023). Israel-Palestine: Gaza buckles under fuel shortage, healthcare in crisis. Retrieved from UN News https://news.un.org/en/story/2023/10/1142732.
Nijim, M. (2022). Genocide in Palestine: Gaza as a case study. The International Journal of Human Rights. Retrieved from https://doi.org/10.1080/13642987.2022.2065261
Schabas, William A. (2016). ‘Genocide/Crime de génocide’. The International Criminal Court: A Commentary on the Rome Statute, Oxford Commentaries on International Law https://doi.org/10.1093/law/9780198739777.003.0008.
Southwick. (2005). Srebrenica as Genocide? The Krstić Decision and the Language of the Unspeakable. University of Texas at Dallas, https://personal.utdallas.edu/~mjleaf/southwickGenocide.pdf.
Tetsuya Sahara (2024). The Israeli War on Gaza from a Comparative Genocide Studies Perspective. History of Global Arms Transfer, 51-79. Y. Arı (2024). The Overlooked Destruction: A History of Israel’s State-Sponsored Terror and Genocide Tragedy. ULUSLARARASI DORLİON AKADEMİK SOSYAL ARAŞTIRMALAR DERGİSİ (DASAD), 287-315
The opinions expressed in this article are those of the author (s). They do not purport to reflect the opinions or views of the Jindal Centre for the Global South or its members.
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